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e0bdb49b-74c8-4036-9577-fc1ef5187fa3 | Onaka v. Onaka | hawaii | Hawaii Supreme Court | IN THE SUPREME COURT OF THE STATE OF HAWAT'T
=--000:
Plaintiff-Appellee,
CLARENCE S$, ONAKA,
ALLYSON L, ONAKA, Defendant-Appellant.
No. 24463
MOTION FOR RECONSIDERATION
(EC-D NO. 96-0411)
SEPTEMBER 20, 2006
NAKAYAMA, ACOBR, AND DUFFY, JJ.
MOON, C.J., LEVINSON,
OPINION OF THE COURT BY NAKAYAMA, J.
Defendant-Appellant Allyson L. Onaka’s motion for
2006, is
reconsideration of the opinion filed on August 29,
hereby denied.
Terry L. Day for
defendant-appel lant
Allyson L. Onaka
fon the motion te Wrisn
|
dc5e1c70-59ec-4648-ba35-50f215258480 | Cambra v. Maui Pineapple Company, Ltd. | hawaii | Hawaii Supreme Court | Wo. 25932
2
3
BARBARA J. CAMBRA, Claimant-Respondent,
Lv
a
WZ -O1HY
MAUI PINEAPPLE COMPANY, LTD., Employer-Petitioner, Self-Insure
and
SEABURY HALL,
and
HIM AMERICAN INSURANCE COMPANY OF HAWAII, INC.,
Employer /Insurance Carrie-Respondent.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CASE NOS. AB 2001-369), 7-€9-00854, 7-00-02932)
‘ORDER DISMISSING APPLICATION
w cE
(By: Levinson, J, for the court’)
It appearing that the judgment on appeal in the above-
referenced matter has not been entered by the Intermediate Court
of Appeals, see Hawai'i Revised Statutes § 602-59(a), as amended
by Act 149 of the 2006 Hawai'i Session Laws; gee also Hawai'i
Rules of Appellate Procedure (HRAP) Rule 36(b) (1) (2006),
IT IS HEREBY ORDERED that employer-petitioner, self-
insured Maui Pineapple Company, Ltd.'s application for certiorari,
fled September &, 2006, is dismissed without prejudice to re-
filing the application pursuant to HRAP Rule 40.1(a) ("No later
2 court: Moon, C.J-, Levinson, Nakayama, Acoba, and Duffy, 09,
qawd
than 90 days after the filing of the intermediate court of
appeals’ judgment on appeal or dismis:
1 order, any party may
apply in writing to the supreme court for a writ of certiorari.”).
DATED: Honolulu, Hawai'i, September 11, 2006.
Darlene Y.F. Itomura
of Wong & Oshima, for
Employer-Petitioner, Self-
Insured Maui Pineapple
Company, Ltd.
FOR THE COURT:
STEVEN H. LEVINS
Associate Justica
FER
|
1fe1b8e4-2fad-49e4-96b5-a307b747cd55 | Dias v. Stender | hawaii | Hawaii Supreme Court | *** NOT_FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ™"
no. 25763
IN THE SUPREME COURT OF THE STATE OF HAWA'T
—
FRANCIS §. DIAS, JR., Plaintiff-appeliant; 8
OSWALD STENDER, Defendant-Appellee, 5
and 8
JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; DOE
PARTNERSHIPS 1-107 DOE NON-PROFIT ENTITIES 1-10; and DOE
GOVERNMENTAL ENTITIES 1-10, Defendants.
APPEAL FROM THE FIRST CIRCUIT COURT
(civ. NO. 02-1-0091)
(By: Moon, ¢.9., Levinson, Nakayama, Neobe, and Duffy, 33.)
Plainti¢¢-Appediant Francis 8. Dias, Je. ("048s")
sppeais fron the Judgnent of the Circuit Court of the First
circuit? (“circuit court”) filed on March 10, 2002, following the
arant of summary judgnent in favor of Defendant-Appellee Oswald
Stender ("Stender").
on appeal, Dias argues thet: (1) the cizouit court
exred in granting summary judgnent due to the existence of
genuine issues of material fact as to whether (a) Dias had
accumulated medicel-rehabilitative expenses tor his 1997 motor
vehicle accident injuries in excess of $13,900 as required by
Hawas'i Revised Statutes ("HRS") § 431:10C-306(b) (2) (1993)? and
‘The Honorable Eden Elizabeth Hifo presided.
rs § ¢31:200~306 (198
+ in ef
appeal, provides in pertinest pare
lot at the tine of the instant
(a) Except ae provided in subsection (b), this art
belie
act
‘** NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER **
Hawai'i Administrative Rules ("HAR") § 16-23-10 (1999),° and (b)
tort Liability of the following persons with respect to accidental
ham arising Zeon acter venicie accidents occurring in this steve:
(1) omer, operator or user of an insured motor vehicle
(o)_ Tort lability ie not abolished as to the following persons,
their personal representatives, or their legal guardians in the
following circumstances
ae.
(8) Injury occurs to such person which consists, in
whole or in part, in a significant permanent less of
Use of a part or function of the body.
(2) Inu »
accident in which the amount caid of accrued exceeds the
edisel-pengb: licative Jamit established in section
‘G110C= 208 tor expenses provided in section
GROG TOTS end (Ss rovided that the excenses paid
‘shall be presumed tc be ceascnable and necessary in
Seteblishing the medicals cr a
(Emphases added.) HRS § ¢31:10C-308 (2993) and HRS $ 431:10C-103(10) (Supp
1995) are izrelevant in the present appeal, inasmuch as the first statute
nerely sets forth policies and procedures for the insurance commissioner to
Seploy in annually revising the meaical-renabilitative expenses threshold, and
the second statute merely defines “(nJo-fault benefits” (it is undisputed in
the present appeal that the expenses in question are no-fault benefits)
23-10 (1999) provides in pertinent part:
WAR § 3
[a)_ The nedicel-rehabsiitetive limit established for the purpose
of prescribing the rort threshold limit pursuant to section
431110c-306(bi (2), HRS, ie repealed on January 1, 1998 by 1937
Sik, Act 281. Ie does not preciude the person from receiving
no-fault nedical-rehabilitetive benefits in excess of the amount,
Eubject te the no-fault benefite aggregate Limit of $20,000, for
policies effective prior to January 1, 1998
(b)_ The medicel-renabilitetive linite estebliched for previous
years shall continue to renain in full force and effect, and shall
Ee applicable co claims for tort recovery for secidental harm
sustained in those respective years. The medicsl-rehabilitative
Tinie set forth in subsection (b) shall not apply to accidental
harm eusteines prier to ite effective date.
(c) The megicel-renabilitetive limite for previous years ar
eontinced.
++ NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER,
Dias had suffered 2 “significant pezmanent loss of use of a part
or function of the body under HRS § 431:10C~306(b) (1) (B),* such
that in either case Dias had overcome the general abolition
and (2) the
against tort liability in motor vehicle accidents,
circuit court erred in denying Dias’ motion for reconsideration
as to the grant of sunmary judgment, in that new evidence
presented within the motion met two of the specific exceptions to
the general abolition of motor vehicle tort liability, namely (a)
the $13,900 medical-rehabilitative expenses threshold set forth
(0c-306(b) (2) and HAR § 16-23-10 (c), and (b) the
in HRS § 43)
“significant pezmanent loss of use of @ part or function of the
0¢~306(b) (2) (8).
upon carefully reviewing the record and the briefs
body” exception set forth in HRS § 43:
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we hold as follows:
(2) Diast first argunent has merit. In supporting his
motion for sunmary judgment, Stender attached s declaration fron
Diane Lun ("Lun"), an employee of ACS Healthcare Solutions
(AaCS"), the claims administrator for the State of Hawai'i
Department of Human Services ("DHS"), and a “medical recap sheet”
from ACE showing that both accrued medical bills and actual DS
payments were below the $13,900 threshold. In opposing summary
>(.,-continved)
$14,200 for accidents betusen Seotenber 1, 1297 = Decanter 3
ist
[Bxphasie added.)
‘$28 sumza note 2.
[NOT FOR PUBLICATION IN WEST'S HAWAII REFORTS AND PACIFIC REPORTER ***
judgment, Dias attached @ “counter-declaration” from Lun and an
updated medical recap sheet from ACS which stated that $14,497.10
in medical expenses had been incurred, although only # small
portion of those expenses had been paid by DHS. The updated
medical recap sheet contained additional medical billings and OHS
Payments, and no medical billing was more recent than any on the
“old version” of the recap sheet. When viewing the evidence in
the most favorable light to Dias, there exists a genuine issue of
material fact as to whether the $13,900 medical-rehabilitative
expense threshold was reached, inasmuch the amount of Dias’
medical bills was in excess of that threshold. In’ Cochran va
Pfluecer Autos., Inc., 72 Haw. 460, 621 P.2d 934 (1991), this
court addressed this “amount of medical expenses billed versus
amount paid by DHS” situation in the context of HRS § 294-6
(1985),* the predecessor statute to HRS § 431:10C-306(b) (2).
Therein, this court noted that plaintiff-appellant had incurred
medical bills in excess of $3,000.00, which was the medical-
rehabilitative expense threshold at the time, although only
$2,289.65 in DHS benefits had actually been paid, such that she
* tow-repeaied HRS § 296-6 (abolition of tort liability), which wes
recodified af HRS § ¢3110C-306 (gag 1967 Haw. Sees. Lae Act 341, $°2 at i67~
66), reads in pertinent part
Tort l4ability of the owner . . . of an insured motor vehicle
is ebolishes, except... 26 the following circumstances
(2) Injury eccure to euch person in a motor vehicle
accident in which the ancunt paid or accrued exceeds the
Recicsl-rehabilstative limit . .. provided that the
‘expenses paid shall be preatned to be ree:
Becessary'in establishing the mesicel-rehs
[NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
had met the exception to the general abolition of tort liability:
initially, we conclude that (plaintiff-appellant] reached the
Rs § 284-e(a)(2)), threshold when her medical bills exceeded
$51000.00 despite the fact that DNS ultimately paid a lesser
ancunt, Since HAS § 294-36(b) is 2 remedial statute cimes
at putting welfare recipients on an equal footing with other
Sccldent victine, we will not penalize poblic assistance payments
Because ONE pays lesser ancunte in payment to health care
provigers. pares se sb
testo shat oa or
= a
‘Sitimately ceva esaer ue
See Cochran, 72 Haw. at 461-63, 821 P.2d at 935-936 (emphasis
added). The same analysis controls the instant appeal.
Stender’s citation of How. Leftwich, 88 Hawai'i 251,
965 P.2d 793 (1998) in support of its contention that Dias was
required to present expert testinony proving that the unpaid
portion of the his unpaid medical expenses were “reasonable and
necessary” is inapposite. Leftwich involved 2 plaintiff-
appellant injured in a motor vehicle accident who appealed fron a
directed verdict in favor of defendant-appellee at the end of
trial. ig., 86 Hawai'l at 255, 965 P.26 at 798 (emphasis added).
‘The trial court granted a directed verdict because, in its words,
“there hasn‘t been sufficient evidence produced to the jury” that
the “{medical] expenses [claimed] were reasonably incurred” in
excess of the medical-rehabilitative expense threshold. See
dd (enphasis added). This court ultimately held, inter alia, that
in the absence of any “expert testimony establishing that the
[unpaid] expenses were reasonable and necessary|(,]”" the
«this court ultinately held pleintiff-appeliant's claim to be tine-
borred, however. fae dd; 12 Haw, at 464, 821 F.2d at 336, HRS § 294-36 vas
Peceditied se ARS $ €3110C-315. See i0., 72 Haw, at 464 0.2, 621 P.2d at 934
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
plaintift-appellant could not meet the medicel-rehabilitative
expense threshold under HRS § 431:10C-306. See ig. at 259-60,
965 P.2d at 801-02.
Weftuich is readily distinguishable for two reasons.
First, in Leftwich, the matter had already proceeded to trial,
and the plaintiff-appellant had already fully presented her case
and evidence, See id. 88 Hawai'i at 254, 965 P.2d at 796.
Second, and more importantly, on a motion for summary judgment,
~ . .
non-mevind party, In other words, we must view al] of the
Suidence and the inferences drawn therefrom in the light most
Thronas, 107 Hawai'i 48, 56, 108 P.3d 689, 697 (2005) (emphasis
added) (citations omitted) (brackets in original). In other
words, Stender confuses the less stringent burden of production
that Dias must carry in resisting summary judgment with the more
stringent burden of proof thet Dias must carry in order to
prevail at tril. lihen viewing the updated medical recap sheet
in a Light most favorable to Dias, it can certainly be inferred
that Dias accrued allowable, albeit unpaid, medical-
rehabilitative expenses in excess of $13,900, such that his
claims must be allowed to proceed under the principles set forth
in Cochran. Thus, we hold that the circuit court erred in
Granting summary judgment for Stender.
(2) Because we hold that the circuit court erred in
Granting summary judgment for Stender due to the existence of a
‘++ NOT_FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
genuine issue of material fact as to whether Dias had accumulated
nedical-rehabilitative expenses for his 1997 motor vehicle
accident injuries in excess of $13,900 as required by HRS §
431:10C-306(b) (2) (1993) and HAR § 16-23-10, we need not address
Dias’ remaining arguments.
Therefore,
17 19 MERESY ORDERED that the judgment of the circuit
court is vacsted, and that the case be remanded to the circuit
court for further proceedings.
DRTED: Honolulu, Hawai'i, October 11, 2006.
on the briefs: re
Tan L. Mattoch, and
Jonathan §. Kuba, (of Law Be Phornen—
Offices of Ian L. Nattoch)
for Plaintiff-appellant
. patient Pe ON are
Francis S. Dias,
Jonathan L. Ortiz, Wade J
Katano, and Allison M. G ~
Fujita, (of Ortiz & Katano}
for Defendant~Appellee Conon €. Buses be
Oswald Stender
|
51cf5a81-c63c-4228-a9b2-793041a9d326 | In re Guardianship of Carlsmith. S.Ct. Order of Amendment, filed 01/24/2007 [pdf]. S.Ct. Motion for Reconsideration, filed 01/25/2007 [pdf]. | hawaii | Hawaii Supreme Court | LAW UGH.
*#0FOR PUBLICATION 19 WEST'S WAMAI'I REPORTS AND PACIFIC REPORTERS
IN THE SUPREME COURT OF THE STATE OF HAWAT'I
000.
IN THE MATTER
oF
‘THE GUARDIANSHIP OF
Gans
No. 27569
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-G No.03-1-0350)
ocToBeR 18, 2006.
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, “AND DUFFY, gg.
2 1B cot
We hold, in this appeal by Respondents-Appellants Edith
M. Carlsmith (Edith) and Carl Duane Carlemith (Duane)
[collectively Respondents], from the September 26, 2005 order
granting in part and denying in part the motion of Petitioner-
Appellee Cynthia Carlsmith-Crespi (Cynthia) for attorney's fees
and sanctions (order) of the family court of the first circuit
(the court), and its September 26, 2005 judgment (judgment),
which (a) sanctioned Edith to pay attorneys fees and expenses for
+ the Honorable Karen M. Radius presided over this matter
-FOR PUBLICATION IN WEST'S HAMAI'T REFORTS AND PACIFIC REPORTERS+®
failure to make discovery? pursuant to Hawai'i Family Court Rules
(HECR) Rule 37 (2006), (b) precluded Edith and Duane from
presenting evidence to establish Edith’s alleged capacity until
she submits to an independent medical examination (IME),
{c) ordered Timothy Luria (Luria), as the duly-appointed
temporary guardian ad litem (TAL), to submit to the court nanes
of Licensed attorneys in the Republic of Panama who were
competent and willing to serve as Guardian of the Person over
Edith, and (d) denied Cynthia’s motion for sanctions to the
mich as the September 26, 2005 order and judgnent of the
he first cirevit (the court) ordered the payment of
Attorney's fees and expenses as sanctions, the matter of sanctions is
Immediately sppesiabie. See In re Adan, 109 Hawai't $07, 516, 100 P.36 77, 86
(app. 2004) {ercer and judgment sanctioning party to pay sttcrney's fees end
Gots in an unfinished guardianship proceeding Were immediately appealable) «
> Hawat"t Family Court Rules (MFCR) Rule 37 (2006), entities
“railure to aske discovery; sanctions," mandates the inpocition of sanctions
and award of reasonable expenses and attorney's fees, in pertinent part, se
follow
(b) Fasiure to comply with order.
2) SaliCTTONS BY COURT IN WHICH ACTION IS PENDING. rf
a party.
fails to obey an order to provice or permit
‘Court in whieh the action is pending
In regard to the faliure
3nd among others the following:
(Ai An order that the matters reaarding which the
order ah othe
for the purposes of the action in.
Secordance with the claim of the party obtaining the order;
it} here a party has failed to comply with an order
under Sule 35a] fequizing that party to produce enother for
Suamination, such orders aa are Listed in parearaph (Al,
4BL(C) of this subdivision, unless the party failing to
‘Gombly_showa_that the party {2 unable to produce such person
for sxamination.
In lieu of any of the foregoing orders or in addition
thereto, the court ghsll require the perty failing to-ebey
the teasotable expenses, Including attorney's feet, caused
by the failure, unless the court finds thet the feilure was
substantially tustitied of that circusstances sake an suard
of expenses uniuse
(emphases added.)
s++POR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERS
extent that it requested all pleadings, declarations, and
evidence submitted by Edith and/or Duane, be stricken,‘ that
(2) the TRO herein is not void inasmuch as (a) the guardianship
proceeding in the instant matter was properly initiated, (b) the
TRO was accompanied by an appropriate action for further relief,
(c) Respondents waived any objection to the sufficiency of
service of the guardianship petition and TRO, and (a) the court
had subject matter Jurisdiction to issue a TRO in relation to a
guardianship matter: (2) sufficient evidence exists to support
the issuance of a TRO; (3) no error exists as to the retention of
a TGAL; (4) no error exists with respect to the court’s
Decenber 22, 2005 findings of fact (findings) and conclusions of
Jaw (conclusions); and (5) no reversible error exists as to the
court's Novenber 26, 2003 finding no. 4 that “[Edith) was served
with the (guardianship pletition through her Hawaii attorneys”
inasmich as Edith waived any objections to any defect in the
manner in which she was served. Accordingly, we affirm the
court's September 26, 2005 order and judgment, and renand this
case for further proceedings consistent with this opinion.
I.
The following is gleaned from the record and the
parties’ briefs. Edith is 100 years old and currently a resident
of the Republic of Panama. Edith has a son, Duane, who also
Lives in Panama, and a daughter, Edith Gayle Carlsmith (Gayle).
+ petitioner-Appellee Cynthie Carlemith-Crespi (Cynthia) does not
appeal from this portion of the court's order.
3
'+FOR PUBLICATION IN WEST'S HAWAI'T REFORTS AND PACIFIC REPORTER
Edith has two granddaughters, Annaliese Carlsmith (Annaliese),
who lives in southern California, and Cynthia, @ resident of the
island of Hawai'i, both of whom are Duane’s daughters.
Prior to her relocation to Panama sometime in November
2003, Edith lived in San Rafael, California at # retirenent
condominium community called Smith Ranch. Sometime in February
2003, Edith designated Annaliese and Cynthia as her agents in her
Advanced Health Care Directive to make treatment decisions on he!
behalf if necessary. Subsequent to that, Edith claims in her
opening brief that Annaliese asked her if she could borrow
$200,000 to buy @ house closer to Edith’s residence, but Edith
refused. In June 2003, Edith suffered a mild stroke and was
hospitalized. Following her hospitalization, she returned to her
home in California. duane later moved to Smith Ranch from Panama
to stay with Edith. A caregiver, Linda Manyisha (Linda), was
engaged to care for Edith. In August 2003, Duane also hired
Beverley Shungu-Omba (Beverley) to care for Edith.
Sometime in late Septenber or early October 2003,
Annaliese and Cynthia were contacted by Linda and Beverley, who
expressed their concern about Duane’s alleged plan to take Edith
with him to Panama, as well as for Edith's well-being. According
to Cynthia in her answering brief, it was related to her that
Duane took a number of steps to isolate Edith from her family,
including (1) removing Edith’s telephone from her bedroom despite
her desire to keep it there so she could remain in contact with
cynthia and other relatives, (2) berating other members of the
4
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERY+#
Carlsmith family, and (3) instructing Edith not to talk to Gayle,
Anneliese, or Cynthia.’ In addition, Cynthia avers that Duane
failed to care for Edith despite her having bruises, and that he
cancelled Edith’s appointments with her physical therapist,
massage therapist, and speech therapist until the bruises were
gone. Because of Linda’s and Beverley’s concerns, Annaliese and
cynthia contacted the police and the California Department of
Social Services (CDSS). After investigating the concerns brought
to their attention, the police and the CDSS declined to
intervene, apparently finding no abuse.
on October 8, 2003, Edith and Duane flew to Honolulu in
order to inter the ashes of her son, Donn, to consult with her
estate attorney, and to arrange for the donation of some of her
art objects. During this time, Respondents state that an
evaluation was performed to determine Edith’ s competency to
handle her estate affairs. the evaluation reported, inter alia,
that Edith had “hearing and visual difficulties that probably
Limit her communication skills but not her mental skills.”
on October 22, 2003, Cynthia filed a Petition for
Appointment of Guardian of the Person of an Incapacitated Person
with the court (the guardianship petition). It stated that Edith
was an “adult currently within the jurisdiction of t{he family
5 As noted, intya, the affidavite of Linds and Beverly support
cymthia's assertions against Dua
«According to RespondentsAppellant's Carl Ousne Carlenith (Duane)
ang Edith Carlssith (Edith), the braises were causes by aggrenos, blocs
thinner prescribed for Edith, which causes patients to bruise eaaily “by just
siteing dow e little herd, or even just coughing.”
5
+++70R PUBLICATION IN MEST'S HAWAI'S REFORTS AND PACIFIC REPORTER*#*
clourt” with “no current address.” The guardianship petition
alleged that the appointment of a guardian was necessary “because
[Edith] is incapable of making responsible decisions concerning
herself and her affairs." The guardianship petition added that
“(t]he degree of her incapacity cannot be assessed at this tine
because she has been isolated from her family members by . . «
Duane, who has deprived her of telephone use, prevented fanily
menbers from seeing her, and has renoved her from her hone with
the intent to move her to Penama, where Duane resides.” The
guardianship petition requested that the court find that Edith is
an incepacitated person 2s defined in Hawai'i Revised statutes
(Rs) § 560:5-102(2) (1993)” and that the appointment of a
guardian is necessary in order to provide continuing care and
supervision of Edith.
An Ex Parte Petition for [TRO] and Immediate
Appointment of Guardian (TRO petition) was also filed. Attached
to the TRO petition were affidavits of Cynthia, Linda, Beverley,
hawai's Revised Statutes (HRS) § 560:5-101(2) (1983) defined
“incapacitated person” ae
any person who is impaired by reason of mental illness,
nentel deficiency, physical illness or disability, advanced
‘chronic use of drugs, chronic intoxication, or other
Cause (except minority) to the extent that the person lacks
sufficient understanding or capacity to make or communicate
Fesponsible decisions concerning one's person[.]
RS § $60:5-102 (Supp. 2005} redefines “incapacitated person” as
fan individual who, for reasons other than being a minor, is
Unable to receive and evaluate information oF make oF
Communicate declesons to such an extent that. the individual
Sacks the ability to meet essentisi requirenents for
physical health, safety, or self-care, even with appropriate
End reasonably aveilabie technological sseistance.
haw, Sees. 1. Act 161, part of § 1, at 665
6
FOR PUBLICATION IN WEST! § HANAI'T REPORTS AND PACIFIC REPORTER*++
and Cynthia’s counsel. Also appended was @ letter dated
october 21, 2003 (first letter) from Dr. Patricia Blanchette (Dr.
Blanchette) stating that, in her opinion, Linda's and Beverley's
affidavits raised the possibility of undue influence, ‘solation,
and physical abuse and that “urgent steps . . . be taken to
prevent Ouane . . . from further dsolating his mother{.1” or.
Blanchette recomended in the first letter that Edith “undergo an
evaluation to determine her competence to make her own decisions
regarding her person and her healthcare.” Cynthia requested that
an IME of Edith be performed by a board-certified geriatrician.
According to Respondents, “[nJo attorney signed either the
[guardianship petition) of the [TRO petition].
On October 24, 2003, the court entered a TRO requiring
that Edith remain in the State of Hawai'i for 90 days and
prohibited any person from removing her from Hawai'i without
first informing the court. The basis for the TRO is stated as
follows:
jased upon the [TRO] Petition... , the affidavits
of... cynthia... and others, and the opinion of Dr.
.."slanchette, and gursuant to (HECK) Rule €5(b) sy
the jclourt finds there is probable cause to believe that &
past act or acts of mental or physical abuse against, oF
fundve influence over, . . Edith... , have occured, and
that she may be at risk Of being taken out of the country
ageinst her will or that she ney lack capacity to make any
Gecisions regarding her health care and domicil
‘The court also appointed Luria as TGAL, ordered that Ouane
deliver Edith’s passport to the clerk of that court, and ordered
all parties to appear in court on October 28, 2003. on
October 24, 2003, the TRO and guardianship petitions were
delivered to Edith’s counsel. According to Respondents, however,
7
‘/*4F0R PUBLICATION IN KEST'S HAWAI'T REPORTS AND PACIFIC REFORTE
[a] copy was delivered to the Carlsmith Ball LLP (the Carlsmith
firm) offices a few minutes before $:00 p.m. on Friday,
October 24, 2003. [Mary Jane Connell}, to whom it was addressed,
was already gone for the weekend.”
On October 28, 2003, Edith appeared before the court
represented by counsel and Luria, Also present were Duane,
appearing pro se, and Dr. Charman J. Akina (Dr. Akina). Prior to
proceeding with the hearing, the court questioned Edith to
confirm that she had received a copy of the TRO and guardianship
petitions, Edith’s counsel indicated that Edith had, and
represented to the court that he had read both petitions fo her
because she was legally blind. He then declared that Edith
desired to proceed with an evidentiary hearing. Duane indicated
that he had not received copies of the TRO or guardianship
petitions but he informed the court that he would obtain a copy
from the Carlsmith firm and that he knew what the case was about.
on October 29, 2003, Cynthia’s counsel served a copy of
the TRO and guardianship petitions on Duane, through his counsel.
on October 31, 2003, Edith filed a Motion to Vacate the
‘TRO and Appointment of Guardian Ad Litem and to Dismiss the
Petition for Lack of Jurisdiction (motion to vacate)." On the
same day, Duane filed his response to the TRO and guardianship
petitions. Duane’s response contested factual allegations, but
raised no procedural arguments.
* An amended motion was subsequently filed on Decenber 1, 2003, in
nich Duane Joined.
sesfoR PUBLICATION IN WEST! § HAWAI'I REPORTS AND PACIFIC REPORTER*
OO
on November 5, 2003, the TGAL submitted @ report
indicated he had spoken with Edith’s primary treating physician
in California, Dr. Janes D. Taylor, who reported to him thet
during his visite with Edith, he did not notice any signs of
abuse, ‘The TGAL also spoke with Dr. George Seberg, who examined
Edith at his office in Honolulu on October 13, 2003, br. Seberg
expressed Edith’s ability to make informed decisions but did not
discuss any opinion as to whether Edith was subject to undue
influence.
on Novenber 5, 2003, the court heard, inter alia, the
parties’ jurisdictional arguments. After oral arguments, the
court ruled that it had jurisdiction over Edith and that
jurisdiction was concurrent with the State of California. the
court stated that Duane was free to return to Panama, but
explained the reasons for disallowing Edith from leaving. It
said:
TRE COURT: I’m going te make the following order:
‘the record this (c]oure [sic] took jurisdiction esed upon
the petition and affidavits which as set forth in those
Gifigavite appear to hie (court that there might, whether
there war a possibility of « danger to an elderly wonan who
ies within the state, and pursuant to [HRS c)hapter 960, the
{elourt does have Juriediction if persons are within the
state of Haval't
The question, and in addition, this {clourt under the
adult abuse statutes has wide jurisdiction to be able to
prevent adult abuse if and when it’s suspected to be
Eicurring, and those statutes have been passed after 1991,
Bot they all exist and give this [cJourt wide jurisdiction,
wide power, wide discretion with regaré to elderly people,
‘The {clourt ia net prohibiting Duane - . . from going
to,tanana. "that's totally within Me fight af 30-8
Eo-be able te nave af independent evaluation of was she
‘Siapetent, was there abuse aoing on, would shere be any
mutha Hea: she
(Emphasis added.) At the hearing’s conclusion, the court
‘+POR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER**
indicated that it would be issuing a further written order
regarding its concurrent jurisdiction and the logistics for an
IME.
on November 7, 2003, Edith exhibited symptoms of a
stroke and was adnitted to the Queen’s Medical Center (Queen's
Hospital) where she remained under observation for approximately
one week. On or about Novenber 24, 2003, following her discharge
from the hospital, Duane took Edith to Panama. On Novenber 26,
2003, Edith’s counsel filed a document with the court indicating
“that EDITH M. CARLSMITH may have left the jurisdiction of the
State of Hawaii.” (Capitalization in original. .
on November 26, 2003, the court entered an order
finding that Edith was subject to the jurisdiction of the court
and relating that [Edith] vas served with the Petition through
her Hawaii attorneys.” The court ordered that an IME be
performed by @ court-appointed physician. The court also entered
the following orders:
2. the {eloure
24, 2003 chat (Edith) shall not leave
the ext 90 days. (Edith) shail not leave the United states
for the next 90 days. (Eaith] may return to her home in San
Rafael, California of other United States location as long
5 she’ informs the [IGAL] of her travel itinerary and
Sddress ond telephone nunber.
3. "rhe [FOAL] shell arcange for appropriate access
for family members to (Eaith]
fe | The [TGAL} shall arrange for (an IME] as to the
competency of (Edith). Said examination shall be conducted
Gither in Honolulu or in California depending upon. (Edith)
Jecation and the availability of (Edith) and the physician.
On December 8, 2003, Edith, through present counsel,
filed a motion for reconsideration of the court's November 26,
2003 order. The motion for reconsideration raised issues related
10
“++A7OR PUBLICATION IN MEST’§ HAWAI'I REPORTS AND PACIFIC REPORTERY#*
to the court’s findings and order, but did not contend that Edith
was not properly served or that process or service was defective.
Innediately prior to the court-scheduled hearing on December 17,
2003, Edith’s counsel filed an “amended” Motion to Vacate and
Dismiss, this time challenging service of process.
At the hearing on the motion for reconsideration, the
court ruled on the issue of service in the following mann
As to iesues of service of (Edith and (Duane), Edith
clearly bed 2 copy. I eressed out that she could be served
by thes leaving it with the Carlmith firm because quite
f¥ankly{,) given the pleadings, I wasn't certain whether the
Cetienith firm would have access to [Edith], and therefore,
Paid not want chat to be considered service, but when
Ss
LE ET ae amend te deca ase
gas ee ae a ee a
bee
(Emphasis added.)
on Decenber 11, 2003, the court issued orders to show
cause directed at Edith and Duane regarding their apparent
failure to comply with the TRO. Edith was served with the order
to show cause thorough her present counsel and her former
counsel. Duane was served through his counsel.
on January 15, 2004, Duane filed a Motion for
“competency Examination” of Edith in Panama. Attached to this
motion was @ declaration from Or. Akina opining that, based on
his observations of Edith, Edith did not display any signs of
n
s++70R PUBLICATION IN WEST! § HAWAI'I REPORTS AND PACIFIC REFORTER*'
mental incompetence and that Edith had scored highly on a mental
competency test performed by a doctor in Panama. On January 23,
2004, the court issued an order finding Duane and Edith in civil
contempt for violating the TRO, That order reiterated that the
November 26, 2003 order requiring an IME remained in effect and
1) she must undergo
that upon Edith’s return to the United sta
an INE, That order also imposed a fine of $10,000 per day
against Duane until he returned with Edith to Hawai'i.
on February 23, 2004, Dr. Blanchette wrote a second
letter (second letter) to Cynthia's counsel which included her
assessment of Edith’s medical records. An affidavit by Dr,.
Blanchette accompanied the second letter along with her
curriculum vitae (Cv). In the affidavit Dr. Blanchette stated
that she was “authorized and competent to make this declaration
based on personal knowledge.” In addition, Dr. Blanchette
declared that “[alttached hereto . . . is a true and correct copy
of my Curriculum Vitae” as well as a “true and correct copy of a
letter from me to Rhonda L. Griswold, dated February 23, 2004,
setting forth opinions T have reached, based upon documents
submitted to me.” In the second letter, Dr. Blanchette states
2 have been an expert in Alzheimer's disease and other forms
Of denentsa for the past twenty years, I have done research
Gnd published in peer reviewes Journais on this topic, Tam
Consigeres a national expert on the subject, and have been
affizeed as an expert in competence in both state and
Federel court
Dr. Blanchette noted that Edith’s medical records
included a discharge summary from Dr. Seberg reporting that
following admission, Edith “could not remember (three (3)]
2
‘s+4POR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER‘*#
objects, and she could no lenger name (six (6)] utensils in the
kitchen or [six (6) objects in the hospital room).” Dr.
Blanchette further recounted that in a progress report dated
Novenber 13, 2003, or a day prior to Edith's discharge, it was
reported that Edith’s condition was “ASOx1." According to Dr.
Blanchette, “AsOxl" means that @ person is alert and oriented
only to person, place, or time and the word “*alert’ in @ medical
sense means the person is awake, not sleepy or obtunded. It does
not mean the person is mentally competent.” Finally, Dr.
Blanchette opined that “t]he record provides strong evidence of
2 physically frail, mentally incapacitated person whose
“baseline” is seriously impaired to the point she simply knows
who she is, [and] does not recognize others even when informed of
who they are.” It appears that there were no objections raised
as to the second letter.
on March 14, 2004, a hearing was held before the court
on Duane’s motion for a “competency examination.” Duane’s motion
was granted and it was ordered that the parties submit Cvs as to
the proposed physicians to complete the competency examination.
on April 23, 2004, a written order was entered to that effect.
on April 6, 2004, Edith’s other counsel filed a
Petition for Writ of Prohibition or, in the Alternative, for Writ
of Mandamus (writ of prohibition) before this court. duane
joined in that petition. ‘They argued that the TRO issued by the
court on October 24, 2003 was invalid because, anong other
arguments, (1) the TRO was not properly initiated, (2) the TRO
13
‘+ePOR PUBLICATION IN WEST! § HAWAI'I REPORTS AND PACIFIC REFORTER***
OO
was not accompanied by an appropriate application for further
relief, (3) Edith was never served with the guardianship petition
so that the court never acquired jurisdiction over her person,
and (4) there was insufficient evidence to justify issuance of a
restraining order. On August 27, 2004, this court issued an
order Denying the Writ of Prohibition, dismissing that petition
“without prejudice to any eventual remedy (Petitioners) may have
by way of eppeal."? Carlemith v, Radius, Nos. 26942 6 26943
(aug. 27, 2004). Subsequently, Duane and Edith submitted names
and CVs of proposed physicians who could perform the IME.
cn December 22, 2004, an Order Appointing Physician for
Examination was filed by the court, designating Dr. Hernando
Porice (Dr. Ponce), @ physician whose practice is located in
Panama City, Panama, to perform the IME of Edith in Panama,
unless Duane returned Edith to California or Hawai'i by January
10, 2005, and allowing her to then be examined by the physician
Duane wished to designate as an IME doctor. Duane did not return
‘Edith to California or Hawai'i by that date. Dr. Ponce then
attempted to arrange for an IME of Edith in Panama but was
unsuccessful in his attempts to do so. The court, in its
December 22, 2005 finding no. 24 determined that Edith “did not
submit to an IME by Dr. Ponce nor did Duane make (Edith)
+ mhig court stated that a writ of prohibition “is an extraordinary
remedy that will not issue unless the petitioner denonstrates « clear and
[Efshotebie’ sight to relief end a lack of other means ro adequately redress
the sileged wrong of obtain the requested action.” Carlsmith y, Radius, Nos
besd2 & No. 26693 (Aug. 27, 2004)
4
s+4POR PUBLICATION IN WEST’ S HAWAI'I REPORTS AND PACIFIC REFORTER:
_
available for an IME by Dr. Ponce in Panama.”!
on March 4, 2005, Luria filed an Ex Parte Motion for
(2) order to Show Cause Why Court-Appointed Physician Has Been
Denied Access to Edith to Conduct Examination as Ordered, and
(2) Order Scheduling Hearing of Guardian Ad Litem’s Motion for
Further Extension of TRO and Order for Payment of $400.00 to
court Appointed Physician Concurrently With Order to Show Cause
and Before [sic] March 15, 2005 (order to show cause motion).
At the March 30, 2005 hearing on Luria’s order to show
cause motion, the court orally ruled, inter alia, that the IME in
Panama be completed by April 15, 2005. On June 2, 2005, the
court entered its written Order Regarding Order to Show Cause,
ruling as follows:
2. [tine (clourt finds that insufficient
evidence had been presented in support of any contention
that the [eloure violated Panensnisn law or any
International treaty in the [elourt’s Order (filed April 20,
2008) “Granting (Duane]"'s Motion for [a] Competency
Examination filed on December 22, 2004. Further, the
[clourt finds that since no objections (orl azguments by any
fatty or interestea person were made during the pendency of
[buane]’s Motion for'a “Competency Examination” of Edith
nin Fonams, filed on danuary 15, 2004, and at the
hearing of said motion on March 17, 2004, on the grounds
that, Se the said motion were granted, [Edith] "s Fights
would be violated under Panamanian law (or) any
Ynternational treaty, those objections and arguments heve
been waives
3.
As to Edith... , the [elourt continves to
have setious concerne regarding her competency based on the
Fecord and file of this case. The (clourt finds that there
iz no evidence that either [Cynthia] or the Guardien Ac
Eitem has traveled to Panans to try to contact (Edith) or
that (Cynthia} caused emotional, mental, or physical stress
te (edith). Had (Ouane] not left Oahu with his mother,
[edith], and net procured « new passport for her, traveling
ith het to Panama, all contrary to the (court's order,
{Edith} would have been exonined in Hawai'i as ordered, and
idence “subject te erose-examination would have been
Sdcuced instead of a series Of Declarations [or] Affidavits
Respondents do not challenge thie finding by the court.
as
FOR PUBLICATION IN WEST’ HAWAI'I REPORTS AND PACIFIC REPORTER*
OO
from individuals not subject te cross-exanination
Te. The “competency exasination” of Edith an
Panana as ordered pursuant to the (clourt's Order Granting
Notion for [al Competency Exeaination filed on April 30,
Boa, and Order Appointing Physician for Examinaticn filed
Gn técenber 22, 2604, shall be completed by April 15, 2005.
The court noted that Edith was not made available for an IME by
April 15, 2008, ox any other date.
on April 19, 2005, Cynthia filed her Motion for
Attorney's Fees and Sanctions Against Edith and duane (the
motion). ‘The motion requested an order (1) establishing that
Edith is an incapacitated person who lacks sufficient
understanding or capacity to make or communicate decisions
regarding her person, (2) prohibiting duane and Edith from,
opposing such established fact or presenting any evidence s to
Edith’s alleged capacity, (3) striking any and all pleadings,
declarations and evidence submitted by Edith and/or Duane to
establish Eéith’s alleged capacity, and (4) granting Cynthia an
award of attorney's fees and expenses and judgment thereon
against Edith and Duane, jointly and severally, on the grounds
that they violated the TRO as amended by the court's November 26,
2003 order, and failed to make Edith available for the IME as
mandated in the court’s Novenber 26, 2003 order and its April 23,
2004 order granting buane’s motion for a competency examination
in Panama, Cynthia requested that the amount of $208,196.57 in
attorney's fees and $13,202.01 in costs be sanctioned against
Respondents.
on August 4, 2005, Edith filed 2 menorandum in
opposition arguing that (1) the TRO was void and unenforceable,
16
‘sesoR PUBLICATION IN WEST’ HAWAS'T REPORES AND FACIFIC REFORTERS*+#
(2) the Order for an IME was procedurally defective, void, and
unenforceable, (3) the court lacked jurisdiction to order a
medical examination in Panama or, in the alternative, had not
taken the steps necessary to render its order enforceable, and
(4) HFCR Rule 37 sanctions are available only for violations of a
discovery order.
on September 26, 2005, the court issued the order and
Judgment from which Respondents appeal. It was ordered, inter
alia, that (1) Respondents “are precluded from presenting any
evidence to establish [Edith’s] alleged incapacity until such
time as she submits to an [IMB] by (Dr. Ponce] or by any other
physician chosen by the [c]ourt,” (2) under HRS § 560:5-303(b)
(1993), “the person alleged to be incapacitated is entitled to
SRS § $60:5-303(b) (1993), entitled “Procedure for court
appointment of 2 guardian of the person of an incapacitated person,” provides,
in’ pertinent part!
(b) Upon the filing of a petition, the family court
shall get a date for hearing on the issues of incopacity
fond, if at any time in the proceeding, the court detersines
that the interests of the allecedly incapacitated person are
‘Guardian ad Litem. The person alleaed tobe incapacitated
be exesned sed pavenoli
anoolnied by the family couxt wio-shall submit a renors in
fiting tothe court and may be interviawes bye family
EtuEt. If t0 ordered by the family court, the Family court
Sificer or other perscn also shall interview the person
Seeking appointment as guardian of the person, shall visit
the present place of abode of the person alleged to be
incapacitated and the place it is proposed that the person
Will be detained or reside if the Fequested appointment is
fede, and shall aubeit’a report in writing co the. family
is eneieied ©
son sini et in
EenoLt aid the family court officer or other person
(continued...)
rt
“s++70R PUBLICATION IN WEST'S HAWAI'Z REPORTS AND PACIFIC REPORTERS
be represented by an attorney to present evidence [and] to cross
examine-witnesses” but that those safeguards exist in full “if
[Respondents]. comply with the (clourt’s order that [Edith]
undergo the [IME,]" (3) Edith is an incapacitated person and that
appointment of a guardian is necessary in order to provide her
with continuing care, and (4) the request for attorney's fees and
costs by Cynthia be granted in full and that said fees and costs
were to be paid from Edith’s funds, in the amount of $239,125.07.
on October 25, 2005, Edith timely filed her notice of appeal and
Duane filed his notice of cross-appeal pursuant to Hawai'i Rules
of Appellate Procedure (HRAP) Rule 4.1 (2006).¥* .
on December 22, 2005, following the filing of Bdith’s
notice of appeal and Duane’s notice of cross-appeal, the court
entered its Findings of Fact, Conclusions of Law, and Order
Granting Petitioner's Motion for Attorney's Fees and Sanctions
Against Edith and Duane (December 22, 2005 order).
In.
A
on appeal, Respondents raise as points of error that
(2) the October 24, 2003 TRO was void inasmuch as (a) the action
was not properly initiated, (b) the TRO action “was not
(continued)
The iseue
Bay be determined at @ closed nearing
(Emphases added.)
% — Hawas't Rules of Appediate Procedure Rule 4.1(a) (2006), entitled
vcross-Appeals," provides the right to cross-appeal to any other party in
Civil cases involving multipie-party plaintiffs or defendants, "whether on the’
Sane of opposite side 2s the party first eppealing(.)"
18
FOR PUBLICATION IN WEST’§ HAWAI'T REFORTS AND PACIFIC REPORTERY+#
accompanied by an appropriate application for further relief, in
violation of HFCR Rule 65” and. . . was never served on edith
« . {or Duane},” (c) “Edith . . . as never served with the
petition, so the [clourt never acquired jurisdiction over her
person,” and (d) the court lacked subject matter jurisdiction to
issue the TRO because HRS § 346-221 (1993)"* applies and cynthia
lacked standing to invoke its (2) insufficient evidence exists
“to justify the issuance of the TRO depriving (Bdith) of her
Liberty without notice and an opportunity to be heard”; (3) the
appointment of @ TGAL “should have been terminated’ on October 28,
2003, as a matter of law"; (4) HECR Rule 65 “is unconstitutional
on its face or as applied in this case because, in violation of
the due process clause [of the Hawai'i Constitution], it creates
subjective, standardless discretion authorizing drastic relief
without notice, without any of the constitutionally necessary
procedural safeguards”; and (5) the definition of an
neapacitated person” pursuant to HRS § 560:5-101 is
unconstitutionally vague, overly broad, and not sufficiently
definite." As its sixth point of error, Respondents challenge
ECR Rule 65(6) (2006), entitled “injunctions, provides in
pertinent part that "(e)very restraining order granted without notice shall be
Eflee forehwien in the clerk's office and entered of record, shall be
fesring, and with upon am fected
fheordar-”(emprasi= added.)
an general, HRS § 346-221 (1993), entitled "Purposes
construction,” provides for the protection of elderly citizens who are
mentally or physically impaired from abuse, neglect, or exploitation.
% ye noted, infra, Respondents, in their reply brief, concede that
the constitutionality of AFCR Rule 65 and HRS § 5€0-5'101 (2) need not be
reached
a9
{S**FOR PUBLICATION IN MEST’S HAWAI'I REFORTS AND PACIFIC REPORTER
the court's December 22, 2005 findings and conclusions in the
following manner
F. the (court erred in making the following
(£inaings) and. [conclusions] in the [Findings],
[Conclusions], ena Order Granting Petitioner's Motion for
Attorney's Fees and Sanctions Against Edith . «= (and)
Buane filed (Decenber 22, 2005]
i." Im For Si" "*feaith’s counsel) stated that
(Edith) hag received a copy of the TRO ane
represented to the (cJourt that he had read the
igjusrdianship petition and 780 te (eaithl
2. FOR S:. “*On October 23, 2003, (Cynthia's
Counsel) served file-sarked copies of the
(Guardianship] Petition, TRO Motion and Ex Pert
Petitions to, shorten Tine upon [Ovane) through
(eaitn’s counsel].
3. for ig: "Ae about. the ‘tine that she ws
Felessed fron Queen’s Hospital, [Edith] was
eriented to her name only. [Edith] gid not know
here she was, nor could she recall the day,
Gate, or tine. .
in FOF 13: "on or about November 24, 2003,
Duane and (Eaith] went to Panama in violaticn of
the RO ss
5. COL i: “sthis"[elourt has jurisdiction te hear
tne Petition for Guaraian(shipl.”
6, COL 8: “[Bgith) vielatea the TRO entered on
October 24, 2003 by leaving for Panama prior ‘te
the completion of an INE.” Duane sseisted
[edith] in vielating the TRO. [Edith] and Duane
violated the First and Second IME Orders.”
7, TncoL tor” *.""" “Teaten) "and Duane were
precluded from presenting evidence of (Edith s)
Capacity.”
8. COL Ii: | “Based on evidence that wae before the
court, the lelourt finds (Edith) sncapacitated
and in need of a guaraian to provide for her
Continuing care.”
Finally, Respondents, in their seventh point of error, argue that
the court erred in its Novenber 26, 2003 finding no. 4 that
“{Edith] was served with the Petition through her Hawaii
attorneys.” Respondents request that this court (1) vacate the
judgment, 2) declare void ab initio the October 24, 2003 TRO and
all subsequent findings, orders and sanctions, (3) order the
% Respondents note that the court's Decenber 22, 2005 order uss
fled after their respective notices of appeal had already been filed with
this court. Accordingly, they state that they had no opportunity to tinely
object to the findings and conclusions in that order
20
‘+470R PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER®
court to dismiss the guardianship petition, (4) award Respondents
their attorneys’ fees and costs, and (5) grant such other relief
as is just and equitable under the circumstances.
In her answering brief, cynthia argues that (1) the TRO
petition and guardianship petition were properly initiated,
(2) the guardianship petition constituted the “appropriate
application for further relief reguired under HFCR Rule 65 and
Respondents had notice of the TRO, (3) Respondents waived
personal service of the TRO petition and guardianship petition by
appearing at the October 28, 2003 hearing and by failing to
timely raise an objection regarding improper service, (4) ,the
court had jurisdiction to issue the TRO, ($) ample evidence was
submitted to support the issuance of the TRO, (6) the court w
not required to terminate the TGAL on October 28, 2003 when
Edith’s own testimony established the need for an INE, (7) HFCR
Rule 65 passes constitutional muster, and (8) Edith’s medical
records from Queen’s Hospital were properly obtained by the TGAL
land admissible as evidence showing Edith’s lack of capacity.
In their reply brief, Respondents aver that (1) Edith
was never served with the guardianship petition, “and because
service is jurisdictional, the [c]ourt never acquired
jurisdiction over her, rendering the [TRO] and all subsequent
extensions, orders, findings and sanctions void{,]”" (2) the court
“lacked subject matter jurisdiction to issue the TRO" under HRS
§ 346-221, and (3) sufficient expert opinion was presented to
show that Edith does not lack mental capacity and that Cynthia
21
FOR PUBLICATION IN WEST’ JAKAT'T REPORTS AND PACIFIC REFORTER*#
had the opportunity to depose and cross-examine these experts but
failed to do so. Respondents conclude that the court never had
in personam jurisdiction and lacked subject matter jurisdiction
when it issued the TRO. Respondents also concede that the
d not be
constitutionality of HFCR 65 or HRS § 560:5-101(2) 1
reached in order to (1) vacate the judgment, 2) declare void ab
initio the October 24, 2003 TRO and all subsequent findings,
orders and sanctions, (3) order the court to dismiss the
guardianship petition, and (4) award Respondents their attorneys’
fees and costs.
8.
k review of the court's
Respondents also
September 26, 2005 Order Denying Duane’s Motion to Delay
Rendering Decision: Notion to Reopen filed, and'“all other
rulings adverse to Respondent(s t]herein.” In addition, Duane
challenges the court’s January 23, 2004 Order re: Orders to Show
Cause Filed December 11, 2003 finding Respondents in civil
contempt of court. Hawai'i Probate Rules (HPR) Rule 34, entitled
“entry of judgment, interlocutory orders, appeals{,]" provides
for appeals of certain orders and judgments in the following
(a) Entry of Judgment. All formal testacy orders,
orders of intestacy and determination of heirs, orders
establishing guardianship of the property, and orders
establishing protective arrangements shali be reduced to
Judgment and the Judgment shall be filed with the clerk of
the court. ‘Such Judgnents shall be fins! and immediately
appealable az provided by statute, Any other order thet
fully addresses all clains raised in a petition to which it
Felates, but that does not finally end the proceeding, may,
be certified for sppeal in the manner provided by Rule S¢(b)
of the Hawaii Rules of Civil Procedure
22
‘s*+F0R PUBLICATION IN WEST’ § HAMAI'T REPORTS AND PACIFIC REFORTER®
(b) Interlocutery Orders
An cider to ances) fron any
other order prior to the conclusion of the preceeding, the’
: ified for n decordance
SEE). OT
(G] Fine! Judgment Closing Proceeding. At the
conclusion of the proceeding, « final judgment closing the
proceeding shall be entered end filed with the clerk of the
Eourt, at which tine all prior uncertified interlocutory
orders Shall becone immediately appealable.
(a) Appeals. Final judgrents as to all claims and
parties, certified judgments, certified orders, and other
Srders appealable a2 provised by law may be appealed
pursuant. to the Hawail Rules of Appellate Procedure
Epplicable to civil sctions
None of these orders fit within the classes of appealable orders
under HPR Rule 34 and HRS § 641-1(b). We note that the
guardianship proceeding has not been concluded, final judgment
terminating the proceeding has not been entered, and these orders
were not certified for appeal. Hence, those orders are not
before us.
Appellate jurisdiction in the instant matter is limited
to the correctness of the court's imposition of sanctions in its
September 26, 2005 order and judgment, which implicates the
issues of personal jurisdiction, subject matter jurisdiction, and
Personal service. Accordingly, we need only decide the issues
relating to the court's jurisdiction over Respondents, its
jurisdiction to issue the TRO, the propriety of the court’s
assessment of attorney's fees in the amount of $239,125.07, and
© Rs § G41-2(b) (1993), entitled “Appeals as of right or
interlocutory, civil matters,” states in full ss follow
() Upon application made within the time provides by
the rules of court, an appeal ina civil matter may be
allowed by a circuit court in its discretion from en order
Genying a motion to dismiss or from any interlocutory
Susgnent, order, or decree whenever the circuit court may
think the same advisable for the speedy termination of
Lfeigation before it. the refusal of the circuit court to
allow an appeal from lecutory judgrent, order, oF
decree shal not be reviewable by any other court
23
‘s+8POR PUBLICATION IN MEST’ HANAI'T REPORTS AND PACIFIC REPORTER'#*
imposition of sanctions against Respondents in the September 26,
See Ince Adam, 105 Hawas't 507, 516,
100 P.3d 77, 86 (App. 2004) (ruling that “[iJmmediate appeal is
2005 order and judgment
allowed of a sanction order against a party that is immediately
enforceable through contempt proceedings and that places the
sanctioned party in immediate jeopardy of being found in contempt
of court for failure to comply” (citing Harada v. Ellis, 60 Haw.
467, 480, 591 P.2¢ 1060, 1070 (2979)))+ Kukui Nuts of Hawaii,
Inc. v. R. Baird & Con, 6 Haw. App. 431, 435, 726 P.2d 268, 271
(1986) (holding that immediate appeal is permissible as to a
sanction order against a party that is reduced to an enforceable
judgment) .
ut.
Whether @ court has jurisdiction over a case is a
question of law reviewed under the right or wrong standard.
Korean Buddhist Dae Hon Sa Tenple of Hawai'i v. Concerned citizens
of Palolo, 107 Hawai'i 371, 380, 114 P.3d 113, 122 (2005).
Findings of fact will not be disturbed unless “clearly
erroneous.” Kienker v, Bauer, 110 Hawai'i 97, 105, 129 P.3¢ 1125,
1133 (2006) (quoting Child Support Enforcement Agency v. Ros, 96
Hawai'i 1, 11, 25 P.3d 60, 70 (2001). “A finding of fact is
clearly erroneous when (1) the record lacks substantial evidence
% go reiterate, the court’s September 26, 2005 order and judonent.
sanctioned Respondents under HFCR Rule 37 by (1) ofdering that Edith pay
Epnehio's attorneys fees and expenses, (2) fuling that Respondents be
precluded from disputing Eaith's incapacity until Edith submits to an IME, and
13) finding that Edith is an incopacitated person as defined in HRs § 56
101 (2i-
24
//FOR PUBLICATION IN| WEST’ § HAMAI'T REPORTS AND PACIFIC REPORTER***
to support the finding or determination, or (2) despite
substantial evidence to support the finding or determination, the
appellate court is left with the definite and firm conviction
that a mistake has been made.” Id. (brackets and ellipses
omitted).
With respect to the issuance of a TRO, a relief in
equity, “[t]he relief granted by a court [in] equity is
discretionary and will not be overturned on review unless the
1s. Court abused its discretion.” Ueoka v. Syzmanski, 107
Hawai'i 386, 393, 114 P.3d 692, 899 (2005) (quoting AIG Hawaii
Ins. Co. v. Bateman, 82 Hawai'i 453, 457, 923 P.2d 395, 399
(1996)). Similarly, @ “‘court’s imposition of a discovery abuse
1 for abuse of discretion. A
sanction is reviewable on apps
ss + court abuses its discretion whenever it exceeds the bounds
of reason or disregards rules or principles of law or practice to
the substantial detriment of a party./” Kawamata Farms, Inc, vy.
United Agri Prods.,/ 86 Hawai'i 214, 241, 948 P.2d 1055, 1082
(2997) (quoting Aloha Unlimited, Inc, v. Coughlin, 79 Hawai'i 527,
532-33, 904 P.2d $41, 546-47 (App. 1995)). In addition,
“regardless (of) whether sanctions are imposed pursuant to
statute, circuit court rule, or the trial court’s inherent
powers, such awards are reviewed for an abuse of discretion.”
Gap_v. Puna Geothermal Venture, 106 Hawai'i 328, 331, 104 P.3d
912, 918 (2004) (citations, internal quotation marks and brackets
omitted).
25
‘s*4FOR PUBLICATION IN WEST’ S HAWAI'T REPORTS AND PACIFIC REPORTER*+#
wv.
With respect to point of error (1) (a), the action below
was properly. initiated. Respondents claim that when the action
was filed, the guardianship petition (i) “did not include a
summons, a purported violation of {HFCR] Rule 4,* and (ii) “was
not signed by an attorney of record,” in violation of HFCR Rule
11.
A,
1.
As to subpoint (i) of point of error (1)(a), it is
noted that the current action was initiated by the filing of the
guardianship petition pursuant to HRS § 560:5-309 (1993). as
provided by that statute, a notice of hearing, as opposed to a
summons, is a fundamental requirement, as stated in pertinent
part as follows:
Notices and guardianship proceedings. (3) In 9
proceeding fer the appointment or removal of a guardian of
the person of an inespacitetes person other than the.
fppotntnent ote cenperary,guerdien or temporary 6
of a guardian,
yension
4 _npoR Rule ¢ (2006), entitied *Frocese,” provides in pertinent part
that “[ulpon the filing of the’ complaint, the clerk shall forthwith issue
sunnons and deliver it to the plaintiff for service by a person authorized to
Serve process.”
4 _WPoR Rule 11, (2006), entitled “Signing of pleadings, motions, and
ether papers; sanctions,” provides in pertinent part that “[e]very plesding,
motion, and other paper of a party represented by an attorney shall’ be #19
Ey at deast one attorney of record in the attorney's individual nane, whose
Sddrese shall be stated.”
Under HFCR Rule 61 (2006), entitled “Applicability,” the HIFCR
applies, in pertinent part, eo “{8) Guardianship of Person of Minors and
Incapacitated Persons under HRS chapter 5€0, article V."
26
‘s++FOR PUBLICATION IN WEST’ § HAMAI'T REPORTS AND PACIFIC REPORTER'##
a 2
‘The wird or the person concerning whom the
broceedine has been comenced end the ward's or
Person's spouse, legal parents, and adult
Ehildrens
inj" Wotice ehaia be served personaily on the alleged
incapacitated person, the person's spouse, the person's
legal parents, and the person's adult children, if they can
be found within the State. Notice to such of those who
Cannct be found within the State and to all other persons
except the alleged incapacitated person shall be given as
provided in [HRS $] 5€0:1-401. Waiver of notice By the’
5 2 ‘the hesring or the cereon's waiver of
hierview the bergen. Except a
THRS.$]_560:5-303, representation of the elleged
person by a guafdian ad lites 1s not
necessary.
(Emphases added. )*
Respondents appear to argue that HFCR Rule 4, which
-308, which requires
requires a sunnons, prevails over HRS § 560:
notice. As 2 general rule, however, “[w]hen a statute . . . and
a rule conflict, the statute prevails.” In ze Doe, 109 Hawai'i
399, 409, 126 P.3d 1086, 1096 (2006). Accordingly, we determine
whether the mandates of HRS § 560:5-309 were observed.
svended HRS § 560:5-309, specifying the
joses of guardianship of incapacitated
® Ip 2004, the Legisiature
contents of a notice of hearing for pu
persons, in pertinent part, as follows
@
¢ che hearing on the petith z7
A conv of a cetition for quardianshin and notice
‘the respondent. The notice shell include e statenent that
he tespondent “must be chysically present unless excused by
Ehe court, inform the respondent of the rescondent's richts:
‘ak the hearing, and include a descrintion of the nacure,
‘ences of ap appeintaent.—A failure“to
Sith this subsection shal] orectude mE
the petition.
(Gxphasis added.) The amendnent became effective on January 1, 2005, and
provided that 1 “shall not affect any action commenced, proceeding Srought,
Sr rigne accrued prior to its effective date.” 2000 Haw. Sess, Ly Act ely §
Se ae 708.
2
‘++fOR PUBLICATION IN WEST’ § HAWAI'I REFORTS AND PACIFIC REPORTER*#*
The record before us indicates that a Notice of Hearing
(the notice) was attached to the guardianship petition and was
signed by the clerk under seal of the court, and indicated the
name of the court, the parties involved, as well as the name and
address of Cynthia's counsel. The guardianship petition to which
the notice was attached, was file-stamped “October 24, 2003
The notice directed that the parties appear before the court on
october 28, 2003 at 1:30 p.m., and forewarned that further action
might be taken without further notice if a party failed to
appear. At the October 28, 2003 hearing, Edith’s éounsel
represented to the court that he had read all relevant documents
to Edith.
In their reply brief, Respondents concede that “[iJt
makes sense that [HRS § 560:5-309] provides that attendance at
the hearing waives notice of the hearing, but that does not
address service of the initial pleading.” Respondents argue that
“[HRS § 1560:5-309\is silent on service of the initial pleading,”
‘and that HECR Rule 4(4) (3) (B) governs. HFCR Rule 4(d) (3) (B)
provides for personal service of an initial pleading on an
incompetent person and requires that a summons and complaint be
served upon an incompetent person, “by delivering a copy of the
sunmons and of the complaint personally.”
By its terms, HFCR Rule 4(d) (3) (B) presupposes that the
person being served has been declared incompetent. Tt has been
ks to establish a
held that “a person over whon a petitioner s1
guardianship enjoys a presumption of competency which may be
28
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND FACIFIC REPORTER
relied upon until the contrary is shown.” Schaefer v, Schaefer,
52 P.3d 1125, 1128 (Or. App. 2002). (brackets and ellipses
omitted), Inasmuch as Edith has not been declared incompetent,
and in fact, Respondents argue otherwise, HFCR Rule 4(d) (3) (B) is
inapplicable.
In addition, the citation by Respondents to Carolina
o ri i‘ a
2, Warehousene! 180
$.B.2d 461 (N.C. Ct. App.), cert, denied, 161 S.£.2d 601 (N.C.
1971), is not helpful. In that case, 2 TRO was issued solely
upon the filing of an affidavit. Id. at 462-63. No other
pleadings were filed, and no summons were issued. Id, at 463.
on appeal, the Carolina court ruled that the lower court did not
have jurisdiction to issue the TRO, stating that a TRO procedure
“is permissible only after an action is commenced [after the
filing of a complaint or summons under North Carolina Rules of
Civil Procedure) Rule 3." Id.
‘The aforementioned facts in Carolina are inapposite to
the instant case. The TRO petition in the instant case was
accompanied by the guardianship petition. The guardianship
petition was filed before the court and satisfies the definition
of a “complaint” under HFCR Rule 3 which defines “complaint” to
include “any initial pleading required by statute.” The TRO, as
modified by the court, was issued with the TRO petition, and no
motions were made to strike both petitions.
29
FOR PUBLICATION IN MEST'S HAMAI'I REPORTS AND PACIFIC REPCRTERS+#
Moreover, any objections by Respondents as to the lack
of notice are deened waived by Edith’s appearance, her failure to
object to the purported defect of notice or summons, and
insistence upon proceeding with an evidentiary hearing. see Kim
Poo Kum vy, Sucivama, 33 Haw. $45, 555-56 (1935) (holding that the
“voluntary general appearance” by one party before the court in
opposition to an application by another party to make it a party
defendant, together with its subsequent appearance before the
‘same court at the hearing on appeal “demanding the right to be
permitted to introduce evidence upon the issues” therein, "was,
wholly inconsistent with anv other attitude on the part of [the
firs thi te and v under and
submission to the aeneral durisdiction of the court for a
Young vs Chong, 24 Haw. 95, 96
(2917) (ruling that defendants in that case “appeared generally
purposes” (emphasis added)); of.
and thereby waived all objections . . . as to the summons .
and submitted themselves to the jurisdiction of the .
(court) and reasoning that the purpose of sunmons “is to bring
the defendant into court so that the court may have jurisdiction
over his person and its object is accomplished when the defendant
comes in without objection and submits himself to the
jurisdiction of the court”).
Hence, because Edith had notice of the petition and the
hearing concerning the petition, and inasmuch as Edith
voluntarily appeared without objection to the lack of summons or
30
s++FOR PUBLICATION JN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERS*®
notice, and insisted that an evidentiary hearing proceed, no
error exists as to subpoint (i) with respect to Edith.
Similarly, with respect to Duane, as the court stated,
he appeared before the court, indicated he did not have a copy of
the TRO and the guardianship petition, “but would get a copy from
the Carlsmith firm,” and that Duane “knew the substance of what
this case was all about.” The court also noted that, to its
knowledge, Duane was then “an attorney licensed to practice law
An the State of Hawaii . . . and raised no issue about the
service.” .
As a rule, the defense of insufficiency: of process or
lack of sezvice must be asserted in the initial pleading or made
by motion, before pleading, if @ further pleading is permitted.
HFCR Rule 12(b) (4) & (5). The failure to raise the defense of
insufficiency of process in a timely manner waives that defense.
HECR Rule 12(h). In addition, the failure to raise such @
defense is also waived if omitted from a motion in which it could
have been included. HFCR Rule 12(g).
According to Cynthia, on October 29, 2003, Duane was
served a copy of the TRO and guardianship petition through
Edith’s counsel. Following service of these documents, Duane
filed his response to the TRO and guardianship petitions wherein
he contested the factual allegations “but raised no procedural
arguments.” Duane not having raised the defense of insufficiency
of process in a timely manner or in a motion, we hold that the
a
‘++sFOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTEI
court did not err in ruling against him on the issue of service
of process.
B.
In regard to subpoint (11), Respondents’ objection
under HFCR Rule 11 to the lack of a signature by an attorney of
record in the petition, no error exists, Cynthia does not
dispute that the petition was initially unsigned. Rather,
Cynthia contends that “the memorandum in support of the (TRO
petition] . . . and memorandum in support of the (guardianship
petition) were signed by counsel, as was the affidavit attached
to the [TRO petition].” (Emphasis in original.) In addition,
Cynthia asserts that under HFCR Rule 11, “[i]f @ pleading,
motion, or other: paper is not signed, it shall be stricken unless
it is signed promptly after the omission is called to the
attention of the pleader or movant.”
cynthia’s arguments are persuasive. As she notes in
her ansvering brief, “when [Edith’s] counsel sent a letter
stating that Cynthia’s signature rather than the signature of
counsel indicated noncompliance with [HFCR] Rule 11, counsel for
Cynthia immediately submitted amended signature pages with
counsel’s signature.” Hence, after the lack of a signature by a
counsel of record was “called to the attention” of Cynthia's
counsel, any defect under HFCR Rule 11 was cured and the
requirenents of that rule were satisfied.
Respondents’ reliance on State ex, rel. Friedman v
Dist. ct., 399 P.2d 632 (Nev. 1965), for the proposition that the
32
“s+eFoR FUBLICATIGN IN WEST’ § HAWAI'I REPORTS AND PACIFIC REPORTER*#*
—_—_— ses
filing of an errata does not cure any defect in the petitions, is
similarly unpersuasive. In that case, the petitioner obtained a
‘TRO from a trial court enjoining the respondent, Friedman, from
proceeding in a civil action against the petitioner in
california. Id. However, the TRO was not conditioned upon the
posting of a bond, and did not provide reasons for its issuance,
in violation of Nevada Rules of Civil Procedure (NRCP) Rules
65(c) & (d). Id. at 632-33. Friedman filed an action seeking
nullification of the TRO based on these defects. Id.
one day before trial, the petitioner obtained, ex
parte, an amended restraining order which required posting of 2
The
$1000 bond and provided reasons for its issuance.
petitioner then contended that the issuance of the amended
restraining order rendered Friednan’s action moot inasmuch as the
defects in the original TRO had been cured. id, The Friednan
court disagreed, observing that the amended restraining order,
obtained 2x parte, ‘was not accompanied by a motion for a
preliminary injunction, nor was there a separate showing to
authorize its entry without notice,” id. at 634, in violation of
NRCP Rule 65.
In this case, in contrast with Exiedman, no substantive
defect exists to render the TRO at issue invalid. The defect
pointed out by Edith, the absence of counsel's signature, was
cured as permitted by HFCR Rule 11, Following correction by
Cynthia's counsel, no defects remained in the TRO petition.
Hence, Exiednan is inapplicable.
33
FOR PUBLICATION IN VESI’S HAMAI' REFORES AND PACIFIC REFORTER+#*
v,
a
Points of error (1)(b) and (c), that the TRO action was
not accompanied by an appropriate application for further relief
or was never served on Edith and Duane,” present no error.
Respondents contend that HFCR Rule 65(b) mandates that “(elvery
restraining order granted without notice shall be. .
accompanied by an appropriate application for further relief.”
Respondents concede that “[tJhe only document that could
conceivably have met that description would have been the
{guardianship petition] itself.” However, Respondents maintain
that the guardianship petition “was not an ‘appropriate’
application for further relief” since (1) it was filed in
violation of HFCR Rules 4 and 11, and (2) the court did not have
subject matter jurisdiction over the allegations in the petition
which alleged elder abuse, and not incapacity. They argue that
subject matter jurisdiction over allegations of elder abuse is
conferred upon the court “only if the Department of Human
Services is the [pletitioner, and only if facts and circumstances
are present which were never present in this case.”
We first observe, as noted by Cynthia, that the
guardianship petition requested “further relief” to the effect
that the court, inter alia, find “that Edith... is an
# ks earlier noted, Respondents waived the defense of insufficiency
of service of process
34
‘s+470R PUBLICATION 18 MEST’S HAWAI'I REPORTS AND PACIFIC REPORTERS#®
101(2)."" AB.
incapacitated peron as defined in [HRS] § 560~
earlier related, Respondents’ objections to the guardianship
petition under Rules 4 and 11 are unpersuasive. Hence, inasmuch
as Cynthia's prayer in the guardianship petition that the court
find Edith an “incapacitated person,” literally satisfies the
“appropriate application for further relief” as required by HFCR
Rule 65(b), we discern no error in the issuance of the TRO in
this respect.
We further hold that the court did have Subject matter
jurisdiction to issue the TRO in the present matter, contrary to
Respondents’ argunents in points of error 1(b) and (1) (d). HRS
chapter 571 provides for the creation of, family courts. See HRS
§ 571-1 (1993) (stating that “(t]his chapter, creates within this
State a system of family courts”). HRS §§ 560:5-106 (2) and (3)
(supp. 2005), part of the Uniform Probate Code, declare that
“[t}he family court’ shall have exclusive jurisdiction over
guardianships and related proceedings concerning incapacitated
adults[,]” and “[w}here protective and guardianship proceedings
relating to the same person have been initiated, they may be
consolidated in the court as the court in the exercise of its
discretion shall determine.‘ HRS chapter 560 “shall be
* See aupza note 7.
the predecessor statute to HRS § 560:5-107 (Supp. 2005), HRS §
S60:5-102 (1993) stated that "[w]here protective and guardianship proceedings
Felating to the same person have been initiates, they may be consolidated in
the court or in the family court es the court and the family court in the
Teont ined...)
35
‘+ePOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER
Liberally construed and applied to promote its underlying purpose
-102 (1993). In addition, “(ijn any
and policies.” HRS § 560
case in which [the family court] has jurisdiction, the court
shall exercise general equity powers as authorized by law.” HRS
§ 71-3 (1993).
Part and parcel of the family court’s authority, in
relevant part, are the following statutorily-conferred powers:
(2) Subpoena, summon, end compel the attendance of parties
anc witnesses fron say pert of the State, and compel
the preduction of books, papers, documents sneluaing
school, medical, ang finaneisi records, or tangible
thinai
(3) Hakevang ieeue 12 orders and write necessary or
anpiontaate in-aid of their original suriedicticn:
ic)” Enforce decrees and iudments and ounish contensts °
acconding te laws
|" Apposnt guardians ed 1item for minor® or persons who
afe incompetent or attorneys to represent parties in
Accordance with lav:
26)" Hake ond exard sudoments, decrees, orders, and
Sundites, issue exscations and-cther processes, and do
Scher scte and take other steps 2c may be necesiery to
‘Sarce into full effect the covers that-are or aballbs
Given to-then by-law or tor the eronotion of iustice
inmaiters sending before then{-1
HRS § 571-8.5 (Supp. 2005) (emphases added). Moreover, under HRS
§ 560:1-302(b) (Supp. 2005), “[t]he court has full power to make
orders, judgments, and decrees and take all other action
necessary and proper to administer justice in the matters which
come before it.”
A salutary purpose of a TRO is to preserve the status
quo between the parties pending adjudication of the merits of a
claim. Cf, Wahba, LLC v. USRP (Don), LLC, 106 Hawai'i 466, 472,
«cont inued)
exercise of their discretion shall de
mine.”
36
ATOR PUBLICATION IN WEST'S HAAI'T REPORTS AND PACIFIC REFORTER***
——
106 F.3d 1109, 1115 (2008) (noting that “*{a] TRO is designed to
preserve the status quo until there is an opportunity to hold @
hearing on the application for » preliminary injunction’
(brackets omitted) (quoting Whitman v, Hawaiian Tua & Barge
corps, 27 F. Supp. 24 1225, 1228 (D. Haw. 1998))); Devose va
Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (per curiam)
(observing that preliminary injunctive relief is designed “to
preserve the status quo and prevent irreparable harm until the
court has an opportunity to rule on the lawsuit’s merits”).
cynthia’s arguments in support of a detefmination thet
the court had subject matter jurisdiction to issue a TRO are
persuasive. First, she notes that the TRO petition was
cnecessary to prevent Duane’s imminent renoval of [Edith] from
th[is] jurisdiction to Panama before the matters alleged in the
Igluardianship (pletition . . . could be determined by the .
court.” Second, “the allegations of abuse heightened the need
for inmediate temporary injunctive relief, but were not the sole
basis for the issuance of the TRO.” As Cynthia submits, under
the circumstances of the instant case, “the . . . court validly
exercised its powers pursuant to HRS chapters 560 and 571 to act
in protection of a possible incompetent person and to preserve
] capacity.”
the status quo, pending a determination of (Bdith’
‘Third, ae Cynthia suggests, it has generally been
upheld that issuance of a temporary or permanent injunction
enjoining renoval of @ person from a certain jurisdiction “is
well-established” when “the effect of removal on the person's
37
}FOR PUBLICATION 8 WEST'S HAMAI'T REPORTS AND PACIFIC REPCRTE
health, interests [or] welfare are called into question or are
found not to be in the person's best interests(.]” See, edu,
Ewernewenn v, Kenny, 563 A.2d 1158, 1162 (N.J. Super. 1988)
(upholding restriction against mother from moving child to
another state as not in the best interest of child); Scott v
Scott, 60 A.2d 147 (RT. 1948) (affirming trial court's issuance
of restraining order prohibiting mother from removing child from
the court's jurisdiction until further order where child’s
welfare was called into question); In re Estate of Lint, 957 P.2d
755 (Wash. 1998) (holding that the totality of circumstances,
including, inter alia, the issuance of a TRO preventing removal
of testator from court’s jurisdictional reach, warrant trial
court’s decision that husband of testator exercised undue
influence and acted fraudently over testator).
The TRO at issue prohibited Edith from leaving or
otherwise being removed from the United States until an IME could
be performed in order to resolve the issue of her capacity. The
court is empowered to issue “orders . . . and. . . [do] other
acts . . . as may be necessary to carry into full effect the
powers that are or shall be given to them [under the guardianship
statutes, ]” HRS § 571-8.5(a) (10), and is authorized to “make
orders . . . and take all other action necessary and proper to
administer justice in the matters which come before it[,]” HRS
§ 560:1-302(b). Accordingly, it cannot be concluded that the
court was without jurisdiction to issue the TRO in this case
where resolution of Edith’s capacity is required to be resolved,
38
se+P0R PUBLICATION IN WEST! § RAMAI'T REPORTS AND PACIFIC REFORTER®
———
and an apparent threat of Edith’s removal from the court's
jurisdiction was alleged. Hence, Respondents’ contentions
regarding the court’s jurisdiction must be rejected
vr.
With respect to Respondents’ point of error (2),
regarding the alleged lack of evidence to issue the TRO, the
court did not abuse its discretion in doing so. HFCR Rule 65(b)
states that “[a] restraining order may be granted without notice
to the adverse party when it clearly appears from specific facts
2 dav:
et 08 ” (Emphasis added.), As
earlier noted, the court ruled on the propriety of Sssuing « TRO
under HFCR Rule 65(b) in the following manner:
upon the (THO) Petition... , the affidavits
‘Cynthia’. .\. and others, and the opinion of Or.
a past act or acts of nental or physical abuse against, or
Gndue influence over, . Edith. - » have cecured, and
thet she may be st risk of being taken cut of the country
against her wiil or that she ney lack capacity to make any
Gecisions regarding her health care end domicile.
(Emphasis added.) Respondents contend that Cynthia “did not cone
close to meeting even [the] minimal standard [under HFCR Rule
65(b).)" ‘They argue that
no matter how one looks at it, what [Cynthia] proffered
sinply does not add up to probable cause “that « past act or
acts of mental of physical abuse agsinst, or undue influence
over | ss Edith « . . y have occured, and that she may be
St 'risk’of being taken out of the country against her will
Gr thet she may Lack capacity to maxe eny cecisions
although the court utilized 2 “probable cause” standard in
determining whether # TRO should issue, HIFCR Rule 62 does not prescribe such a
Standard. ‘Respondents do not challenge the application of such a standerd.
ie do fot express any opinion ss to the utilization of 2 "probable cause”
Standard in determining whether an ex parte TRO should be entered.
38
‘+ **FOR PUBLICATION IN MEST’S HAWAI'T REPORTS AND PACIFIC REPORTER
regerding her healthcare and domicile,” ll of which the
court found in issuing the TRO.
(Emphasis in original.) In support of their contention,
Respondents challenge the adnission of the letter from Dr.
Blanchette, attached to the TRO petition, arguing that it lacked
proper foundation, and that there was “nothing in the record that
showed who she was or what qualified her to give opinions." In
addition, relying on State v Coffee, 104 Hawai'i 193, 199, 66
P.3d 1002, 1008 (App. 2004), for the proposition that “fal
judge’s personal familiarity with his prior decision in a
different case does not warrant the taking of judicial notice of
that prior decision solely in the interest of judicial
efficiencyl,]” Respondents maintain that the court's taking
judicial notice of Dr. Blanchette’s qualifications as a doctor
who practices geriatric medicine, and her “training, reputation,
and. . . work in this field,” based on her appearances in other
cases before the court, was error.”
<8 buring proceedings before the court on December 17, 2003, the
court made the following statement with respect to OF. Blenchette’s
qualifications:
THE COURT: Thank you. 1711
and this is for the record so the record 13 ©
Fegara to (Edith's counsel's] argument
Original pleadings or unsupported allegations with regard to
Dr. [Blanchette], although there wes no curriculum vitae
attached to the document that was her letter to the [clourt,
the. - court Ss aware of her medical background, training
and expertise.
‘he's sppeared nunerous times in the fanily court by
way of evidence, by letter, other reports being submitted,
Gnd itva the (elouft's understanding she's testified and
been certified as an expert witness for, on a number of
eccasions, as well ae in the probate court in the issue of
geriatrics, inthe field of geriatrics, so that doesn’t deal
with the question abost order to show cause, but T did vant
the recora to be clear that this [clourt’s familiar with Dr
[Blanchette’s] training, reputation and her work in this
[contsnued.
40
FOR PUBLICATION IN WEST! § WAWAL'T REPORTS AND PACIFIC REPORTERS#
Petitioner responds that the court correctly considered
br. Blanchette’s letter because it was properly authenticated in
the affidavit of Cynthia's Counsel. The affidavit identifies Dr.
Blanchette as an M.D. (medical doctor) with an MPH (masters in
public health)end was attached to the TRO Petition. Additionally,
Petitioner argues that the memorandum in support of the TRO
Petition, also signed by Cynthia's counsel, identifies ‘Dr.
Blanchette as the Professor and Chair of Geriatric Nedicine, John
A. Burne School of Medicine. Further, Petitioner argues that
Respondents’ reliance on Coffee is misplaced because, in that
case, the district court took judicial notice to establish that
(2) a police officer was a drug recognition expert (ORE) and
(2) a certain test conducted by the police officer in order to
determine drug impairment was scientifically valid. 104 Hawai'i
at 194, 86 P.3d at 1003.
‘The reasoning in Coffee focused on whether the facts
presented were the kind of facts permitted to be judicially
noticed under HRE Rule 201, that is, whether they “were generally
known within the territorial jurisdiction of the district court
or capable of accurate and ready determination by resort to
sources whose accuracy could not reasonably be questioned, as
required for the taking of judicial notice.” Id. at 200, 86 P.3d
at 1009.
P(..-continved}
‘eld.
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FOR PUBLICATION 28 WEST'S WAMAL'I REPORTS AND PACIFIC REPORTER®#
In the instant case, as stated supra, the first letter
from Dr. Blanchette to Cynthia's counsel, appended to the TRO
petition, identified the doctor as a doctor of medicine with an
advanced degree in public health, The menorandum in support of
the TRO Petition, signed by Cynthia’s counsel, states that Dr.
Blanchette is a professor and Chair of Geriatric Medicine at the
John A, Burns School of Medicine, In view of her position at the
only medical school in the State, it is arguable that or.
Blanchette’s status in geriatric medicine is “capable of accurate
and ready determination by resort to sources whose’ accuracy could
not reasonably be questioned.” Id.
However, the first letter aside, the TRO petition was
supported by the affidavits of cynthia,” Linda, and Beverley
which, taken together, satisfy the mandate of Réle 65(b) that
‘specific facts . . . by affidavit or by the verified complaint
or cross-conplaint” be shown to warrant inmediate relief.
cynthia’s affidavit averred the following matters:
On oF about June 1, 2003, my grandmother suffered @
Shortly thereafter, ny father, Duane Carlemith, who
ding in Panama for several years, moved into het
Fesigence and prevented ether fanily members fron seeing her.
My Understending ie that my grandnother and ay
father are currently in the city and County of Honluly
% Respondents abject to the affidavits by Cynthis, Lint
Beverley claining that these were inadnissible because each of 1
stfirmatively to demonstrate that the affient hed personal. knowledge of the
matters asaressed In the efficavit,” ee required by HRE Rule 602, As to
Cynthia's affidavit, the allegation that she "tried €0 call and to viet”
Faith but was refused by Duane, appears to be based on her persons! knowledge,
While the statenent that she is “deeply concerned” about Edith’s health does
Rot establish a factual matter regarding Esith’s health, but merely expresses
her concern for Edith's well-being. With respect to the affidavite of Linda
and Beverley, each of their affidsvits both affirmatively state that the
Raters averred were based on “personal knowledge” and appear to indicate
Statenente based on such knowledge. ence, no error is discerned
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‘ss4POR PUBLICATION IN MEST’S HAWAI'I REPORTS AND PACIFIC REPORTERS##
State of Hawaii, but that ay father intends to take her to
Panama by ship.” 1 tried to call and to visit her, but my
father refuses to let me talk to her or to see her
os: My grancncther is legally blind end very frail. 2
an deeply concerned about ny grandmother's health end
Welfare and believe that she is at trenendous risk et the
hands of my father
Linda’s affidavit reported, in relevant part, as follows
3. dn July, Annaliese cane to visit. Annaliese
told me that the fenily would Like se to become (Edith’ =]
primary caregiver. They wanted to buy ay contract from (my
employer)
cer, they bought my contract and T
ecane Zesponsiblé ring, scheduling and purchasing
Groceries for the care of (Edith). Additionally, 1 oversaw
Gesning, laundry, and generally managing (Edith? 8)
household.
3.-' continued in that capacity until Wednesday,
cetober @, 2003. At that tine, Duane took [Edien] to
Nawail. “I believe that they plan to stay in Hawaii for
three. (3) weeks and then go co Panana where Duane has
Feridence.
©. "Duane plans to keep (Edith) in Panama.
31 Daring the tine 1 nae Ms. Carisnith’s primary hene
caregiver, i witnessed numerous instances of Duane keeping his
mother isolates from other family nenbers[-)
8. Duane went #0 far as to hook the telephone up to the
computer eo that only he could answer the oF make telephone calls
fron the residence. No one was allowed to answer the door, except
in, “th mid september of 2003, one of the other health
caregivers, Beverley, told se that (Edith) had bruises on
her buttocks and upper inner thighs (near her groin). 1
then personally observed these Brus:
32, Ouane canceled [Edith’ s) appointments with her
speech therapist, physical therapist and message (2ic)
therapist. He told his mother in my presence Ne had done
thie ts) until the brotses were gone
is! “Diane did not take [Edith] to the doctor for her
reatment of the bruises.
ie, “tiaien) cold me three (3) oF four (4) times that
he waz horrified about leaving her residence and moving
Sonawhere
15. “On October 7, [Edith] told me, “I'm very
terrified! They're taking me somewhere T don’t want to go."
‘This occurred while I accompanied Duane and (Edith) in my
automobile to 8 shipping cospany in San Raphael, California.
Beverley'’s affidavit provided the following relevant statements:
7. uring the approximately month and a half (sicl
was employes by Dusne 1 cbserved many things
Concerning Duane... snd hie mother that caused me to be
Gneasy and of great concern regarding her enotional and
physical welfare:
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10. on the morning of September 29 or 30, 2003, ae 1
was assisting Baith in going to the toilet, ot that time 1
oticed @ large black and purple Bruise on’ Edith's buttocks.
(2 cannot renenber whieh side-)” The brulae wes
approxinately three inches in diameter. Upon closer
ebservation, T also noticed that the inside of Edith's
thighs, in the groin ares, were red and chaffed. I had
never noticed brsising oF chaffing on sdith’ body before.
Edith had been complaining about frequent and severe muscle
spases in her Legs at this tine
13. “Thesday, September 30, 2003, 1 overheard Duane
talking Gn the telephone. Duane’ sald, “I think we're going
to leave in a couple of days. Tomorrow we go to the bank
and get $4000 or $40,000. I do not know who he was talking
fo, “T'teld Linda abit this on Wednessay morning, October 1,
2003. She told ne that Ouane was taking Edith to Haweii and
then to Panana (by ship) sonetine in the futu
14. ""Approxinately|) two weeks ago, Ousne renoved the
telephone fron Eaith’s bedroos.” when she asked about where
the phone was, Duane told ner he had taken it out so that
ether menbers of the family wouldn't bother her. Edith told
tne that she id not want eo go to Mawsi'l, But Lt was anat
Mas best for her. Edith sppesred to be very emotionally
Upset over having to leave her house.
As Cynthia contends, “the above-discussed affidavits
satisfied the standard set forth in [HFCR] Rule 65(b).” The
@ possibility. that Edith was
affidavits suggest that there wi
receiving improper care from Duane, and that Duane would take
Edith to Panama against her will, Given the possibility of
irreparable injury, the court cannot be faulted for determining
that immediate relief was appropriate.”
_vitimately, assuming, arguendo, adaission of br. Blanchet te’s
first letter was error, it was hazmless error because it was supported by the
doctor's subsequent February 23, 2004 affidavit with the second Letter and CY
appended. As her second letter states, she has “been an expert in Alzheimer's
Gisease and other forms of dementia for the past 20 years. [She] hes done
Fesearch and published in peer review Journals on this copie, iene) de
considered a national expert on the subject and has been sffirmed es an expert
incompetence in both federal and state coure.” Dr. Blanchette’s cv indicates
‘she attensed medical ‘school at Dartmouth University , did 2 two year
fellowship in geriatric medicine at Harvard University, and she is currently &
Professor and Chair of the Department of Geriatric Medicine at the John A.
Burns School of Medicine at the University of Hawai't and wes the founding
Girector of the Geriatric Medicine program st the University of Hawai'i
Regarding the errcneous adnission of evidence by 3 trial court,
this court has said that “the error is not to be viewed in isolation and
Consiseres purely in the abstract. It must be examined in the Light of the
entire proceedings and given the effect which the whole record shows it tobe
(cont inuea.
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‘POR PUBLICATION IN WEST’ § AKA'S REPORTS AND PACIFIC REPORTER*#*
Hence, HECR Rule 65(b) being satisfied, sufficient
evidence existed to support the issuance of the TRO, and, thus,
the court did not abuse its discretion on this matter.
vit.
In their point of error no. 3, Respondents contend that
the appointment of a TGAL should have been terminated following
Edith’s appearance before the court on October 28, 2003, when she
denied the allegations of the guardianship petition. In support
of this contention, Respondents rely on the holding of the
Supreme Court of the Territory of Hawaii in Kalanianaole vi
Lilivokalani, 23 Haw. 457, 468-70 (1916), which states as
follows:
‘the law presunes all persons to be of sound mind, and
if adults, capable of managing their own affairs and the
ere fact that it is alleged oy @ person styling himself
ext friend, that a particular individual, who 18 an adult,
TS"oe weak or unsound sing, and not capable of taking care!
of his own affairs, does not destroy that presunption. But
Where the action is brought in the name of the person
Nieged to be of weak or unsound mind, by his next friend,
Ggelnse parties having an interest in'the subject-matter, st
{3"to be presuned, in the absence of anything appearing to
the contraey, that whatever consent such person is capable
Of giving £0 the bringing of the action has been obtained:
Gne’that at 4s in fact his auity for it is really an his
Rime; and that he has obtained the consent of a friend, as
tthe most. competent person by whom he wishes his case to be
Ednducted, ih order that his rights may be the bert
protected
‘hig suits chat he" {s competent 19 take cazeof nis own
aifaics: that the supposed friend isin fect an
jth he hat isthe pave?
) Doubtless an ex parte allegation of insanity or
me na trae Bould warrant a cours
‘anoosnting a ext telend or quardian ad Litem Sot such
ig ry
(continued)
entitied.* “State v, Machado, 109 Hawai" 445, 452, 127 €.34 981, 948 (2006).
aus, sieved in ight of the doctor's subsequent affidavit ang GV, error if
Iny in the adniesion of the first letter waa harmless error.
45
/+FOR PUBLICATION IN WEST! § HAWAI'T REPORTS AND PACIFIC REPORTER®
tment, the laced
‘Sourta-dental of such incomestence. nor would ib iustity
fiitinart tn continuing an appointment sreviously eade aster
‘Guci_denial hes been intersosed, exceot upon _adiudication of
f rr Te ould
resent an Intoleranle situation that & party iitigant
Should be represented by a next friend or a guardian ad
Iivem on the eneory that he is incompetent, and also by an .
attorney of his own selection on the theory that he is
Sinpecent, each representative filing inconsistent. pleadings
and insisting on conducting the caso as he should deem best.
Open principle there would seen to be no room for the theory
that the trial Judge has the discretion to decide the issue
fas to the party's competency in connection with the merits
Of the case for the question would not down (sic) as to
Which of the reptesentatives shovld be allowed to frane the
USsuee and conduct the case oF discontinue it
A-person Of throvah a representative of bis ow choice, and
She be in fact incompetent his only representative snculc
fecthe aneointes of the courk.
(Emphases added.) (Citation and internal quotation ‘marks
omitted.) Respondents argue that instead of terminating the
appointment of a TGAL, the court reauthorized a TGAL in its
November 26, 2003 order.”
Kalanianaole is distinguishable and mist be viewed in
context. Kalanianaole does not stand for the proposition that in
all cases where the individual denies his or her incapacity, the
appointment of a TGAL should end. in Kalanianaole, the
petitioner questioned the mental competency of Queen Liliuokalani
(the Queen) before the trial court and alleged, in purported
behalf of the Queen, that two of the respondents conspired and
exercised undue influence over the Queen causing her to execute a
* the Novenber 26, 2003 order instructed Luria to continue in the
capacity of TGAL for Baith. That order provided that Edith may return to her
home in California or travel to another location in the United states if she
Informs the TGAL of her itinerary, address, and telephone number beforehand.
Te also authorized the TGAL to, inter alia, (1) “arrange for appropriat
access for family senbers to (Edith,|"" (2) arrange for an IME, (3) provide
list of proposed examining physicians able to perform the IME, and (4) have:
Continued access to Edith, “ner meaical providers and caretakers(,) and such
Fecorde and documents #9 shall be necessary to perform his duties as (TGAL].”
46
FOR PUBLICATION IN WEST'S HAMAL'E REPORTS AND PACIFIC REPORTER*®*
——
deed of trust which named the two respondents, among others, as
beneficiaries. 23 Haw. at 458-59. The petitioner sought the
annulment of the deed and all related instruments, and requested
that the trustees be ordered to reconvey and deliver the subject
property to the Queen. Id. at 458. The Queen, through counsel,
moved to dismiss petitioner’s claim on the ground that the
petitioner's complaint was filed without her authority, consent
or knowledge. Id.
The trial court denied the Queen’s motion to dismi
and reasoned that it regarded the Queen's affidavit in support of
her motion to dismiss as an objection to the designation of the
petitioner as her next of friend. Jd. at 459, The court
appointed an attorney as next of friend for the Queen in place of
petitioner. Id. Subsequently, the Queen filed an’ affidavit
asserting her capacity, accompanied by a notice to petitioner's
counsel that she would be requesting @ hearing to determine the
issue of her competency. Id, at 459-60. Later, the Queen filed
‘an “Objection and Protest” against further proceedings until
after her competency had been judicially determined. Id, at 460-
61. However, the trial court ruled that it would not decide the
issue of the Queen’s competency as a preliminary matter but would
do so in relation to the other issues brought before it. Id. at
461.
on appeal, the issue presented before the Territorial
Supreme Court, among others, was whether it was proper for the
trial court to adjudicate the merits of the case prior to a
0
sevfoR PUBLICATION IN WEST'S HAWAL'T REPORTS AND PACIFIC REPORTER
determination of the Queen’s mental competency. Id, at 468. The
Territorial Supreme Court held that “when in any case the alleged
Ancompetency. is denied by the alleged incompetent the court must.
hear and determine the issue in Limine and before further steps
be taken in the cause.” Id, at 470. It explained the effect of
the trial court’s error as follows:
Here, the error was exphasized by the fact that the circuit
SSage, while expresely declining to make a finding as to the
Goeen’s"present status or condition, permitted the guardian
2e'licen, uno could have standing in Eourt only in case the
Gueen be sn fact. sncorpetent, to file an answer and cros
EGii"averring her incepacity, the legal effect of which was
fo supplant her former assertion of competency.
Ide
‘hus, as Cynthia contends in her answering brief,
Kalanianaole disapproved of the trial court permitting the GAL to
take legal action on the Queen's behalf before it determined that
she was not competent to proceed on her own, “In this case, the
purpose of the guardianship proceeding was to determine whether
ath care
Edith was competent to make decisions regarding her h
and other matters affecting her. Following the October 28, 2003
hearing, the court determined that an IME was required to be
performed, and in the interim, the continuance of a TGAL wai
necessary.
not aid Respondents’ caus
Therefore, Kalanianole do
Kalanaianole stands for the proposition that when an allegedly
incapacitated person denies his or her incapacity, then the issue
of copacity must be resolved prior to a determination on the
merits. In fact, the court’s decision to appoint a TGAL and
48
8 HAWAT'T REPORTS AND PACIFIC REPORTER*+*
FOR PUBLICATION IN WE
ar_e—~<~<>SEOT OS
order an IME is consistent with Kalanianaole in that the court
did not proceed to finally adjudicate the issue of whether
guardianship of Edith should be established. Instead, the court
ordered that the matter of Edith's capacity be resolved prior to
any determination regarding whether the guardianship matter
should proceed.
The court's decision to retain @ TGAL while the issue
of Edith's capacity renains undecided is also supported by HRS
§ 560:5-303(b) (1993) which provides in pertinent part that
“fulpon the filing of the petition, the family court shall set a
date for hearing on the issues of incapacity and, if at any tine
in the proceeding, the court determines that the interests of the
allegedly incapacitated person are or may be inadequately
represented, it shall appoint a guardian ad liten.”
As earlier mentioned, HRS chapter 560 “shall be
Liberally construed and applied to promote its underlying purpose
and policies.” HRS § 560:1-102, “The court has full power to
make orders, judgments, and decrees and take all other action
necessary and proper to administer justice in the matters which
come before it.” HRS § 560:1-302(b). In that light, we hold
that the court did not err in maintaining the appointment of the
TGAL in view of the allegations of potential abuse and undue
influence, as part of its continuing duty to protect the interest
of Edith before the issues of her capacity are resolved.
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vinr.
We next address Respondents’ point of error no. 6, and
their objections to the following findings and conclusions issued
fon Decenber 22, 2005, which we reiterate here:
A. EINDINGS oF pact
5.7. . (edsth's counsel) stated that (edith! hae
received a Copy'of the TAO and represented to the {cloure
that he had read the (glvardianship petition and TRO te
teaienl.
3.” ‘on october 2%, 2003, . . . [Cynthia's counsel]
served file-narked copies of the (Guardianship Petition],
TRO Motion, and Ex Parte Petitions to Shorten Tine upon
(Duane). ¢" through... [Edien's counsel.
iz. | At about the time thet she was released fron
Queen's iiospital, (Edith) was oriented to her name only
[eaitn} aid! not know where she was, nor could she recall the
day, date, oF tine.
13." “n‘er about Noverber 24, 2003, Duane and (Edith)
went to Penana Sn viclation of the TRO.
B.
I. ““This court has jurisdiction to hear the
[guardianship petition!
5.” "[Baith) violated the TRO entered on October 24,
2003 by leaving for Panana prior to completion of an IME.
ia ‘sted (Edith) in violating the TRO. (Edith) and
Duane viclates the First and Second Ime Orders.
10. Based on the violations of the [ejourt's
lolrders of october 24, 2003, and Noveaber 26, 2003, and the
nonconplisnce with IME’ orders, [Edith] and Duane were
precluded from presenting evidence of (Edith]"s c
11. “Based on the evidence that was before the
Iclourt, ‘the (clourt finds (Edith it) incapacitated and in
need ofa guardian to provide ner continuing care.
sey.
In sum, we cannot discern any error on the part of the court with
respect to the challenged findings and conclusions. We further
note that, in light of the circumstances regarding the issuance
of these findings and conclusions, and consistent with HFCR Rule
37(b) (2) (A), see supra note 2, the court was empowered to enter
“[aJn order that the matters regarding which the order was nade
or any other designated facts shall be taken to be established,”
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where a party fails to comply with an order.
AL
With respect to the court's December 22, 2008 finding
no. 5, Respondents identified in the record where Edith objected
to this finding but offered no argument as to why this was in
error. As we have previously stated, “this court is not
obligated to sift through the voluminous record to verify an
appellant's inadequately documented contentions.” Lanai Co. v
and Use Con'n, 105 Hawai'i 296, 309 n.31, 97 P.3d 372, 385 n.31
(2004); see also Mivanoto v. Lum, 104 Hawai'i 2, 11 n.14, 84 P.3d
509, 519 n.14 (2004) (explaining that an appellate court is not
required to sift through the voluminous record for documentation
of a party's contentions). Accordingly, we need not reach this
contention.
5
With respect to finding no. 9, Respondents simply state
that they “find no proof of service in the record.” As discussed
supra however, Respondents waived the defenses of lack of service
or insufficient service. Hence, any error as to the lack of
proof of service has been likewise waived.
c.
Finding ne. 12 4s also not clearly erroneous.
Respondents contend that “no substantial evidence supports the
finding” that “(a]t about the time she was released from Queen's
Hospital, [Edith] did not know where she was, nor could she
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recall the day, dete, or tine.” However, Respondents proffer no
arguments beyond that contention. We note, however, that the
court's finding is supported by the affidavits and medical
records. To reiterate, Edith’s medical records include a
progress report dated November 13, 2003, or a day prior to
Edith’s discharge, it was reported that Edith’s condition was
“AsOx1.” Dr. Blanchette explained in her second letter that this
meant Edith was “alert oriented only to person, place, or time.”
(Emphasis in original.)
In that same letter, Dr. Blanchette assessed that,
based on her review of Edith’s medical records, “(t]his record
provides strong evidence of a physically frail, mentally
incapacitated person whose ‘baseline’ is seriously impaired to
the point that she simply knows who she is, does not recognize
others even when informed of who they are, and is not oriented to
day, date, month, or year.” Hence, substantial evidence exists
to support the court’s finding no. 12, and therefore, the court
did not clearly err in determining Edith “did not know where she
was, nor could she recall the day, date, or time.”
D.
Similarly, the court did not err in finding no. 13 that
“fo}n or about November 24, 2003, Duane and [Edith] went to Panama
in violation of the TRO.” In connection with this argument,
Respondents also claim that conclusion no. 9, determining that
Edith and Duane violated the TRO, was in error. According to
52
seepon PUBLICATION JN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*#*
EE
Respondents, “Edith and Duane raised the issue that the TRO was
void, and therefore was not violated.” As earlier determined,
Respondents’ contentions regarding the validity of the TRO are
unpersuasive. Accordingly, the court's finding no. 13 and
conclusion no. 9 need not be disturbed.
BE
Respondents clain that conclusion no. 1 is incorrect,
but provide no arguments in this respect. However, as earlier
discussed, Respondents’ arguments relating to the court's
jurisdiction, either over the persons of Edith and Duane or with
respect to the issuance of a 780 in relation to a guardianship
petition, are not tenable. Therefore, conclusion no. 1 is not
wrong.
Fr
With respect to the court's conclusion no. 10, no
arguments are presented. Therefore, Respondents waived error in
this respect. See HRAP Rule 26(b) (7) (2006) (“Points not argued
may be deemed vaived.”)
s.
With respect to the court's conclusion no. 11, that
“{bJased on the evidence that was before the (clout, the {clourt
finds [Edith is] incapacitated and in need of @ guardian to
provide for her continuing care(,]" we hold that no reversible
error is present. Respondents argue that “no substantial evidence
supports the [cJourt’s finding that Edith is ‘incapacitated and in
53
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need of a guardian.’" As earlier discussed, the court entered its
December 22, 2005 findings, conclusions, and order in response to
cynthia’s motion for attorney’s fees and sanctions against Edith
and Duane, Although the parties presented evidence with respect
to Edith’s capacity, the issue of Edith’s capacity has not been
finally decided.
The court is empowered to enter, as a sanction against a
party who fails to comply with a discovery order, “[a]n order that
the matters regarding which the order was made or any other
designated facts shall be taken to be established.” HFCR Rule
37(b) (2) (A). Respondents do retain the opportunity to rebut the
court’s interim ruling that Edith is incapacitated. In fact, the
court's December 22, 2005 order permits such opportunity by
ordering that “Duane . . . and Edith . . . [be] precluded from
presenting evidence to establish [Edith]’s alleged capacity until.
sucha tine as she aubsits to an [IMEL.” (Emphasis added.)
We recognize that, on its face, the court's conclusion
may be read as indicating that the matter of Edith’s capacity has
been fully adjudicated. However, in light of the court’s order
allowing Duane and Edith to establish Edith’s capacity following
her submission to an IME, this is not the case. Hence, to the
extent that conclusion no. 11 was made as part of the order
nctioning Respondents for failing to comply with the IME
orders, and in light of the court’s authority to enter “[ajn
order that the matters regarding which the order was made or any
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ee
other designated facts shall be taken to be established” under
HFCR Rule 37(b)(2)(A), the court did not err.
rm.
Finally, with respect to Respondents’ objection to the
court’s November 26, 2003 finding no. 4 that Edith “was served
with the (guardianship petition] through her Hawaii
attorney’s[,]” Respondents offer no argument in support of this
contention. However, it appears that Respondents are reiterating
their objections to the manner in which Edith was served. As
earlier indicated, supra, Respondents have waived their
objections for insufficiency of service by failing to raise
objections regarding service in a timely manner or by motion
pursuant to HFCR Rule 12, Hence, no clear error exists with
respect to the court's November 26, 2003 finding no. 4
x.
Accordingly, we affirm the court’s September 26, 2005
order granting in part and denying in part Cynthia’s motion for
attorney's fees and sanctions and its September 26, 2005
judgment, and remand thie case to the court for further
proceedings consistent with this opinion.
on the briefs: Gop
Be Pierce
Michael Jay Green and
Howard Glickstein for
Respondent Appellant a
La, CA carey AN
Edith M. Carlsmith.
men: Bully fa
5s
‘**FOR PUBLICATION 38 WEST'S HAMAI'T REPORTS AND PACIFIC REPORTERS*+
Stuart M. Cowen for
Respondent Appellant
Carl Duane Carlsmith.
Jeffrey S. Portnoy,
Rhonda L. Griswold, and
Allison M. Mizuo (Cades
Schutte, LLP), for
Petitioner-Appellee
Cynthia Carlsmith Crespi.
Russell Suzuki and Adine
Kobayashi Cunningham, Deputy
Attorneys General, for
amicus curiae State of Hawai'i,
56
|
61bea5a5-dbe2-4ac9-88de-9cf3cd0038c4 | In re Tax Appeal of Narmore v. Kawafuchi, Director of the Department of Taxation, State of Hawaii. Dissenting Opinion by J. Levinson, with whom C.J. Moon joins [pdf]. | hawaii | Hawaii Supreme Court | ‘/e+FOR FUELICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*##
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
‘o00~--
IN THE MATTER OF THE TAX APPEAL
oF
SIC kd 62
0%
BOBBY R, NARMORE, Appellant~Appellant
KURT KAWAFUCHI, DIRECTOR OF THE DEPARTMENT OF TAXATION,
STATE OF HAWAI'I, Appellee-Appellee
No. 26812
APPEAL FROM THE TAX APPEAL COURT
(TAX APPEAL NO. 02-0066)
SEPTEMBER 29, 2006
NAKAYAMA, ACOBA, AND DUFFY, JJ.; AND LEVINSON, J.,
DISSENTING, WITH WHOM MOON, C.J., JOINS
OPINION OF THE COURT BY ACOBA, J.
We hold that (1) Hawai'i Revised Statutes (HRS) § 232-
17 (2001) and Rules of the Tax Appeal Court of the State of
* nawai'l Revised Statutes (HRS) § 232-17 (2001), entitled “Appeals
from boards of review to tax appeal court,” provides in relevant part:
adninistrative body established by county ordinance, by the
‘filina. by the taxpaver, the comity. of the tax assessor, of
2 ‘the office of the tax soped)
She state beard of review or equivalent administrative
Badd, ond, in the case of any appealing taxpayer, the
Paynent of the costs of court inthe amount’ fixed by section
252-22.
seezecr" ode incase of an
Ss Snvsiving a county se @cartv, with th
Eounty clack. ‘he appeal shall bring up for
Getermination li questions of fact end all questions of
(coniued.)
oan
‘s*+FOR PUBLICATION IN WEST’ § HAWAI'T REPORTS AND PACIFIC REPORTER:
Hawai'i (RTAC) Rule 2(a),? requiring Appellant-Appellant Bobby R.
Nazmore (Narmore) to serve a copy of his “Notice of Appeal to Tax
Rppeal Court” on Appellee-Appellee Kurt Kawafuchi, Director of
the Department of Taxation, State of Hawai'i (the Department), is
not jurisdictional and, hence, failure to comply with such
*(-contined)
‘law, including constitutional questions involved in the
appeal.
Anappen)_ahali be deemed to have been taken in tine
< the notice thersof-snd-coste, if anv, and the copy or
‘copies of the notice shall have been denosited in the malls
bortace prevtig, properly addressea to the tax appeal court,
iax_osseasor, tanpaver of taxpavers. and countu.
enpect ively. within the period provided by This section,
(Emphases added.)
2 Rules of the Tax Appeal Court of the State of Hawat"l Rule 2(a),
entitled “appeals,” states in relevant part:
(a) Filing. An appeal shall be initiated by filing
with the clerk of the Tax Appeal Court a written notice of
Gppeal and, in the case of # taxpayer, paying the costs of
court a3 prescribed in HRS, ‘Section 232-22. The appellant
Eections Ziz-1e and 2-12. not later than the ante raed
(au for the tatine of the sopeal.---- The-notice shall be
‘filed either by personally delivering or making Isiel is to.
‘ihe clerk of the Tax Apeeal Court, The notice shall be
condidered filed wh z
Sourt, ot it nailed, cronerly addressed to such court ond
ith sdequste costage paid. on the postaaried date... =
‘The_conv of the notice to the assessor, taxpayer, and
say be filed hy i
ia} ie’the spose) ie from the decision of a board of
review the notice must he filed within 0 dave after the
‘iina‘of such decision.
of these rules, the action shall be
treated and disposition made thercof in the same manner as
appeals fron an assessment of taxes:
‘An appeal to the Suprene Court and the Intermediate
court of Appeals from eny decision of the Tex Appeal Court
in these actions must be filed within 30 days after the
fling of such decision.
For puipes
(Emphases added.)
}FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER!
Language did not deprive the Tax Appeal Court (the tax court)? of
Jurisdiction to hear Narmore’s appeal, inasmuch as (a) under the
plain and unambiguous language of HRS § 232-17, it is the filing
of the “Notice of Appeal to Tax Appeal Court” with the tax court,
and not the filing of a copy of the “Notice of Appeal to Tax
Appeal Court” with the “assessor” Department,‘ that initiates a
tax appeal and (b) this court will not presume that the
Legislature erroneously neglected to include language that would
make service jurisdictional, and (2) Namore was not prejudiced
by the Department’s failure to provide him with a certified copy
of the “Decision{s}” filed by the Board of Review for the First
Taxation District (the Board) ai
required by HRS § 232-7 (2001).*
> The Honorable Gary W.B. Chang presided
+ the parties appear to agree that Appellee-Appellee Kurt Kawafuchs,
Dixector of the Departeant of Taxation, State of Hawai'i (the Department) 1s
the “assessor” for purposes of HRS § 252-17 inasmuch as the Department argued
in its Janvary 9, 2003 "Motion to Dismiss,” and March 7, 2003 “Supplenental
Hesorandun in Support of Motion to Sienias,” that Appeliant-appellant Bobby R.
Narnore (Narnore) had not properly served 2 copy of his "Notice of Appeal to
‘Tax Appeal Court” with the Cepsrtment, and, in Ais January 24, 2003
Swenorandum in Oppesiticn to the (Department's) Motion to Dismiss,” Narmore
apologized to the Department for not personally serving his "Notice of Appe:
to Tax Appeal Court” on it. Further, as mentioned infrs, the Department
argues on sppeal that the Tax Appeal Court (the tax court) lacked subject
matter jurisdiction to review Narmore’s appeal inasmuch as the Department did
Rot assess Naznore for the 1969 tax year. The parties likewise appear to
‘agree that the Depertnent is the assessor for purposes of RIAC Rule 2(8)-
+ uns § 232-7 (2001), entétled “Boards of review; duties, powers,
procedure before,” provides in’ pertinent part:
(2) The board of review for each district shall hear
informally 11 disputes between the assessor and any
taxpayer in all cases in which appeals have been duly taken
ana the fact that a notice of appeal has been duly filed by
2 taxpayer shall be conclusive evidence of the existence of
42 cispote; provided thet this provision shall not be
Construed to permit a texpayer to dispute an assessment to
the extent thst it is in accordance with the taxpayer’ &
(continued)
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Accordingly, the tax court's July 8, 2004 “Order Granting
[Department's] Motion to Dismiss Filed on January 9, 2003” and
July 8, 200 final judgment in favor of the Department and
against Narmore are vacated and this case is remanded to the tax
court for further proceedings consistent with this opinion.
1
At sone point in early 1983, Narnore brought his 1984,
1985, 1986, 1967, 1988, and 1998 federal incone tax forms, as
well as other tax information to the Department for an audit for
the purpose of determining if he owed any additional excise tax.
This wi
done in conjunction with the Department's “Non-Filer
Program." Narnore reviewed his tax forms and information with a
Department enployee and then left them with the Department for
further review. Narnore asserts that after the Department
finished an “audit” of his forms and information, they were
returned to him and he was assessed no taxes, penalties or
interest, but was informed that the Department would contact hin
later if necessary.
*contimaed) ,
lic} Gné board shall base its decision on the evidence
before it, and, as provided in section 231-20, the.
assessment made by the assessor shall be deened prina facie
Correct, the Boafd shall file with the asressor concerned
Sts decieson in writing on each appeal decided by it, anda
Kertified copy of the decision shall be furnished by’ the
ihe copy_addressed to the taxcaver's Tast know place of
feridence:
(Emphasis added.)
‘The record does not provide a description of the “Non-Filer
Progran.”
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on October 24, 1996, Narmore received a notice from the
Department’ s Oahu Collection Branch, Collection Division (the
collection division) informing him that he had a current account
balance of $12,872.53 and that he had not filed several “General
Excise” and “Net Income Individual” tax returns. The notice
requested that, by Novenber 4, 1996, Narnore provide a “statement
of Financial Condition and Other Information” and all tax returns
that he had not filed. One of the tax returns requested was
Narmore’ s “Annual Return” for 1989.
Narmore asserts that he reninded the Department that he
had furnished tax information in 1993, an “audit” was conducted,
and he was not assessed any taxes for 1989, He further maintains
that two Department audit supervisors informed him that there was
no record that they had received his documents in 1993, but that
a third employee “confessed” to reviewing the documents in 1993
and stated that the information was in the Audit Division.
At some time in December of 1996, Narmore submitted his
“annual Return Reconciliation General Excise/Use Tax Return for
Calendar Year 1989” (first 1989 tax return). Although the first
1989 tax return in the record is not legible, the parties agree
that it was signed by Narnore and dated December 17, 1996. They
also agree that pursuant to the first 1989 tax return, Narmore
owed $12,179.93. At this time, Narmore also remitted a
$13,000.00 check, dated December 16, 1996, to the Department for
payment of his taxes.
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The parties, however, disagree on the circunstances
surrounding the creation of an additional “Annual Return
Reconciliation General Excise/Use Tax Return for Calendar Year
1989" (second 1989 tax return). The second 1989 tax return
contains Narmore’s signature, is dated Decenber 17, 1996, is date
stanped “Received” on December 16, 1996, and reflects an amount
due of $5,365.92. Narmore asserts that the second 1989 tax
return was purportedly “drastically forged” by the Department:
sturn] to (the second
Department had
tthe amount of taxes, deleted the penalty and interest
cniries; date-stanped [the second 1989 tax return) 16
Becenber 1996) and thereafter, repeatedly testified under
Seth that Narmore had filed (the first 1989 tax return] on
$C decenber 1996, that the ancunt of taxes was 55,365.52,
that thie amount as paid on 16 Decenber 1996, and the
Depertrent had waived the penalty and interest on 16
Decenber 1996.
‘The Department, on the other hand, denies that the second 1989
tax return was forged, and instead contends that “(alt the time
[Narmore] submitted his 1989 general excise annual return in
1996, (Nermore] owed $12,179.93; however, the Department waived
penalties and interest, reducing the tax amount due to
95,365.92," so that the Department made the appropriate
amendnent.?
Either in late Decenber of 1996 or early January of
1997, Narmoze verbally notified the Department that he intended
7 although not explicitly stated, it would appear that the
Department concedes that it altered the original "Annual Return Reconciliation
General Excise/Use Tax Return for Calendar Year 1989" filed by Narnore for the
porpose of elininating the penalties and interest that Narmore would owe the
Department.
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to file an appeal with the Board. On January 7, 1997, the
Department processed the second 1989 tax return and posted a
payment of $5,365.92 to Narmore’s general excise tax liability
for 1989. The balance of Narmore’s $13,000 payment, made by
check dated December 16, 1996, was applied to other outstanding
tax liabilities.
on January 17, 1997, Narmore wrote to the Department
stating that, because the statute of Limitations provided in HRS
§ 237-40 (2001) had expired, he could not be deemed to ove
additional taxes for the 1989 tax year. He also requested the
necessary forms to appeal to the Board. In a letter dated
February 26, 1997, the Department responded that inasmuch as a
return was not filed until December 16, 1996 for the 1989 tax
year, the statute of limitations had not run, The February 26,
1997 letter stated that Narmore’s additional liability was
$5,365.92."
1.
on or about March 17, 1997, Nazmore appealed to the
Board. In his “Notice of Appeal,” Narmore made an “objection to
+ uns § 237-40 (2001), entitied “Limitation period,” provides in
felevant part:
(2) General rule, ‘The amount of excise taxes imposed
by this chapter shall be assessed or levied within three
years after the annual return was filed, of within three
's of the due date prescribed for the filing of sai
Feturn, whichever is 1
without Seeessment for
shall be begun after the
* the cepartnent provided the necessary appellate forms Narmore
requested and s copy of HRS’ § 237-40.
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the assessment” of $12,179.93 for the 1989 tax year. Narmore
asserted that he had delivered tax forms and information to the
Department in 1993, that the Department had reviewed his tax
forms and information, but not completed his tax return for the
1989 tax year, and that if he had known that the Department was
not going to complete the tax return, he vould have completed it
himself. In a letter to the Board dated April 13, 2002, the
Department asserted that (1) the statute of limitations provided
in HRS § 237-40(a) did not begin to run until Decenber 16, 1996
when Narmore filed the second 1989 tax return, (2) Narmore failed
to file an annual return, as required by HRS § 237-33 (2001)"*
until December 16, 1996, (3) the tax forms and information
Narmore provided to the Department in 1993 did not constitute
filing a return,
) Warmore was aware or should have been avare
of the statute of limitations under HRS § 237-40(a), and (5)
Narmore was not aggrieved by an assessment of taxes inasmuch as
the taxes he paid were in accordance with the second 1969 tax
return.
© gas § 237-33 (2001), entitied “Annual return, payment of tax,”
in relevant part
fon oF before the twentieth day of the fourth month
following the close of the taxable year, each taxpayer shal
rake a return showing the valve of products, gross proceeds
Of sales or gross income, and compute the amount of tax
chargeable against the taxpayer in accordance with this
chapter and deduct the ancunt of monthiy payments (as
hereinbefore provided), and transmit with the taxpayer's
report a renittance in the form required by section 237-31
Covering the resiase of the tax chargesble against the
Coxpayer to the district office of the depertnent of
tenation hereinafter designates.
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Narmore’s appeal was heard by the Board on August 1,
2002." That same day, the Board rendered its “Decision,”
finding in favor of the Department in the amount of $5,365.00.
‘The August 1, 2002 “Decision did not indicate the basis of the
Board’s determination. At the bottom of the “Decision” form was
a notation advising Narmore of the procedure he should comply
with if he disagreed with the Board's decision, stating as
follows:
If you disagree with the Board's Decision, you nai
appeal to the Tax Appeal Court within thirty days after the
Gste the Decision was filed, the Tax Assessor may eso
peal. If you should decide to appeal the Decision to the
Tex Appeal court, ‘the appeal must be made in writing and
comply with the requirements prescribed in (HRS § 232-17
(2001), and the Rules of the fax Appeal Court.
The August 1, 2002 “Decision” was sent to Nazmore vie certified
mail on August 21, 2002, Narmore’s wife received and signed for
the August 1, 2002 “Decision” on August 23, 2002. On or about
August 23, 2002, Nexmore infozmed the Department that he required
more time to consult with an attorney regarding an appeal to the
tax court. The Board, therefore, refiled its August 1, 2002
“Decision” on August 28, 2002, thus providing Narmore an
additional thirty days to file his appeal. The August 28, 2002
“Decision” indicated that it was based on a determination that
“[t]he evidence demonstrates that the assessment is proper and
valid.” The August 28, 2002 “Decision” was also sent to Narmore
via certified mail. Narmore received and signed for the August
28, 2002 “Decision” on September 9, 2002.
the record does not contain
ranscript of this hearing.
°
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mt.
a
on Septeber 26, 2002, Narmore filed his “Notice of
Appeal to Tax Appeal Court” in the tax court. Therein, he
clained the anount of tax in controversy was $12,179.93 plus
accumulated interest from Deconber 16, 1996 and asserted that he
had paid the tax under protest. He reiterated his previous
argunent that the Departnent was barred by the statute of
Limitations from collecting excise taxes from him for the 1989
tax year insofar as he had provided tax forms and information to
the Department in 1993, Narmore asserted that although the
Department claimed to have waived penalties and interest for the
1989 tax year, it had made many attempts to collect them. He
requested that $12,179.93 plus accumulated interest from Decenber
16, 1996 be awarded to him
on January 9, 2003, the Department filed its “Motion to
Dismiss.” Therein, the Department contended that (1) the tax
court lacked Jurisdiction to review Narnore’s appeal inasmuch as
(a) Narnore was not aggrieved by an assessment of taxes,
(b) Narnore did not pay his excise tax for the 1989 tax year
under protest, and (c) the Department had not issued an adverse
ruling against Nazmore for the 1989 tax year, (2) the tax court
lacked subject matter jurisdiction pursuant to HRS § 232-17 and
RIAC Rule 2(a) because he did not file a notice of his appeal
with the Department, and (3) Narmore’s appeal should be dismissed
10
e+F0R PUBLICATION IN WEST'S HANAI'E REFORTS AND PACIFIC REFORTER'"
for failure to state @ claim upon which relief may be granted
insofar as (a) he provided no legal basis to justify an award of
$12,179.93 when he only paid $5,365.92, and (b) the Department
was not barred from collecting Narmore’s excise tax for the 1969
tax year because the statute of limitations provided for in HRS §
237-40 did not begin to run until Narmore filed his tax return on
December 17, 1996. A declaration of Jill Yamasaki (Yamasaki)
dated January 9, 2003 was attached to the Department’s “Motion to
Dismiss.” Yamasaki listed her title as the “Oahu Office Audit
Branch Chief of the Department of Taxation, State of Hawaii.”
She stated that, on behalf of the Department, she was authorized
to accept service of a copy of the "Notice of Appeal to Tax
Appeal Court,” which taxpayers would have previously filed with
the tax court, Yamasaki declared that Narnore had not properly
served his “Notice of Appeal to Tax Appeal Court” on the
Department after filing it with the tax court, and that it was
not until a later date that the Department learned of his appeal:
(20) On oF about October 4, 2002, the Department
discovered that [Naraore] filed a Notice of Appeal to the
‘Tax Appeal Court when the clerk of the Tax Appeal Court,
Served Notice of Entry of Notice of Appeal to Tax Appeal
Court on the Departaent. At that tine, the Oepartnent. had
hot been personally served with a filed stamped copy of the
Notice of Appeal to the Tax Appeal Court from (Narmore)
(31) fo the date of this Declaration, the Department
has not received a filed stamped copy of the Notice of
Appeal from [Narmore] to provide notice for the basis of his
appeal.
on January 24, 2003, Narmore filed his “Memorandum in
Opposition to the (Department's) Motion to Dismiss.” Therein,
Narmore, inter alia, apologized to the Department for not
a
‘s+4FOR PUBLICATION IN MEST’S HAWAI'I REPORTS AND PACIFIC REPORTERS*®
personally serving his “Notice of Appeal to Tex Appeal Court,”
stated that tax court personnel told him they would submit a copy
for him, and reiterated his statute of limitations argument.”
on January 29, 2003, the Department filed its “Reply to
(arnore’ s] Memorandum in Opposition to the (Department's) Motion
to Dismiss.” The Departnent asserted that Narmore’s “Menorandun
in Opposition to the [Department's] Motion to Dismiss” did not
contain any legal arguments to contest the assertions made in the
Department’s “Notion to Dismiss.” The Department also
addressed Narmore’s assertion that the second 1989 tax return was
“drastically forged” and maintained that any alterations made
were irrelevant and readily explained."*
2 Narmore requested that (1) the “Motion to Oiemise” be denied, (2)
the tax court sake a deternination that the statute of limitations had funy
(G) $12,179.52 plus interest accruing from Decesber 16, 1996 be refunded £0
him, and (4) “the parte of this case pertaining to covertly concealed
documents and forged annual returns be referred to the state attorney general
for action.”
© specifically, the Department maintained that Narmore had failed to
provide any legal argusent conferring subject matter Jurisdiction on the tax
Court when the requirenents of HRS § 232-17 and RIAC Rule 2(s) had not been
complied with of as to why providing the Department with tax forme and
Internation in 1993 would rise to the level of filing # tex ceturn and, thus
begin the tolling of the statute of limitations pursuant to HRS § 237-40,
“Regarding Narmore's allegation that the second 1989 tax return mas
“drastically forged,” the Department stated!
As a side note, [Narnore] has alleged that the {second
1589 tax return] ‘thst vas submitted to [the tax court] was
“drastically forged.” “However, this allegstion is not
relevant to whether this case should (be) dismissed based on
the argunents presented in the (Departrent'e] Notion to
Disaiss and should not be considered by [the tax court) ~
The (second 1989 tax return] submitted co the (tax court)
os certified by the Department as 8 copy of the return that
i"currently sn the Department’ « records
‘Upen feview of the docunente(,) the alterations that
(Narmore) claims do not rise te the level of a forgery
Each of the alteration (sic) can be reasonably explained,
(coniaued.)
12
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on January 30, 2003, Narmore filed an amendment to his
January 24, 2003 “Memorandum in Opposition to the [Department’ s]
Notion to Dismiss.” He requested that @ paragraph be added
stating that he had not been provided a certified copy of the
Board's “Decision” as required by HRS § 232-7 and, without this
certified copy, a taxpayer could not be assured that the Board's
“Decision” had not been modified.
On February 3, 2003, Narmore filed his “Reply
Memorandum to the [Department's] Reply Memorandum, 29 Jan 03.”
‘Therein, he contended that the Department had not provided him a
certified copy of the decision of the Board as required by. HRS
§ 232-7 and that “without this certified copy of the decision,
‘the appeal process might not be started” inasmuch as a taxpayer
might feel that a change to the decision could still be mad
Narmore also maintained that the tax court having provided the
“Notice of Appeal to Tax Appeal Court” to the Department should
satisfy the requirements of HRS § 232-17 and RTAC Rule 2(a).
B.
‘The tax court held @ hearing on the Department’s
.s indicated in the [Department’®] Hotion to
the’ elimination of the interest and penalties,
flected the [Department's] waiver of these ancunts.
ond, the reduction in the amount of taxes, reflects the
adjusthent made by the Department to correct calculation
errors. Lastly, there was no change to the date of the
return, it still indicates a date of December 17, 1996, The
only. sten that reflects a date cf becenber 16, 2996 was
sie} the date stanp of the Department, which’ does not in
any way alter the information contained in the return.
(Footnote omitted.)
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“Motion to Dismiss” on February 3, 2003. Supplemental briefing
was requested by the tax court from the Department regarding the
requirements for perfection of Narmore's appeal, the defects in
the perfection of the appeal, and the applicability of equitable
tolling for the time period in which Narnore was to file his
SWotice of Appeal to Tax Appeal Court” with the Department. The
hearing was orally continued until March 17, 2003."
on February 27, 2003, Narmore filed his “Motion to
Approve Taxpayer's Appeal Without Further Trial.” Therein,
Narmore essentially argued that because of the “approximately
twenty to twenty-five perjured, false swearing in official
matters, false sw
ring, unsworn falsification to authorities,
and inconsistent statenents” made in the instant case related to
the 1989 tax year, he could not get @ fair hearing before the
Board.
on March 7, 2003, the Department filed its
“supplemental Memorandum in Support of Motion to Dismiss.” The
Department asserted that, while irrelevant to the tax court's
jurisdiction, the Department provided the Board’ s original
decision to Narmore via certified mail to Narnore, so it could
not have prevented him from fulfilling the filing requirements of
“eguitable tolling” is defined as
of Limitations will not bar 2 clain if the plaintiff, despite diligent
Sigorts, cid not discover the injury until after the linitations period had
expired.” Black's Law Dictionary $79 (eth ed. 2004).
On February 4, 2003, the tax court issued a written “Notice of
Further Hearing” informing both’ parties that the hearing on the "Notion to
Dismiss” wes continued to March 17, 2003.
(e)he doctrine that the statute
“4
FOR PUBLICATION IN WEST’ S HAWAI'T REPORTS AND PACIFIC REPORTER
RS § 232-17 and RTAC Role 2(a). The Department maintained that,
despite receiving additional tine to appeal due to the refiling
of the August 1, 2002 “pecision,” Nasmore failed to properly file
a copy of his “Notice of Appeal to Tax Appeal Court” with the
Department, thus depriving the tax court of jurisdiction to hear
his oppeal. It was asserted that equitable tolling shovld not
apply to suspend the tine for Narmore to file his “Notice of
Appeal to Tax Appeal Court” with the Department inasmuch as the
Department had not acted in any vay to prevent him from filing
and applying equitable tolling would disadvantage the Department
insofar as Narnore had already had “anple time” to file.
Also on March 7, 2003, the Department filed its
“Memorandum in Response to (Narmore’s} Motion to Approve
Taxpayer's Appeal Without Further Trial Filed February 27, 2003."
the Department requested that Narmore’s “Motion to Approve
Taxpayer's Appeal Without Further Trial” be continued to another
date to allow the tax court time to determine whether it has
subject matter jurisdiction over his appeal.”
Additionally on March 7, 2003, Nazmore filed his “Reply
to [Department's] Reply (29 Jan 03) to (Nernore’s} Menorendum Sn
opposition to the [Depatnent’s] Notion to Dismiss.” Narnore
asserted that while his status as a pro se litigant does not
exenpt hin from the requixenents of HRS § 292-17 and RTAC Rule
the Departnent asserted that Maragrets *Hotion to Approve
oxpayes's appeal itheut further felols mor Sinconerencsinconptshenstbie,
‘ana 1s not supported by the legal authorities cited, nor was any adaiseible
evidence provided to support the motion.”
1s
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2 (a), the tax court could consider that status. Narmore argued
that a copy of his “Notice of Appeal to Tax Appeal Court” was
placed in the courier’s box at the Tax Appeal Court to be
delivered to the Office Of the Attorney General so “it appears no
irreparable harm has been done to the appeal process."
on March 12, 2003, the Department filed its “Response
to (Narnore’s) Reply Memorandum to the [Department's] Reply
Memorandum (29 Jan 03) to (Narmore’s) Memorandum in Opposition to
the [Department’s) Motion to Dismiss Filed March 7, 2003.” The
Department reiterated its arguments that the tax court lacked
jurisdiction to hear Narnore’s appeal, argued that strict
compliance with HRS § 232-17 and RTAC Rule 2(a) is required, and
maintained that whether or not “irreparable harm has been done to
the appeal process” is irrelevant to the tax court's
jurisdiction."
c
The tax court held a hearing on the Departnent’s
January 9, 2003 “Motion to Dismiss” and Narmore's February 27,
2003 “Motion to Approve Taxpayer's Appeal Without Further Trial”
on March 17, 2003. The tax court informed the parties that a
* Nernore reitersted that he did not receive a certified copy of the
Board's August 1, 2002 oF August 28, 2002 “Decision{s]” and his statute of
Limitations argument
— Aetached to thie docunent was another “Declaration of (Yanasaki],”
which stated that ae Of the date of the deciaration, March 12, 2003, Narmore
hed not filed « copy of his “Notice of Appeal to Tax Appeal Court” with the
Department.
16
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decision vould be issued in two weeks.”
on October 22, 2003, Narmore filed a letter dated
October 16, 2003 with the tax court addressed to counsel for the
Department. The letter was intended to inform the Department's
counsel that Narmore was submitting additional information to the
tax court. In this letter, Narmore asserted that although HRS §
232-7 does not specify a time period in which a certified copy of
the Board’s decision must be provided to the taxpayer, it must be
provided at some point, and was not in the instant case. He
stated that the Department publishes “Tax Information Releases”
(TIRs) to assist taxpayers and that several of them do not:
indicate that a copy of the “Notice of Appeal to Tax Appeal
Court” must be delivered to the tax assessor. Finally, Narmore
pointed out that the August 1, 2002 and August 28, 2002
“Decision(s]" were not identical inasmuch as the August 1, 2002
“Decision” did not reflect the reasons for the Board's
determination.
D,
on May 26, 2004, the tax court conducted a hearing in
which it orally granted the Department's “Motion to Dismiss.” On
May 27, 2004, Nazmoze sent a letter to the tax court requesting
* on march 24, 2003, Narmore sent a settlenent offer to counsel for
the Department. On June 2, 2003, Narmore sent snother letter to counsel for
the Departnent inguiring as to the status of a settlement, By letter dated
June 10," 2003, the Department apologized for the delay in respon:
Felected Narnore’s settiement offer. On August 11, 2003, Narmore responded to
the Department's June 10, 2003 rejection letter and asserted, inter glia, that
he waa ot owed an apology, but expressed Ms frustration with the
Department's actions.
vv
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that it reverse its May 26, 2004 oral granting of the
Department's “Motion to Dismiss.” Narmore stated that it was his
understanding that his October 16, 2003 letter had not been made
available to the tax court and provided a copy. He also
expressed his “sincere belie[f] that the legislative requirenents
(and prior case law) dictate” that the time for filing an appeal
to the tax appeal court does not begin until that party is served
with a certified copy of the Board’s “Decision” and that
“[albeen(t] satisfaction of this requirement, it seems all
subsequent actions would become moot as far as jurisdiction is
concerned.” Narmore did not provide any case law or statutory
support for this assertion. On the first page of Narnore’s May
27, 2004 letter there is a notation dated June 14, 2004, stating,
“Judge to take as a non-hearing motion for reconsideration.”
e
On June 3, 2004, Narmore filed a letter dated June 2,
2004 and addressed to counsel for the Department with the tax
court. Narnore requested that counsel for the Department inform
ertion in Narmore’s
the tax court of his opinion regarding the
May 27, 2004 letter that receipt of a certified copy of the
Board's “Decision” “must be an integral part of the appeal
process.” Narmore also stated that he was requesting that the
tax court modify its May 26, 2004 order to indicate its
reasoning. the first page of this letter also contained a
notation dated June 14, 2004, stating, “Judge to take as a non-
a8
‘#4FOR PUBLICATION IN MEST’S HAWAI'I REPORTS AND PACIFIC REPORTER
hearing motion for reconsideration.”
On June 10, 2004, the Department filed its "Memorandum
in Opposition to (Narmore’s] Motion for Reconsideration (May 27,
2004 Letter Addressed to the Honorable Gary W.B, Chang Filed on
May 28, 2004)." Therein, the Department argued that (1) Narmore
did not show any exceptional circumstances to cause the tax court
to grant relief from its order pursuant to Havai'i Rules of Civil
Procedure (HRCP) Rule 60(b)," (2) Narmore’s arguments had
already been heard and addressed by the tax court or should have
been raised prior to its decision so relief could not be granted
Pursuant to HRCP Rule 59(e), and (3) Narmore’s assertions were
irrelevant and without merit inasmuch as (a) he provided no legal
basis for his assertion that the mailing of a certified copy of
the Board’s “Decision” is an integral part of the appeal process,
» Hawai'i Rules of Civil Procedure (HRCP) Rule 60, entitled “Relic
fron judgment or order,” provides in relevant part:
(b) Mistakes; inadvertence; excusable neglect newly
discovered evicences fraud, ete. On notion and spon such
3 a5 are just, the court may relieve a party oF @
party's legal representative from s final judgment, order,
‘or proceeding for the fellowing reasons: (2) mistake,
Anadvertence, surprise, or excusable neglect; (2) newly
Giscovered evicence vnich by due diligence could not have
been discovered in tine to nove for a new trial under Role
59(b); (3) fraud (whether heretofore denominated intrinsic
or extrinsic), misrepresentetion, or other misconduct of en
adverse party! (4) the judgeent is void; (8) the judgnent
has been satisfied, releases, or discharged, of a prior
judgment upon which it is based has been reversed oF
Otherwise vacated, or it is no longer equitable thet the
judgment should have prospective application’ or (6) any.
other reason Justifying relief from the operation of the
Sussment
HRCP Rule 61(b) (6) Lists “[a]ctions for the collection of taxes” as
Proceedings to which the rules epply.
= HRC Rule 59(e) states that “[alay motion to alter or amend «
Jusonent shell be filed no leter than 10 days after entry of the judgment.”
a8
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and (b) the TIRs Narnore referred to pertained to an appeal from
a tax assessment by the Department, not a “Decision” by the
Board.
on dune 22, 2004, Narnore submitted his “Reply to the
[Departnent’s] 10 Jun(e) 2004 Memorandum in Opposition to
(Narmore’s] Motion for Reconsideration (May 27, 2004 Letter
Addressed to the Honorable Gary W.B. Chang Filed on May 28,
2004). Narmore asserted that he did in fact show exceptional
circumstances warranting relief under HRCP 60(b). Narmore did
not specify which section of HRCP Rule 60(b) he w
referring to,
nor did he specify the exceptional circumstances. Narmore.
contended that the court did not consider his October 16, 2003
letter prior to its decision, thus allowing for relief under HRCP
Rule 59(e).”
on uly 7, 2004, the tax court held a h
ring on
Nazmore’s non-hearing motions for reconsideration. The tax court
denied Narmore’s motions, indicating that “the [tax court] is
1 unable to cor jourt’s)_sub:
jurisdiction was properly invoked in the case at bar.”
(Emphasis added.) On July @, 2004, the tax court entered its
“order Granting [Department's] Motion to Dismiss Filed on January
9, 2003” and its final judgment in favor of the Department and
> te also reiterated his arguuents regarding a certified copy of the
Board's “Decision” not having been provided to aim and the applicability of
the guidance found in the TIRs.
Me observe that this statenent was contained in the court's minute
order but the parties do not dispute it
20
‘*4POR PUBLICATION IN WEST’ HAWAI'T REPORTS AND PACIFIC REPORTER
against Narmore. On August 10, 2004, the tax court entered its
“order Denying [Narmore’s] Motion for Reconsideration (May 27,
2004 Letter Addressed to The Honorable Gary W.B. Chang Filed on
May 28, 2004).”
On September 7, 2004, Narmore filed his “Appeal to the
Suprene Court, State of Hewaii, from the Minute Order of the (Tax
Court], 26 May 2004, as Extended by Motion for Reconsideration to
10 [August] 2004.”
wv.
on appeal, Narmore asserts that (1) “the [tax court]
erred when it granted [the Department’s] motion to dismiss
because the Department failed to offer sufficient evidence” that
Narmore (a) “had no standing to challenge the amount reflected in
his 1989 general excise tax return,” and (b) “failed to state a
claim upon which relief could be granted,” (2) “the [tax court]
erred in not granting (Narmore’s] request to approve his appeal
because the Department failed to provide sufficient evidence that
a certified copy of the ["Decision”] of the [Board] must be
furnished to him as required by HRS § 232-7," and (3) “the [tax
court] erred by granting [the Department's] motion to dismiss
because the Department failed to provide sufficient evidence that
(Narmore’s} failure to provide a copy of the notice of appeal to
[the Department] was serious enough to dismiss the case,”
* re appears from the argunent accompanying this statement that
Narmore contends that the Departnent failed to provice him a copy of
“Decision(e]" of the Beard of Review for the First Taxation District and that
this failure prejudiced him.
a1
/FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*
inasmuch as (a) the Department was notified of Narmore’s appeal
by the tax court, and (b) TIRs issued by the Department do not
indicate that @ copy of the “Notice of Appeal to the Tax Appeal
Court” must be provided to the Department. Narmore requests
either that this court hear his appeal or that the instant case
be remanded to the tax court for “trial on its merits.”
In response, the Department contends that (1) “the
statute of limitations does not bar assessment or collection of
the 1989 excise taxes,” inasmuch as (a) “only the filing of a
return triggers the statute of limitations for the assessment or
collection of taxes,” and (b) “under federal law, the filing of a
return also triggers the running of the statute of limitations
for assessments,” (2) “the Department did not forge [Narmore’s]
1989 return nor did it commit fraud when it waived [Narmore’s]
penalties and interest,” (3) “the [tax court] lacked subject
matter jurisdiction to review [Narmore’s] tax appeal,” insofar as
(a) “the [Department] did not assess [Narmore],” (b) “{Narmore]
did not pay his 1989 taxes under protest and{,] therefore,
(Warmore’s) appeal is not a complaint for refund,” (c) “the:
Ro adverse ruling by the [Department] against [Narmore],”
(d) “{Narmore] failed to perfect his tax appeal as the law
required to confer jurisdiction,” inasmuch as Narmore failed to
comply with the mandatory requirements of HRS § 232-17 and RTAC
Rule 2(a) within the time specified therein, (4) “[Nazmore]
failed to state a claim upon which relief may be granted” because
22
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he “does not provide any legal basis, arguments, or reasoning to
justity an avard of $12,179.93 when the Department credited
(Marnore’s] account with $13,000.00 not only for 1989 delinquent
taxes (in the anount of $5,365.96), but for general excise taxes
due from other years as well,” and (5) “the mailing of the
original ["Decision"] to [Narmore] does not affect the dismissal
of the appeal for lack of jurisdiction.”
In reply, Naznore maintains that (1) for audit purposes
and tolling of the statute of limitations, it does not matter
whether Narmore provided only tax forms and information in 1993,
(2) the second 1989 tax return was a forgery due to the
“circumstances in which the penalties and inti
st were waived,
and the manner in which (the second 1989 tax return] was foist
upon the (Board), the (tax court), and now, this [cJourt,”
(3) “the Department’s service of the [Board's] original decision
rather than a certified copy interfered with (Narmore’s] ability
to file an appeal to the [tax court],” (4) the Department is
urging this court to add the language “and file a copy of the
notice of appeal in the assessor's office” to HRS § 232-17 and
RTAC Rule 2(a), (5) the Department is presenting “misinformation
and half-truths” regarding taxes owed by Narmore “to recover
monies [1t] no longer (has) a right to,” and (6) to Nazmore “as
an inexperienced pro se, it seems that the most essential statute
is HRS § 232-7, which requires that 2 copy of the decision of the
(Board) be served upon the taxpayer concerned.”
23
FOR PUBLICATION IN WEST’ § HAMAI'T REPORTS AND PACIFIC REPORTER*+#
v.
“*Review of a decision made by a court upon its review
of an administrative decision is a secondary appeal. The
standard of review is one in which this court must determine
whether the court under review was right or wrong in its
decision.’” Lanai Co. v. Land Use Comm'n, 105 Hawai'i 296, 306-
07, 97 P.3d 372, 382-83 (2004) (quoting Soderlund v. Admin
of the Courts, 96 Hawai'i 114, 118, 26 P.3d 1214, 1218 (2001).
vr.
We do not address the Department’s arguments in (3) (a),
(3) (b), and (3) (c) regarding exercise of the tax court's subject
matter jurisdiction based on a tax assessment made by the
Department of Narmore for the 1989 tax year, whether he paid his
1989 taxes under protest, and whether there is an adverse ruling
against him. Although the existence of subject matter
jurisdiction is essentially a question of law, these grounds
asserted by the Department regarding subject matter jurisdiction
depend on facts that have yet to be determined by the tax court
and are disputed by the parties. As to (3) (a) and as discussed
previously, Narmore contends that he was assessed for the 1989
tax year in 1993 and a determination was made that he did not ove
any taxes for that year. The Department insists that no
assessment was made. As indicated, for (3) (b), in his Septenber
26, 2002 “Notice of Appeal to Tax Appeal Court,” Narmore
maintained that he had paid the tax for the 1989 tax year under
24
‘s+4F0R PUBLICATION IN MEST’ EAMAI'T REPORTS AND PACIFIC REZORTERIC#
Protest. The Department argues in (3) (b) that he did not.
Finally, as to (3) (c), as related previously, on October 24,
1996, Narmore received a notice from the collection division
informing him that he owed 2 balance of $12,672.53 for the 1989
tax year. However, @ determination as to whether this notice was
correct and, therefore, an “adverse ruling,” depends on whether
or not the statute of limitations had run and Narmore could be
assessed for that year, which, as discussed infra, normally
entails questions of fact that must be determined by the tax
court.
vit.
The remaining subject matter jurisdiction ground
indicated in (3)(d) and upon which the court apparently disnis:
the case was that “(Narmore] failed to perfect his tax appeal as
the law required to confer jurisdiction” inasmuch as Narnore
failed to comply with the mandatory requirements of HRS § 232-17
and RTAC Rule 2(a) within the time period specified therein.
Thus, as to Narmore’s argument in (1) (a) and (3) (a), the
Department’ s response in (3) (d), and Narmore’s reply argument in
(4), we must determine if the requirement in HRS § 232-17 and
RIAC Rule 2(a) that an appealing taxpayer file a copy of his or
her "Notice of Appeal to Tax Appeal Court” with the assessor is a
Jurisdictional requirenent. If so, the failure to file this copy
would divest the tax court of jurisdiction to hear an appeal and
28
‘s*+FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER'*#
thus also divest this court of jurisdiction to hear a secondary
appeal.
Regarding our subject matter jurisdiction over
proceedings, this court has stated that:
‘The existence of jurisdiction is a question of 1aw that this
Court reviews de ova under the right/wrong standard. Tf 8
Sourt lacks jurisdiction over the subject matter of &
Proceeding, any judgnent rendered in that proceeding is
Tnvalig, ‘therefore, such a question is valid at any stage of
the cast
Kepo'o v. Kane, 106 Hawai'i 270, 281, 103 P.3d 939, 950 (2005)
(internal quotation marks, citations, and brackets omitted). “A
trial court’s dismissal for lack of subject matter jurisdiction
is a question of law, reviewable de nove.” Norris v. Hawaiian
Airlines, Inc., 74 Haw. 235, 239, 842 P.2d 634, 637 (1992)
(citations omitted).
Furthermore, “[t]he interpretation of a statute is a
question of law. Review is de novo, and the standard of review
is right/wrong.” Sugarman v. Kapy, 104 Hawai'i 119, 123, 85 P.3d
644, 648 (2004) (citations omitted). It is well settled that the
court!
primary obligation “is to ascertain and give effect to
the intention of the legislature, which is to be obtained
primarily from the language contained in the statute itself.”
Id, at 123, 85 P,3d at 648 (internal quotation marks, brackets,
and citations omitted). Accordingly, “where the statutory
language is plain and unambiguous, [the appellate court’s] sole
duty is to give effect to its plain and obvious meaning.” State
vs Kalama, 94 Hawai'i 60, 64, 8 P.3d 1224, 1228 (2000) (internal
26
‘*9FOR PUBLICATION IN MEST’ S HAMAI'T REPORTS AND PACIFIC REPORTERS!
quotation marks and citations omitted). “Departure from the
Literal construction of a statute is justified only if such a
construction yields an absurd and unjust result obviously
inconsistent with the purposes and policies of the statute.”
Leslie v. Bd. of Appeals, 109 Hawai'i 384, 393, 126 P.3d 1071,
1080 (2006) (internal quotation marks and citation omitted).
‘These principles of statutory construction apply to rules
Promulgated for the tax court. See Keaulii v. Simpson, 74 Haw.
417, 421, 847 P.2d 663, 666 (1993) (stating that “(w)hei
considering rules promulgated by courts, principles of statutory
construction apply” (citation omitted) ).
viir.
As noted, the first sentence of HRS § 232-17 states
that “{a]n appeal shall lie to the [tax court] from the decision
of a state board of review . . . by the filing, by the taxpayer
+ + + of a written notice of appeal in the office of the tax
appeal court[.]” (Emphasis added). By its terms, this first
sentence is plain and unambiguous. It expressly directs that an
appeal is taken to the tax court “by the filing” of a “written
notice of appeal in. . . the tax appeal court.” See HRS § 232-
17. “File” is defined as “to deliver (as a legal paper or
instrument) after complying with any condition precedent (as the
payment of a fee) to the proper officer for keeping on file or
among the records of his office." Webster's Third New
International Dictionary 649 (1961). No requirement other than
27
‘s+4FOR PUBLICATION IN WEST'S HAWAI'I REPORTS 2ND PACIFIC REPORTER*
the filing of a written notice in the tax court is designated in
order that “[a]n appeal shall lie to the tax appeal court.” HRS
§ 232-17.
The requirement that a party timely file a notice of
‘appeal has been held to be jurisdictional by this court. see
e.g, Bacon y, Carlin, 68 Haw. 648, 650, 727 P.2d 1127, 1129
(1986) (stating that “an appellant's failure to file a timely
notice of appeal is a jurisdictional defect that can neither be
waived by the parties nor disregarded by the court in the
exercise of judicial discretion”) (internal quotation marks,
brackets, and citation omitted). HRS § 232-17 prescribes that
the filing of the notice of appeal in the tax court must be
wwithin thirty days after the filing of the decision of the state
board of review, or equivalent administrative body.” On
September 26, 2002, Nazmore filed his "Notice of Appeal to Tax
Appeal Court” in the tax court, within thirty days of August 28,
2002, the date in which the Board refiled its order. Inasmuch as
Narmore has timely filed his written notice of appeal in the tax
court, the jurisdictional requirement of HRS § 232-17 has been
satisfied.
mK.
Contrary to the Department's position, the second
sentence of HRS § 232-17 does not impose a jurisdictional
requirement. This second sentence states in relevant part that
“[tyhe taxpayer shall also file a copy of the notice of appeal in
28
FOR PUGLICATION IN WEST’ S HAWAI'I REPORTS AID PACIFIC REFORTERS+#
the z ” BRS § 232-17 (emphasis added). This
directive does not indicate that filing a copy is a prerequisite
to “[aln appeal . . . to the (tax court](,]” nor does it state
that failing to file such a copy would divest the tax court of
appellate jurisdiction. See HRS § 232-17. Likewise, RTAC Rule
2(a) states that “[t}he appellant shall file a copy of such
notice lof appeall with the assessor . . . pursuant to HRS,
Sections 232-16 and 232-17, not later than the date fixed by law
for the taking of the appeal.” ‘The rule, too, does not indicate
that this requirement is jurisdictional.
If the legislature intended the filing of the copy to
be jurisdictional, it would have said so.** We will not presume
% the legislative history of HRS § 232-17 is supportive, see
108 Hawai'i 238, 266,
118 P.sd 1201, 1205 (z005) (holding that the relevant “statute's lack of
ambiguity is both confirmed and explained by a review of ite statutory history
within the context of Hawai't unemployment security law"). In 193,
anendnents were made to the language of HRS § 232-17 to, inter alia, sanction
a'leeser Of formality for a taxpayer's notice of appeal and to reflect
(3) Every effort nas been made to prevent situations
under which the Eaxpayer would be “ruled out” on account of
Eechnicel niceties in connection with the wording of his
notice of appeal, all with the idea of bolstering up the
present law which reads "Any notice, however informal,
Stating disagreement with the sssesement shall be
Eulticlene® fin the case of sppeais to the (Doard)) This
ides Se carried throvah
‘besa srocedure. A recent-court decieion epparentiy would
Feguire that oppeals be nade oUt in the greatest deteil.
ro
Trax court] the broad powers that
Under @ recent
Secision it scens that the Territory Le now ina position to
Glin that almost any point is @ “question of law" or a
“constitutional question” which must go to the Suprene
court
Hee. Stand. Comm. Rep. No, 99, in 1939 House Journal at p. 395-96 (emphases
Sased). Oar holding ie consonant wich the legislature's intent that cexpayers
(conte)
29
‘s++f0R PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTERS
that the legislature so intended, but neglected to say so in HRS
§ 232-17, without @ compelling reason. See Reefshare, Lid. v.
Nagata, 70 Haw. 93, 98, 762 P.26 269, 173 (1988) (stating that
“courts will not presume an oversight on the part of the
legislature where such presumption is avoidable” (citation
omitted)); cf. Bender y, Easson, 216 N.¥.S.2d 393, 394 (1961)
(concluding that @ party's failure to serve his notice of appeal
in accordance with the dictates of Sections 702(2) and 708 of the
New York Real Property Tax Law divested that court of
jurisdiction to hear his appeal inasmuch as Section 702(2)
specifically stated that “[iJf . . . the petition or petition and
notice . . . were not filed or served and filed where required
ss + auch failure to file or serve and file the petition or
petition and notice within such time shall constitute a complete
defense to the petition and the petition must be dismissed”
(emphasis added) ).
1t may be further observed that [when a statute
specifies what result will ensue if its terms are not complied
with, the statute is deemed mandatory.” Jones v. Dodendort, 546
N.E.2d 92, 93 (I11. App. Ct. 1989) (citation omitted).
(continued)
ruled cut” of their appeals besed on
No: 99; in 1939 House Journel at p. 395. The
lative invent also reflecte that the tax court was efforded "broad
“by preserving ite jurisdiction to hear appeals which contain
Procedure! Geficiency. lise, Stand. Comm, Rep. Nov 99, in 1939 House Journal
p. 396. Finally, our heiding eiso respects the legislative recognition of
being a taxpayers “only recour eo protect himself from
Gnjuet accesenents,” Sen. Stand. Comm. Rep. No: i9, in House Journal at p.
payer of that recourse because of an unrelated
minor procedural deficiency.
30
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Conversely, when a statute “merely requires certain things to be
done and nowhere prescribes the results that shall follow if such
things are not done, the statute is merely directory.” Hedoes v,
Dep't of Soc. Servs. of Missouri, 585 S.W.2d 170, 172 (Mo. Ct.
App. 1979) (citations omitted). We have held that filing of a
notice of appeal is mandatory for purposes of perfecting an
appeal. Bacon, 68 Haw. at 650, 727 P.2d at 1129. On the other
hand, HRS § 232-17 is silent on the consequences of failing to
file a copy of the notice of appeal in the assessor’s office. In
that light the copy requirement should be viewed as directory.
See Hedges, 585 $.W.2d at 172.
If there is any doubt that filing a copy of a notice of
appeal pursuant to HRS § 232-17 is not jurisdictional, “the doubt
should be resolved in favor of the taxpayer.” In re Frank Fasi,
63 Haw. 624, 629, 634 P.2d 98, 103 (1981) (internal quotation
marks and citation omitted) (“noting that “[iJt is well settled
in this jurisdiction that the rule of strict construction is
applicable in tax cases and that, ‘if doubt exists as to the
construction of a taxing statute, the doubt should be resolved in
favor of the taxpayer”); see also In re Hawaiian Tel, Co., 61
Haw. 572, 578, 608 P.2d 383, 388 (1980) (explaining that “[iJt is
a cardinal rule of construction that a statute imposing taxes is
to be construed strictly against the governnent and in favor of
the taxpayers and that no person and no property is to be
included within its scope unless placed there by clear language
31
s¥+FOR PUBLICATION IN WEST'S HAWAI'I REFORTS AND PACIFIC REZORTERS
of the statute” (citation omitted)); In xe Aloha Motors, Inc., 56
Haw. 321, 536 P.2d 91 (1975) (opining that “[iJt is well settled
in this jurisdiction that the rule of strict construction is
applicable in tax cases. Thus, if doubt exists as to the
construction of a taxing statute, the doubt should be resolved in
favor of the taxpayer”) (internal quotation marks and citations
omitted); and Apokea Sugar Co. v. Wilder, 21 Haw. 571, 577 (1913)
(expounding that “[i]t is the general rule that statutes
providing for taxation are to be construed strictly as against
the state and in favor of the taxpayers, and the burdens and
liabilities which they impose are to be kept within the strict
letter of the law, and not extended beyond its clear terms by any
inferenc:
implication or analogy” (internal quotation marks and
citation omitted) ).
‘Thus, under the plain and unambiguous language of HRS §
232-17, it Se the filing of the notice of appeal with the tax
court that initiates the appeal, and not the filing of a copy of
the notice of appeal with the assessor, See HRS § 232-17 (“An
appeal shall lie to the {tax court] from the decision of a state
board of review, . . . by the filing, by the taxpaver, ofa
written notice of appeal in the office of the tax appeal court”
(emphases added)). Indeed, RTAC Rule 2(a) confirms this
interpretation and states that “[aln appeal shal] be initiated by
filing with the clerk of the [tax court] a written notice of
appeal and, in the case of a taxpayer, paying the costs of court
32
POR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
as prescribed in HRS, Section 232-22." Naxmore’s timely filing
of his notice of appeal with the tax court on Septenber 26, 2002
initiated his appeal. Where the plain language of HRS § 232-17
and RTAC Rule 2(a) indicate that it is only the filing of a
notice of appeal with the tax court that initiates an appeal,
inferring that filing 2 copy of the notice with the Department is
also a jurisdictional requirement would lead to “an absurd result
[creating] inconsistency, contradiction, and illogicality.”
Kanaluv. Paren, 110 Hawai'i 269, 278 , 132 P.3d 378, 387 (2006)
(citations and quotation marks omitted). Accordingly, Nazmore’s
failure to file a copy of this notice in the assessor's office
Pursuant to the second sentence of HRS § 232-17 did not divest
the tax court of appellate jurisdiction.
x.
Moreover, “shall,” as used in the second sentence of
HRS § 232-17 directing that the taxpayer “file a copy of the
notice of appeal in the assessor's office,” must be viewed as
Girectory. This court has recognized the multiple meanings of
“shall,” which “commonly shift{]. . . even in midsentence.” Grav
Mir. of the Court, 84 Hawas'l 138, 150, 931 P.2d 580,
592 (1997) (quoting B. Garner, A Dictionary of Modern Lega:
Usage, 939-40 (2d ed, 1995)). “While the word ‘shall’ is
generally regarded as mandatory, in certain situations it may
properly be given @ directory meaning.” Jack Endo Elec., Inc. v,
Lear Siecler, Inc., 59 Haw. 612, 616-17, 585 P.2d 1265, 1269
33
‘se4f0R PUBLICATION IN WEST'S EAWAI'T REFORTS AND PACIFIC REPORTER*
(1978) (citation omitted). “[I]f the provision is mandatory, the
failure to follow it will render the proceeding to which it
relates illegal and void. If the provision is directory,
however, the observance of the provision will not be necessary to
the validity of the proceeding.” Id. (citation omitted).
“In determining whether a statute is mandatory or
directory[,} the intent of the legislature must be ascertained.
‘The legislative intent may be determined from a consideration of
the entire act, its nature, its object, and the consequences that
would result from construing it one way or the other.” State vw.
Tovomura, 80 Hawai'i 8, 20, 904 P.2d 893, 905 (1995) (citations
omitted). Specifically, to determine whether the word “shall”
with respect to filing a copy of the notice of appeal in the
assessor's office pursuant to HRS § 232-17 is directory, a three-
prong test may be applied. See Leslie, 109 Hawai"i at 394, 126
P.3d at 1081 (citing Perry v. Planning Comm, of Hawai'i County,
62 Haw. 666, 619 P.2d 95 (1980).
First, “‘shall’ can be read in a non-mandatory seni
when a statute’s purpose ‘confute(s] the probability of a
compulsory statutory design.'* Id, (quoting Perry, 62 Haw. at
676, 619 P.2d at 102). Second, “*shall’ will not be read as
mandatory when ‘unjust consequences’ result." Id. (quoting
Perry, 62 Hew, at 676, 619 P.2d at 102). Third, “the word
‘shali’ may be held to be merely dizectory, when no advantage is
lost, when no right is destroyed, when no benefit is sacrificed,
34
‘**FOR PUBLICATION IN MEST’S HAWAI'I REPORTS AND PACIFIC REPORTER***
either to the public or to the individual, by giving it that
construction.” Id. (quoting Berry, 62 Haw. at 677, 619 P.2d at
103) (internal quotation marks omitted) .
Applying the three-part test described in Leslie and
Berry, the term “shall” as utilized with respect to filing @ copy
in the second sentence of HRS § 232-17, is directory, rather than
mandatory. First, as noted earlier in footnote 27, supra, the
General schene of HRS chapter 232 is to “prevent situations under
which the taxpayer would be ‘ruled out’ on account of technical
‘niceties{,]‘" not only “in connection with the wording of his
or her] notice of appeal{,)" but also “with respect to all
appeal procedure.” Hse. Stand. Comm. Rep. No. 99, in 1939 House
Journal, at 395-96. Thus, as indicated by the legislature's
clear intent to impose a lesser degree of formality with respect
to a taxpayer’s notice of appeal, the “probability of a
compulsory statutory design” is not present in the instant case
Such circumstances favors construing “shall” as directory.
Second, “unjust consequences” would result if the term
“shall” in the second sentence of HRS § 232-17 is construed as
mandatory, the effect of which would be to deprive Narmore,” a
taxpayer, of the opportunity for both an administrative and
judicial review of the Board’s decision, It would be unjust to
conclude that failing to file a copy of @ notice of appeal must
divest the tax court of appellate jurisdiction, even though the
% Also, Narmore de a pro se litigant,
35
‘s+0FOR PUBLICATION IN MEST’S HAWAI'T REPORTS AND PACIFIC REFORTER*#*
filing requirements for the notice of appeal in the tax court had
been completely satisfied. In effect, such a construction would
run counter to the general policy favoring judicial review of
administrative matters, see In re Hawai'i Gov't Emplovees’ Ass'n
63 Haw, 85, 87, 621 P.24 361, 363 (1980) (ruling that “a failure
to designate an agency as an appellee is hardly cause for
dismissal, particularly where there is a policy favoring judicial
review of administrative actions” (citations onitted)), as well
as this court's “policy of affording litigants the opportunity to
have their cases heard on the merits, where possible(.J” Housing
Fin. and dev. Corp, v, Ferguson, 91 Hawai'i 81, 85-86, 979 P.2d
1107, 1111-12 (1999) (internal quotation marks and citation
omitted).
Third, it cannot be said that the Department or the
public has lost any advantage, suffered destruction of rights, or
sacrificed any benefits, Leslie, 109 Hawai‘ at 394, 126 P.3d at
1081, by Narmore’s failure to file a copy of his notice of
appeal. The record indicates that Narnore filed his notice of
appeal on September 26, 2002, and despite his failure to file a
copy with the Department, Director was served with the Notice of
Entry of Notice of Appeal by the tax court on October 4, 2002.
Further, the Department does not allege that it lost any
advantage, right, or benefit.
% one seeming purpose of filing copy with the ast
ns § 232-17 4S te aid the Department in fulfilling the infos
Fequirenents of HRs § 232-18, However, HRS § 232-18 specifically provides
(coasaued.)
36
'§ WOWAL'T REPORTS AND PACIFIC REFORTERS+®
Hence, having satisfied the three-prong test under
Leslie and Perry, the term “shall” as it applies to filing a copy
must be construed as directory, rather than mandatory.
‘Therefore, Narmore’s failure to file a copy is not “necessary to
the validity of the proceeding(,]” and does not divest the tax
court of appellate jurisdiction. See Jack Endo Blec., Inc., 59
Haw. at 616, 585 P.2d at 1269 (citation omitted).
XI.
It is clear that the final sentence of HRS § 232-17,
which pertains to when a notice of appeal submitted via mail is
“taken in time,” does not impose any additional jurisdictional
requirement in this case. Under the final sentence of HRS § 232-
17, “[a]n appeal shall be deemed to have been taken in time if
the notice thereof and costs, if any, and the copy or copies of
the notice shall have been deposited in the mail, postage
Prepaid, properly addressed to the tax appeal court, tax
assessor, taxpayer or taxpayers, and county, respectively, within
the period provided by thie section.” (Emphases added.) It is
clear and unambiguous that this final sentence applies to a
notice of appeal that is submitted by mail. See HRS § 232-17. A
notice of appeal filed by mail is effective as of the date of
mailing, ises, if it “shall have been deposited in the mail...
%..contised)
that “(failure of the assessor to comply herewith shall not oresudice or
affect the -taxzaver'a, county's, or assessor's apna aed She eee Eee of
‘spoea] nav be atended at any tine up to the final determination of the
Sppeat
n
‘seePOR PUBLICATION IN WEST’ HAWAI'I REPORTS AND PACIFIC REPORT
within the period provided by this section.” HRS § 232-17. A
notice of appeal filed via personal delivery, as in this case,
would be deemed to have been taken in time if received within the
period provided by HRS § 232-17.
RTAC Rule 2(a) confirms the two methods of perfecting
an appeal embodied in HRS § 232-17. See supra note 2. According
to the RTAC Rule 2(a), “[t]he notice shall be filed either by
personally delivering or Imailingl it to the clerk of the Tax
Appeal Court.”* RTAC Rule 2(a) (emphasis added). RTAC Rule
2(a) reiterates the import of the first sentence of HRS § 232-17
in declaring that “[t]he notice shall be considered filed when it
is received in the Tax Appeal Court.” See RTAC Rule 2(a).
Parallel to the last sentence of HRS § 232-17, RTAC Rule 2(a)
also specifies that “if mailed,” the “notice shall be considered
filed when it is . . . properly addressed to such court and with
adequate postage paid, on the postmarked date.” Id, (emphasis
added). On its face, HRS § 232-17 also indicates that the notice
of appeal and the copy must be filed in separate offices. while
the notice of appeal must be filed in the tax appeal court, the
copy is to be filed with the assessor’s office. See HRS § 232-
17. RTAC Rule 2(a) confirms the separate destinations of these
> It Se evident from the context in which “making” is used, see
uora note 2, that the term is misspelling of the word "nailing." AS
indicated, RIAC Role 2(a) subsequently refers to reqUiresents applying to 2
Rotice of appeal “if mailed.” The correct spelling of the word is found in
Ennotaced vefsions of the rule. See Roles of the Tex pp. Ce- of the state of
New. Rule 2(a) 1121 (Michie’s 2006); Roles of the Tax. App. Ct. of the State
of iow. Rule 2(a) 328 (West 2008)
38
‘s**FOR PUBLICATION IN MEST’S HAMAT'T REPORTS AND PACIFIC REFORTERM+®
two filings. As to the notice of appeal, RIAC Rule 2(a) states
that “[t]he notice shall be filed either by personally delivering
or (mailing] it to the clerk of the Tax Appeal Court. The notice
shall be considered filed when it is received in the Tax Appeal
Court, or if mailed, properly addressed to such court and with
adequate postage paid, on the postmarked date.” As pertaining to
the copy, RTAC Rule 2(a) states that “(t]he copy of the notice to
the assessor, taxpayer, and county, as the case may be, may be
filed by similar mailing.”
xIr.
Inasmuch as Narmore filed his “Notice of Appeal to Tax
Appeal Court” directly in the tax court, and not by depositing sit
in the mail, the final sentence of HRS § 232-17 is not implicated
in this
‘This is not to say that timely filing a notice of
appeal by personal delivery is accomplished by filing the notice
of appeal with the tax court alone, while timely filing a notice
of appeal by mail requires a timely filing both with the tax
court and the filing of a copy of the notice of appeal to the
Department.
The copy of the notice of appeal referred to in the
second sentence of HRS $ 232-17 is of course the same “copy”
designated in the final sentence of HRS § 232-17. Hence, for the
same reasons expressed supra, the requirement of filing the copy,
whether by physical delivery or by mailing, is directory, and not
mandatory. The distinction between the notice of appeal and the
38
‘s+4fOR PUBLICATION IN WEST’ HAWAI'T REPORTS ND PACIFIC REPORTERI#
copy, as discussed supra, provides a principled basis for
according separate treatment to each, i.e., one mandatory and the
other directory, as confirmed in the statutes and RTAC Rule 2(a).
Therefore, while the copy should be filed within the sane tine
period ae the notice of appeal, the requirement as to the copy is
directory, and not mandatory.
xIrr.
In his argunent (2) and reply arguments (3) and (6),
Narmore maintains that we should overlook his non-compliance with
HRS § 232-17 and RTAC Rule 2(a) because the Department failed to
provide him a certified copy of the Board’s “Decision” as
required by HRS § 232-7. The Department opposes this argument in
its counterargument (5). Narmore apparently did receive original
copies of both the Board’s August 1, 2002 and August 28, 2002
“Decision(s}” by certified mail. He concedes that the
Department's failure to provide him certified copies of the
“Decision(s}" did not affect his ability to appeal to the tax
court:
Tinen. (Narmore] indicated that failure of the [Department] to
provide # certified copy of the Scara's decision to
[tarnore] “might” prevent filing of an appeal « . . he was
not referring to this sppeal. He meant thet an Appellant’
ight wait for the required certified copy before filing his
appeal to insure he had the official information, and then
find out too late that the certified letter was not
forthcoming. [Narnore) timely fled his appeal without the
certified eopyl.]
Further, Narmore is incorrect in his assertion that service of
certified copies of the Ecard’s “Decision[s]” “start[s) the tine
frame for filing an appeal.” HRS § 232-17 plainly states that
40
‘+efOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER**#
the thirty day period for filing a notice of appeal to the tax
court begins to run when the Board's “Decision” is filed. See
HRS § 232-17. Accordingly, Nazmore was not prejudiced by the
Department’ s failure to provide hin a certified copy of the
Board's “Decision(s].”" Narmore fails to provide any legal or
statutory support for his assertion that, absent compliance with
HRS § 232-7, “it seems all subsequent actions would become moot
as far as jurisdiction is concerned.” However, based on our
disposition, we need not address this argument.”
% on remand the tax court must order the Department to provide
Nazmore certified copies of the Board's “Decision(s}.”
31 -Based on our disposition and renand, we do not address the
Department's argument in (1){a) and (1) (b) or Narmore’s reply argument in
(1) elated to the statute of Limitations for the assessment or collection of
faxeas Determination of this iene Fests on a factual finding as to what
occurred in 1993 when Rermore brought in his 198¢, 1985, 1986, 1967, 1966, and
1998 federsl income tax returns, as well as other tax infornation, to the
Department, See Norris o. Six flace These Fark, Inc., 102 Hawai 203, 206,
748.30 26, 29-2003) (cbserving that “the monent at which a statute of
{2 triggered is ordinarily a question of fact”). As stated
previously, Narmore asserts that an “audit” was conducted, while the
Department maintains thet he merely provided tax information and no audit wai
performed.
Et
Department's respon
wwe need not consider Nernore’s argument in (1) (b) and the
Sh (2) xegerding whether Nazmore had stated @ claim upon
which relief may be granted. ‘Although the Gepartnent does not expound on this
Sroument before this court, as Giacussed above, in ita sanuary 9, 2003 "Motion
fevblenias,” the Deparcnent argued that Narncre had not stated a claim upon
Which relief could be granted becsuse Nermore had not provided any legal basis
Jstieying en suard sf°¢12)119.39 when he had only paid $5,365.92, and because
the Separtnent. was not barfes from collecting Nermore's excise tax for the
1bts tex your becouse the staute of Limitations found in HRS 237-40 did not
begin to fn unesl. December 17, 1996.
‘yo repeat, Rernore’ asserts thet he is entitled to a refund of
$12,179.93, the amount Feflected in the first 1989 tax return and including
Penalties tnd interest, rather than $5,965.92, the anount shown in the second
USE3 tax cetusn not including penalties ond interest, because the statute of
Limicstions had fun for the 1968 tax year, thus preventing the Department from
collecting any tenes, or penalties and interest, fron hin for thot yeor~
‘The Departhent’s argument chat Nsrmore cid not seate s Claim &
which relief could be granted eppears to be inextricably Linked to a
Gseernbsat len of wneiner the statute of 2imitet ions had ron op co the 2989 tax
fc he discussed aupsa, a determination of that sssue requires findings of
Hace’ enat have yet t9 be nade by the tax court.
‘ie Slso do not Feach the argument made by the Oeparteent in (2) ox
(contd)
aL
‘s+070R PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*
xiv.
The requirenent that Narnore tinely file his “Notice of
Appeal to Tex Appeal Court” was clearly jurisdictional and was
satisfied. Accordingly, the requirement found in HRS § 232-17
and RTAC Rule 2(a) that a taxpayer file a copy of his or her
“Notice of Appeal to Tax Appeal Court” with the assessor is hot
jurisdictional and, thus, failure to do so does not deprive the
tax court, or this court, of jurisdiction to hear a taxpayer's
appeal.”
xv.
For the foregoing reasons, the tax court’s July 8, 2004
“order Granting [Department's] Motion to Dismiss Filed on January
(continued)
the reply argusent made by Narmore in (2) and (5) regarding whether or not the
Department “forged” the second 1989 tax return and whether the Department 12
perpetuating “aisinfornation and half-truths” related to Narnore’s sppeal.
Again, the resoivtion of those issues requires a determination of facts thet
aze disputed by the parties. To Narnore states that che Department,
“forged” the second 1965 tax return, 1s the Departnent denies this
allegation and contends that it merely "waived peneities and interest,
Feducing the tax sncunt due to $5,365.52" and made the appropriate anendnent.
= as discusted supra, and ae argued by Nernore in 3(2), the
Department acknowledges that it learned of Narnore’s appeal of of about
October 4, 2002, approxinately eight cays after he filed his "Notice of Appeal
to Tax Appeal Court,” when it was served with 8 "Notice of Entry of Notice of
Appeal to the (tax court)” by the clerk of the tax court. The Department,
therefore, plainly had notice of Narmore’s appeal. As nentioned before, the
Departnent does not point to any prejudic
We concluse thst the Yequirenent found in HRS § 232-17 and RTAC
Rule 2(9) that a toxpayer “shall” file a copy of his or her "Notice of Appeal
to Tax Appeal Court” with the assessor is not jurisdictional, Although
Appellant has not expressly argued chat the term “shall” as it pertains to
filing with the ascecsor should be interpreted as directory in the instant
Case, the import of his position ie to the same effect, i.g, that the seatutes
So not require the f1ling of a copy of the notice of appeal as a condition to
Filing the notice with the tax court. Nevertheless, on renand the tax court
must crder Narnore to file a copy of his "Notice of Appeal to Tax Appeal
Court” with the secessor.. Based on our interpretation of the langusge of HRS
§ 252-17 and RIAC Role 2(a), we need not reach Narmore’s argument in (3) (b)
Fegarding “Tax Information Releases.”
42
‘seePoR PUBLICATION IN WEST'S HNAI'T REPORTS AND PACIFIC REFORTERI+#
9, 2003” and July 8, 2004 final judgment in favor of the
Department and against Narmore are vacated and this case is
remanded to the tax court for further proceedings consistent with
this opinion. The tax court is instructed to order Narmore to
file his “Notice of Appeal to Tax Appeal Court” with the
Department and to order the Department to provide Narmore
certified copies of the Board’s “Decision[s].”
on the briefs:
Bobby R. Narmore, Rita Canoe
appellant-appellant,
pro se. JR,
Hugh R, Jones and Damien A.
Elefante, Deputy Attorneys Goren. Dudiigs Oe
General, ‘for appellee-
appellee
43
|
d5b5c49a-0e9c-4593-b967-2e62eb808ce0 | Radway v. OBrien | hawaii | Hawaii Supreme Court | wo. 28095
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
SIOBHAN RADWAY, Petitioner s|
HON. JEANNE L. O'BRIEN, Respondent oF
ORIGINAL PROCEEDING s
ORDER
yama, Acoba, and Duffy, JJ.)
(By: Moon, C.J., Levinson,
Upon consideration of the petition for a writ of
prohibition and mandamus filed by petitioner Siobhan Radway, the
papers in support and the record, it appears that the denial of
Judicial disqualification is not reviewable by mandanus or
prohibition under the authorities cited by petitioner inasmuch as
the order denying judicial disqualification is not an order
disqualifying counsel and petitioner is not prohibited from
appealing from the final order entered in the post-judgment
proceeding in FC-P No. 97-082K. The decisions of the respondent
judge denying judicial disqualification, denying continuance of
the July 20, 2006 evidentiary hearing and modifying custody are
xeviewable on appeal from the final order entered in the post-
judgment proceeding in FC-P No. 97-092K. Petitioner will have a
remedy by way of appeal from the final order and a writ of
prohibition or mandamus is not intended to take the place of an
appeal. Therefore,
orn
IT 18 HEREBY ORDERED that the petition for a writ of
prohibition and mandamus is denied without prejudice to any
remedy petitioner may have by way of appeal.
DATED: Honolulu, Hawai"i, August 25, 2006.
Michael S. Zola,
for petitioner Yom
Peantal oeeyare
Yee, madigs Bre
|
f0623f47-3a0e-4fce-9602-42f9b96b65cd | State v. Ribbel | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 26525
IN THE SUPREME COURT OF THE STATE OF HAWAI'!
STATE OF HAWAI'I, Petitioner/Plaintif£-Appellee
DENISE RIBBEL, Respondent /Defendant Appellant
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CASE NO. 0883482")
DER NG Al s BOR
(By: Duffy, J., for the court")
Petitioner/Plaintiff-Appellee State of Hawaii's
application for a writ of certiorari filed on August 2, 2006, is
hereby accepted.
DATED: Honolulu, Hawaii, August 22, 2006.
FOR THE COUR!
Kina. Duis: Or
Associate Justice
Peter A. Hanano,
Deputy Prosecuting Attorney,
County of Maui for
for petitioner/plaintiff-
appellee on the application
court: Moon, C.l., Levinson, Nakayama, Acoba, and Duffy, JV.
|
996c6f4f-d60e-4e64-885b-d591bb0819f2 | State v. Keck | hawaii | Hawaii Supreme Court | LAW UBRARY
No. 27311
ZN THE SUFREME COURT OF THE STATE OF HAWAT'Ip| 8
Ea
STATE OF HAWAI'I, Respondent /Plaintiff-Appellgg) =}
vs &
PAUL A. KECK, Fetitioner/Defendant-Appellanés| py
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 04-1-1525)
RDI wi -RTTORART
(By: Levinson, J., for the majority:
with Acoba, J., Concurring Separately
and Dissenting, With Whom Duffy, J., Joins)
Petitioner/Defendant-Appellant Paul A. Keck’s
application for writ of certiorari, filed on September 14, 2006,
is hereby rejected.
DATED: Honolulu, Hawai'i, October 4, 2006.
Earle A. Partington FOR THE MAJORITY: (F*®%
for petiioner/ & »
defendant-appeliant : eee ®
on the application BteeHietee — | SEAL,
STEVEN H. Levinson \ Sy,
Associate Justice
De
Sor SY
COMCURRENCE AND DISSENT BY ACOBA. J.
‘INWHICH DUFFY, Ji, JOINS
1 concur in part, but 1 dissent as to the extended term
sentences issue, As to that iamve, I would grant certiorari.
See State v. White, 110 Hawai'i 79, 91, 129 P.3d 1107, 1119
\ Considered by: Moon, C.J., Levinson and Nakayama, 29. with Acoba,
Joy concurring separately and Gissenting, with whom Ouffy, J.» Joins,
(2006) (Acoba, J., dissenting, joined by Duffy, J.) (Because
“(t]he Winth Circuit’s . . . decision [in Kaua vw. Frank, 436 F.3d
1057 (9th Cir, 2006)] has in large part undercut the .
Mintrineic-extrinsic fact’ distinction (in State v. Rivera, 106
Hawai'i 146, 102 P.3d 1044 (2004), cert, denied, --- U.S. ~
(2005),] and the two-step sentencing process{,] . . . the
availability of federal habeas proceedings and the resulting
impact on the parties and both state and federal courts makes @
reexamination of our extended-term sentencing decisions even more
Amperative.")
|
d6fe501a-6146-4f8d-a8e2-7a888379f3c8 | Pulawa v. GTE Hawaiian Tel. Concurring and Dissenting Opinion by J. Acoba [pdf]. | hawaii | Hawaii Supreme Court | *** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
00.
BENJAMIN N. PULAWA, ITI; DANELLE L. PULAWA,
individually and as Prochein Ami of DARCIE L. PULAWA,
and BENJAMIN N. PULAWA, IV, minor children,
Plaintiffs-Appellants,
GTE HAWAIIAN TEL; E. E. BLACK, Defendants and|
‘Third-Party Plaintiffe-Appellees,
O12 Hd 41 38 0a
and
UNIVERSAL ELECTRIC, LTD., fa OCC-ELECTRICAL, LTD.,
‘Third-Party Defendants-Appellees,
and
JOHN DOES 1-10, JANE DOES 1-10, DOB CORPORATIONS 1-10,
DOR PARTNERSHIPS 1-10, DOB GOVERNNENTAL ENTITIES 1-10,
AND DOE NON-PROFIT ENTITIES 1-10, Defendants.
No. 26715
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 98-3683)
SEPTEMBER 14, 2006
MOON, C.J., LEVINSON, NAKAYAMA, AND DUFFY, JJ.,
AACOBA, J., CONCURRING AND DISSENTING, SEPARATELY
OPINION OF THE COURT BY MOON, C.J.
Plaintiffs-appellants Benjamin Pulawa, III (Pulawa) and
Danelle Pulawa, individually and ae Prochein Ami for Darcie
Pulawa and Benjamin Pulawa, IV [hereinafter, collectively, the
qa
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
plaintiffs or the Pulawas],” initiated the instant action for
negligence arising out of an incident in which Pulawa, a
construction superintendent, was seriously injured as a result of
being struck in the head by a hardened bag of cement that was
propelled into the air during the course of excavation work. ‘The
plaintiffs alleged that defendante-appellees £.8. Black, an
excavation and duct line contractor, and G7E Hawaiian Tel (GTE),
which had contracted with E.£. Black to conduct excavation and
duct Line work, were responsible for burying the cement bag
approximately two to three years prior to the subject incident
during the course of installing a telephone duct line in the sane
approximate area where Pulawa was overseeing excavation work in
connection with a subsequent project.
‘The plaintiffs appeal from that portion of the Circuit
Court of the First Circuit's May 25, 2004 final judgment* entered
pursuant to an order granting summary judgment in favor of 5.8.
Black and GTS. Essentially, the circuit court ruled that £.8.
Black did not ove a legal duty of care to Pulawa. The plaintiffs
also challenge that portion of the circuit court’s order denying
in part their motion to disallow costs.
on August 19, 1996, Danelle Pulawa soved for an order appointing her
‘ae Prochein Ami for Darcie Pulawa and Benjamin Pulava, TV, the Pitawae’ two
‘Minor children, On the sane day, the Honorable Virginia Lea Crandall granted
the order
* the Honorable Dexter Del Rosario presided over the underlying
proceedings unlest otherwise indicated.
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
For the reasons discussed below, we affirm the circuit
court's May 25, 2004 final judgment.
T. BACKGROUND
A, actual Backoround
‘The relevant facts of the instant case involve two
separate construction projects in the Kaka‘ako Improvement
District in Honolulu, Hawai'i. The first project was conducted
in 1993-1994 by E.£, Black. The second project was conducted in
1995-1996 by O'ahu Construction Company (OCC), during which
Pulawa sustained his injuries
1. The 1993-1994 Project (Conducted by E.R. Black)
Sometime in 1993, GTE hired E.E. Black to install
underground telephone lines along Xamake'e Street in the Kaka‘ako
Improvenent District [hereinafter, the underground duct Line
project]. 8.8. Black was responsible for furnishing all of the
materials and labor, as well as for performing all of the
necessary work for the project. Although a GTE engineer served
as an inspector for the pro} hired Engineers Surveyors
Hawai'i (ESH) to also provide inspection work for the project.
The underground duct line project involved certain
excavation and backfill work. According to GTe’s “standard
Specifications for Placing Underground Telephone Lines," which
“are intended to govern the work on all contracts awarded for
placenent of underground telephone systens by GTE
1 ss throughout the State of Hawai'i,” *{a}1l wood and debris
*** FOR PUBLICATION ***
in West's Hawaii Reports and the Pacific Reporter
shall be removed from [the excavated] trench before
backfilling[,]* and *{blackfil1 material shall be free of wood,
paper or other objectionable material." The GTE inspector
of the foregoing requirements w
testified that the purpor
prevent “settlement and/or street failure.* an E.E. Black
foreman agreed that inappropriate backfill could lead to
settlement and/or street failure. The BSH inspector also
testified that improper backfill could potentially pose a danger
to “equipment used by a future contractor” as well as to the
safety of future contractors.
E.B, Black began excavation at the intersection of
Kamake'e and Kona Streets on or about October 21, 1993. E.E.
Black then backfilled the excavated area, using “select borrow
backfill material, on December 22, 1993. “Select borrow’ is a
type of backfill material, where the largest pieces of material
used as backfill are no more than one inch in diameter.
During the underground duct line project, E.B. Black
used “hand mixed" cenent in order to make small repairs or patch
existing sewer lines in the areas of construction. An ESH
inspector witnessed E.2. Black mixing cement at the job site
approximately ten tines during the course of the project. £.E.
Black’s use of cement during the underground duct line project
was acknowledged by an B.E. Black project engine’
** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
According to a “contract set of plans” that £.E. Black
apparently utilized during its project, the fact that “there
would be future underground work along Kamake'e Street" *[a] fter
B.B. Black performed its work" was reflected on those plane.
E.B. Black’s project appeared to have concluded sometime in early
ssa.
2, The 1995-1996 Project (Conducted by occ)
Sometime in 1995, OCC began work on the installation of
water and electrical lines, as well as widening roads and
constructing new sidewalks and pavement in the Kaka'ako
Improvement District. As part of the project, OCC was required
to perform excavation work. On August 20, 1996, during the
course of the excavation work, it appears that OCC encountered
the GTE duct line that E.=. Black had previously installed. on
that day, Pulawa, a construction superintendent employed by Occ,
was overseeing the excavation work being performed by three other
OCC employees at the intersection of Kamake'e and Kona Streets.
one employee was operating a loader,” the second was operating a
hydraulically operated
tor and can be uged to lift
2 According to one court, *{a) loader is
accessory that attaches to the front of the ©
and move gravel, sand, dirt, and the like.”
wipowell, 96 7.341251, 1283 m.2 (Or. Ce. App. 2008)
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backhoe,‘ and the third employee was acting ae a grade checker.
The backhoe operator was excavating a trench and placing the
excavated material sonewhere near the trench. The loader
operator would then pick up the material and deposit it in a dump
truck. Because of the limited space in the excavation area, the
loader operator would have to drive over the pile of excavated
material in order to place the scooped-up material into the dump
truck. The loader operator would then reverse back over the pile
and repeat the process until the excavated material was renoved.
While removing the excavated material as described
above, the loader operator indicated that he heard a “whoosh
sound as he was reversing over the pile of excavated material and
saw what appeared to be a “rock” being propelled from the left
rear tire of the loader, striking Pulawa on the head. when the
accident occurred, Pulawa was apparently standing approximately
fifteen to twenty feet away from the loader. According to the
loader operator, he later believed that the “rock” was “a half
bag of concrete." Another OCC enployee described the "rock" as
having “pieces of cement bag embedded in it." During the
discovery process, it was apparently revealed that the “rock" was
“a 30-pound chunk of hardened cenent” “in a cement bag with brown
+ According to one court, *[a) backhoe is 2 tractor-like machine used
primariiy for digging trenches. sal corp. 376
‘4.24 1058, 1060 a1 (R.z. 1977). It is unclear from the record waether the
‘operating a backhoe or a hoptos, which, according to #-B. Black
fonslier than a backhoe. Nevertheless, it is immaterial for
of this case whether the employee was operating a backhoe or
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packaging and plastic wrapping." As a result of the accident,
Pulawa sustained severe head injuries, including a depressed and
open skull fracture.
B. Procedural Hiatory
On August 19, 1998, the plaintiffs filed a complaint
against GTE, E.£, Black, and Morrison Knudsen Corporation/Walter
& SCI Construction (USA) (Morrison Knudsen).* On April 12, 2000,
the plaintiffa filed a first amended complaint, adding M. Sakuma
Electrical, Inc. (Sakuma), a construction company, as a defendant
and dismissing Morrison Knudsen as a defendant.‘ The plaintiffs
alleged that the “rock” that struck Pulawa was “a piece of cement
[that] originated from a discarded bag of hardened cement which
was left in the area [of the accident) or abandoned. The
plaintiffs further alleged:
Defendants OTR, £.E. Black and/or (Sakuma)
performed work in the area fof the accident] or project site
Prior co [occ]. Said [ajefendante negligently failed to
ick up, clean up or resove the cenent bag after completion
Sf their work oF portion of work at the job site
9. said [dlefendants knew or should have know that
the failure to renove a cement bag, oF properly clean up the
job site, would create a hazardous condition or threaten the
atety of other workers on the job site, and therefore the
[defendants had the duty to remove the cenent bag after
completion of their portion of work.
* According to the plaintiffs’ complaint, Morrison Knudsen “is and was
at all times material herein, « partnership and successor in interest to oF
Business interest of B.8. Blacks)"
« marlier, on May 11, 1999, Morrison Knudsen moved for summary judgment
inasmuch as it did not perform any work in or around the area where the
accident occurred. “On Sune 15, 1999, Morricon Aaudsen withdrew ite motion for
Summary Judgnent in light of the parties’ stipulation for dismissal without
prejudice of ai] claing against Morrison Knudsen to be filed with the circuit
Eoure, On June 17, 1999, the parties filed the aforementioned stipulation-
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‘the first amended complaint set forth two counts against GTE,
E.B. Black, and Sakuma: (1) negligence (Count 1); and (2) loss
of consortium (Count II). The loss of consortium claim was
asserted by Danelle Pulawa on behalf of herself and the Pula
two minor children.
on April 5, 2001, Sakuma moved for summary judgment,
contending that there was no evidence that the trench excavated
by Occ was in the same location where Sakuma had conducted an
excavation project sometime in 1994, two years prior to the
subject accident. specifically, Sakuma claimed that "its :project
area was across the street from the site where (Pulawa] was
working and where the cement bag was apparently uncovered.*
(auphasis omitted.) On Nay 6, 2002, the plaintiffs filed a
statement of no opposition to Sakuma’s motion for summary
judgment. On May 9, 2001, B.8. Black and GTE filed their
menorandun in opposition to Sakuma’s motion for summary
judgment.’ On May 30, 2001, the circuit court entered an order
granting Sakuna’s motion for summary judgment.
on March 10, 2004, GTE moved for summary judgment
against the plaintiffs on the basis that ‘the undisputed facts in
this case establish that it cannot be held liable to [the
+ BE, Black and OTE had previously filed a cross claim against sakuna
on April 24, 2000. in turn, Sakuma had filed a cross claim against 2.5. Black
Gn way 23, 2000,, Purthermore, on October 13, 2003, B.E, Black and OTE filed a
Ghitd’party complaint against Universes! Electric, itd. fka Occ-Blectrical,
Ita. F subcontractor of 00¢ who was performing excavation vork at the tine
Polawa was injured.
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pliaintiffe for ‘negligently failing to pick up, clean up or
remove the cement bag after completion of their work or portion
of their work at the job site’ as alleged in (the p}laintitts’
[f]ixat [a]mended (clomplaint.* Specifically, GTB maintained
that it “did not perform the excavation or backfill work for the
earlier project, particularly in the area in question.” Rather,
GTE asserted that it “contracted with E.B. Black, an independent
contractor, to perform duct Line work, which involved certain
excavation and backfilling work, in 1993.°
on March 17, 2004, 5.5. Black moved for summary
judgnent against the plaintiffs on the ground that “it did not
owe a legal duty of care to [the p]laintiffe because it was not
reasonably foreseeable that [Pulawa] would be injured or subject
to an unreasonable risk of harm created by any alleged negligent
conduct on the part of E.E, Black relating to the ‘large piece of
cement’ that ‘originated from a discarded bag of hardened
cenent.’* E.B. Black maintained that “[t]here is no evidence on
the basis of which a jury can conclude that £.B. Black knew or
had reason to know of a dangerous condition relating to leaving
or abandoning a ‘discarded bag of hardened cement’ underground
and that the condition created a foreseeable risk of harm to
(Pulawa).* (Emphasis in original.)
On April 20, 2004, the circuit court held a hearing on,
inter alia, GTE’s and £.8. Black’s motiona for summary judgnent.
At the end of the hearing, the circuit court stated that it was
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cited in GTE’s and
pereuaded by the arguments and authoriti
E.B, Black's motions for summary judgment and, thus, orally
granted their motions for summary judgment." on May 12, 2004,
the circuit court entered its written order granting GTE's and
ELE. Black’s motions for summary judgment. ‘The circuit court
also ruled that GTE’s and E.£. Black’s joint motion for summary
judgnent regarding epoliation of evidence was rendered moot by
its order granting GTE‘s and £.£. Black's separate motions for
summary judgment.
on May 25, 2004, final judgment was entered in favor of
E.E. Black and GTE.? On May 27, 2004, 8.8. Black and GTB filed
their notice of taxation of costs, requesting costs in the amount
of $25,509.50, pursuant to Hawai'i Rules of Civil Procedure
+ prior to the March 10 and 17, 2006 motions for summary judgment filed
Giack, respectively, GIE and E-f. Black had filed a Joint
etion for sumary judgnent regarding spoliation of evidence, specifically,
Gre and BB, Black had contended that the hardened bag of concrete that struck
Pulawa wae “never sade available to B.B, Black or OTE for inspecticn,
Cxamination o testing.” Although the hardened bag of concrete was
photographed after the accident, the beg was apparently thrown avay soon after
Rhe accident. The motion for summary judgnent regerding spollation of
evidence wae algo to be heard by the circuit court on April 20, 2004.
However, lnaemich as the circuit court orally granted OTE's and B.E. Black's
Separate notions for summary Judgment, the circuit court stated that it was
Rot neceoeary co address the Joint motion for summary judgment regarding
spoliation of evidence
the final judgment indicated that, inasmuch as judgment was entered
in favor of -B. Black and Gre, any renaining crose-clains and third-party
claims were rendered moot. See gupra note 7.
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(HRCP) Rule S4(d) (2004)** and Hawai'i Revised Statutes (HRS)
§ 607-9 (1993). on dune 3, 2008, costs in the amount of
$35,509.50 were taxed by the clerk of the circuit court against
the plaintiffs. On June 16, 2004, the plaintiffs filed a motion
to disallow costs, contending that it would be inequitable to
award costs against the plaintiffs inasmuch as Pulawa remains
unemployed and Danelle Pulawa’s loss of consortium claim on
behalf of herself and the Pulawas’ two minor children are merely
derivative. The plaintiffs aleo challenged several entries made
by B.2. Black and GTE in their notice of taxation of costs.
\ mCP mule 54(@) provides in relevant part:
(@) costs: attorneve- tees.
(2) COSTS OTHER THAN ATTORNEYS’ FEES. Except when expré
provision therefor is made esther ina statute or in these
ules, costs shall be allowed as of cours
party unless the court otherwive directs(
be taxed by the clerk on 48 nours’ notice
within 5 days thereafter, the action of the clerk nay be
Feviewed by the court.
(underscored emphasis and capital letters in original.)
ups § 607-9 provides:
No other costs of court shall be charged in any court
in addition to those prescribed in thie chapter in any suit,
action, or other proceeding, except aa otherwise provided by
ise.
Aneluding but not Limited
for witnesses and counsel,
a2] actual disbursement
co, intrastate travel expent
expenses for deposition transcript originale and copies, and
other incidental expenses, including copying costs,
intrastate long dletance telephone charses, and postage,
worn to by an attorney or a party, and deemed reasonable by
the court, may be ailoved in taxation of costa. In
determining whether and what costs should be taxed, the
court may consider the equities of the situation.
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At a hearing held on July 27, 2004, the circuit court
orally granted in part and denied in part the plaintiffs’ motion
to disallow costs and entered its written order on August 6,
2004." Specifically, the circuit court denied costs in the
amount of $45.95 attributed to meals and granted costs in the
amount of $35,463.55. On August 31, 2004, an amended judgment
was entered in favor of E.E. Black and GTZ, incorporating the
circuit court's August 6, 2004 order. On September 7, 2004, the
plaintiffs filed their amended notice of appeal.”
IZ. STANDARDS OF REVIEW
a tion ment
‘This court reviews the circuit court’s grant of summary
judgment de novo. O'ahu Transit Servs.. Inc, v. Northfield Ins.
Cou, 107 Hawai'i 231, 234, 112 P.3d 717, 720 (2005) (citing
Hawai'i Cnty. Fed, Credit Union v, Keka, 94 Hawai'i 213, 221, 11
P.3d 1, 9 (2000). The standard for granting a motion for
sunmary judgment is well settled:
* on June 4, 2004, the clerk of the circuit court sent 2 notice to the
parties that the iiscane case was reaasigned to the Honorable Bert Ayabe. AS
Such, Judge Ayabe presided over the plaintiffs’ motion to disallow costs,
‘the plaintiffs had prematurely filed 2 notice of appeal on July 23,
2004, during the pendency of the motion to disallow costs and is considered
Filed on August 6/2008, when the order disposing of the motion vas entered by
the circuit court, See Havai's Rules of Appellate Procedure (HRAP) Rule
aia) (2). (2008) (providing enac, "(iln any case in which a notice of appeal has
been filed prematurely, such notice ghali be considered as filed innediately
after the tine the judgment becones final for che purpose of appeal") =
Consequently, the July 23, 2004 notice of appeal is a timely appeal of the May
35, 2008 final Judgment and the August 6, 2004 order granting in part and
Senying in part the plaintiffs’ notion £5 disallow costs
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(Sluneary judgrent is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on
Eile, together with the affidavies, sf any. show that chere
fe no genuine issue as to any saterial fact and that the
uoving party ie entitled to Jusgnent as a satter of law. A
fact ie material if proof of that fact would have che effect
of establishing or refuting one of the essential elements of
S'case of action or defense asserted by the parties, The
Cvidence mst be Viewed in the 1ight most favorable to the
pon-moving party. In other words, we sust view 21] of the
evidence and the inferences drawn therefrom in the Light
ost favorable to the party opposing the motion,
Price v, AIG Hawai'i Ins. Co., 107 Hawai'i 106, 110, 111 P.3d 1, 5
(citation omitted) (brackets in original), reconsideration
denied, 107 Hawai'i 106, 111 P.3d 1 (2005).
B. Duty of Care
“thie court addresses whether a defendant owes a duty
of care to a particular plaintiff as a question of law under the
Blair v. Ing, 95 Hawai‘i 247, 253, 21
right/wrong standard.
P.3d 452, 458 (2001) (citation omitted).
C. Taxation of Costs
“The award of a taxable cost is within the discretion
of the [circuit] court and will not be disturbed absent a clear
abuse of discretion.” Wong v, Takeuchi, 88 Hawai'i 46, 52, 962
P.2d 611, 617 (1998) (internal quotation marks and citation
omitted). ‘An abuse of discretion occurs when the [circuit]
court has clearly exceeded the bounds of reason or disregarded
rules or principles of law or practice to the substantial
detriment of a party litigant." Hac v, Univ, of Hawai'i, 102
Hawai'i 92, 101, 73 P.3d 46, $5 (2003) (internal quotation marks
and citations omitted)
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TTT. DISCUSSION
on appeai, the plaintiffe challenge the circuit court
order granting sunmary judgment in favor of B.8. Black and GTE
and the order denying in part the plaintiffs’ motion to disallow
costs. Each of the plaintiffs’ contentions will be discussed in
turn.
A Black’ Ju
‘The plaintiffs contend that the circuit court erred in
granting summary judgment in favor of E.E. Black because it
failed to recognize that B.B. Black
had a duty to protect
Ligence notwithstanding the fact
ible range of danger" extended to the public and
‘ors, and the triske of hazards" whose
‘the conduct “unreasonably dangerous"
Included the specific sequence of events that led to
: severe head injuries:
‘The plaintiffs further argue that the circuit court “failed to
consider the material and competent evidence that had been
presented and which showed that #.8. Black owed a legal duty to
» Pulawa under the facts and circumstances of this case.”
‘the plaintiffs primarily rely on the testimony of Alan Los Banos,
gr. the plaintiffs’ construction safety expert, who generally
testified in his affidavit and deposition that "burial of objects
such as a bag of cement, in lieu of proper fill, creates a risk
that a future contractor’s heavy construction vehicles or
equipnent would strike or rollover the object and project it
through the air with great force." Thus, the plaintiffs maintain
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that Los Banos’ expert testimony “alone, at the minimum, created
a genuine issue of fact, which precluded summary judgment.”
Preliminarily, 2.8. Black contends that the plaintiffs
confuse the “foreseeability” issue “by citing and referencing
sforeseeability’ in the context of @ breach of a legal duty
and/or causation inatead of the context of whether there is a
legal duty in the first instance.” (Emphases omitted.)
Consistent with ite assertion that *[fJoreseeability, in the
context of a legal duty, is a question of law[,]" B.E. Black
argues that “Los Banos’ opinions regarding the issue of
foreseeability within the context of whether £.E. Black had a
legal duty of care owed to [the p]laintiffs should be
disregarded, per prevailing case law as they cannot be used or
considered to establish a legal duty of care.* &.5. Black
maintains that it owed no legal duty to the plaintiffs because
the foreseeable danger or harm related to use of improper:
backfill for roade pertains to settlement of the road and
Ete failure related co those traveling on oF Using ehe road.
Voids, scttlenent, and street failure that possibly could
Gnéanger people using and driving on the street are he
foreseeable dangers if inproper Backfill such as a bag of
Genent is used. The risk or hazara is not that the fill
faterial will be dug up, run over by a vehicle, and
projected into che air by the tire of the vehicle. it is a
Generous stretch of the imagination to conclude
St law that the risk or hazard that fill material will be
ug up, run over by a vehicle, and projected into the air by
the tive of that vehicle da the likely or probable result of
the alleged conduct
(Citations to the record omitted.) (Emphasis in original.)
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Foreseeability in the Context of Duty
“I]t de fundamental that a negligence action lies only
tite.”
where there is a duty owed by the defendant to the pla:
Bidar v. Amfac, Inc, 66 Haw. 547, 551-52, 669 P.2d 154, 159
(1983) (citations omitted) .
The existence of a duty oved by the defendant to the
plaintiff, that is, whether. - such a relation exists
Between the parties that the community will inpose a legal
obligation pon one for the benefit of the other —- or, more
Sinpiy, whether the interest of the plaintif® woich hi
suffered invasion wae entitled legal protection at the hands
Gt the defendant, is entirely @ question of Law.
Knodle v, Waikiki Gateway Hotel, Inc., 69 Haw. 376, 385, 742 P.2d
377, 383 (1987) (internal quotation marks and citations omitted)
{ellipsis in original). Regarding the imposition of a duty of
care, thie court has stated that, generally,
[i]m considering whether to impose a duty of
reasonable care on a defendant, we recognize that duty ie
hot sacrosanct in itself, Sut only an expression of the sum
fetal of those considerations of policy which lead the law
fo say that the perticslar plaintife is entitled to
protection: Legal duties are not discoverable facts of
Bature, but merely conclusory expri chat, in cases of
a particular type, liabilicy should be imposed for danage
Gone. in determining whether or not a duty i owed, we must
weigh the considerations of policy which favor the
iplaintift'e) recovery against those waich favor Limiting
the (defendant's) liability. the question of
owen a duty to another mist be decided on a ci
baste.
Blair, 95 Hawai'i at 259-60, 21 P.3d at 464-65 (citations
omitted) (format altered). In addition to the aforementioned
principles, this court has also regarded several factors in
determining whether to impose a duty:
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wlhether a special relationship exists, the foreseeability
of har to the injured parey, the degree of certainty that
the injured party suffered injury, the closeness of the
connection between the defendanta’ conduct and the injury
Suifered, the mora. blane attached to the defendants, the
policy of preventing harm, the extent of the burden to the
Setendante ana consequences te the comunity of imposing
Guty to exercise care with resulting Liability for Breach,
Gnd’ the availability, cost, and prevalence of insurance for
the risk involved:
Ida at 260, 21 P.3d at 465 (ellipsis and citation omitted)
(format altered).
Regardless of the source of a particular duty,
Inowever;] 4 defendant's 1lability for failing to adhere to
the requisite standard of care is limited by the
priolposition that the defendant’ s obligation to refrain
from particular conduct (or, as the circunstances may’
warrane, Co take whatever affirmative steps are reasonable
fo protect another] is owed only to those who are
foreseeably endangered by the conduct and only with respect
to those risks oF hazards whose likelihood made the conduct
[er omission] unreasonably dangerous. Thus, if it is not
reasonably foreseeable that the particular plaintiff will be
[sjured if the expected harm in fact occurs, the defendant
does not ove that plaintiff a duty reasonably to prevent the
expected harm.
pares v. re of , 100 Hawai'i 34, 72, 58
P.ad 545, 583 (2002) (internal quotation marks and citations
omitted) (firat set of brackete and bold emphases added); see
also Janssen v. Am. Hawai'i Cruises, Inc., 69 Haw. 31, 34, 732
P.2d 163, 166 (1967) (stating that ‘a defendant owes a duty of
care only to those who are foreseeably endangered by the conduct
and only with respect to those risks or hazards whose likelihood
made the conduct unreasonably dangerous") (internal quotation
marks and citations omitted); Huleman v. Hemmeter Dev. Corp., 65
Haw, 58, 68, 647 P.2d 713, 720 (1982) (same).
The test of foreseeability “is whether there is some
probability of harm sufficiently serious that a reasonable and
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prudent person would take precautions to avoid it." Knodle, 69
Haw. at 388, 742 P.2d at 385 (internal quotation marks, brackets
n foreseeability of any
and citations omitted). “It does not m
harm whatsoever, and it is not sufficient that injury is merely
possible." Henderson v, Prof’) Coatings Corp., 72 Haw. 387, 396,
819 P.2d 84, 90 (1992) (quoting 65 C.J.8. Nealigence § 5(5)
(1966)) (internal quotation marks omitted); gee also Lee v.
Corregedore, 83 Hawai'i 154, 167, 925 P.2d 324, 337 (1996)
*(T]here are clear judicial days on which a court can foresee
forever and thus determine liability but none on which that
foresight alone provides a socially and judicially acceptable
Limit on recovery of damages for that injury.* (Internal
quotation marks and citation omitted.)).
“(T]he concept of ‘duty[,]’ [however,] involves more
than mere foreseeability of harm." Taylor-Rice v. State, 91
Hawai" 60, 71-72, 979 P.2d 1086, 1097-98 (1999).
[Al court’s task —- in determining "duty" -- 4s
decide [merely] whether a particular plaineiff”s injury wa
reasonably foreseeable in light of a particular defendant's
Conduct, ut rather to evaluate more genersily whether the
category of negligent conduct at iesue is sufficiently
Likely to result in the kind of harm experienced that
Liability say appropriately be imposed on the negligent
parey.
Id. at 72, 979 P.2d at 1098 (citing Thing v. La Chusa, 771 P.2d
814, 819 2.3. (Cal. 1989)) (internal quotation marks and citation
omitted) .
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Foreseeability in the Context of Duty: Question of Law
versus Question of Fact
on appeal and at the circuit court level, the parties
Gispute whether foreseeability ie an issue of fact for the trier
of fact to decide or is an issue of law for the court to
determine. The plaintiffs maintain that “[r]easonable
foreseeability is the very prototype of a question that must be
left to a jury.” (Citation omitted.) on the other hand, B.B,
Black maintains that foreseeability in the context of duty is an
issue of law for the court to determine.
This court has previously noted that, in the coritext of
determining the existence and scope of a duty, foreseeability is
jolve. See Bidar, 66 Haw
a question of law for the court to r
at 553 n.3, 669 P.2d at 159 n.3 (noting that foreseeability may
‘play an important role in the definition of duty and the
delineation of ite scope by the court") (citing Huleman, 65 Haw.
at 68, 647 P.2d at 720-21 (duty owed only to those foreseeably
foreseeability is a question of law); Aiiroai v
endangere:
State, 59 Haw. 515, 527, 583 P.2d 980, $88 (1978) (foreseeability
of risk of harm to plaintiff ie a question of law when
determining whether plaintiff is among those to whom defendant's
duty of care extends); Kelley v. Kokua Sales & Supply, Ltd., 56
Haw. 204, 208, 532 P.2d 673, 676 (1975) (as a matter of law, duty
not owed to one to whom defendants could not reasonably foresee
consequences)). Indeed, other jurisdictions have aleo recognized
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that foreseeability, in the context of determining the existence
and scope of a duty, is a question of law for the court to
dv. Uribe, 715 P.24 624, 629 n.6 (Cal.
determine. See Ball
1986); Knoll v. Bd, of Reaente of the Univ, of Neb., 602 N.W.2d
757, 162-63 (Neb. 1999); "
Inc., 694 A.24 1017, 1020-21 (W.J. 1997).
Foreseeability, however, in the context of breach of
duty and causation is a question of fact for the trier of fact to
resolve. See Bidar, 66 Haw. at 552-53, 669 P.2d at 159-60.
“[t]he distinction between foreseeability as it applies to duty
and as it applies to proximate cause is a critical distinction
that is too often and too easily overlooked." Knoll, 601 N.W.2d
at 763.
Foreseeability os it impacts duty determination:
rebended. the risk reasonaDl erceived det ine.
x sbeneion.of in hae
Esken into account in deterals Thea
CT
Foreseeability that affects proxinate cause, on the
other hand, relates co the question of whether the specific
fact or omisaion of the defendant was such that the ultimate
injury to the plaintif® reasonably flowed from defendant's
breach of duty. Foreseeability in the proximate cau
context relates to renoteness rather than existence
auey.
Glohesy, 694 A.2d at 1021 (internal quotation marks and citations
omitted) (emphasis added); gee algo Knoll, 601 N.W.2d at 763;
AtL. Mut. Ins, Co, v, Kenney, 592 A.2d 507, 515 (Md. 1992)
(*Foreseeability as a factor in the determination of the
existence of a duty involves a prospective consideration of the
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facte existing at the time of the negligent conduct.
Foreseeability as an element of proximate cause pernits a
retrospective consideration of the total facts of the
cccurrence[.]* (Citation omitted.) (Emphases added.)).
Here, the plaintiffs have ‘overtooked" *(t)he
distinction between foreseeability as it applies to duty and as
it applies to proximate cause." Knoll, 601 N.W.2d at 763. For
example, the plaintiffs maintain that *{t]he precise manner of
the injury or the specific harm or consequence of the negligence
need not be foreseeable." However, as B.B. Black points out,
“trlhe cases cited by [the p)laintiffs all involve] factual
analysis relating to foreseeability in the context of causation,"
not foreseeability in the context of duty. See Rovers ex rel.
Standley v. Retrum, 825 P.24 20, 22 (Ariz. Ct. App. 1991)
(stating that “the particular manner in which the injury is
brought about need not be foreseeable” in the context of “legal
cause"); Tisder v. Little, 602 So. 24 923, 927 (Fla. Dist. ct.
App. 1987) (stating that the “foreseeability aspect of the
proximate cause elenent is . . . satisfied in this case" because
“[elhe collapse of a brick wall resulting in the death of a
person near such wall is plainly a reasonably foreseeable
consequence of negligently designing and constructing such a wall
without adequate supports in violation of applicable building
codes"); Christopher v. Father's Huddle Café, Inc., 762 N.E.2d
527, 526 (Mass. App. Ct. 2003) (stating that, in the context of
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causation, "(t]he specific kind of harm need not be foreseeable
as long as it was foreseeable that there would be harm from the
act which constituted the negligence”). Consequently, to the
extent the plaintiffs rely on their cited cases for the
proposition that *[tJhe precise manner of the injury or the
specific harm or consequence of the negligence need not be
foreseeable,” we disregard them as not germane to the issues
presented in the instant appeal. Inasmuch as the issue of
foreseeability in the context of duty is a question of law for
the court to resolve, the court, not the trier of fact, must
determine the existence and scope of duty, if any, owed by B.B.
Black to the plaintiffs.
3. Duty in the Context of this case
As previously stated, the plaintiffs rely on Los Banos’
expert opinion to establish the fact that *[t]he risk of a buried
cement bag becoming projectile was . . . clearly foreseeable {]
and not ‘highly extraordinary.'" Specifically, Los Banos’
affidavit provides in relevant part
2. 1 am employed as a Safety Coordinator and Program
specialist for the AFL-CIO, Plasterers & Cement Mason
Local 630, and Bricklayers ¢ Allied Craftworkers, Local 1
3. ‘ram a safety opecialist who investig
construction accidents. I have been so employed over the
past nine years, and have vorked in the conservction field
Since 1979. My’ background and experience includes various
forms of training in construction and construction safety
and Oska-approved ch
8." in'my opinion, it Le improper for a contractor to
bury objects not consistent with the job specifications as
#411 materials, such as this object buried under a public
Foadway such as Kanake'e Street. Such practices have
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resulted in materials being buried that could pose hazarde
fo future construction workers.
3. the dangers of engaging in such practices would
include the risk ef heavy construction equipment or Vehicles
striking or rolling over materials such has [sic] hardened
fenent go a to project them through the air with great
Force, Jeoparaizing the lives and safety of workers and
other persone in the immediate area.
on appeal, the plaintiffs argue that Los Banos’ “expert testimony
established, at least for summary judgment purposes,” that:
Burial of objects such as a bag of cement, in lieu of proper
Fill, creates a risk that s future contractor's heavy
Construction vehicles or equipment vould strike or rollover
the object and project it through the air with great force.
Doing 20 “has the potential for being a projectile that can
basically fly."
Heavy construction equipaent and "the amount of pressure
MOTT gan launch" euch object
votunks will fy from the tires, if it spins.-
sti)hen you've on @ hard surface and you have a rubberized
thing that’s preseing don, sosething bas to give. The weak
area can be rocks that fly."
sinen wheels spin... things fly from the tires
Bepecially in the back, when it sping, the traction. a=
they're moving, you see it picks up sosetines in the grooves
of the tires aad just launches itself.”
gn Hawal't, construction workers know that such objects can
be propelled tarough the air.
construction safety training classes are conducted which
Gover the danger of flying construction debris caused by
Unproper materiale that are abandoned or left at a job site.
Indeed, similar incidents have occurred at construction
worksites in Hawai'i.
=.» Los Banos has personally seen large rocks fly out from
inde: Reavy equipment at construction vites.
A flying object “jeopardizes the lives and safety of
workers.
‘me frequency with which this happens depends on the type of
Squipnent being operates, the speed at which it is being
operated, and the type of materiale in the vicinity.
E.E. Black, however, maintains that Los Banos’ opinions
they cannot be used or considered to
are inadmissible inasmuch
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establish a legal duty of care. In response, the plaintitts
assert that
egal duty must be examined in Light of ite factual context,
not in a vacuum. “Mr. Los sance provided facts relevant to
the court's legal duty analysis, and these facts establien
sone probability of harm sufficiently serious that a
Feasonable and prodent person (e.g. Contractor) would have
taken precautions to veld it
(Citation omitted.)
Generally, “(t]he testimony of expert witnesses is
+ confined to matters of fact, as distinguished from matters
of law." Create 21 Chuo, Inc. v. Southwest Slopes, Inc., 81
Hawai'i 512, 522 n.4, 918 P.2d 1168, 1178 n.4 (App. 1996). In
other words, an “expert or nonexpert opinion that amounts to a
conclusion of law cannot be properly received in evidence, since
the determination of such questions is exclusively within the
province of the court." Id, (citation omitted). Nevertheless,
in the context of duty, “expert testimony might be relevant to
help establish some underlying fact on which duty may ultimately
rest(.]" Parra v ion 2, 982 S.W.2d 278, 284
(Mo. Ct. App. 1998); see also Peck v, Horrocks Eng’xs, Inc., 106
F.3d 949, 952 (10th Cir. 1997) (*Whether a duty of care exists is
a question of law, although expert testimony may be helpful on
the issue." (Citations omitted.)).
Contrary to the plaintiffs’ position, however, Los
Banos did not “provide(] facts relevant to the court’s legal duty
(Emphasis added.) A closer
analysis[]*" in the instant case
examination of Los Banos’ deposition testimony reveale that the
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basis for the “fact that “{t]he risk of a buried cement bag
becoming a projectile was . . . clearly foreseeable|) and not
‘highly extraordinary’* was Los Banos’ prior observations of
nine-inch rocks traveling "maybe about five feet, six feet away.”
Specifically, Los Banos testified
0: [By defense counsel} How big was the biggest rock
that you've seen fly like that”
[PLAINTIFS* COUNSEL]: Like that?
[DEFENSE CouNseL]:" well, when a loader or plece of
equipmant goes over it and then shoots it out.
{los EANoS];, About ~~ I've seen rocks about, roughly,
this big fly out of there.
(By [defense counsel}): when you say “this big" --
A: [By los Banos] Roughly, what, ‘about nine inches
Around. the
Q: Mine inches, arouna?
A: Yeah.
Q: How far did de fay?
Ri Gaually, it soomn'c fly chat far. it just flies maybe
abour five feat, six feat aviv.
(Emphasis added.) However, in the present case, the cement
“rock* that was propelled into the air weighed approximately
thirty pounds and traveled at least fifteen to twenty-five feet
before atriking Pulawa in the head. When apprised of these
facts, Los Banos testified:
0: [By defense counsel) was this ac
y
a: Tay ton Banos) My opinion --
Mell. i feel it's
unlsual. “Especially the launching that far- 1
thought it was, like, wow, i
@: Going over 20 feet and the thingl. dies, the concrete
srock*] is, what, 20, 30 pounds
just kind of
inst far, ieee, like, wor you knoe. ?
(Emphases added.) Thus, inasmuch as “(t]he opinion of an expert
must pertain to the facte of the particular case[,]" Jortes v.
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King County, 84 P.3d 252, 258 (Wash. Ct. App. 2003), and Los
opinion does not, his opinion as to the “fact” that “(t]he
Bano:
rink of a buried cement bag beconing a projectile was
clearly foreseeable{) and not ‘highly extraordinary’* ie
not helpful to this court's “legal duty analysis." See Nebraska
Plastics, Inc, v. Holland Colors Ama., Inc., 408 F.3d 420, 426
(eth Cir. 2005) (etating that *{a]n expert opinion that faile to
consider the relevant facts of the case is fundamentally
unsupported)” and, therefore, “must be excluded"). Accordingly,
we next curn to the dispositive issue in this case, that is,
whether E.E. Black owed a legal duty of care to Pulawa.
Other jurisdictions have recognized that ‘a contractor
has a duty to maintain the premises on which it performs work in
a reasonably safe condition for persons who the contractor may
reasonably expect to cone onto the site.” Raino v. Fischer, 059
A.2d 709, 722 (N.J. Super. Ct. App. Div. 2004) (citation
omitted); see also Chance v. Lawry's, Inc., 374 P.2d 185, 190
(cal. 1962) (stating that an independent contractor's duty of
care is “a general duty imposed by law to use reasonable care to
prevent damage to persons whem [sic] he may reasonably expect to
be affected by his work") (internal quotation marks and citation
omitted). In other words, a contractor generally
Je reasonable care both in his or her work
fe Of performance of the work{) hlovever, the
Guty of reasonable care is not, of course, owed to the world
at large, but rather £0 those vho wight reasonably be
foveneen ae being subject ro injury By the breach of the
uty.
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Peters v. Forster, 804 N.B.2d 736, 743 (Ind. 2004) (internal
quotation marks, brackets, and citations onitted). Indeed, as
previously discussed, this court has held that "the defendant's
obligation to refrain from particular conduct . . . ie owed only
to those who are foreseeably endangered by the conduct and only
respect to those rieke or hazar: Kel ih
conduct nreasonably dangerous.” Dos Parents No. 1, 100
see aleo Janssen,
69 Haw. at 34, 731 P.2d at 166. Moreover, “in determining the
Hawai'i at 72, 58 P.3d at $83 (emphasis added)
scope of the defendant's duty, the focus is on the defendant’s
viewpoint, that is, whether the defendant could reasonably
foresee the plaintiff's injury." Yager v, Illinois Bell Tel
Cox, 667 N.E.2d 1088, 1092 (I11. App. Ct. 1996) (citations
omitted) (emphasis in original).
Here, Pulawa was standing approximately fifteen to
twenty feet away from the excavation area that was located in the
same vicinity of an excavation site of a prior construction
project that was backfilled by E.E. Black two years earlier.
Although #.£. Black “has a duty to use reasonable care in both
[ite] work and in the course of performance of the work[,]" it
cannot be said that Pulawa was foreseeably endangered by E.E.
Black’s conduct such that the cenent bag it allegedly failed to
remove would be propelled in the air by the tire of a loader and
strike Pulawa in the head. The plaintiffs adduced testimony from
several GTE inspectors and engineers, as well as an E.B, Black
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project engineer, who purportedly oversaw the 1993-1994
underground duct line project. The testimony focused on the
risks or hazards created by 8.£. Black’s alleged failures to
remove the cement bag and to comply with contract specifications
egarding proper backfill requirements. The risk or hazard that
was consistently identified focused on the possibility of
settlement of the road and street failure. In fact, the
plaintiffs, in their memorandum in opposition to B.E. Black’
motion for summary judgment, posited that *{alppropriate backfi1)
is necessary to assure ‘the integrity of the pavement structure,’
while inappropriate fill can promote voids or settlement and
allow for failure of the roadway." (Citation omitted.) The
plaintiffs also argued that *(ulse of improper fill by (8.8.
Black] under a public roadway such as Kamake'e Street could lead
to settlement and road failure." (Citations omitted.) The GTE
inspector who oversaw the underground duct line project in 1993-
1994 testified that compliance with contract specifications
regarding proper backfill requirements is to prevent "settlement
and/or street failure.* Indeed, the plaintiffs’ own expert, Los
Banos, confirmed that the purpose of job specifications relating
to proper backfill requirements is to promote “uniforn
compaction," which, in turn, prevents “voids.” Moreover, Los
Banos testified that the purpose of such job specifications is
fot to prevent the possibility of non-conforming backfill
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material being unearthed and projected into the air, striking
somebody:
0: [By defense counsel] £0 the purpose for designating
specificelly the size of backfill materials is 60 that
there is proper compact ion?
[By Lot Banos) Uniform compaction.
‘The purpose for those specifications are not so that
[e‘does impose « danger to others, right?
What do you sean? Por the size, you mean?
Yeah. No.
That_has nothing te do with, well. vou know. if vou
cave racks about five, 40 tnehes in there(i.en. in
She trench. [and It somebody diss is-out it misht Rit
A: Sn it's just engineering standards. You know,
you're talking about dynamics.
oror oF
(Bmphases added.)
Although the plaintiffs adduced some testimony that
improper backfill could potentially pose a danger to the safety
of future contractors and that £.8. Black was generally aware
that there would be future underground work along Kamake'e
Street, such evidence does not meet the test of foreseeability,
to wit, ‘whether there is sone probability of harm sufficiently
serious that a reasonable and prudent person would take
precautions to avoid it." Knodle, 69 Haw. at 368, 742 P.2d at
385 (internal quotation marks, brackets, and citations omitted)
(emphasis added). The aforementioned test “does not mean
foreseeability of any harm whatecever, and it is not sufficient
that injury is merely possible.” Henderson, 72 Haw. at 396, 819
P.2d at 90 (internal quotation marks and citation omitted)
(enphasis added); see Ethyl Corp. v. Johnson, 49 $.W.3d 644, 648
(ark, 2001) (recognizing that “there is no duty to guard against
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merely possible, as opposed to likely or probable, harm"). Based
on the evidence in the record, it appears that, although Pulawa
did indeed suffer harm, such harm, though unfortunate, was
smerely possible” and not “likely or probable” under the
circumstances of this case.
Furthermore, the authorities relied upon by the
plaintiffs regarding contractors all involve the type of
foreseeable harm related to excavation and resurfacing work, that
is, settlement, street failure, and holes. See Brent v, Unico!
Inc., 969 P.2d 627, 626 (Alaska 1998) (subsequent construction
worker fell into a hole between an excavation wall and a rig mat
left by a prior contractor) ; Mal ard Gor: 482
N.B.2d 787, 791-93 (I11. App. Ct. 1985) (painter fell from
scaffold after ground under scaffold caved in where utility had
earlier installed underground gas line; utility was under a duty
to prevent or correct subsidence at the site of its excavations
and could discharge such duty by, inter alia, “filling in any
subsidence caused by the expected settling of the earth after
such an excavation") (emphasis added); Hankins v. Elro Corp., 386
N.W.2d 163, 164 (Mich. Ct. App. 1986) (per curiam) (bicycle on
which plaintiff was riding struck a gap between two pieces of
cement); Kapalczynski v, Globe Conatr, Co., 172 N.W.2d 852, 852-
53 (Mich. Ct. App. 1969) (plaintiff fell into a hole ina street
that defendant had resurfaced). The plaintiffs’ two remaining
cases dealt with foreseeable harm relating to the improper
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See Chance, 374 P.2d
installation of furniture and containe:
at 167 (diner fell into open planter box installed in a narrow
foyer of a busy restaurant); Raimo, 659 A.2d at 721 (plaintiff
descending temporary staircase injured when staircase fell away
from @ house). Thus, the evidence adduced below, coupled with
the arguments of the parties, clearly established that the risk
or hazard of the buried cement bag being propelled into the air
during a future excavation was not what made the failures to
renove the cement bag and to comply with the contract
specifications by £.£. Black unreasonably dangerous. In other
words, B.B, Black's general duty to use reasonable care did not
include within ite scope the protection of Pulawa from the
particular risk that he encountered. See Selwyn v. Ward, 879
A.2d 882, 883, 887-29 (R.Z. 2005) (holding that harm resulting
from a minor igniting a bottle of grain alcohol for sport was not
a foreseeable consequence of selling alcohol to a minor; rather,
foreseeable consequence would have been injuries resulting from
minor’s consumption of illegally obtained alcohol) .
Consequently, based on the state of the record, it cannot be eaid
that E.R, Black owed a legal duty to the plaintiffs.
Accordingly, we hold that the circuit court did not err in
granting summary judgment in favor of E.B. Black.
the plaintiffs argue for the firet time on appeal in their reply
brief that BE. Black “purported to prove the facte underlying ies notion [for
sumary juégnent] by attaching deposition transcripts that were authenticated
improperly by their attorney.” Inasmuch as "(t]he snadsiseibility of evidence
(Goneined.--)
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8. "9 Motion for sur o
‘The plaintiffs contend that the circuit court erred in
granting summary judoment in favor of GTE because GTE is liable
for (1) B.2. Black's acts and omissions and (2) its own acts and
omissions. Specifically, the plaintiffs assert that “the
evidence shows that GTE established sufficient control over B.2.
Black to render GIE liable for the acts and omissions of B.5.
Black” inasmich as "GTE had an employee on the job site daily
overseeing the progress of the construction{.]* Although not
entizely clear from their opening brief, it appears from their
reply brief that the plaintiffs allege that GTE is liable for its
own acts and omissions based on negligent supervision of 2.8.
Black.
Inasmuch as EE, Black did not owe a legal duty to the
plaintiffs, it follows that GTE likewise would not be liable to
the plaintiffs for B.B. Black's alleged acts and/or omissions in
“failling] to pick up, clean up or remove the cenent bag after
(continued)
is a sufficient basis to reverse sumary judgment,” the plaintitts contend
that “a Hawai't appellate court can review the adniseibility of docoments ‘eva
sponte,’ even if the ieeue was not raised Below. in wupport of their
contention, the plaintiffs rely on Nakato v. Machara, 69 Hawai'i 75, 68, 969
Pola 624, $33 (App. 1998). Nakata, however, does not support the plaincifts'
Contention. in Nakato, the appellants challenged the sdmissibilicy of the
exnibic at issue hearing on the motion for summary judgment. ié. at
85, 969 P.2d at ‘he such, the appellants in Nakavo properly preserved
their right to challenge the admissibility of the exhibit on appeal. Here
the plaintiffs essentially concede that they failed to challenge £.2. Black's
exhibits at the circuit court level. Consequently, they are precluded from
Challenging auch exhibice for the firet time on appeal. See Acoba-v, Gen.”
ze, ince, 92 Hawai'i 2, 12, 966 P.24 268, 299 (1999) (precluding appellant
Fron challenging the adwigsibiiity of appellee's affidavite on appeal when
appellant failed to make an objection ar the circuit court level)
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completion of their work or portion of work at the job site.”
Moreover, because “negligent supervision may only be found where
an employee is acting outside of the scope of his or her
employment,” Dairy Road Partnere v, i#land Ins, Co., 92 Hawai‘s
398, 427, 992 P.24 93, 122 (emphasis in original),
i jenied, 92 Hawai'i 398, 992 P.2d 93 (2000), and
the plaintiffs do not allege that B.B. Black was acting outside
the scope of its alleged employment with GTE, the plaintiffs’
complaint cannot be said to state a claim for negligent
supervision. Accordingly, we hold that the circuit court did not
err in granting summary judgment in favor of GTB.
c. Ta costs
lastly, the plaintiffs assert that the circuit court
abused its discretion by denying in part their motion to disallow
costs because: (1) the circuit court’s award of summary judgment
in favor of £.E. Black and GTE was erroneous; (2) it was
inequitable to award costs in light of Pulawa’s unemployment and
limited means; and (3) joint and several liability for costs
should not be imposed against Danelle Pulawa and the Pulawas’ two
minor children in light of the fact that their claims are
derivative. E.B, Black and GTE, on the other hand, contend that
HRCP Rule 54(d) creates a “strong presumption” that the
prevailing party will recover costs, and “[a]ctual indigency, not
merely limited financial resources, must be demonstrated.”
Inasmich ae Pulawa “receives Social Security benefits
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(approximately $1,500 per month), benefits from the Operating
Engineers Trust Funds, and workers’ compensation benefite,* £.8,
Black and GTB claim that the plaintiffs have not shown that they
were incapable of paying the costs awarded to £.£, Black and OTB.
Moreover, 8.B. Black and GTE contend that HRCP Rule 54(d) “does
not distinguish between derivative and non-derivative clains(,)*
and, thus, costs were properly awarded against all the
plaintiffs.
As previously stated, £.£. Black and GTE filed their
notice of taxation of costs pursuant to HRCP Rule 54(d) and HRS
§ 607-9. ERCP Rule 54(d) provides that, “[e]xcept when express
provision therefor is made either in a statute or in these rules,
costs shall be allowed as of course to the prevailing party
unless the court otherwise directs[.]" (Emphasis added.) ERCP
Rule 54(@)
creates a strong presumption that the prevailing party will
Fecover costs... The presumption that the prevaliing
party 1a entitled to costs must be overcone by sone showing
the burden of making this showing.
‘The Tosing party
Mong v, Takeuchi, 88 Hawai'i 46, 52, 961 P.2d 611, 617 (1998)
(quoting 10 Moore’s Fed. Prac. § 54.102(1) (a-b) (3d ed. 1998)
(emphasis added). HRS § 607-9 provides that:
No other costs of court shall be charged in any court in
addition to those prescribed in this chapter in any suit,
action, or other proceeding, except as otherwise provided by
ise.
ALL actual disbarsenents, including but not limited to,
intrastate travel expenses for witnesses and counsel,
expenses for deposition transcript originals and eepi
Cther incidental expenses, including copying cost
Gntrastate long distance telephone charges, and postage,
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(Emphasis
sworn to by an attorney or a party, and deened reasonable by
the court, may be alloved ia taxation of costs. In
Seterminine whether and what costs shoilé be taxed. the
5 of the situation’
added.)
Several courts of appeals have held that indigency. or
Rodest means, is a factor that 2 district court may consider
Sn awarding costs (pursuant Eo Federal Rules of civil
Procedure (FRCP) Rule se(g)-""] See, e.d., cherry v.
hampicn int") Comp., 186 F.34 442, 447 (den Cir_ 1999)
evaluating whether a non-indigent losing plaintiff had the
weffective ability to satiety [the defendant's) bill of
costs’ or was “of such modest means that it would be unjust
or inequitable fo enforce [PRCP] Rule s4(d) (1) against
her" 136 P.34
Sie, 945 (eh Cir, 1997) (-(tThe losing parey's Inability to
Day will suffice to justify denying costs."). Other courte
That have adopted this approach also caution that a losing
party's indigescy of an inability to pay coste does not
Rutomatically sean that a coste avard levied against that
party se inequitable. see. eaver vs Tooabs, 946 7.24
Toot, 2008 (eth cir, ‘fuberended by statute as staked
dp Ih ee Prison Litigation Reformat, 105 P-3e 1131 (een
Gict "1s97)1 (holding that Indigency may be a enield to
impoeieion of cots, but that ie ie not an absolute shield).
‘This case-by-case approach to the “indigency" factor has
leo been exprestly or implicitly endorsed by noted
Comentators on the subject. Sez, e.g. 10 Moore's (Fed.
Prac.) $5 54.1021) {b], at 54-153, 54.304 (31 (al (el, at 54-
158 to 34-201 ((34 ed. 1999)]; 10'wright(, miller &’ Kane,
Fed. Prac. & Procedure] § 2673, at 305-09 [(3d ed. 1998)]
Ince Paoli 8.8. Yard PCB Litig., 221 F.3d 449, 463 (3d Cir.
2000) (emphasis in original); see also Whitfield v. scully, 241
“ PRoP Rule 54(@) provides in relevant part:
(Bold enphasi in original.)
(2) Costs other than Attorneys’ Fees. Except when expres
provision therefor ie nade either in a statute of the United
States or in Files, comte other than attorneys’ feen
Shall be allowed as of course to the prevailing party unless
the court otherwise directs; but cost against the United
States, ite officers, and agencies shall be imposed only to
the extent permitted by law. Such costs may be taxed by the
clerk on one day's notice. On motion serves within § days
Ehereaster, the action of the clerk may be reviewed by the
‘This court has previously noted that FACP Rule
sia) ie stunetionsily ideatical” to ARCP Rule SU(@)- Mong, 68 Hawai'i at 52
bits 961 Pid at 627 H.8, “Where # Hawai'i rule of civil procedure is
Identical co the federal rule, the interpretation of this rule By federal
courte ie highly pereuesive."| id, (internal quotation marks and citation
omitted)
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F.3d 266, 270 (2d Cir. 2001) (stating that, *[als a general
matter([,] a district court may deny costs on account of a losing
party's indigency, but indigency pex se does not automatically
preclude an award of costs”); Chapman v, AI Transp., 229 F.3d
2012, 1039 (12th Cir. 2000) (en banc) (holding that “a non-
prevailing party's financial status is a factor that a district
court may, but need not, consider in its award of costs pursuant
to [FRCP] Rule 54(4)*). In Inge Paoli, the United states court
of Appeals for the Third Circuit (Third Circuit) held that, “if a
losing party is indigent or unable to pay the full measure of
costs, a district court may, but need not automatically, exempt
the losing party from paying costs. 221 F.3d at 464 (emphases
in original). In so holding, the Third Circuit stated:
Such an approach is somewhat at odds with the
traditional rule at law that the prevailing party wa
automatically entitled co ita coste, but ir ie consistent
ith the rule at equity that the district court exercise ite
Giscretion to insure that the avard be equitable, Allowing
for the indigency factor ia cervain cases is also in keeping
with the Anerican tradition of not providing total
Feimbursenent..\. . (T]he types of costs recoverable under
(FRCP) Rule 54 (4) (2) are quite circunscribed. These costs
do not include such litigation expenses as attorney's fees
and expert witness fees in excess of the standard daily
Witness fee, and as a reeule, while a prevailing party is
Svarded its’ [Face] Rule 54 (dj (2) costs, those costs often
fall well short of the party’e actual litigation expenses (.)
Id, (internal quotation marks and citations omitted)
Nevertheless,
(5)f a aiserice court.) in determining the amount of cot
fo award(,] chooses to consider the non-prevalling party"
Hinancial status, it should require substancial
documentation of a rue inability to pay. See
Eaulkner], 18 7.34 [456,] 459 [(7th Cir. 1994)] (non
Prevailing party offered no documentary support, relying
Instead on “unsupported, self-serving etatenenta*); Cherry,
Lee Pood at 449 (ho Feduction in cose award despite proot
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that plaintif£ had “no independent income and owned no
property in her own name” because she had “aufficient access
fo marital property” and a 401 (k)plan)
Chapman, 229 F.3d at 1039; gee also Corder v, Iucent Techs, Inc.,
162 F.3d 924, 929 (7th Cir. 1996) (stating that the burden is on
the non-prevailing party to provide evidence of inability to pay
sufficient to overcome the presumption that the prevailing party
is entitled to recover costs); 10 Moore’s Fed. Prac.
§ 54.101[1] [b], at 54-154 to 54-155 (34 ed. 2006) (stating that
[a] substantiated claim of the losing party's indigency may
justify a reduction or denial of costs to the prevailing party,
although such indigency is not an absolute shield to the
imposition of costs") (footnotes omitted) .
Moreover, the non-prevailing party mist show more than
a mere “drop in incomes to substantiate his or her claim of
Andigency because such fact alone informs the court nothing of
the non-prevailing party’s “other financial resources.” Corder,
162 F.3d at 929; gee algo 10 Moore’s Fed. Prac. § 54.101(1] (bl,
at 54-155. Cf, McGill, 18 F.3d at 459 (stating that
incarceration alone is inadequate to show indigence). In A.D
Deere & Co., 229 F.R.D. 189 (D.N.M. 2004), the prevailing parties
moved for costs against the non-prevailing parties pursuant to
Pep Rule 54(d). Id, at 192. The non-prevailing parties (A.D.
and Sue Richins and Sue Richins as next friend of Arthur Dloyd
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in West's Hawai'i Reports and the Pacific Reporter
Richins, Jr.) (hereinafter, collectively, the Richins]
contended that costs should not be taxed against then inasmuch as
“they currently have no earned incone, and that they subsist on
social security and worker’s conpensation.* Id, In addition,
the evidence in the case reflected that the Richins’ future
medical expenses, not all of which would be covered by worker's
compensation, would exceed $2,000,000. Id, The Richins argued
that they had **practically' no ability to adequately care for
A.D. Richards and thus cannot pay the [prevailing parties)’
costs.” Id. The United states District Court for the District
of New Mexico (the court) held that, inasmich as the Richins
failed to overcome the presumption that the prevailing parties
would recover costs, they did not demonstrate why the court
should not award costs against the Richins. Id. at 159.
Specifically, the court stated:
‘The Richins’ claimed indigency is not an absolute
shield to the award of costs. Noreaver, the Richins have
hot shown that they are indigent such that the (clout
Should not eax 6 ‘t'may well be that the Richins are
lunable to pay the costs. But given the record before the
Iclourt, the [clourt would be speculating to so find. while
there certainly was evidence at trial that A.D. Richins"
edical bills vill be considerable, and that hie earning
Capacity is limited, the (c]ourt does not recall evidence
aboct the Richine("| assets. Normally, a balance sheet of
the plaintiffs would not be relevant. At thie stage,
however, that information is needed. While the [elourt
Assumes ‘that the Richine are Of modevate means. they have
hot provided the detailed and specific information that the
M nithough not stated in the opinion, it appeare that the non
prevailing parties consist of @ husband, wide, and the wife aa next friend of
Z'sinor, presumably the child of the husband and vite. See id. at asl. it
Sppears that the underlying action stemmed from an sccident in'vrich the
Purported husband, A.D. Richards, sustained personal injuries as a result of
operating excavation machinery. See Richins v. Deere &-C9,. 231 P.R.D. €23,
62e (Dam. 2008)
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[clourt could wae to determine whether they could pay an
$8,000 cost bill.
Id, at 193-94 (citation omitted); see also Corder, 162 F.3d at
929 (holding that the trial court did not abuse its discretion
when it refused to modify its costs order despite the losing
party's allegation that her income had decreased)
Similarly, in the instant case, the evidence adduced at
the circuit court level regarding the Pulawas’ inability to pay
costs taxed against them revealed that, as a result of Pulawa’s
severe head and brain injuries, he remains unemployable eight
years after the accident. The Pulawas claim that they receive
Social Security benefits, operating Engineers Trust Funds
benefits, and workers’ compensation benefits."” Finally, the
Pulawas presented evidence that their taxable income in 2003
totaled 25,534. However, such evidence alone does not inform
" other financial resources. See Corder,
the court of the Pula
162 F.3d at 929; 10 Moore's Fed. Prac. § 54.101(2][b], at 54-155.
Indeed, the Pulawas did not present any evidence about their
assets. In other words, the circuit court was presented with
income stream after the accident, but
evidence of the Pulaw
not any evidence of the Pulawas’ income stream prior to the
© on appeal, the plaintiffs do not indicate how much they receive each
month from the three sources Of income, A letter from the Social Security
Rasinistration £0 the Palawas, dated December 21, 1997, reveale that the
Pulawas were to receive ¢14,390 on or about December 27, 1957 and $1,448 on oF
about the thira Weds a not
the amount they receive
ind workers’ compensation. Although not
rom the record, it appears that Pulava also receiver a sonthly
Operating agit
entirely clear
pension.
-39-
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in West’s Hawai'i Reports and the Pacific Reporter
accident and accumulation thereof. See, e.g., Broccoli v
Echostar Communications Corp., 229 P.R.D. 506, 517 (D, Md. 2005)
(district court concluding that losing party presented eufficient
evidence of inability to pay coste due to low income and lack of
any assets). In ruling on the plaintiff’s motion, the circuit
court stated that it had “reviewed the motion [to disallow costs)
and heard the arguments" made by the parties, which focused on
the plaintiffs’ inability te pay. In taxing coste against the
plaintiffs, the circuit court implicitly determined that the
plaintiffs failed to rebut *(t]he presumption that the prevailing
party is entitled to costs” “by some showing that an award would
be inequitable under the circumstances." Mone, 68 Hawai'i at 52,
961 P.2d at 617. Therefore, inasmuch as the decision to award
costs is discretionary and the circuit court “may,” but need not,
“consider the equities of the situation,” ERS § 607-9, we cannot
say that the circuit court's refusal to grant the plaintiffs’
motion to disallow costs was an abuse of discretion in this case.
‘The concurring and dissenting opinion (the dissent),
however, maintains that, because “HRCP Rule 54 is aubject to HRS
§ 607-9," “(1]imitations on the trial court's consideration ‘of
the equities of the situation’ would violate the express language
in HRS § 607-9." Dissent at 4, As such, the dissent proposes
that trial courts may consider (1) “the chilling effect [that] a
disproportionate award of costs may have on a person’a right to
bring suit,” dissent at 6-8, and (2) “the relative disparity of
-40-
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in West’s Hawai'i Reports and the Pacific Reporter
jent at 5-6, in determining whether
wealth bewteen parties," dii
to assess costs pursuant to HRS § 607-9. Here, the plaintiffs on
appeal never argued that: (1) imposing costs against them would
reault in a chilling effect on a person’s right to bring suit;
and (2) “relative disparity of wealth between parties" is a
factor to be considered in determining whether to award costs.
In fact, the entirety of the plaintiffs’ argunent pertaining to
the circuit court’s consideration of the equities in determining
whether to assess costs against them states:
Evidence that an avard is inequitable under the
cixcunstances can provide basis for denying costs.
THaw(ai's] 46, 52, 961 P.2d 611, 617 (2998)
fact) § 54-201(2) (ab) (3 ed.
Takeuchi,
(citing 20 hore’ s Pea‘
‘The moat important equitable factor 12 indigency or
snapiliey £2 pay.
251 P.3d 449, 463 (Grd Cir 2000)- Such inability £0 Bay
Permits a court to exempt the party fron paying corte. ida
‘The court awarded $35,463 in costs against [the
plaintiffs). This award was an abuse of discretion and both
Inequitable and erroneous.
‘Ben Pulawa sustained severe and permanent head and
brain injuries and renaine unemployable eight years later:
His continued existence depends upon disability benefits
from the Social Security Administration, Operating Engineers
‘Trust funds, and workers’ compensation benefits. He has not
been cleared for any form of employment over the past 8
years and has no prospect of becoming employable in the
future.
(Citations to the record omitted.) Under the circumstances of
this appeal, we, therefore, decline to consider any theories not
advanced by the plaintiffs.
nt maintains that “remand is
Finally, the dii
necessary in this case[]” because “fairness . . . dictates that
[the p]laintiffs be given the opportunity . . . to show whether
their assete are insufficient to satisfy [the] costs [taxed
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in West's Hawai'i Reports and the Pacific Reporter
against them] .* Dissent at 10, 13. However, as the dissent
points out, the plaintiffs already had the opportunity to support
their position before the circuit court, namely, that
*[clompelling equitable circumstances weigh heavily in favor of
disallowing an award of costs{.]* Dissent at 11-12 n.2 (citation
omitted). rt was up to the plaintiffs to support their position
in the first instance by adducing sufficient evidence to
demonstrate a “true inability to pay." Chapman, 229 F.3d at 1039
(citations omitted). rt may well be that the Pulawas are, in
fact, unable to pay the assessed costs; nevertheless, given the
state of the record, we defer, as we mst, to the discretion of
the circuit court in implicitly determining that the Pulawas
failed to meet their burden of overcoming the strong presumption
that £.E. Black and GTE, as the prevailing parties, recover costs
pursuant to HRCP Rule 54(d). Indeed, as the Ninth Circuit has
recognize:
Although a district court must *4
ite refusal to tax costs to the losing
held that a district court must specify reasons for ite
decision to abide the presumption and tax comes to the
losing party. The distinction is critical. A district
court deviates fron normal practice when it refuses to tax
Gosts fo the losing parey, and that deviation triggers the
Fequirenent to "specify veasons.”
The requirement that district courts give reasons for
denying costs flows logically from the presumption in favor
of costs that is embodied in the text of the Tulel, ie.
PRP Fule 54(4)]; if a district court wishes to depart from
that presumption, is must explain way so that the sppellate
court will be able to determine whether or not the trial
Court abused ite discretion... -. Our requirenent that
@istrict court give reasons for denying costs is, in
yseence, a requirenent chat the court explain why ac
not orainazy,
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‘This reasoning suggests, ae ve hold today, that a
dsatricr court need not give affireative reasons for
sé, it need only Find that the reasons
‘not sufficiently persuasive to
umption in favor of an award. The
Sratding coat. and when a dietrict court states no reason
‘foramarding coate, we wil] assune It acted based on that
reaumotion’
ining district court needs no affirmatively expressed
reason to tax costs. Father, st need only conclude that the
Feanons advanced by the party bearing the burden -- the
{osing party -- are not sufficiently persuasive to overcome
the presumption. in the circumstances of this case, the
presumption itsclf provided an adequate reasons for’ the
Eiserict court to award costs. We decline to adopt a rule
that would place on district courts the burden of justifying
routine awards of costs agsinst losing parties(.]
‘Save Our Valley v. Sound Transit, 335 F.3d 932, 945-46 (9th Cir.
2003) (citations and some emphasis omitted) (some ellipses and
s added). We likewise decline to adopt a rule that would
enpha
place on circuit courts the burden of justifying a routine award
of costs against losing parties. such a burden may be incurred
Af we remand the instant case for a redetermination of the
jment of coats as the dissent would have it. Dissent at 10-
13.
Accordingly, notwithstanding that the circuit court
may, but need not automatically, exempt the plaintiffs from
paying costs, we believe that the circuit court did not abuse its
@iscretion in taxing costs against the plaintiffs. ve,
therefore, hold that the circuit court did not abuse its
discretion in denying the plaintiffs’ motion to disallow costs.”
he plaintiffe aleo contend that costs should not be taxed against
then jointly and severally. Their contention is seemingly based on their
belief that, Decause Danelie Pslawa'e loss of consortium claim on behalf of
(continued...)
43-
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
IV. CONCAISTON
Based on the foregoing, we affirm the circuit court's
May 25, 2004 final judgment.
on the brief
Kenneth T. Okamoto and F
John D. Zalewski (of Price Bee Ak tvinae
Okamoto Hineno & Lun), and
Dan. Ikehara (of the Law
Offices of Dan 8. Tkehara), Nut Obraneeryore
for plaintiffs-appellants
Caen €, Brags +
Jeffrey H. K. Sia, Diane W.
Wong, J. Thomas Weber, and
Ronald M. Shigekane (of Ayabe
Chong, Nishimoto, Sia &
Nakamura) for defendants
and third-party plaintiffs-
appellee GTE Hawaiian Tel
and £. 8. Black
on the zecord:
Keith K. Hiraoka and
April Luria (of Roeca,
Louie & Hiraoka), for
third-party defendant -
appellee Universal
Electric, Ltd.
4(.. continued)
herself and the Pulavas’ two minor children are merely derivative, auch clains
“eagea (B-2. Black and GTS] to incur no or minuscule coste.” However, as
previously stated, ~[t]he avard of a taxable cost is within the discretion of
Phe (eizcuit] court and vill not be disturbed absent 2 clear abuse of
Giscretion.” long, 88 Kawai't at $2, 961 P.2d at 617 (internal quotation
farks and citation omitted). rnaamich aa the general rule ig that a court
“nay apportion coats between the prevailing and non-prevailing parties ae it
fiet,]* mre Paoli, 221 F.2d at 469 (citations omitted), we believe that
the circuit court did not abuse ite discretion in deciding to’ inpose costs
jointly and severally in the instant case.
-44-
|
68306213-8c2d-4ddf-9806-5111dd922d1a | Groves v. Outrigger Hotels Hawaii | hawaii | Hawaii Supreme Court | LAWLUBRARY
‘**NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER***
No. 27448
IN THE SUPREME COURT OF THE STATE OF HAWAT'I
PEARL GROVES, JOAN ELLIOTT, RICHARD ELLIOTT, STEPHANIA GIBB,
and THOMAS GIBB, Plaintiffs/Appellees/appel lants
as 8 2
OUTRIGGER HOTELS HAWAIT dba OUTRIGGER HOTELS 6 Ri os c
Defendant /Appel lant /Appellee e w
2S
APPEAL FROM THE FIRST CIRCUIT COURT r 2
(S.P. NO, 05~1-0202) =
SUMMARY DISPOSITION ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy JJ.)
In these consolidated appeals, defendant/appellant/
appellee Outrigger Hotels Hawaii dba Outrigger Hoteles & Resorts
(Outrigger) appeals from the first circuit court’s August 24,
2005 final judgment on the court’s July 13, 2008 order! granting
plaintiffs/appellees/appellants P%
rl Groves, Joan Elliott,
Richard Elliott, Stephania Gibb, and Thomas Gibb's (hereinafter
collectively, Plaintiffs) motion to compel arbitration of their
rental agreement dispute before Dispute Prevention & Resolution,
Inc. (DPR). Plaintiffs in turn appeal from the first circuit
court's October 18, 2005 post-judgnent order granting Outrigger’s
notion for stay of arbitration pending appeal.
Outrigger presents @ single point of error: that the
circuit court erzed in concluding thet the parties had a written
agreement to arbitrate their dispute before DPR rather than the
the Honorable Victoria ©. Marks pre:
fed over this matter
‘***NOT FOR PUBLICATION IN WEST'S HAWATI REPORTS AND PACIFIC REPORTER***
American Arbitration Association (AAA). Plaintiffs respond that
an October 29, 2003 letter, sent and signed by Outrigger's
counsel, stating that counsel for the parties had “agreed to
engage the services of DPR instead of the [AAA] to administer the
arbitration,” constituted just such a written agreenent.
Plaintiffs similarly present a single point of error:
that the cizcuit court abused its discretion in staying the
arbitration proceedings pending appeal because Outrigger failed
to demonstrate any possible prejudice to it if arbitration were
to proceed. Outrigger counters that Plaintiffs’ appeal is
“pointless” because once the appeal on the merits is resolved,
then the stay order is moot.
Upon carefully reviewing the record and briefs
submitted, we hold that:
(2) The circuit court did not err in granting
Plaintiffs’ motion to compel arbitration because the October 29,
2003 letter signed by Outriggers counsel constituted a written
agreement to arbitrate before the DPR claims identified in
Plaintiffs’ October 9, 2003 arbitration demand letter. See Alt
va Krueger, 4 Haw. App. 201, 207, 663 P.2d 1078, 1082 (1983)
(stating that “the attorney-client relationship is that of
principal and agent, and the client is bound by the acts of his
attorney within the scope of the latter's authority”) (citations
omitted): Nelson v. Boone, 78 Hawai'i 76, 62, 890 P.2d 213, 319
(1995) (stating that, under the doctrine of apparent authority, a
2
***NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER™**
client will be bound by the acts of his or her attorney where
“the principal does something or permits the agent to do
something which reasonably leads another to believe that the
agent had the authority he purported to have”) (internal
quotation marks, emphasis, and citation omitted). Here, the
letter sent by Outrigger’s counsel agreeing to change the forum
of arbitration from the AAA to DPR and his participation in pre-
arbitration proceedings before DPR for over a year, along with
the failure of Outrigger to promptly repudiate its counsel’s
letter, reasonably led Plaintiffs to believe that Outrigger’s
counsel had the authority he purported to have: and
(2) Our decision on the merits of Outrigger’s appeal
renders the stay order and Plaintiffs’ appeal therefrom moot
because the stay, by its own terms, expires upon resolution of
the appeal and thus this court cannot provide an effective
renedy. See In the Interest of Doe Children, 105 Hawai'i 38, 56,
93 P.3d 1145, 1163 (2004) (holding that the two conditions for
justiciability on appeal are adverse interest and effective
remedy); In re McCabe Hamilton & Renny, Co., Ltd, v, Chung, 98
Hawai'i 107, 117, 43 P.3d 244, 254 (App. 2002) (stating that the
appellate court cannot extinguish an injunction that is already
extinguished); see also Department of Health and Social Services
Alaska State Hosp. & Nursing Home Ass'n, 856 P.2d 755, 766
(Alaska 1993) (holding that an appellate decision on the merits
renders moot the appeal from the trial court's stay pending
3
(OT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER***
appeal); Lesnick v. Lesnick, 577 So.2d 856, 857 n.1 (Ala. 1991)
(holding that Your resolution of the merits of this appeal makes
moot” the appeal from the stay pending appeal); Holloman v
Circuit Ciev Stores, Inc., 873 A.2d 1261, 1267 (Md. Ct. Spec.
App. 2008) (holding that an appeal from an order staying
arbitration pending appeal is rendered moct by an appellate
decision on the merits of the order compelling arbitration),
aff'd, 894 A.2d $47 (Md. 2006); Unisve. Corp, v. South Carolina
Budset_£ Control Bd. Div. of Gen’l sve. Inf. Tech, Mamt. Office,
951 8.B.2d 263, 273-74 (S.C. 2001) (“A stay pending appeal is
moot upon disposition of the appeal on the merits.” (Citations
omitted.)}. Therefore,
IP IS HEREBY ORDERED that the circuit court's
August 24, 2005 final judgment is affirmed. It is further
ordered that Plaintiffs’ appeal from the circuit court's
October 18, 2005 order granting Outrigger’s motion to stay
arbitration proceedings pending appeal is dismissed as moot.
DATED: Honolulu, Hawai'i, September 8, 2006.
On the briefs:
Andrew V. Beaman and Yo
Joshua A. Wisch (of Chun,
Kerr, Dodd, Beaman & Wong) Hahn
for defendant /appellant/
sppeiiee Pesue Corny
Roger S. Moseley, ‘
Cheistepher J. Mizzi,
Renee M Furuta, and
Soanna’B.K. Fong for Toone Day be
plaintiffs/appellees/
appellants
|
4e0d287b-3434-4e9c-885b-c6948d59c827 | Calderwood v. State | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 27441
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
RICHARD M. CALDERWOOD, Petitioner/Petitioner-Appé i.
21 380g
o2ns
CERTIORARI TO THE INTERMEDIATE COURT OF APPEGLS
(.P.P, NO, 5-1-0013; CR. NO. 93-0518)
e
‘WITHOUT PREJUDICE
(By: Acoba, J., for the court!)
It appearing that the judgment on appeal in the above-
referenced matter has not been entered by the Intermediate’ Court
of Appeals, see Hawai'i Revised Statutes § 602-59(a), as amended
by Act 149 of the 2006 Hawai'i Session Laws; see also Hawai's
Rules of Appellate Procedure (HRAP) Rule 36(b) (1) (2006),
IT I8 HEREBY ORDERED that petitioner/petitioner-
appellant Richard M. Calderwood’s application for writ of
certiorari, filed September 11, 2006, is dismissed without
prejudice to re-filing the application pursuant to HRAP Rule
40.1(a) ("No later than 90 days after the filing of the
intermediate court of appeals’ judgment on appeal or dismissal
order, any party may apply in writing to the supreme court for a
weit of certiorari.”).
DATED: Honolulu, Hawai'i, September 12, 2006.
FOR THE COURT.
Rssociate Justice
Richard M. Claderwood,
petitioner/petitioner~
appellant, pro se, on the
application.
Levinson, Makayana, Accba, and Duffy, 33.
court: Moon, Cc.
|
c822a9f8-09b6-4224-a8ab-1838e0a765fa | Fukusaku v. State | hawaii | Hawaii Supreme Court | . LAW LIBRARY
No. 26148
IN THE SUPREME COURT OF THE STATE OF HAWAT'2
RAITA FUKUSAKU, Petitioner-Appellant,
APPEAL FROM THE FIRST CIRCUIT COURT,
(8.P.F. NO. 02-1-0087) .
ORDER DISNISSING NOTICE OF APPEAL AND PERMITTING
PETITIONER-APPELLANT TO FILE EN APPROPRIATE APPLICATION
‘FOR WRIT OF CERTIORAR] IN ACCORDANCE WiTH
HAWAT'T RULES OF APPELLATE PROCEDURE RULE 40.2 :
(By: Duffy, J., for the court’)
It appearing that (1) petitioner-appellant Raita
Fokusaku filed a “notice of appeal,” seeking review of the
Intermediate Court of Appeals (ICA)‘s September,12, 2006 Sunmary
Disposition Order (SDO) that affirmed the Circuit Court of the
First Circuit's May 30, 2003 order denying the Hawai"! Rules of
Penal Procedure Rule 40 petition, (2) the appropriate vehicle for
SDO is an application for a writ of
seeking review of the 167
‘certiorari, pursuant to Hawai'i Rules of Appellate Procedure Rule
40.1 and Hawal"s Revised Statutes § 602-59, a8 amended by Act 148
of the 2006 Hawai'i Session Lave, and (3) insofar as the ICA's
judgment on sppeal was flee on September 26, 2006, the deadline
to file the spplication fer e writ of certiorari will not expire
until December 26, 2006,
IT 1S HEREBY ORDERED that the “Notice of Appeal” is
dismissed, and Fukuseku may, if he so chooses, file an
application for a writ of certiorari in accordance with HRAP Rule
40.1. The application must be filed by the close of business on
December 26, 2006.
DATED: Honolulu, Hawai'i, November 14,” 2006.
FOR THE COUR’
Gorm. Daley +
Associate Justice
|
053cb298-e57a-46f4-aacf-3429f51f0565 | Breiner v. Sunderland | hawaii | Hawaii Supreme Court | LAW LIBRARY
#¢# FOR PUBLICATION in WEST’S HAWAT'T REPORTS and
PACIFIC REPORTER ***
IN THE SUPREME COURT OF THE STATE OF HAWAI‘T
-— 000 —
MYLES S. BREINER, Petitioner,
.
ae 8
8
=
3
No. 27889
PETITION FOR WRIT OF PROHIBITION
SEPTEMBER 22, 2006
NOON, C.J., LEVINSON, NAKAYAMA, INTERMEDIATE COURT OF APPEALS
JUDGE WATANABE, IN PLACE OF ACOBA, J., RECUSED, AND CIRCUIT JUDGE
‘WARA, IN PLACE OF DUFFY, J., RECUSED
Per Curiam. Attorney Myles S. Breiner petitions this
court for a writ of prohibition or other relief with regard to
disciplinary investigations being conducted by Special Assistant
Disciplinary Counsel, Respondent Magali V. Sunderland, on behalf
of the Office of Disciplinary Counsel (00C). We grant the
petition and order that
(1) Disciplinary Counsel shall forthwith remove
Sunderland from further participation in any
investigation involving Breiner:
(2) Disciplinary Counsel shall assign other
assistant disciplinary counsel, within the
time specified infra, to review the files and
make recommendations for ODC Case Nos. 6889
and 6117, as more specifically set out below;
oss
*## FOR PUBLICATION in WEST'S HAWAI'I REPORTS and
8)
“
PACIFIC REPORTER *#*
Disciplinary Counsel shall, in light of this
opinion and within a reasonable tine
hereafter, review the propriety or
appropriateness of Sunderland’s clains for
compensation with regard to the
investigations of ODC Case Nos. 6889 and
8117; and
Disciplinary Counsel and the Disciplinary Board
shall propose, within 180 days after the date of
this opinion, Disciplinary Soard and/or Suprene
Court rules concerning (a) the scope of
disciplinary investigations, including, but not
Limited to, subject matters that may permissibly
be investigated or discovered in relation toa
complaint or grievance and (b) the means by which
an attorney who is the subject of a disciplinary
investigation or proceeding may seek protective
orders from the Disciplinary Board and this court.
1. RELEVANT FACTS
grievances.
Counsel assigned to investigate both grievances.
Breiner is the subject of two attorney discipline
Sunderland is the Special Assistant Disciplinary
and the course of each investigation are summarized below.
Martinelli Investication (DC Case No. 6889)
In a letter received at the ODC on March 10, 2000,
Robert Martinelli stated he was indicted for a federal drug
offense in August 1996, and Breiner was appointed to represent
2
‘The grievances
*** FOR PUBLICATION in WEST’ S HANAT'T REPORTS and
PACIFIC REPORTER **
him. According to Martinelli, Breiner advised that it would be
expensive to fight the case, the court did not pay enough, and
Breiner said he would provide a better defense if Martinelli
privately retained him. Martinelli related that he was then
incarcerated and agreed to have his girlfriend meet Breiner and
give Breiner a $5,000 check. Breiner took the money to handle
Martinelli’s case and “said words to the effect of ‘okay, 1/11
use this for investigating your case and I11 stay on as your
court-appointed attorney, but don’t tell anyone about this.’”
Martinelli said there Kas no retainer agreement and that Breiner
“kept saying he needed more money . . . while he was still court-
appointed.” Martinelli complained that he wanted his money back.
on March 10, 2000, Aseistant Disciplinary Counsel Brian
Means copied Martinelli’s letter to Breiner and asked Breiner to
respond. Breiner responded by letter dated March 15, 2000."
Breiner acknowledged that he was appointed to represent
Martinelli in the federal case. Breiner explained that, in
response to questions from Martinelli, Breiner had told
Nertinelli that it made no difference whether Breiner was court-
appointed or privately retained. According to Breiner,
Martinelli insisted Breiner would do a better job if he were
privately retained, a common misconception among criminal
defendants. In sum, Breiner said he acquiesced to Martinelli’s
request and tock $5,000 as a fee. Breiner deposited the check
into his clients’ trust account on September 23, 1996.
+ With regard te the investigations discussed herein, Breiner has at
times acted pro se and at other times has been represented by attorneys David
5. Gleriach, David P. Klein, or Eric A. Seite.
3
‘*#* FOR PUBLICATION in WEST'S HAWAI'I REPORTS and
PACIFIC REPORTER *#*
According to information provided for this proceeding,
a plea agreenent resulted in the dismissal of the Martinelli
indictment on February 27, 1997. On March 4, 1997, Breiner
transferred the $5,000 from his clients’ trust account into his
business account. Breiner did not seek payment from the federal
government for his services as court-;
Sometime after Breiner submitted his March 15, 2000
jppointed counsel.
written response to Martinelli's letter, Sunderland took over the
investigation. By letter dated November 20, 2003, Sunderland
scheduled a meeting with Breiner for Novenber 26, 2003.
Sunderland required that Breiner bring with him financial records
related to Martinelli and Martinelli’s complete, original file.
Breiner asserts he and his attorney met with Sunderland and
produced Breiner’s financial records.
Twenty-six months later, on Janvary 27, 2006,
Sunderland wrote to Breiner’s attorney and asked for Breiner’ s
responses to twenty-six questions regarding details about
Breiner’s actions in the Martinelli case, vhether Breiner had
complied with the Hawai'i Rules of Professional Conduct (HRPC),
whether Breiner admitted any ethical violations, and whether
Breiner claimed any mitigating factors.
To date, the ODC has neither formally charged Breiner
nor dismissed the Martinelli grievance.
B. Barut Investigation (onc case No. #117)
By letter dated June 25, 2004, Sunderland informed
Breiner that Vanessa Barut had “filed” a “complaint” with oDc
concerning “fees allegedly oved." A copy of Barut’s complaint
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does not appear to have been provided with Sunderland’s letter to
Breiner, and it has not been provided to this court.
Sunderland's letter asked Breiner to “provide . . . a complete
copy of the original file for Ms. Barut.” (Emphases in the
original.)
Sunderland’ s June 25, 2004 letter required Breiner,
‘among other things, to identify accounts where he deposited money
received from Barut and to submit: (1) copies of deposit slips
used to deposit Barut’s funds; (2) cash receipt and disbursenent
Jovenals; (3) a subsidiary ledger; (4) any retainer or
compensation agreement; (5) billing statements; (6) records of
+ (7) check books:
payments to attorneys, investigators, or other:
(8) check stubs; (9) bank statements; (10) pre-numbered cancelled
checks: (11) monthly trust account reconciliations; and (12) all
records showing a listing of client trust accounts, including
names and account balances from 1996. In addition, the letter
required Breiner to provide copies of all records related to
Barut’s case. Breiner responded by letter dated July 7, 2004.
Breiner’s response identified the nature of the federal criminal
charges against Barut, the circumstances under which Breiner was
retained, Breiner’s understanding of his fee agreement with
subsequent agreements with regard
Barut, the results of the ca
to the application of a posted bond to his fee, and the
circunstances of Breiner’s withdrawal from the case. Sreiner's
response also included copies of documents referred to in the
letter. On September 10, 2004, Breiner wrote to O0C, seeking
guidance about how to handle a check from the United States
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District Court in the amount of the disputed attorney's fees.
The check represented proceeds from bail deposited by Breiner for
Barut in that court. On September 17, 2004, an Assistant
Disciplinary Counsel advised Breiner that the funds should be
placed in Breiner's “client trust account pending resolution of
the fee dispute” and noted that the fee dispute might be resolved
by interpleader in the United States District court.
By letter dated November $, 2004, Sunderland sought
detailed answers to seventeen additional questions related to
Breiner’s representation of Barut, many of which had nothing to
do with Barut’s fee complaint. Breiner’s January 12, 2005,
response acknowledged a flat fee retainer agreement but stated
that Barut had offered to pay additional money when she realized
the anount of work needed. Breiner’s January 12, 2005 letter
also set out a response to each of Sunderland's seventeen
enumerated questions.
on March 22, 2005, Sunderland asked Breiner to respond
to twenty-four additional questions. Breiner responded on May
19, 2005, and, thereafter, Sunderland sought additional
information by telephone on June 23, 2005. Breiner responded on
August 26, 2005.
On October 10, 2005, Sunderland sought responses to
twenty-nine additional questions. Breiner responded to each
question by letter dated January 19, 2006.
On January 26, 2006, Sunderland sent to Breiner one
hundred additional questions, many with multiple sub-questions,
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‘and, on February 3, 2006, Sunderland forwarded two more
questions.
To date, ODC has neither formally charged Breiner nor
dismissed the Barut grievance
C. Breiner’s attorney seeks supervision
on March 20, 2006, Breiner’s attorney wrote to the
Chief Disciplinary Counsel, Carole Richelieu, complaining of
Sunderland’ s “oppressive and overreaching behaviors.” Breiner’s
attorney demanded that Richelieu “rein in Ms. Sunderland and
establish written guidelines for the proper scope of any
Sinvestigations[,]' . . . clear limitations[,] both in terms of
time periods and subject matters that she will be allowed to
inguire into(,] and a review procedure for attorneys who may
object to and be aggrieved by her overly zealous conduct.”
on April 13, 2006, Richelieu responded that
Sunderland’s “requests for information seem appropriate, focused,
and necessary to conclude complex investigations into serious
allegations of misconduct by clients{.1”
TT, REVIEW BY WRIT OF MANDAMUS OR PROHIBITION
on April 17, 2006, Breiner petitioned for a writ of
prohibition, naming Sunderland and the ODC as respondents.
Breiner asks this court to:
(1) restrict Sunderland's conduct in the two
ongoing ODC investigations and all future
investigations involving Breiner;
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(2) order the investigation to proceed in a timely and
reasonable manner with limitations for tine
periods and subject matters; and
(3) order 00¢ to establish written guidelines for
the proper scope of the investigations.
On June 7, 2006, this court ordered Sunderland and o0C
(Respondents) to answer the petition. Respondents answered on
daly 6, 2006; Breiner replied on July 18, 2006.
HIT, DESCUSSION
Respondents argue that Breiner’s petition should be
denied because
(A) Breiner cannot establish a clear and
indisputable right to relief;
(8) under the doctrine of primary jurisdiction,
this court lacks subject matter jurisdiction:
(C) Breiner lacks standing to bring this action
at this times and
(D) existing rules, policies, and procedures
already establish guidelines for the scope of
investigations and a review procedure.
We reject Respondents’ arguments.
“The [ODC] and the Disciplinary Board are creatures of
this court, created pursuant to the court’s inherent and
constitutional authority to regulate the practice of law.” In xe
Disciplinary Board, 91 Hawai'i 363, 368, 964 P.2d 688, 693
(1999), The ODC and the Board are tasked “to carry out this
court's authority to investigate, prosecute, dispose of, or make
e
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reconmendations about attorney disciplinary matters.” Id. at
368-69, 984 P.2d at 693-94. As an agent of this court, the ODC
can act only within the authority granted by this court, and
separation of powers concerns do not require that we give the ODC
the kind of deference given to legislatively created
Gf. Cariglia v. Bar Counsel, 813 N.E.2d
498, 503 (Mass. 2004) (bar counsel’s discretion to investigate
administrative agenci
and prosecute is not subject to the same deference as is given
criminal or regulatory prosecutor in the executive branch).
Disciplinary Counsel's duties are owed to the suprene
court, and Disciplinary Counsel's powers to investigate
disciplinary grievances are granted by court rule. See Rules of
the Suprene Court of Hawai'i (RSCH) Rules 2.6(b) (2) and 2.7; in
ke Disciplinary Board, 91 Hawai'i at 369, 964 P.2d at 674. RSCH
Rule 2.6(b) (2)? authorizes Disciplinary Counsel “(t]o investigate
all matters involving alleged misconduct {.]” RSCH Rule 2.7(a)?
+ specifically, RSCH Rule 2.6(b) (2) states in relevant part:
2.6. Disciplinary counsel.
(@) Counsel shall have the power and duty:
{2} To dnvestigate a11 matters involving alleged
misconduct called to nis or her attention whether By
Complaint oF otherwise.
(Bold enphases in original.)
> specifically, ASCH Rule 2.7(a) state
2.7, Procedure.
(a) Investigacion, All investigations, whether upon
complaint or otherwise, shal! be concucted under the
Supervision of Counsel: Upon the conclusion of an
Investigation, Counsel shall reccmmend dismissal, informal
admonition of the attorney concerned, the institution of
(continued...)
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outlines procedures for investigating and taking action regarding
attorneys against whom grievances have been submitted. although
we prefer that ODC operate under Disciplinary Board supervision
without our intervention, we have the responsibility and duty to
regulate and direct the actions of the Disciplinary Board and the
Ss, we will not
00C, and, when a proven need to do so ari
hesitate to exercise our responsibilities and duties. Cf, In ze
MPa, 361 N.W.26 386, 392 (Minn. 1985) (Although it was “not
always clear whether petitioner [was] seeking 2 writ of
prohibition or a writ of mandamus(,]” the court had “original
jurisdiction to issue either writ” because the action seeking
restraint of the Director of the Lawyers Professional
Responsibility Board arose “from the attorney disciplinary
process.”
In response to Breiner‘s petition, Respondents cite to the
processes for reviewing reports and recommendations for
discipline, set forth in Disciplinary Board (DB) Rules 3(c) and
(a) and RSCH Rule 2.7(c) (formal hearing) and (d) (review by
>(.sseonténues)
Ron-disciplinary proceedings for minor alsconduct, or the
institution of formal disciplinary proceedings before
hearing committee or officer. Counsel's reconnendation
shall be reviewed by one of the two enbers of the Board
iigned for that purpose. If the initial reviewing member
Of the Board approves Counsel's reconnendation, it shall be
Implemented. “Tf the reviewing senber of the Board
disapproves Counsel's recommendation, Counsel may request
further review by the other reviewing menber of the sosrd.
In the event of auch second review of Counsel's
recomendstion, the decision by the second reviewing nenber
Of the Board shall be final. the menber or members of the
Board who review Counsel's reconmensation shall be
Giequalified in any formal disciplinary proceedings in
Felation to the same alleges misconduct.
(Bolded emphases in original.)
10
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Board and Supreme Court), as providing appropriate avenues for
review. DB Rule 3 provides in relevant part:
Initiation of Investigations; Cases in Which Counsel is
Disqualified.
{e) Motion to Disqualify Counsel. If the respondent.
moves to disqualify Counsel, the matter shall be heard by
The cheieperson of the Beard. In the event Counsel is
Slsquelified, the last two sentences of paragraph (b) of
this role spply-U')
(a) Complaints Against Board Members or Countel..
complaints filed against lawyer members of the Board or
Counsel shall be handled in the following manne:
(i) the original complaint shall be inmediately forwarded
{othe enaizperson of the Soard for initial review and
analysis.
(2) T1'the Chaizperson of the Board determines thet the
Complaint fatis cuteide the Jurisdiction of the Board
Gnuer {RScH) Aule 2 or that sufficient information is
fot contained in the complaint to allow @ meaningful.
Thvestigation, the Chairperson of the Board shall
pronpely notify the complsinant that no investigation
Siitbe undertaken or that further information is
heeded before an investigation may be undertaken
(3) Tithe Chairperson of the Soard determines that the
Ekapiaine felis within the jurisdiction of the Board
Under (8SCH] Aule 2[-1'] and that sufficient
<The lest two sentences of DB Rule 3(b) state:
‘The Chaizperson of the Board shell inmediately revie
fatter and, unless he of she concludes that the natter
Should be summarily dississed, shall appoint Special
Rasistent Disciplinary Counsel to discharge the powers and
duties of Counsel in the particular matter, including the
Srocedures set forth in paragraph (a) (4) of this rule. Any
Eonciueion by the Chairperson of the Board that the matter
Should be suumarily diseissed shall be promptly communicated
By the chairperson of the Board to the complainant and the
Pespondent without further Board action.
the
* ASCH Rule 2.1, Jurisdiction, state:
Any attorney admitted to practice law in this state
and any attorney specially acmitted by # court of this state
for a particular proceeding is subject to the exclusive
Sisclplinary jursedietion of the supreme court and the Board
Rereinazter established.
‘Rothing herein contained shall be construed to deny te
any court such powers a2 are necessary for that court to
aintain control over proceedings conducted before it, such
(continued:
nu
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Anformation is contained in the complaint to allow
Beaningful investigation, the Chairperson shail
Sppoine a lauyer menber from the list of hearing
Connittes menters or officers to conduct the
Investigation of the complaint
(4) In investigating the complaint, the hearing committee
ember or officer appointed by’ the Chairperson of the
Board shall request written and/or verbal input from
the complaining party and the party complained against
25 deened necessary. Also, ‘the hearing committee
Benber or officer may utilize directly the services of
Snvestigators enployed at the Office of Disesplinsry
Counsel (0D) to conduct interviews and to obtain
ether information needed to properly evaluate the
complaint.
(5) The bearing committee menber or officer shall, bs
fon Anformation acquired during the investigation,
prepere and forward to the Chairperson of the Board s
Feconmendat ion concerning the merits of the complaint.
(6) The Chairperson of the Board shall affirm or sovify
the recommendation of the hearing comaittes menber oF
officer, or shall renand the matter to the hesring
Committee menber or officer for further investigation.
(7) The Chairperson of the Board shall, upon effizaing oF
modifying the reccenendation of the hearing conmictee
Benber oF officer, promptly notify the parties of the
Gecision
(8) IE the decision of the Chairperson of the Board is
that an Infornat Adnonition should be inposed, the
Chairperson shall impose the Adnonition in accordsnce
with ba 3
(9) If the decision of the Chairperson of the Board is
that formal disciplinery proceeding should b
commenced, the Board shall appoint Special Assistent
Disciplinary Counsel to present the case pursuant to
{RSCH] Rules 2.7(c) and (a). In scdition, where
formal disciplinary proceedings are brought against @
lawyer meaber of the Boara, other Board meabers may
recuse thenselves if appropriate and appointment of ad
hoe menbers of the Board shall, if necessary, be
undertaken pursuant to [RSCH) fule 2.4(c)
(10) Ifa conplaine is fled against. the Chairperson of the
Board, the Vice Chairpersea of the Board (and, upon
absence, disability, or disqualification of the Vice
Chairperson, the Secretary of the Board) shall
undertake the duties of the Chairperscn described
above.
(22) Upon" Final completion of the investigation or
Proceeding, ali files in the case shell be forwarded
s
*(..-eontinuea)
‘a8 the power of contenpt, nor to prohibit any voluntary bar
2ssociation from censuring s member or suspending oF
expelling @ rember from senbership in the association.
a2
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to 00C, which shall maintain a permanent record of the
SSLOUE am"accordance with procedures established by
the Board.
(Footnotes added.) DB Rules 3(c) and (d), in the circumstances
presented by this petition, are insufficient to curb an abusive
or otherwise improper investigation. First, although a motion to
disqualify Sunderland under 0B Rule 3(c) might have been
appropriate, Breiner’s attorney has denonstrated that the filing
of such a motion would have been futile. Breiner’s attorney
provided evidence that a previous attempt to seek the
Disciplinary Board Chair's review of Sunderland's actions in a
disciplinary case involving ancther attorney was rejected by the
pisciplinary Board Chair. In that instance, the Disciplinary
poard Chair responded that the “request to have Ms, Sunderland
removed from [the] case {was} misdirected to me (or any other
menber of the Disciplinary Board). The responsibility for
assignnent to particular cases lies with Chief Disciplinary
counsel . . - and it is the Chief Disciplinary Counsel's
responsibility to remove her . . . if warranted.”
Second, although DB Rule 3(é) governs disciplinary
complaints about Disciplinary Board menbers end Disciplinary
counsel, which would include special assistant disciplinary
counsel such as Sunderland, such complaints would be treated as &
disciplinary complaint and proceed through formal disciplinary
proceedings, if warranted. In other words, DB Rule 3(é) does not
13
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have the effect of removing an investigating attorney from a
Respondents’ reliance on the formal hearing and review
processes set forth in RSCH 2.7(c) and (d) are similarly
misplaced. Martinelli's grievance was brought before ODC as
early as March 10, 2000, and Barut's grievance was brought before
O0C as early as June 4, 2004. Yet the investigations are
ongoing, formal petitions have not been filed, hearing officers
OF committees have not been appointed, hearings have not been
conducted, and, given the pace and tenor of the investigations,
there is no likelihood that the regular disciplinary avenues of
oversight by this court will be available any time soon. We will
not allow an attorney to be subjected to abusive investigative
tactics while he or she waits for the opportunity to have such
tactics reviewed in connection with a report and recommendation
for discipline that may never be filed with this court.
In sum, based upon the circumstances of this case, a
motion to disqualify clearly would have been futile, Breiner’ s
Petition is not a disciplinary complaint, and Breiner has no
ether avenue by which to seek relief from alleged unprofessional
and oppressive investigation tactics. In circumstances where no
other avenue of review is available, we will review complaints
‘about ODC by way of petition. The application of mandamus or
u
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prohibition standards is particularly appropriate where, as here,
there is an allegation regarding the manner in which an ODC
investigation is being undertaken by a Special Assistant
Disciplinary Counsel.
We fully recognize that an attorney has a duty to
cooperate with a disciplinary investigation. See HRPC Rule
8.4(d).* Sunderland’s questions to Breiner, however, require
much more than cooperation regarding grievances submitted by
Breiner’s clients, In fact, Sunderland’s questions require
Breiner to make adniseions, to analyze and apply rules, and to
state legal conclusions. Cf. In re Korvl, 481 N.£.24 393, 394
(ind, 1985) (stating the “duty to cooperate dor
not, needless to
say, require an admission of violation, nor does it preclude the
advocacy of a theory of defense which is contradictory to the
allegations of misconduct”; although “Respondent's duty to
cooperate does require compliance with professional standards(,]”
the “Disciplinary Commission cannot use its authority to charge
misconduct as 2 substitute for normal channels of discovery or to
force a response which is otherwise permissive”). Sunderland's
(a) state:
+ spectticaily, RPC Rule 8.
Rule 6.4. MIscorpucr.
it! is professional misconduct for # lawyer to:
{d) fail to cooperate during the course of an ethics
Anveatigation or disciplinary proceedings:
(Bold emphases in original.)
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letter-questions are interrogatories of the worst sort inasmuch
as they are onerous and, in a number of instances, improper.
Many questions ask Breiner to opine on matters that the ODC
appears to be trying to establish and for which it bears the
burden of proof by clear and convincing evidence. RSCH Rule
2.7(c). For example, in Sunderland’s January 26, 2006 letter to
Breiner:
(a)
(b)
‘)
question 32 asks Breiner to “state how [his]
+. Submission . . . complies with HRPC
(Rule] @.4(c) in view of [Barut’s) written’
April 28, 2001 fee agreement”;
ks Breiner how his statements
question 39
to Barut comply with HREC Rule 8.4(c); and
question 53 sets out numerous scenarios and
asks Breiner multiple times to state or
explain how his actions, as set out in the
enarios, complied with various rules. At
the same time, Sunderland included
parentheticals purportedly stating the
judgmental “view” of the oDc.
Some “questions” are offensively imperious. For
example, question 49 in the January 26, 2006 letter concludes
that Breiner did not answer a question posed by Sunderland in her
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october 10, 2005 letter and lectures that “[aldvising this office
in ‘hindsight’ that (an answer] should have been included does
not state why it was not included.”
Other questions exhibit a complete misunderstanding of
the rules at best or constitute harassment at worst. For
example, questions 4 through 10 of Sunderland’s January 27, 2006
letter mischaracterize the purported private fee agreement with
Martinelli as a “business transaction with a client,”
prohibited by RSCH Rule 1.8, and demands that Breiner analyze his
actions in light of the characterization. Obviously, a standard
fee agreement between an attorney and his or her client can
hardly be said to be the type of prohibited “business
transaction” contemplated by Rule 1.8.
Sunderland’ s questions and coments, in our view,
clearly exceed any rule of reasonableness that can be applied to
the broad discretion granted for disciplinary investigation. In
Ince Artis, 883 A.2d @5 (D.C. 2005), the District of Columbia
Court of Appeals agreed “that interrogatories, as provided for
under civil court rules, should not be incorporated into the
disciplinary process without promulgation of rules governing
their use” but noted that, if investigatory inquiries “were
tantenount to. . . interrogatories . . . [,] such discovery
would be subject to the limitation of reasonableness under the
nv
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circumstances” and agreed with a disciplinary board’s analysis
that found some of disciplinary counsel's questions in the case
before it were “overly broad” when they asked a respondent ‘to
explain in detail’ his conduct or to do so in light of the
disciplinary rules(.]” id. at 101-02. As in the instant ca:
the court in Ince Artis found other questions improper because
they were “overly broad, vague, burdensome and called for legal
conclusions{.]” Id, Moreover, in Attorney Grievance Commission
ef Marviand vy, Ward, __A.2d __ (Md. Aug. 2, 2006) (2006 WL
2135548), the Naryland Court of Appeals, in ruling upon Bar
Counsel's exceptions to the hearing judge’s findings and
conclusions, found that a hearing judge did not abuse he
discretion when she concluded that Bar Counsel was “seeking to go
on a fishing expedition” and, therefore, refused discovery of
financial records.
Taken in toto, Sunderland's investigation of the
grievances submitted by Breiner’s clients, as exhibited by the
uncontested written communications in the record of this action,
was overbroad, uncivil, and abusive.
The processes for reviewing reports and recomiuendations
for discipline under DB Rule 3 and RSCH Rule 2.7 provided Breiner
no remedy for curbing Sunderland's abusive investigatory tactics
and overreaching discovery practices. Neither the Disciplinary
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Board Rules nor the RSCH provide processes or procedures for
addressing issues of abusive investigatory tactics and
overreaching discovery practices. Inasmuch as Breiner has been
left with no mechanism by which to seek a remedy for the abusive
investigatory or discovery tactics employed in this case, review
by way of the subject petition is appropriate.
Sunderland’ s investigatory practices, as demonstrated
by Breiner, reflect poorly on the integrity of the disciplinary
process created by this court. Although in In ce Disciplinary
oard, 91 Hawai'i at 370, 984 P.2d at 695, we found nothing “to
indicate [the] 00C . . . (had) abused the discretion granted by
this court or . . . {had} breached any duty owed to this court,”
Breiner’s case is clearly distinguishable. The information
provided in this proceeding unquestionably shows a breach of the
one’s duty to investigate and prosecute fairly and an abuse by
Ov€ of the broad discretion granted by this court.
Under these circumstances, we grant Breiner’s petition
and order that Disciplinary Counsel shall:
(2) forthwith remove Sunderland from further
participation in any investigation involving
Breiner:
(2) no later than thirty days after the date of
this opinion, assign other assistant
1s
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disciplinary counsel (successor counsel) to
review the files for ODC Case Nos. 6889 and
8117. Successor counsel shall complete the
review and make a recommendation, in
accordance with RSCH 2.7(a), no later than
thirty days after his or her assignment. The
reviewing Board menber shall act upon
successor counsel’s recommendation within
thirty days after it is received. 1f formal
Proceedings, including any recommendation to
this court, are instituted, they shall be
conducted and completed no later than six
months from the date of this opinion; and if
(a) successor counsel's reconmendation is not
made and acted upon within the time provided
herein and (b) formal proceedings, including
any recommendation to this court, are not
conducted and completed within six months
from the date of this opinion, ODC Case Nos.
6889 and 8117 shall be dismissed; and
(3) in Light of this opinion and within a reasonable
time after the date of this opinion, review the
propriety or appropriateness of Sunderland’ s
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clains for compensation with regard to the
Snvestigations of ODC Case Nos. 6889 and
aur.
We further order that, within 180 days after the date
of this opinion, the Disciplinary Board shall propose to this
court Disciplinary Board and/or Svprene Court rules concerning
(1) the scope of disciplinary investigations, including, but not
Linited to, subject matters that may permissibly be investigated
or discovered in relation to a complaint or grievance and (2) the
means by which an attorney who is the subject of a disciplinary
investigation or proceeding may seek protective orders from the
Disciplinary Board and this court.
Eric A. Seitz, Lawrence Gp
To Ravasaki, and Ronald
Ni i. Kim, for petitioner
myles S, Breiner Ble edaod nso
Russell &. Suzuki,
for Respondents Magali V.
Sunderland and Office of Cunne KO Watanabe
Disciplinary Counsel
2a
|
d126897c-5a11-473b-9471-4550fedb188b | Preble v. Board of Trustees of the Employees Retirement System of the State of Hawaii. | hawaii | Hawaii Supreme Court | ‘#¢# FOR PUBLICATION in WEST’ S HAWAI'I REPORTS
‘and PACIFIC REPORTER *#*
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
00
DUANE PREBLE and MARION EVERSON,
E
wo. 26186 A
g
E
plaintiste-appellants, E
0256 WY 02 a33)s002
vs.
BOARD OF TRUSTEES OF THE EMPLOYEES’ RETIREMENT SYSTEM OF
‘THE STATE OF HAWAI‘T, ADMINISTRATOR OF THE EMPLOYEES’ RETIREMENT
SYSTEM OF THE STATE OF HAWAI'I, and EMPLOYEES’ RETIREMENT SYSTEM
OF THE STATE OF HAWAI'I, Defendants-Appellees
(Civ. No, 2-1-0832)
Wo. 26292
DUANE PREBLE and MARION EVERSON,
Petitioners-Appellants-Appellants,
EMPLOYEES’ RETIREMENT SYSTEM OF THE STATE OF HAWAI'I,
Respondent -Appellant-Appellant,
and
BOARD OF TRUSTEES OF THE FMPLOYEES’ RETIRENENT SYSTEM
‘OF THE STATE OF HAWAI'I,
‘Appellant Appellant.
(Civ. No. 03-1-1659)
No. 26186
APPEAL FROM THE FIRST CIRCUIT COURT
(Civ. Nos. 02-1-0832 and 03-1-1659)
SEPTEMBER 20, 2006
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND
CIRCUIT JUDGE ALM, IN PLACE OF DUFFY, J., RECUSED
aad
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and PACIFIC REPORTER +**
OPINION OF THE COURT BY LEVINSON, J.
In these consolidated appeals, the petitioners
appellants-appellants/plaintiffs-appellants Duane Preble and
Marion Everson hereinafter, collectively, “the Appellants”)
1 from: (1) the October 3, 2003 judgment of the circuit
app®
court of the first circuit, the Honorable Virginia Lea Crandall
presiding, in favor of the respondent-appellee-appellee/
defendant-appellee Employees’ Retirement System of the State of
Hawai'i (ERS), the appellee-appellee/defendant-appellee Board of
Trustees of the ERS (hereinafter, “the Board”), and the
defendant-appeliee David Shimabukuro [hereinafter, collectively,
“the Appellees}, and (2) the Novenber 18, 2003 judgment of the
circuit court of the first circuit, the Honorable Eden Elizabeth
Hifo presiding, in favor of the Board and the ERS.
on appeal, the Appellants contend that the circuit
court: (1) erred in dismissing No. 26292 on grounds of mootness;
and (2) erred in dismissing No. 26186 through misapplication of
the primary jurisdiction doctrine and in violation of their right
to a hearing.
For the reasons discussed infra in section I11.A.2, we
vacate the circuit court’s dismissal of Civ. No. 03-1-1659 (No.
26292) and remand with instructions to: (1) remand to the Board
for hearing and further factfinding for the limited purpose
discussed infra in section I11.A.2 and with due regard for the
change in the law highlighted therein; and (2) affirm the Board's
July 17, 2003 judgment in cther respects. For the reasons
2
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discussed infra in section III.B, we affirm the circuit court's
dismissal of Civ. No. 02-1-0832 (No. 26186).
1. BACKGROUND
On August 18, 1998, the Appellants, who are apparently
retired University of Hawai'i (UH) faculty members, tendered a
“complaint”! to the Board purporting to be a “class action”
against the ERS, alleging that the ERS miscalculated and
underpaid certain similarly situated UH professors’ pensions and
praying that the Board: (1) certify the proposed class; (2)
award the class members their recalculated pensions with
interest; and (3) award costs and attorney’s fees. The
Appellants endeavored to define the “class” as “all members of
{the ERS], except retired public school principals, vice
principals and teachers,” who, at the time of retirement, worked
less than a twelve-month year but whose monthly salary had been
apportioned uniformly throughout the year (the “earned summer
salary” method of computing retirement allowance, see Chun v. Bd.
of Trs, of the ERS, 87 Hawai'i 152, 185 n.2, 952 P.2d 1215, 1218
n.2 (1998) (“Chun 11”).
On January 11, 1999, the ERS administrator,
Shimabukuro, wrote to the Board “recommend[ing] that [it]: (1)
authorize the ERS staff to utilize the new ‘High 3’ [Average
Final Compensation (JAFC{)] computation methodology for all
+ the Appellants’ filing should have been designated a “petition
« . for a declaratory order,” and the “claimants” should have been styled
Spotitioners.”” Hewai's Adninietrative Rules §§ 6-20-8 to ~9(a) (1993).
3
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employees whose annual salaries are prorated over a 12-nonth
period, and (2) authorize retroactive adjustments to the retirees
from August 18, 1996,” which was presumably the same policy
change that the Appellants sought.
On February 8, 199, the Board met in executive session
“to consult with legal counsel regarding issues resulting from
and relating to Chun vi], (Bd. of Tre, of JERS”? and unanimously
adopted Shimabukuro’'s recommendations. (Emphasis added.)
on February 16, 2001, the Appellants submitted a motion
to the Board “for an order directing the [ERS] . . . to deduct
and pay from the common fund created in the above-captioned
matter of back retirement benefit increases and the share of
investment income earned thereon being moved for herein .
attorney's fees for the [Appellants]’ attorney.” According to
the Appellants, in Chun v. Bd, of Trs, of the ERS, 92 Hawai'i
432, 992 P.2d 127 (2000) (“Chun III”), this court “held that in
common fund cases(*] such as the instant case, attorney's fees
2 the Board does not, indscate to which of the
st refers. None of this court's four “Chun” opinions re.
the ERS's nathod of computing benefits, but the Board presumably refers here
to "Chun II," in which we dishissed the ERS's and the Board's appeal from the
Civcuit court’s reversal of a decision of the Board. See Chin v, Bd, of Tre.
fthe ERS, Civ, No, 95-1¢09 (Haw. 1at Cir. Mar. 11, 1596), appeal dismased,
B7 Hewai's 182, 177, 952 P.24 1215, 1240 (1998); Chun v. Bd. of Tre. of the
HBS, 106 Rawas't 436, 422, 106 P.34 339, 345 (2005) ("dnaemch a8 the
Stpeal waz Gisnissed, the circuit court's March 11, 1996 Judguent vensined the
final judgeent in the case.”)
+ this court has described the connon-benefit doctrine a=
folne of the earliest exceptions to the “American Rule[)]" . - -
[which *Iprovides that a private plaintiff, of hie. (or her)
attorney, whose efforts create, discover, increase(,) or preserve
(continued...
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ore evarded to the [petitioners] and their attorney since they
Prevailed in this matter and since a common fund, which in this
case constitutes the back retirement benefits and investment
income that will be paid thereon, is created by reason of said
On April 3, 2002, the Appellants filed a separate
action in the circuit court, captioned as Civil! No. 021-0032
The Appellants prayed for a writ of mandamus “requir (ing the
Appellees] to withhold, as attorney's fees, a percentage of the
Back xetirenent pay that (the class is] entitled to.” (Citing
Stun IL.) Furthermore, the Appellants alluded to the “futility
exception” to the rule of exhaustion of administrative remedies,
sea, edu, In ze Doe children, 105 Hawat's 38, 60, 93 p.3d 1145,
1167 (2004): “rt ie futile to have . . . (the Board) decide
fale] issue of attorney's fees because such a motion was filed
—____
(continued)
2,£0Pd £0 which others also have @ claim is entitied to recover
Exom_the fund the costs of his {or her) Litigation: ineassiey
attorneys" fees.
SUD ALL, 92 Mawas's at 439 6 n.7, 992 P20 at 136 6 0.7 (sone bracketed
Sginal and sone sided) (quoting Montat 64 Haw. 345,
material
3
21, 1327 (1862)) (noting that the doctFine sopl ten thee
he classic case in which a lunp sum recovery is effactes or bonecf of
but also te the case where the class action precucee Penasco
se Eallabie Golsseeie, te, sbsence Of a rue. scomon fund | "aoe ates Somme
i enc + 96 Hawas's 408, 449 n.67, 5b pee, Sah
eer (200ny>
cg , Bat gf8,fules of the cizcuit Courts Rule 1 ("Proceedings in
mandamus be classified under special procesdinge ieeehinie
added.)
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+. over one year ago without [the Board) taking action on said
motion «
on May 21, 2002, the Appellees, in two separate
motions, moved to dismiss Civ. No. 02-1-0832 on the grounds that
primary jurisdiction over the question of fees rested with the
Board and that only this court has jurisdiction to issue a writ
of mandamus against a public officer. (Quoting Hawai'i Revised
Statutes (HRS) § 88-23 (1993)* ("The general administration and
the responsibility for the proper operation of the retirement
system... are vested in [the Board) . . . .”); Hawai'i
Administrative Rules (HAR) § 6-20-16(b) (1993) (“The presiding
officer shall have the following powers and duties: . . . (8) To
rule on motions «
Hawai"i Rules of Appellate Procedure
(HRAP) Rule 21(b) ("An application for a writ of mandamus
directed to a public officer shall be made by filing a petition
with the clerk of the suprene court... - [TJhe appellate
clerk shall . . . submit [the petition] to the supreme court for
a determination as to whether it will be entertained.")7 Chun ve
ERS, 73 Haw. 9, 12-14, 828 P.2d 260, 262-63 (2992) (“Chun I").
In its own motion, the Board further proposed that “any powers
the Board . . . may have to award attorney's fees would be
discretionary, not ministerial, and thus not subject to
mandamus.”
+ effective July 1, 2002 and July 1, 2004, the legislature anended
RS § 28-23 in immsterial respects. Sez 2005'Haw. Sess. L. Act 58, $8 2 and
33 at 1ié-15, 1317 2002 Haw, Sees. L. Act 128, $§ 9 and 14 at 351, 360.
6
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Without a hearing, the circuit court granted the
Appellees’ motions on June 27, 2002 and, by means of its
October 3, 2003 judgment, dismissed Civ. No. 02-1-0832 without
prejudice.
on September 9, 2002 and June 9, 2003, the Board met in
executive session “to consult and discuss with legal counsel
regarding . . . [the present matter].”
According to the Board’s minutes, on July 14, 2003, it
“proceeded with . . . [Hawai'l Administrative Procedure Act)
proceedings” on the Appellants August 18, 1998 petition. On July
17, 2003, the Board filed its “final order,” finding and
concluding in relevant part
EINDINGS OF EACT_(pOS))
6." Gn'or about February 8, 1999, the Board (1)
authorized the ERS to utilize s new (AFC] methodology for
11 employees whose work year is less than s 12-nonth work
ir'bot whose salaries are prorated over # 12-nonth period
that deducted pay for the non-working Ronths 1a factored
Inco ‘the AFC calculation, and (2) authorized retroactive
Adjustments to retirees in said group... . The Board's
Gecision was based on... Chul Id), which’ upheld the
felireuit (elourt's Zeling That’ lump sum summer salary
payments of retired principals, vice-principals, and schoo)
Eeschers should be included in their AFC calculations. [The
Appellants)” instant petition] was not the catelyst for the
Bosrd’s decision:
SONCLUSIONS OF LAM(_{cousl)
2. ‘te Board does Tot have legai authority to certify
a class; as requested by [the Appellants], as there is no
legal authority that expressly allows (2) such
certification, of (2) for class action administrative
hearings to toke place. = =
'F. “the Board docs not have legal authority te award
attorney's fees and costs, including interest, - «= a8 no
ich authority exssts in the TRS or (HAR). Gi
Sduinistestive agencies have only the powers ex
Grented to then by the legislature, a¢ well 2s inplied or
[icidental powers that are reasonably necessary to carry out
their express powers. Courts disagree 25 to how much
y
7
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latitude aduinisteative agencies have with respect to
implied powers, but any reasonable doubts...» should be
vesolved ageinat the exercise of such authority. . +s
4 [The Board does not have legal authority to
entertain [the appellants’ February 16, 2001 mjotion . «'~
5." pue to tne Soarc's . . . February 8, 1999 decieion
to utilize a new AFC methodology |. , (the Appellants]
request... for the ERS to make proper and back benefits
is ie moot
payments to the aforesaia group of retire
(Quoting Medlev Investors, Ltd, v, Lewis, 465 So. 2d 1305, 1306
(Pla. 1985); Lyons v. Illinois Dep't of Rev., 452 N.£.2d 830, 834
(111. Ce. App. 1983); Pyro Mining Co, v. Kentucky Comm'n on Hunan
Rights, 678 S.W.2d 393, 395 (Ky. 1984); Sullivan v, Pennsvlvania,
408 A.2d 1174, 1176 (Pa. Conmw. Ct. 1979); Seibert v. Clark, 619
A.2d 1108, 1111 (R.T, 1993)) (citing 2 Am. Jur. 2d Administrative
Lau § 62 (1994).) Accordingly, the Board dismissed the
Appellants’ August 18, 1998 petition and denied their February
16, 2001 motion. (Citing HAR § 6-20-10(1)(D) (1993).*)
On August 13, 2003, the Appellants appealed the Board’s
July 17, 2003 final decision and order to the circuit court (Civ.
No. 03-1-1659). The Appellants subdivided their statement of the
+ MAR § 6-20-10, entitled “Consideration of petition,” provides in
relevent part:
‘The [Bloard, within a reasonable tine after sutaission of #
petition for declaratory relief, shall
(2) Deny the petition where
TA) The question is speculative or purely hypothetical ang
Goes not involve an existing situation or one which may
Fessonably be expected to oecer in the near furure; or
ip} tne petition requests 2 ruling on a statutory provision
not administered by the board or the matter is not
Stherwise within the jurisdiction of the board; oF
(2) Set the petition for hearing before the board in
aecorcance with [HAR $§ 6-20-6 to “25 (1993). (concerning
Seclaratory orders) ].
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case into ten separate counts, but their numerous allegations
distill to two points of error: the Board erred in rendering its
final order without affording the Appellants (1) a hearing and
(2) an “opportunity to submit proposed [FOFs] and exceptions,”
thereby violating the due process clause of article 1, section 5
of the Hawai'i Constitution and HRS $§ 91-9 (1993), amended by
Act 76, § 2 (effective May 20, 2003), and 91-11 (1993).7
(Internal quotation signals omitted.)
on Septenber 4, 2003, the Board moved the circuit court
to dismiss the Appellants’ appeal for lack of jurisdiction. on
September 23, 2003, the ERS joined the Board’s motion. On
october 7, 2003, the Appellants filed memoranda in opposition.
on November 18, 2003, the circuit court (1) granted the
Board's September 4, 2003 motion and the ERS’s joinder “due to
nootness” and (2) entered judgment in favor of the Board and the
ERS and against the Appellants. (Citing Mong v. Bd, of Regents
> Article 1, section $ of the Hawai'i Constitution provides in
relevant part that (n}o person shall be deprived of... property without
Goe process of lew." HRS'§ 81-3, entitied “Contested cases; notices hearing:
Feccrds,” provides in relevant part that, “(a) (sJubject to. (HRS
§],$1-8.5( (concerning sediation in contested cases)], in any contested case,
ali parties shall be afforded sn opportunity for hearing after reasonable
notice.” HRS § $1711 provides in relevant part:
Exanination of evidence by agency. Khenever in a contested
case the officials of the agency who are to render the final
‘felon have not heard and examined 311 of the evidence, the
Secision, if adverse to a party to the proceeding cther than the
Sgeney itself, shell not be made until s proposal for decision
ry has Been served upen the parties, snd an opportunity has
etn’ afforded toe
and present argument
RS § 91-2(5) (2993) defines @ “contested cose” as "e proceeding in which the
Tegel rights, duties, or privileges of specific parties are required by law £0
bbe determined after an opportunity fer agency hearing.”
h party acversely affected to file exceptions
9
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Univ. of Havaii, 62 Haw, 391, 616 P.24 201 (1980).
On October 28, 2003 (No. 26186) and December 18, 2003
(No. 26292), the Appellants filed timely notices of appeal to
this court. On September 5, 2006, this court consolidated Nos.
26186 and 26292 under No. 26186.
TT, STANDARDS OF REVIEW
A. Circuit Court’s Disposition Of An Appeal From An
Agency' Decision
“’Review of a decision made by the circuit court upon
its review of an agency's decision is a secondary appeal.. The
standard of review is one in which this court must determine
whether the circuit court was right or wrong in its decision,
applying the standards set forth in HRS § 91-14(g) [ (Supp.
2004),* see infra section 11.8]... .’” Korean Buddhist Dae
Won Sa Temple of Hawai'i v, Concerned Citizens of Pilolo, 107
Hawai'i 371, 381, 114 P.3d 113, 123 (2005) ("Korean Temple 111”)
(emphasis omitted) (quoting Korean Buddhist Dae Won Sa Temple of
Hawaii v. Sullivan, 87 Hawai'i 217, 229, 983 P.2d 1315, 1327
(2998) (“Korean Temple 11*)).
+ the Board is an “agency” within the meaning of ERS § 91-1419)
(Supp, 200). eR, eager (Haw. App. 526,
528)" 6€3 F.2d 36, 641 T9e3)
+ egtective duly 1, 2006, the legislature amended HRS § 91-14 in
respects innaterial to the present matter. See 2004 Haw. Sess. Ly Act 202,
$56 ang 62 at 921, 948, snended by Act 94, $1 at 1 (2006), avaliable at
http://eapitol .naweii .gov/sessioncurrent /bille/nb2657_edl_.pa¥.
10
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B. Agency Decision
HRS § 91-14(] provides
(g) Upon review of the record the court ma
affirm the decision of the agency or remand the
ith instructions for further proceedings; or It may
Feverse or modify the decision and order if the
Substantial rights of the petitioners ay have been
prejudiced because the administrative (F0Fs], (COLs],
Gecisions, o: orders axe:
(1) tn violation of constitutional or statutory
provisionss oF
(2) In excess of the statutory authority or
juriediction of the agency; oF
(3) ade upon unlaweul procedures or
(a) Affectes by other error of law) or
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on tne whole
Fecord; of
(6) Arbitrary, or capricious, or characterized by
abuse of Giscretion or clearly unwarranted
exereiee of discretion
HRS § 81-2609)
Under HRS’ §"si-i4(g), (Cots)
a), @),
re reviewable under
tions regarding proces
nder subsection (3); [FOFs] are reviewable
sod an agency's exercise of discretion is
etlon (6
Sussel v. Civil Serv, Comm'n, 74 Haw. $99, 609, 851 P.2d 311, 317
(1993) (citing Qutdoor Circle v, Harold K.l, Castle Trust Estate,
4 Haw. App. 633, 638-39, 675 P.2d 784, 789 (1983)), quoted in,
e.0., Korean Temple III, 107 Hawai'i at 361, 114 P.3d at 123; Tam
w. Kaiser Permanente, 94 Hawai'i 487, 494, 17 P.3d 219, 226
(2001); Flor v. Holguin, 94 Hawai'i 70, 76, 9 P.3d 382, 368
(2000); Inte Gray Line Hawai'i, Ltd., 93 Hawai'i 45, 53, 995 P.2d
776, 784 (2000); Rotter v, Hawaii Newspaper Agency, 89 Hawai'i
411, 421-22, 974 P.2d $1, 61-62 (1999); Korean Temple I, 87
Hawai'i at 229, 953 P.2d at 1327.
a
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C. Grant Of Motion To Dismiss Complaint
We most . . . view a plaintife’s complaint in a Light most
favorable to him or her in order to determine whether the
allegations contained therein could warrant relief under any
Siternative theory. Bavelal avail), 66 haw.
[194.1 198, €58 P.2a [83,1 B86] (1983)], For this reason,
«our Consideration is strictly Linited to the
allegations of the complaint, and we must deem those
Gllegations to be true. Aut_v. Au), €3 Haw. (210,) 214, 626
Piz’ (173,) 1991" (a98i}).
Baehr v. Lewin, 74 Haw. 530, 545, 852 P.2d 44, 52 (1993), quoted
in Keauhou Master Homeowners Ass'n v. County of Hawai'i, 104
Hawas's 214, 218, 87 P.3d 883, 687 (2004); In re Estate of
Rogers, 103 Hawai" 275, 280-81, 81 P.3d 1190, 1195-96 (2003).
IIT. DISCUSSION
A. No. 26292; Appeal From The Board's Order To The
Circuit Court
In their opening brief in No. 26292, the Appellants
contend that the circuit court erred in dismissing their appeal
as moot. In particular, the Appellants urge that the Board’s
February 8, 1999 decision did not resolve the question of their?
entitlenent to interest and fees. (Quoting Midkiff v. Kobavashs,
59 Haw, 299, 321 6 n.15, $07 P.2d 724, 738 6 n.15 (Haw. 1973); In
re 2003 & 2007 Ala Wai Blvd,, 85 Hawai'i 398, 407, 944 P.2d 1341,
1350 (App. 1997); In-xe Doe, 81 Hawai'i 91, 99, 912 P.2d 588, 596
(app. 1996).)
* Our research reveals no authority, directly or by analogy, for the
naintenance of a class action before the Scerd, of. Hawai'i Rules of Civil
Procedure Rules 1 ("Scope of Roles"), 23(a)-(b) ("Class Actsone"), €1(3)
Capplicability"), ang, on appeal, the Appellants have abandoned their
purported representation of an entire class.
12
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In their answering briefs, the Board and the ERS insist
profusely that the Appellants’ appeal was and is moot. (Quoting
Pele Def, Fund v. Puna Geothermal Venture, 77 Hawai'i 64, 69
n.10, 881 P.2d 1210, 1215 n.10 (1994).) (Citing Bush v. Hawaiian
Homes Comm'n, 76 Hawai'i 128, 133-34, 870 P.2d 1272, 1277-78
(1994); Chun I, 73 Haw. 9, 13, 828 P.2d 260, 262 (1992).)
‘The ERS adds in its answering brief that the
Appellants’ counsel is not entitled to fees on the merits
“[blecause there is no certified class and because there will be
no class certification in the future.” The ERS also seens to
argue that the Appellants were not personally aggrieved by the
Board’s failure to award fees to their attorney and, hence,
lacked standing to appeal." (Citing Collier v. Marshall, 977
8 The ERS also proposes that the Appellants’ notice of appeal to
this court, statement of jurisdiction, opening brief, and civil appeals.
Gocketing statenent were fatally defective, citing RAP Rules 3(c}(2)_ (~The
Rotice of appeal shall designate the judgment { or] order . . . and the court
Or agency sppealed from. A copy of the judgment or order shall be attached
Gn exhibit"), 12.1 ("(c) «+ + The statement of jurisdiction shall show the
‘grounds’ upon which the Juriediction of the Nawai's appellate courts is
Invoked tay": «= R copy of the order of judgment ‘shall be attached to
the statements"), 28{b) (3) (there shall be appended to the [opening] brief »
copy of the Judghent, . ... (FOFS] and (COLs], order, or decision
Felevent to any point on’ appeal, unless otherwise ordered by the court. "I, and
Beto) 4) (requiring "(a) concise statenent of the points of error.
Sterling] «ss, (Ji) where in the record the alleged error was objected to or
the manner in which the alleged error as brought to the attention of the
Court). (Citing Chun IIt, 92 Hawai'i st 448, 992 P.2d at 143 (2000); Acobe
Sten. Tése, ine,, 92 Fawei'l 1, 10, 986 P.2d 268, 297 (1999); Kawanata
Himes Tne. 4, United aor! Frods., 86 Hewai'i 214, 235, 248, 948 Pu2d 1055,
Tore, 108s (1597); antec, Inc, v. Waikiti Beachcomber inv. Go., 74 Haw. 83,
12s,’ 939 .2a 10, 31 (i980); inte Miler 6 Lieb Water Con, 68 Haw. 310, 312,
si’ p.2d 486, 487 (1902); Stewart Props. v. Brennan, € Haw. App. 431, 434-38,
S07 Pozd os, 608 (1993)) Lacuarye. Kavfets, s00 F.2d $43, 549 (9th Cir.
880); Bitney Bowes, Inc, v. Mestre, 701 F.2d 1365, 1374-75 (@th Cir. 1983) )
re tae the EAS scone To say that the Appellente’ failure (1) to specity
thet they sppeal from the Eoare’s Joly 17, 2008 order, as well as the circuit
{continved.
13
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F.2d 93, 94-95 (3d Cir. 1992).)
‘The Board and the ERS further argue that the Board did
not jeopardize a “property interest” of the Appellants and that
neither the due process clause nor any statute nor the Board’s
own regulations entitle the Appellants to @ contested case
hearing. (Quoting Bush, 76 Hawai'i at 134-35, 870 P.2d at 1278-
79.) (Citing Bele Def. Fund v. Puna Geothermal Venture, 77
Hawas' 64, 68, 881 P.2d 1210, 1214 (1994).) In fact, the Board
maintains, “HAR § 6-20-10[, see supra note 6,) expressly permits
the Board to deny an unadjudicable petition for declaratory
relief without first conducting a hearing.” (Emphasis omitted.)
HAR § 6-20-10, see supra note 6, implies that the Board
need not “[sJet [a] petition for hearing” where the petition
raises a “speculative or purely hypothetical” question or
“requests a ruling ona... matter... not... within the
jurisdiction of the [Bloard.” Compare HAR § 6-20-10(1) (A), (D)
MU. .continued)
court's Novenber 18, 2003 judgment, and (2) to affix the Board's July 17, 2003
order to their filings deprives this court of appellate jurisdiction and/or
Surprised the ERS with onenticspated references to proceedings before the
Board. This argument 4s absurd
our jurisdiction ver No. 26292, in contrast to the circuit court's
juriadiction over the Appellant's direct appeal from the Board, i conferred
by HRS § 641-1(a) (1993) ("Appeals shall be allowed in civil matters from all
s ‘to the supreme court
7; except a8 otherwise provided by laws || '*} \emphasis added) >
anended by 200¢ Haw. Sess. i. Act 202, $5 66 and 65 at 943, 948, amended by
Act 34, $1 at 1, available at http://capitol -hawals. gov/acsaioncurrent/bilis/
b2e97'cdi_.pat.’ Mincfui that the circuit court" judguent was the ruling to
be appealed to thir court, the Appellants attached the circuit court's
Jusgnent to, and referred te it in, their notice of appesl, opening brief, and
Stetenent of jurisaiction. The Board's order was not the sppealabie final
reling in {hig court ang, accordingly, we resect the ERS" proposition, which
would entice litigants to thicken their filings with unnecessary paper.
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with id. para. (2). HRS § 91-9, see supra note 7, provides, in
turn, for hearings in contested cases. Aguiar v, Hawaii Hous.
Auth, 55 Haw. 478, 496, 522 P.2d 1255, 1267 (1974). If either
statute or regulation guaranteed these Appellants a hearing and
denial of such a hearing was not harmless, the Appellants’ appeal.
to the circuit court was not moot. As a threshold matter, then,
we must decide whether the Appellants’ petition to the Board
presented a colorable and justiciable claim for costs, fees,
and/or interest.
1. Th ha 7
Inasmuch as an administrative agency’s powers are
Limited to those delegated to it by the legislature,” an agency
cannot exercise “general or conmon law powers,” City of Chicago
vs Fair Employment Practices Comm'n, 357 N.£.2d 1154, 1155 (r11.
1976). 21G Ins, Co. v, Kauhane, 101 Hawai'i 311, 327-28, 67
P.3d 810, 826-27 (App. 2003) ("An administrative agency can only
wield powers expressly or implicitly granted to it by statute.
Implied powers are limited to those reasonably necessary to make
[an] express power effective.) (internal quotation signals
omitted); Friends of Nassau County, Inc, v. Nassau County, 752
2 we Yn (PUC), 67 P36 12
7 ‘and legislature “ha(d} not by
tment restricted {ene FOC] in the matcer of amarding
5," holding that “the PUC has the
snd costs") (emphasis added) (citing Colo.
fegulate the facilities, service and rates
situate of operating within the stat
in (ehe FUC)."))=
authority
Const. a
fand charg.
of colors
© We do not concern ourselves here with the scenario whereby parties
agreed to feen contractually or by stipulation.
as
as
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So. 2d 42, 53 (Fla. Dist. Ct. App. 2000).
In City of Chicago, the Fair Employment Practices
Commission (FEPC) argued that a provision in Tllinois’s Fair
Employment Practices Act, 48 Ill. Rev. Stat. ¢ 858.01(c) (1973)
(repealed) (“The commissioner . . . , if he finds against the
respondent, shall issue . . . a recommended order requiring such
respondent . . . to take such. . . actions . . . as will
eliminate the effect of the practice complained of.”),
incorporated an implicit power of the Commission to award
attorney fees. 357 N.E.2d at 1155-56. The court noted the
Presumption in favor of the “American rule” and rejected the
FEPC's argument, “find[ing] no suggestion that the legislature
contemplated the award of attorney fees to the successful
complainant.” Id, at 1156; see also Trapp v. United States, 668
F.2d 1114, 1116 (10th Cir. 1977) (noting that, “[w]here Congress
has spoken to authorize an award of attorney's fees, it has done
so in no uncertain terms” and “declin(ing] to infer from the
ambivalent language of” federal statute “authorizing .
‘corrective action’” a. . . grant of authority to avard
attorney’s fees); Cohn v. Dep‘t of Corr,, 895 P.2d 857, 859-60
(Wash. Ct. App. 1995).
Similarly, we find no statute or regulation that
authorizes fees or costs in the present matter. See also Brewer
ve Dep't of Corr, 531 So. 2d 978, 980 (Fla. Dist. Ct. App.
1988); Mander v. Concreform Co., Inc., 206 So. 2d 662, 664 (Fla.
Dist. Ct. App. 1968); Pleasant Valley Sch. Dist, v. Dep't of
16
‘*#* FOR PUBLICATION in WEST’ S HAWAI'I REPORTS
and PACIFIC REPORTER ***
Qnty, Affaire, 560 A.2d 935, 936 (Pa. Commw. Ct. 1989)? Dail vs
S.D, Real Estate Comm'n, 257 N.W.2d 709, 714 (S.D. 1977); of.
Balsley v. N. Hunterdon Reo") itish Sch. Bd. of Educ., 542 A.2d
29, 33 (N.J. Sup. Ct. App. Div. 1988) (where statutes “provide(d]
that‘. . . the prevailing party may be awarded a reasonable
attorney’s fee,’” and “that such actions may be brought in the
Division [of Civil Rights],” concluding that agency had authority
to grant fees). In fact, reading HRS ch. 88 (concerning pension
and retirement systems) as a whole, the express attorney's fees
and costs provision in HRS § 88-82 (Supp. 2004), concerning
appeals from the Board-appointed medical board (“If, in the event
of an appeal of a decision of the medical board, retirement
benefits are awarded to a member . . . , the member shall be
reimbursed reasonable attorney's fees together with any costs
payable by the system.”) (emphasis added), compared to the
silence of the remainder of the chapter, supports the inference
that the legislature did not intend to empower the Board to award
fees and/or costs in the present matter. See, @.a., Roxas va
Marcos, 89 Hawai'i 91, 129, 969 P.2d 1209, 1247 (1998)
("(ilapressic unius est exclusio alterius
inclusion of a provision implies the exclusion of another
the express
. . 0") (emphasis in original).
Nor do the Appellants themselves suggest any authority
beyond the conmon-benefit doctrine, which this jurisdiction has
not applied to (1) administrative agencies, (2) awards of costs,
or (3) “elass-like” actions on behalf of numerous similarly
vv
‘*% FOR PUBLICATION in WEST’S HAWAI'I REPORTS
and PACIFIC REPORTER ***
situated individuals where no “class,” in the Hawai'i Rules of
Civil Procedure (HRCP) Rule 23!
In sum, we hold that the Board's failure to conduct a
hearing was at most harmless error with respect to the issue of
fees and costs. Concomitantly, the circuit court did not err by
effectively affirming the COLs of the Board with respect to fees
is ever certified.
and costs.
2. In Light of a subsequent change in the law, the
Board wi ot bo int
Effective January 1, 2004, the legislature enacted HRS
§ 88-74.5 (Supp. 2003), entitled “Finalizing of pensions,” which
affords interest to any retirant 1*whose pension is “finalized”
late, iie., “after the sixth calendar month following the month
of the retirant’s retirement.” See 2003 Haw. Sess. L. Act 134,
§§ 1 and 4 at 318-19. HRS § 88-74.5(a), amended by Act 169,
$$ 10 and 43 at 9, 88 (2006), available at
hetp://capitol hawaii .gov/sessioncurrent/bills/sb2273_cdl_.pd£,
provides in relevant part:
For pension benefits finalized after the aixth calendar
month following the month of the retirant’s retirement, an
interest payment’... shall be paid to the retirant.
Interest shall be caléulated on the difference between the
anount the retirant is entitled to receive from the
Fetirent's retirement date up to the day the payment is made
and the anoont the retirant vas paid. - -
Beginning Janoary 1, 2004, or the first day of the
seventh calendar month following the month of retirenent,
whichever is later, interest payments calculated as sinpie
M _HRCE Rule 23(c)(1) provides in relevant part: “As soon as
practicable after the conmencenent of an action brought as e class action, the
Court shall determine by order whether it is to be s0 naimitaines.””
18
‘** FOR PUBLICATION in WEST’S HAWAI'I REPORTS
and PACIFIC REPORTER ***
shall be prorated up to the date payment ss
“No law has any retrospective operation, unless
otherwise expressed or obviously intended.” HRS § 1-3 (1993).
We do not believe that HRS § 86-74.5 clearly manifests an intent
on the part of the legislature to retroactively award interest
for any period before January 1, 2004, Nevertheless, one who
retired before 2004 -- such as, allegedly, the Appellants -- may
qualify for interest under HRS § 88-74.5, though only on whatever
balance remained unpaid on “January 1, 2004, or the first day of
the seventh calendar month following the month of retirement,
whichever is later." The record on appeal does not indicate
whether the pensions of the Appellants or the alleged similarly
situated retirants have been “finalized” or whether they have
received any “payments.” Accordingly, the Appellants’
entitlenent to interest turns on unanswered questions of fact, to
wit, (1) whether their status as retirants is as they allege and
(2) whether any “payments” to which they were entitled were
overdue on or after January 1, 2004.
While it might have been more efficient and prudent for
the Board and the circuit court to respond to the impending
change in the law (the governor signed Act 134 on June 4, 2003,
s0¢ 2003 Haw. Sess. L, at 319), we can hardly consider it error
to decline to enforce a law that has not taken effect (yet). On
the other hand, for us to affirm the circuit court's
determination of moctness simply because the November 18, 2003
Judgment “beat” the sunrise of Act 134 by forty-four days would
19
‘#4 FOR PUBLICATION in WEST’S HAWAI'I REPORTS
‘and PACIFIC REPORTER ***
be needlessly technical. In light of today’s holding that the
Appellants might be entitled to interest, further Litigation is
virtually foreordained. Therefore, notwithstanding our
conclusion, supra in section ITI.A.1, that the Appellants Jacked
a viable basis for costs or fees, WAR § 6-20-10(2), see supra
note 6, entitles them to a hearing before the Board to establish
their eligibility, or lack thereof, for interest pursuant to HRS
§ 88-74.5(a).
B. No. 26186: Mandam on In The
In No. 26186, the Appellants assert: (1) that the
circuit court erred by dismissing their complaint without
conducting @ hearing; and (2) that the Board, rather than the
circuit court, had primary jurisdiction over the complaint." In
Light of our holding that the Appellants were not entitled to
attorney's fees, see supra section III.A.1, their underlying
complaint in Civ. No, 02-1-0832 could not “warrant relief under
any alternative theory,” see Bachr, 74 Haw. at 545, 852 P.2d at
52, and we conclude that the circuit court did not err in
dismissing it. See Aluminum Shake Roofing, Inc. v. Hiravasu, 110
1 At the ond of their argunent section, the Appellants protest that,
by relegating then to the primary Jurisdiction of the Beard, the circuit court
overlooked Hawaii's due process clause, under which the Board should be
Gisquelitiea due to alleged Biss. The Appellants denonstrete ro evidence of
Bias in the present record, but refer indirectly to the Boerd’s joinder in No.
25714, in which the Beard supposedly “adopt [ed Shinabukuro]’s argument that
there’ was no merit to the sotion for attorneys fees - 1 without having
matters.” However, the Appellants waived this point by not
their concise statement of the points of error. See Hawai't
Roles of Appellate Procedure Rele 28(b) (4). ‘Moreover, because che Appellants
had no visble claim to fees, see supra section I1I-a-i, we notice no plain
20
‘#4 FOR PUBLICATION in WEST’S HAWAI'I REPORTS
‘and PACIFIC REPORTER ***
Hawai'i 248, 256, 131 P.3d 1230, 1238 (2006) (quoting Taylor-Rice
vs State, 91 Hawai'i 60, 73, 979 P.2d 1086, 1099 (1999)) ("This
court may affirm a judgment of the [circuit] court on any ground
in the record which supports affirmance.'”)
Moreover, the Appellants’ direct appeal in No. 26292
during the pendency of their mandamus action obviated the
extraordinary renedy of mandamus:
(IA writ of mandamus... will not issue unless the
petitioner dencnstrates .. . a clear and indisputable right
Eo relief and. ss a lack of ot sdequately te}
Eedrees the wrong or obtsin the 7 (such
writs ; ss are. . (not) to serve as legal renedies in
Tieu'of norsal sppetiate procedure.”
Evang v. Takao, 74 Haw. 267, 279, 842 P.2d 255, 261 (1992)
(quoting Breiner v, Takao, 73 Haw. 499, 502, 835 P.2d 637, 640
(1992)), cited in Tanaka v, Nagata, 76 Hawai'i 32, 35, 868 P.2d
450, 453 (1994); Pelekai v. White, 75 Haw. 357, 362, 861 P.2d
1205, 1208 (1993); see also State v. Sakamoto, 101 Hawai'i 409,
411, 70 P-3d 635, 637 (2003); State v. Kealaiki, 95 Hawai'i 309,
313 6 n.d, 22 P.3d S88, 592 6 n.4 (2001); Straub Clinic 6 Hosp.
v.Kochi, @1 Hawai'i 410, 414, 917 P.2d 1264, 1288 (1996).
The Board denied the Appellants’ petition on July 17,
2003, and the Appellants appealed to the circuit court on August
13, 2003. Concededly, the circuit court’s June 27, 2002 order
dismissing the mandamus action (Civ. No. 02-1-0832) predated the
Board’s July 17, 2003 order in what would becone Civ. No.
03-1-1659. Nonetheless, by the time of the circuit court's
october 3, 2003 final judgment in the mandamus case, the Board
had disposed of the petition, enabling the Appellants to pursue
21
‘** FOR PUBLICATION in WEST’S HAWAI'I REPORTS
and PACIFIC REPORTER ***
their direct appeal. Even assuming arquendo the Board had
subjected the Appellants to unreasonable delay, see HAR
§ 6-20-10, supra note 6 (providing for consideration of the
petition “within a reasonable time”), the Appellants could have
sought -- and did seek -- redress through “normal appellate
procedure” rather than mandamus.
Accordingly, we affirm the circuit court's dismissal of
civ. No. 02-1-0832.
Iv. coNcLUsTON
In Light of the foregoing analysis, we vacate the
circuit court’s dismissal of Civ. No. 03-1-1659 and remand with
instructions to: (1) remand to the Board for hearing and further
fact finding with respect to the Appellants’ eligibility, if any,
for interest pursuant to HRS § 68-74.5; and (2) affirm the
Board’s July 17, 2003 judgment in other respects. We affirm the
circuit court’s dismissal of Civ. No. 02-1-0832.
on the briets:
Charles K. Y. Kain,
for the petioners-appellants~ G
appellants/plaintitfe-appellants h
Duane Preble and Marion Everson .
Kevin P. #. Sumida, of eR enne—
Matsui Chung Sunida & Tsuchiyana, Duewe:
for the defendant appellee ate Co Neotel
David Shinabokoro, Administrator
ete Eas" Eee
Selendantcopvetiee ae
kissriy tect, SOSH
appellee-appellee/defendant-appellee
Board of Trustees of the ERS
22
|
762bb09f-2f14-4cb0-ab9f-c25c13afdc1b | Malahoff v. Saito | hawaii | Hawaii Supreme Court | No. 25180
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
ALEXANDER MALAHOFF; LINDA CURRIVAN; DIANE PERRET]
HUGH FOLK; VINCENT LINARES; DAVID MILLER; an
UNIVERSITY OF HAWAI'I PROFESSIONAL ASSEMBLY p93}
Plaintiffs-Appellees, =|
aang
vs.
RUSS K, SAITO, in his capacity as Comptrol
of the State of Hawai'i; and LINDA LINGLE,
Governor of the State of Hawai'i,
Defendants-Appellants
O56 HY 61 das soz
APPEAL PROM THE FIRST CIRCUIT COURT
(CIV. NO. 99-2173-06 VSM)
(ey: Woon, Gods, £08 Fhe court!)
t appearing that footnote 1 of this court's opinion in
the above-captioned matter, filed August 11, 2006, erroneously
referred to Rule 43(c) the Havai's Rules of Civil Procedure as
opposed to the Hawai'i Rules of Appellate Procedure,
IT IS HEREBY ORDERED that the reference in the footnote
is amended as follows (deleted material is stricken; new material
“Hawai'i Rules of @ivit Appellate Procedure
is underscored) +
(area) .*
‘The Clerk of the Court ie directed to incorporate the
foregoing corrections in the original opinion and take all
dered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 99.
necessary steps to notify the publishing agencies of the
correction.
Dart
Honolulu, Hawai'i, September 19, 2006.
FOR THE COURT:
kee Justice
|
a714e022-6a16-4214-ae0b-01044c8d58f7 | State v. Cuthrell | hawaii | Hawaii Supreme Court | + NOT FOR PUBLICATION
in WEST’ S HAWAI'I REPORTS and PACIFIC REPORTER #f*
No. 25706 25
e
11 THE SUPREME COURT OF THE sTATE oF HaMArgAlE
STATE OF HAWAT'T, Plasneite-Appetiant “Bl
fh8 He 6- nv 9002
DANA SUE CUTHRELL, aka Dayna Weier, Defendant-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(Cr. No, 02-31-1248)
(By: Moon, C.d., ‘Levinson, Nakavana, Rebs, and Duffy, 99.)
‘the plaintitf-appeliant state of Havat's (hereinafter,
“the prosecution”} appeals from the March 4, 2003 judgment of the
circuit court of the first circuit, the Honorable Karl K.
Sakanoto presiding.
On appeal, the prosecution contends that the circuit
court erred in sentencing the defendant-appellee Dana Sue
Cuthrell to probation in Cr. No. 02-1-1248, pursuant to 2002 Haw.
Sess. L. Act 161, § 3 at $72 (codified as Hawai'i Revised
Statutes (HRS) § 706-622.5 (Supp. 2002)), rather than to
mandatory minimum term of imprisonment, pursuant to HRS
§ 706-606.5 (Supp. 1999), inasmuch as: (1) HRS § 706-606.5
supplants Act 161 in situations involving repeat offenders; and
(2) Cuthreli’s prior robbery conviction and the circumstances of
the robbery demonstrate a violent history rendering her
ineligible for probation under Act 161.
Cuthrell responds that the appeal is moot in light of
her subsequent resentencing in Cr. No. 03-1-1315. Both parties
concede that Cuthrell’s resentencing imposed 2 mandatory minimun
aad
** NOT FOR PUBLICATION
in WEST'S HAWAI'I REPORTS and PACIFIC REPORTER ***
term of imprisonment of one year and eight months, the precise
remedy sought by the prosecution. Moreover, both parties agree
that the prosecution's alleged errors satisfy the “public
interest” prong of the exception to the mootness doctrine
articulated in Johnston v. Ing, $0 Haw. 379, 381, 441 P.2d 138,
140 (1968). The sole determinative factor with respect to the
justiciability of this appeal is whether the prosecution’ s
alleged errors are “capable of repetition, yet evading review.”
See Life of the Land v, Burns, $9 Haw. 244, 250-51, 580 P.24 405,
409 (1978) (quoting Johnston, $0 Haw. at 361, 441 P.2d at 140).
upon carefully reviewing the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we dismiss the
present appeal as moot for the following reasons:
(2) State vy. Walker, 106 Hawai'i 1, 3.1.5, 9-10, 100
P.3d 595, 597 n.5, 603-04 (2004), and State v. Smith, 103 Hawai'i
228, 234, @1 P.3d 408, 414 (2003), already decided the precise
issue raised by the prosecution's first point of error.
In Smith, “[w]e h[e}1d that, in all cases in which HRS
§ 106-606.5 is applicable, including those in which a defendant
would otherwise be eligible for probation under HRS § 706-622.5,
the circuit courts must sentence defendants pursuant to the
provisions of HRS § 706-606.5.” 103 Hawai'i at 234, 81 P.3d at
a4.
Effective July 1, 2004, the legislature amended Act
161, § 3, by then codified as HRS § 706-622.5. See 2004 Haw.
Sess. L. Act 44, $§ 11(1)-(2) and 33 at 214, 227. In our
+*4 NOT FOR PUBLICATION
in WEST’ S HAMAI'I REPORTS and PACIFIC REPORTER
November 4, 2004 published opinion in Walker, we considered the
effect of Act 44 upon the Smith rule. We concluded (1) that
‘smith remains congonant with the legislature's stated purposes in
amending HRS § 706-622.5, and (2) that, in any case, Act 44 does
not apply retroactively to any “cases involving ‘rights and
duties that matured, penalties that were incurred, and
proceedings that were begun, before [the] effective date [of Act
441," Lee., duly 1, 2004.” 106 Hawai'i at 3 n.5, 9-10, 100 P34
at 597 n.$, 603-04 (brackets in original) (citing HRS § 1-3
(2993) (*No law has any retrospective operation, unless otherwise
expressed or obviously intended.”)).
In sum, the primacy of HRS § 706-606.5 vis-a-vis HRS
§ 706-622.5 has been established.
(2) Tt can hardly be said that the question of which
statute takes precedence “evad(es] review." This court has
already disposed of all of the related appeals thet Cuthrell
cites. State v. Nakano, No. 25542, at 1-2 (Haw. Jan. 18, 2005)
(S00); State v. Dias, No. 25705, at 2 (Haw. Feb. 18, 2004) (S00);
State v. Anguay, No, 25341, at S-6 (Haw. Feb. 11, 2004) (S00).
(3) The question whether the circuit court erred in
determining that Cuthrell was “non-violent” for purposes of
eligibility under Act 161 is similarly moot. First, Act 44,
§ 11(1) amended HS § 706-622.5(1) so as to eliminate the
automatic disqualification of those convicted of a prior “violent
felony” within five years of the instant offense. In other
words, the prosecution seeks this court’s interpretation of
defunct statutory language. Moreover, the prosecution has not
‘*#* NOT FOR PUBLICATION
4n WEST'S HAWAI'I REPORTS and PACIFIC REPORTER ***
shown that the unique circumstances of Cr. No. 98-0-2078 as
alleged by the prosecution -~ that Cuthrell “scratchied), bit),
land] kick(ed]” a security guard and told somebody she had
AIDS ~~ will “Likely” recur in future cases where probation is an
option. Therefore,
IT IS HEREBY ORDERED that the appeal is dismissed
as moot.
DATED: Honclulu, Hawai'i, August 9, 2006.
On the briefs:
Loren J. Thomas,
Deputy Prosecuting Attorney,
for the plaintiff-appellant
State of Hawai'i Shea Horlomin
Phyllis J. Hironaks,
Deputy Public Defender, Deseetin CoP cuaorey aes
for the defendant appellee
sera su Satna ge
Bon. Rutty Qh.
|
eaf5a04b-38c7-4eb4-a5c7-b8687188f76a | Kekona v. Abastillas. ICA mem.op., filed 06/08/2006 [pdf], 111 Haw. 203. ICA Order Denying Defendant-Appellant and Cross-Appellee Michael Bornemanns Motion for Reconsideration, filed 06/22/2006 [pdf]. ICA Order Denying Defendant-Appellant and Cross-Appellee Robert A. Smiths Motion for Reconsideration, filed 06/22/2006 [pdf]. S.Ct. Order Accepting Petitioner Michael Bornemann, M.D.s Application for Writ of Certiorari, filed 08/07/2006 [pdf]. S.Ct. Order Rejecting Petitioner Robert A. Smiths Application for Writ of Certiorari, filed 08/07/2006 [pdf]. S.Ct. Order Rejecting Petitioner Paz F. Abastillas Application for Writ of Certiorari, filed 08/07/2006 [pdf]. S.Ct. Order Denying Motion for Reconsideration, filed 10/31/2006 [pdf], 112 Haw. 436. | hawaii | Hawaii Supreme Court |
LAWL
‘+++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
000:
ee
BENJAMIN PAUL KEKONA and TAMAE M. KEKONA,
Plaintiffs-Appellees, Cross-Appellants, Respondents,
PAZ FENG ABASTILLAS, also known as Paz A. Richter,
defendant-Appellant, Cross-Appellee, Respondent-Petitioner,
and
ROBERT A SMITH, Attorney at Law, a Law Corporation, Defendant-
‘Appellant, Czoss-Appellee, Respondent-Petitioner,
and
STANDARD MANAGEMENT, INC., and WESTERN SURETY COMPANY,
Defendants-Appellants, Cross~Appellees, Respondents,
and
MICHAEL BORNEMANN, M.D.»
Defendant-Appellant, Cross-Appellee, Petitioner-Respondent,
and
U.S. BANCORP MORTGAGE COMPANY, an Oregon Company; JOHN DOES 1-10;
DOE CORPORATIONS 1-10; AND DOE ENTITIES 2-10, Defendants.
NO. 24052 z 8
Rs
CeRrronART 70 THE INTERMEDIATE couRT oF aPeEaBE RE
(CIV. NO, 93-3974) is 2 a
ks 2 8
SEPTEMBER 26, 2006 a »
MOON, C.J., LEVINSON, NAKAYAMA, AND DUFFY, JJ.,
AND CIRCUIT JUDGE LEE IN PLACE OF ACOBA, J., RECUSED
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER **¢
77 BOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***_
OPINION OF THE COURT BY NAKAYAMA, J.
The present matter involves three applications for
k.a. Paz A.
writs of certiorari filed by Paz Feng Abastillas,
Richter [hereinafter “Abastillas”], Robert A. Smith [hereinafter
“smith”], and Michael Bornemann, M.D. [hereinafter “Bornemann"].
Abastillas, Smith and Bornemann appeal from the Intermediate
Court of Appeals’ [hereinafter “ICA"] June 8, 2006 memorandum
opinion [hereinafter “the ICA’s opinion”) partially affirming and
partially vacating the first circuit court’s February 26, 2001
"Amended Revised Final Judgment.”
Wie accepted certiorari to address the following
arguments presented by Bornemann’s application:! (1) the ICA
gravely erred by permitting 2 $594,000 award of punitive damages
after vacating the only actual damages awarded against him; (2)
the ICA gravely erred by rejecting the overwhelming majority view
requiring proof of a fraudulent transfer by clear and convincing
evidence; (3) the ICA gravely erred by ruling that the Kekonas
could obtain both reconveyance and damages for the alleged
fraudulent transfers; and (4) the ICA gravely erred by ruling
that the legislature's enactment of the Uniform Fraudulent
‘Transfer Act [hereinafter “UFTA") abrogated this jurisdiction's
preferential transfer doctrine.
Based upon the following analysis, we conclude that the
5, The epplications filed by Abastillas and Smith fail to present
this court with any cognizable legal argument, demonstrating either (g)rave
errors of law or of fact” or “[oJbviove inconsistencies in the Secision of the
(ICA] with that of the suprene court, federal decisions, er ite own decision.”
We decline to grant then.” See 2006 Haw. Sess. 2. Act 143, § 1 (amending
Hawai'i Revised Statutes [hereinafter “HRS"] § 602-89 (Supp. 2005) “(effective
sely 1, 2006))
1+ FOR PUBLICATION IN WEST'S HAWAl! REPORTS AND PACIFIC REPORTER.
ICA erred by holding that a fraudulent transfer may be proved by
a “preponderance of the evidence.” Accordingly, we remand the
case for new trial consistent with this opinion.
1. BACKGROUND
on May 25, 1993, Benjamin P. Kekona and Tamae M. Kekona
[hereinafter “the Kekonas”] obtained a substantial jury verdict
against Abastillas, Smith, and Standard Management, Inc.
{hereinafter “SMI”], a corporation wholly owned by Abastillas.
on May 26, 1993, a quitclaim deed -- transferring Abastillas’
interest in real estate described as Unit #1809, Honolulu Park
Place, 1212 Nuuanu Avenue, Honolulu, Hawai'i [hereinafter “the
HPP property”) to Bornemann -- was recorded at the Bureau of
conveyances [hereinafter “BOC”. Subsequentiy, on June 1, 1993,
the following two quitclaim deeds were recorded at the BOC: (1)
a quitclaim deed transferring the interest of SMI and Robert A.
smith, Attorney at Law, a Law Corporation [hereinafter “RASCORP”]
in real estate described as 47-186 Kamehameha Highway, Kaneohe,
Hawai‘ (hereinafter “the Kaneohe property") to Abastillas; and
(2) @ quitclaim deed transferring Abastillas’ interest in the
Kaneohe property to Bornemann.
on October 13, 1993, the Kekonas filed a complaint
alleging, inter alia, tha’
were fraudulent, in violation of HRS chapter €51C; (2)
(1) the aforementioned conveyances
Abastillas, Smith, Bornemann, SWI, and RASCORP engaged in a civil
conspiracy to commit fraudulent conveyances; and (3) Abastillas
and Smith illegally notarized each other’s signatures on the
instruments executing the aforementioned conveyances.
)R PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
Following trial,? the jury returned a special verdict
form on May 21, 1999.
With respect to the Kekonas’ fraudulent conveyance
claim, the jury made the following findings by a preponderance of
the evidence: (1) Abastillas, RASCORP, and SMI transferred the
Kaneohe property with the actual intent of hindering, delaying or
defrauding the Kekonas; (2) Bornemann did not receive the Kaneohe
property in good faith and for reasonably equivalent value; (3)
Abastillas transferred the HPP property with the actual intent of
hindering, delaying or defrauding the Kekonas; and (4) Borneman
did not receive the HPP property in good faith and for reasonably
equivalent value. In connection with the fraudulent transfers of
the Kaneohe property, the jury assessed the following damages:
(2) $29,064.00 in special damages and $17,436.00 in general
damages against Abastillas; (2) $6,000.00 in special damages and
$3,600.00 in general damages against RASCORP; and (3) $156,564.00
in special damages and $93,936.00 in general damages against Mz.
In connection with the fraudulent transfer of the HPP property,
the jury assessed $15,128.00 in special danages and $9,076.00 in
general damages against Abastillas.
With respect to the Kekonas’ conspiracy claim, the jury
found, by clear and convincing evidence, that (1) Abastillas,
Smith, RASCORP, SMI and Bornemann conspired to fraudulently
transfer the Keneche property, and (2) Abastillas, Snith, and
Bornemann conspired to fraudulently transfer the HPP property.
‘The jury assessed $100,000 against Abastillas, Smith, RASCORP,
+ the Honorable Rhonda A. Nishimure presided.
4
+++ FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER,
SMI and Borneman, jointly and severally, in connection with
their conspiracy to fraudulently transfer the Kaneohe property.
‘The jury asseased another $100,000 against Abastillas, Smith, and
Borneman, jointly and severally, in connection with their
conspiracy to fraudulently transfer the HPP property.
With respect to the Kekonas’ illegal notarization
‘Glaim, the jury found, by a preponderance of the evidence, that
Abastillas and Smith engaged in official misconduct relating to
the acknowledgnent of deeds to the Kaneohe and HPP properties.
The jury assessed the following damages: (1) $95,500.00 in
special damages and $57,300.00 in general damages against
Nastillas; and (2) $95,500.00 in special damages and $57,300.00
in general damages against Smith.
Finally, the jury found that Abastillas, Smith,
RASCORP, SMI, and Bornemann were each Liable for $250,000.00 in
punitive damages.
on duly 12, 1999, the circuit court filed a judgment
reflecting the damages awarded in the May 21, 1999 special
verdict form. The judgment also “vacated, cancelled and set
aside as fraudulent and of no force or effect” the following
deeds: (1) that certain quitclaim deed dated May 14, 1992 and
recorded in the BOC as Document No. 93-084805 on May 26, 1993,
pertaining to the HPP property: (2) that certein quitcleim deed
dated June 9, 1992 and filed with the Assistant Registrar of the
Land Court of the State of Hawai'i as Document No. 2029945 on
June 1, 1993, noted on Transfer Certificate of Title No. 342,305,
pertaining to the Kaneohe property; (3) that certain quitclaim
deed dated May 27, 1993 and filed with the Assistant Registrar of
*** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
the Land Court of the State of Hawai'i as Document No. 2029946 on
June 1, 1993, noted on Transfer Certificates of Title No. 342,305
and/or 414,762, pertaining to the Kaneohe property? (4) that
certain confirmatory quitclaim deed dated October 25, 1993 and
filed with the Assistant Registrar of the Land Court of the State
of Hawai'i as Document No. 2080638 on October 27, 1993, noted on
Transfer Certificates of Title No. 342,305, 424,555, and/or
417,762, pertaining to the Kaneohe property; and (5) that certain
quitclain deed dated October 25, 1993 and filed with the
Assistant Registrar of the Land Court of the State of Hawai't as
Document No. 2080639 on October 27, 1993, noted on Transfer
Certificates of Title No. 424,555 and/or 424,556, pertaining to
the Kaneohe property.
on July 22, 1999, Abastillas, Smith, RASCORP, and SMI
filed motions for a new trial, to vacate the judgment, and for
judgnent notwithstanding the verdict. Bornenann also filed a
motion for new a trial on July 22, 1999.
‘The circuit court denied the motions filed by
Abastillas, Smith, RASCORP, and SMI on September 2, 1999.
On October €, 1999, the circuit court filed an order
denying Bornemann’s motion for a new trial. However, despite
denying Bornemann''s motion, the court concluded that the jury's
award of punitive damages was excessive and ordered a new trial
to determine 2 more appropriate amount:
1. The motion for a new teial be and is hereby dented
averded'as conpireey dosages be and in bereby eanieds
fgeinst[Rocnesann] in Genieds owevers the Court finde thet, the
punitive canages sesesved egeinst. [Borneman] in the amount of
5250, 000.00 was excessive and hereby reduces the amount of
punitive dineges to $75, 000-00.
FOR PUBLICATION IN WEST'S HAWAM REPORTS AND PACIFIC REPORTER **
4, There shall be @ new trial solely on the question of
punitive danages awarded to. [the Kekonas] against (Borneman)
Unless, within seven (7) calendar days after service of « copy of
this order on [the Kekonas'] attorney, [the Kekonas] file with the
Clerk of the court a written consent to reduce the verdict to
$78,000.00 for punitive damages awarded to [the Kekonas] against
iBornenann)«
Following the new trial,” the jury found Bornemann
liable for $594,000.00 in punitive damages. The circuit court
thereafter filed a “Revised Final Judgment” on November 30, 2000,
and an “Amended Revised Final Judgment” on February 26, 2001.
‘The ensuing appeals and cross-appeal, which were
assigned to the ICA, presented the following points of error:
1, Rbastiilaey SHI, Saith, RASCORP, and Ors
Bornenann contend that the cixcuit court reversibly erred by
Eneeructing the jury thet fraudolent transfere could be proven by
a preponderance of the evidence. They contend that clear and
Convincing evidence should have been required
Zi Rbastillasy SMI, Smith, RASCORP, and Or.
Bornenann contend that the circeit court reversibly erred (a) in
holding thet the conmon law “preferential transfer™ rule was
abrogated by HRS 6sic-8 (1993), and. (b) in not instructing the
Jorgite consider the comon in “preferential tranafes™ rule as «
Gefense.
3. Notwithstanding their agreement to this
Anstruction, Abastillas, SMI, Seith, and RASCORP contend that the
circuit court reversibly erred when it instructed the Jury that
Sproof of slight connection to conspirecy ie sufficient to support
such accountability(.]"
‘.. Abastillas, SMI, Smith, and RASCORP contend that
the circuit court reversibly erred when it failed to grant their
notions for summary judgnent, directed verdict, or new tris) on
Count Iv, the Fekoraa’ illegal notary claim. (Western Surety
Conpany! contends that the circuit court reversibly erred in
Genying partion sumary sudgnent, directed vergict, oF SNOV en
fount Iv
5, _ Notwithstanding thely agreement st trial to
these instructions, Abastillas, SMI, Snith, RASCORF, and Or.
Borneman contend that the circsit Court erred by giving the
Conspiracy instructions because “the vast majority of cases [from
Sther jeriedictions) . . , have refused to allow conspiracy
Sction® for fraudulent transfer(; when) there is no tort, there
can be no conspsracy(=]”
. Abastillas, SHI, Smith, RASCORP, and Dr.
Borneman contend that the circuit court’ reversibly erred in
>the Honorable Victoria S. Marks presided.
7
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
refusing, post~judgnent pursuant to 2 Hawas' Rules of Civil
Procedure Rule 60(b) notion, (a) to reduce the Kekonas’ judgment
to the statutory limits specified in HRS § 651C-7, and (b) to
vacate the general, conspiracy, and punitive danages awarded.
3." The Kekonas contend that "(t)he trial court
erred and abused ite discretion in awarding the Retones only
52,000 in damages against. (W irety Company), where the
special, ‘general and punitive a ‘caused by the wrongful
notarizatione of Smith and Absstilias excesded $1,000,000."
8. Or, Borneman contends that the circuit court
reversibly erfed by forcing Dr. Bornenann, during the second jury
Erlal, "to present his entire defense during his crose-exanination
in the plaintief's case.”
The ICA’s opinion at 16-17. (Some brackets added and some in
original.) (Ellipses in original.)
On June 8, 2006, the ICA filed @ memorandum opinion
rejecting the foregoing points of error. The ICA affirmed the
circuit court's February 26, 2001 “Amended Revised Final
Judgnent,” except that it vacated (1) the $100,000.00 avard of
general danages assessed jointly and severally against
Abastillas, Smith, SMI, RASCORP, and Bornemann in connection with
their conspiracy to fraudulently transfer the Kaneohe property,
and (2) the $100,000.00 award of general damages ass
and severally against Abastillas, Smith, and Bornemann in
connection with their conspiracy to fraudulently transfer the HPP
sed jointly
property, inasmuch as those damage awards were not supported by
evidence in the record.
on July 12, 2006, ornenann filed an application for
writ of certiorari. Smith filed an application for writ of
certiorari on July 17, 2006. The ICA filed a judgment on appeal
fon July 18, 2006. ‘Thereafter, on July 24, 2006, Abastillas filed
her application for writ of certiorari.‘
< uawai'i Rules of Appellate Procedure [hereinafter “ERAP*) Rule
40.1(a) (2006) permite « party to apply for a weit of certiorari "[n]o later
(cont inves.
FOR PUBLICATION IN WEST'S HAWAM REPORTS AND PACIFIC REPORTER,
IX, STANDARD OF REVIEW
‘The appropriate standard of review is set forth in 2006
Haw. Sess. L. Act 149, $ 1, as follows:
(a) After iseuance of the interrelate appellate court’ s
judgment or disnissel order, 8 party review of the
[necrmesiate appellate court's decision and judgnent or dismissal
rect only by application to the supreme court for a writ of
Certiorari, the acceptance or rejection of which shail be
Siueretionory upon the ruprene courts
(ol the appiicetion for writ of certiorari shall tersely
state its grounds, which shall include
(i) “Grave errors of Law or of facts oF
{2} Sbeious inconsistencies in the decision of th
Gntermediate appellate court with that of the supreme
court, federal decisions, oF its own decision,
land the magnitude of those errors or inconsistencies dictating the
heed for farther appeal
III, DISCUSSION
A, Punitive Damages
Rornemann first contends that punitive damages are not
allowable where there is insufficient evidence of actual
compensatory damages.
‘his court has stated generally that punitive damages
are “assessed in addition to compensatory damages for the purpose
of punishing the defendant for aggravated or outrageous
misconduct and to deter the defendant and others from similar
conduct in the future.” Masaki v. Genera] Motors Corp., 71 Haw.
1, 6, 780 P.2d 566, 570 (1989). Borneman relies on that portion
of the foregoing statenent that reads “in addition to
compensatory damages” for the proposition that compensatory
*(,, continues)
then $0 dave iter the filing of the intermediate court of appesis’ judgment
ce oppeal (21"" tiephasis added.) Although Sornenann and Smith filed prenature
sefestidas, we nevertheless entertained them inasmuch a8 (1) the Ich filed
{EE juconent on appeal before we filed an order dismissing the application
Witnuerpresudices and (2) we are presently in receipt of Abastsiles’
Gpplication, which was tinely filed.
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
damages are a necessary prerequisite to an award of punitive
damages. That intezpretation misconstrues the aforequoted
language. :
The purpose behind requiring actual damages, prior to
the inposition of punitive damages, is to ensure that the
____plaint
california Court of Appeals,
tiff has established a claim for relief. As noted by the
that the defendant ust
tortious act Before exemplary damages can be. ae:
Topanga Corp, v. Gentile, 249 Cal.App.2d 681, 691-92, 58
Cal.Rptr. 713, 719 (Cal. Ct. App. 1967) (citations omitted).
Other jurisdictions have also identified the
establishment of a claim for relief as the trigger authorizing an
assessment of punitive danages, insofar as (1) the establishment
of a claim entities a plaintiff to nominal damages, and (2) an
award of nominal damages satisfies the “actual damages”
requirenent that serves as a prerequisite to an award of punitive
damages. See Hawkins v. Hawkins, 400 $.£.2d 472, 474 (N.C. Ct.
App. 1991) (“Once @ cause of action is established, plaintiff is
entitled to recover, as a matter of law, nominal damages, which
in turn support an award of punitive damages. . . . Therefore,
the failure of the plaintiff to actually receive an avard of
either nominal or compensatory damages is inmaterial.”)
(Emphasis in original.); Ault v. Lohr, $3€ So.2d 454, 455 (Fla.
1989) (concluding that “a jury finding of liability is the
equivalent of finding nominal damages and, consequently, the jury
10
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may assess punitive damages.”);* Maring-Crawford Motor Co. Vv.
mith, 233 $o.2d 484, 492 (Ala. 1970) (*[AJn award of nominal
damages authorizes, in the discretion of the trier of fact, the
and a
award of punitive damages where legal malice, willfulne
reckless disregard accompanies the invasion of the rights of
another.").
Hawai'i law is in accord. We have previously described
nominal damages as “a token” and “a symbolic award,” see Zanakis-
Pico v. Cutter Dede, Inc., 98 Hawai'i 309, 329, 47 P.3d 1222,
1242 (2002), and that “nominal damages . . . may be a basis for
punitive danages in fraud actions, because the aim of punitive
damages is to punish the defendant, rather than to compensate the
plaintiff.” Ida at 330, 47 P.3d at 1243 (citations onitted); sce
also Meinbera v. Mauch, 78 Hawai'i 40, 51, 890 P.2d 277, 268
(1995) ("The circuit court correctly recognized that, in general,
punitive damages can be based on nominal damages only.”)-
Accordingly, i£ nominal damages may serve as a basis for punitive
damages, then the establishment of liability must logically
constitute a sufficient basis for assessing punitive danages.
‘Therefore, the ICA did not err by vacating the actual
damages avarded against Bornenann, while simultaneously affirming
the avard of punitive damages, insofar as the ICA did not vacate
== and thus it implicitly affirmed -- Bornemann’s underlying
Liability for conspiring to fraudulently transfer the Kaneohe and
HPP properties.
In Zanakig-bico v. Cutter Podge, Ines, 98 Hawai'i 209, 390 n.4, 47
p.3d 1222, 284 ned (2002), we cited Bulk with approval for the proposition
that a finding of Liability elone will sopport a punitive danage award, even
absent a compensatory danage award.
n
1+ FOR PUBLICATION IN WEST'S HAWAH REPORTS AND PACIFIC REPORTER *#*
‘The “Clear and Convincing Evidence” Standard of Proof
Bornemann next contends that the ICA erred by holding
that a fraudulent transfer need only be proved by a
“preponderance of the evidence,” inasmuch as a “clear and
convincing evidence” standard of proof was requir
Wie have previously discussed the various burdens of
proof as follows:
‘The law has evolved three standards of levels of proof
for different types of c ‘in most civil proceedings,
such as a case involving a monetary dispute between privat
Parties, the plaintiff mst show by s “preponderence of the
Svidence” that his or her claim is velia. Under the
Breponderance standard, the parties share the risks of an
Srroneous verdict in roughly equal fashion, (Addingten vw.
Texas, €42'0.S. 416,] 423, 98 8.ce. [1804,] 1808, 6) L.ba-24
[323;] 329 [(1973)] The’ preponderance standard’ directs the
factHinder to decide whether "the existence of the contested
fact ig more probable than its nonexistence.” £. Cleary,
NoCormick on Evigence § 339, at 987 (3d ed.i984). As one
commentator points ost, to prevail, “(a plaintift need only
offer evidence sufficient to tip the scale slightly in his
or her favor, and a defendant can succeed by merely keeping
‘the scale evenly belanced.”” Comment, The Innosition of
five Ds
Esnnsvivania, 57 Temp. L.0, 203, 224 (1564)
At the other end of the spectrum, in criminal
proceedings, the government. is required to prove ite cat
Seeyond 2 reasonable doubt.” Soesety has judged that it ss
significantly worse for an innocent [person] to be found
gulity of a Crime than for a guilty [person] to go free.
Therefore, a stated by the Suprene Court, "[w]here one
party has at stake an interest of transcending valuer-ss &
Griminal defendant his [or her] liberty--this margin of
error is reduced as to him by the process of placing on the
ther party the borden... of persuading the foctfinder st
the conclusion of the trial of his guilt beyond s reasonable
Goubt." Soeiser v. kendall, 357 U.S. 513, $15-26{,) 78
S.ct. 1332, 13411,1 2 L.bs-26 1460, i672 (2958)) 28 alec
Addington, ‘442 U.8. at 423-24, 99 §.ce. at 1808, 60 L-8d.26
ae 323.
The level of proof between these tho extremes is that
of “clear and convincing” evicence:
Thos, “clear and convincing” evidence may be define
an intermediate standard of proof greater than a
Prependerance of the evidence, bur less than proof beyond &
12
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reasonable doubt required in criminal cases, Tt is that
Elgree of proof which will produce in the mind of the trier
of fact a firm belief or conviction as to the allegatior
Sught to be established, and requires the existence of &
fact be highly probable.” See Nelson v, Gallaaher, 2
Aowcapp. 242, 205-46, €30 Brad 1077, 1081 (1881), Bud Molt
Shesrelet, Ihe, vw. Robertson, $19 N.E.24 135, 138
(ina-i986}7 MeCormick, gupta, $ 240 at 959-60.
fe de15, 780 F.2d at 574-75.
Second, we are also
‘allegations of fravd, quasivcriminal wrengaeing,
Inposition of punitive damages, a suit based on a covenployes's
SURifal ene wanton misconduct” may have a stignatizing effect on @
Co-enployes defendant's reputation. The clear and convincing
Standard would ameliorate this risk. As we have previously noted,
the elesr and convineing standard
Ls typically used in civil cares involving allegations of
Etaud or some other goaei-criminal wrongdoing by the
Gitencant. "The interests at stake in those cases are deened
Eoibe more substantial than mere loss of money and sone
Jurisdictions accordingly reduce the risk to the defendant
2fhave Isic) nse [or net) reputation tarnished erronecusly
by increasing the plaintift’s burden of proof.
Ad. at 15, 780 P.2¢ at S74 (citation and internal quotation marks
Saieted)." Sinslariy,
1F and convincing proof ie a standard frequently
‘ivil cases where the wisdon of experience has
Genonst (G for greater certainty, and where this
high standard is required to sustain cleime which have
Serious social consequences or harsh or fer reaching effects
én individuals to prove willfel, wrongful and unlawful acts
£ jusedzy an exceptional judicial remedy.
So, in a number of cases where an adverse presumption
is to be overcone, oF on the grounds of public pelicy and in
view of peculiar facilities for perpetrating injustice by
Fraud or perjury, the degree of proof required is expressed
in such terms ae’ "clear and convincing” and the phrase
Srependerance of the evidence” has been expressly
Glsapproved as an insufficient measure of the proof
required
Iddines v. Mee-Lee, 82 Hawai'i 1, 13-14, 919 P.2d 263, 275-76
(citations omitted) (some brackets added and some in
of a “monetary dispute between private parties,” thus sugg
(ellipses in original).
At first glance, the present matter appears to consist
cing
33
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that a “preponderance of the evidence” standard is sufficient.
However, we believe that the higher protections afforded by the
“clear and convincing” standard of proof were necessary inasmuch
as a finding of Liability for a fraudulent transfer produces the
reputational harm that should not be inflicted absent the “degree
of proof which will produce in the mind of the trier of fact a
firm belief or conviction as to the allegations sought to be
established{.)" Indeed the elenent of fraud connotes dishonesty
and effectively brands the liable defendant with an imprimatur of
quasi-criminality.
‘The ICA, when it approved a “preponderance of the
evidence” standard, relied upon United States v. Ayala, 107 B.R.
271 (Bankr. B.D. Cal. 1989). There, the United states Bankruptcy
Court for the Eastern District of California concluded that a
“preponderance of the evidence” standard was appropriate despite
the presence of a “fraud element.” Id. at 274. The court
reasoned that “the [Bankruptcy] Code [did] not state a level of
Proof necessary, {and} that in the face of this silence, (clourte
may not imply a higher standard than the preponderance standard
normally applied in civil proceedings.” Id, However, the avala
Court's reasoning is at odds with that of many other
jurisdictions that have expressly required that a plaintiff prove
a fraudulent transfer by “clear and convincing evidence.” See,
S.a., Blood v, Nofzincer, 834 N.£.2d 358, 367-68 (Ohio Ct. App.
2005); Parker v. Parker, 681 N.W.2d 735, 742 (Neb. 2004); McCain
Is Us ocessors, Inc., 61 P.3d 68, 77 (Kan.
2002); Bradford v, Bradford, 993 P.2d 887, 891 (Utah Ct. App.
1999); Gerow v, Covill, 960 P.24 55, 62 n.8 (Ariz. Ct. App.
au
‘OR PUBLICATION IN WEST'S HAWAM REPORTS AND PACIFIC REPORTER ***
1998); Farrell v. Farrell, 650 A.2d 608, 611 (Conn. Ct. APP.
1994); Jensen v. Eames, $19 P.2d 236, 239 (Utah 1974); Mohar vs
McLelland Lumber Co., $01 P.2¢ 722, 726 (Idaho, 1972)? Orsen v.
Siecle, 165 P.2d 990, 994 (Or. 1946).
Moreover, this court has repeatedly required proof by
“clear and convincing evidence” with respect to other fraud~
related clains. See, e.g., Schefke v. Relial lect i
Agency, Ltd, 96 Hawai'i 408, 431, 32 P.3d $2, 75 (2001)
(**{Flraud on the court under Rule 60(b) must be established by
clear and convincing evidence[.)”) (Citing Madonna v. United
States, 878 F.2d 62, 65 (2d Cir. 1989).) (Brackets in
original.); Shoppe v, Gucci America, Inc,, 94 Hawai'i 368, 386,
14 P.3d 1049, 1067 (2000) (stating that a party alleging
fraudulent misrepresentation must establish its elements by
“clear and convincing evidence”); Kana v. Harrington, 59 Haw.
652, 656-57, 587 P.2d 285, 289 (1978) (“In dealing with written
contracts, the standard of proof with respect to a showing of
fraud is extremely high. A written contract will be cancell
because of fraud only in a ‘clear case and upon strong and
‘convincing evidence.’”) (Citing Soares v. Freitas, 38 Haw. 64,
65-66 (1948).).
‘Therefore, we conclude that the ICA gravely erred when
it determined that a “preponderance of the evidence” standard was
sufficient. Insofar as the fraudulent transfers have not been
sufficiently proved, the circuit court’s cancellation of certain
quitclaim and confirmatory deeds must be vacated. Furthermore,
Anasmuch as neither party takes issue with the circuit court’s
instruction that the jury must find that the transfers were
as
‘++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER +4
fraudulent in order to find a civil conspiracy, we also vacate
Bornemann’s liability for conspiring to commit fraudulent
transfers. Absent liability for the conspiracy claim, there is
no basis for the $594,000 punitive damage award. See discussion
supra at Part IITA.
Cc. Standing
Bornemann’s third point of error asserts that damages
for fraudulent transfer are not warranted where reconveyance is
ordered and the value of the property is sufficient to satisty
the underlying judgment.
As previously mentioned, the jury assessed the
following damages against Bornemann: (1) $100,000 general
damages in connection with a conspiracy to fraudulently transfer
the HPP property; (2) $100,000 general damages in connection with
‘@ conspiracy to fraudulently transfer the Kaneohe property; and
(3) $594,000 punitive damages in connection with his conspiracy
to transfer the HPP and Kaneohe properties. However, the ICA
vacated both $100,000 general damage assessments. Accordingly,
Bornemann may not argue before this court that the general
damages awarded were not authorized. See State v. Baxley, 102
Hawai'i 130, 134, 73 P.3d 668, 672 (2003) ("An aggrieved party
has been defined by this court in a civil context as ‘one who is
affected or prejudiced by the appealable order."") (Citing
Waikiki Malia Hotel, Inc, v. Kinkai Properties, Ltd., 75 Haw.
370, 393, 862 P.2d 1048, 1061 (1993).) (Emphases added.) .
any opinion as te the accuracy of this
Se do not, however, expr:
jury instruction:
16
HAWAII REPORTS AND PACIFIC REPORTER *
FOR PUBLICATION IN WES’
¢ Preferential Transfer Rule
Bornemann, in hie fourth and final point of error,
contends that HRS chapter 651C does not expressly dispense with
the preferential transfer rule,’ and thus the preferential
transfer rule survived the legislative enactment of the UFTA.
Preliminarily, we note that part of the confusion is
engendered by Bornemann’s characterization of the ICA's
conclusion. The ICA did not conclude that the UFTA “abrogated”
the preferential transfer rule, as Borneman avers, insofar as
the use of that term connotes that the underlying concept of a
preferential transfer no longer exists." Rather, the ICA held
that the Hawai'i UFTA “replaced,” or superseded, the preferential
transfer rule.’
A fair reading of HAS § 6510-4 indicates that not all
transfers by a debtor are fraudulent. Thus, a transfer of
property to 2 preferred creditor is not, in and of itself,
>the preferential transfer rule, as pronounced by this court in Ia
re Application of Sec. Inve Cou, 33 Haw. S6¢ (1935), 18 25 follows
[at is not fraudulent for a debtor in failing circumstances to
hrefer one or more of his bona fide crecitors to the exclusion of
Ether creditors, he having a Legal right, although insolvent or én
failing circumstances, to prefer one of ore of his creditors by
Giving security for and limited to the enount of his valid debt
Soteitnetanding thet the claims of other creditors will thereby be
Gelayed oF defeated; that such preference slthough it may exhaust
Of seduce the sssets of the debtor so as to leave other creditors
Gepaid and without the meane of collecting their claims does not
oiiesel? hinder, delay er defraud creditors within the meaning of
@ feaudslent conveyance to ceprive them of any legal rights
Ia. at 368
‘see Black's Law Dictionary 7 (@th ed. 200¢) (stating that the term
“abrogate” sears “[t]o abolish (a law or custom) by formal or authoritative
action; to annul or repeal.)
sto “eupersede” means “[t]o annul, make void, or repeal by taking the
plece of.” Bisck'e Law Dictionary 1479 (8th ed. 2008)
vv
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fraudulent. Such a “preferential transfer” does not earn the
title “fraudulent” unless it falls within the scope of either HRS
§ 6510-4 or HRS § 651C-5. Accordingly, we generally agree that
the concept of a preferential transfer has not been “abrogated”
by HRS chapter 651C.
Wie do not, however, accept Bornemann’s subsequent
assertion that preferential transfers are not fraudulent;
regardless of the presence of actual fraudulent intent. HRS §
651C-4(a) (1) perspicuously states that “{a] transfer made. .
by a debtor is fraudulent as to a creditor . . . if the debtor
made the transfer . . . {wJith actual intent to hinder, delay, or
defraud any creditor of the debtor[.)” (Emphasis added.) Thus,
Bornemann’'s contention that the presence or absence of “actual
intent” is irrelevant directly contradicts the plain language of
the statute.
In sum, although Hawaii’s UPTA does not preclude
preferential transfers per se, if the preferential transfer was
made with “actual intent to hinder, delay, or defraud any
creditor” the transfer will be deemed fraudulent. Accordingly,
Bornemann’s present point of error is inapposite.
IV. coNcLUSION
Based upon the foregoing, we conclude that the ICA
gravely erred by holding that a plaintiff need only prove a
fraudulent transfer by a “preponderance of the evidence.”
Accordingly, we vacate the ICA's opinion to the extent that it
(2) affirms Bornemann’s liability for conspiracy to fraudulently
transfer the Kaneohe and HPP properties, (2) affirms the
$594,000.00 punitive damages award, and (3) affirms the circuit
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+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
court's cancellation of the various deeds transferring the
Kaneohe and HPP properties.
We also vacate the circuit court's February 26, 2001
~amended Revised Final Judgment” as to Bornemann, including (1)
those portions of the judgment finding Bornemann liable for civil
conspiracy to commit fraudulent transfers, and (2) those portions
of the judgment assessing the $594,000.00 punitive damages award.
We also vacate the circuit court’s February 26, 2001 “Amended
Revised Final Judgment” to the extent that it cancels the
following deeds: (a) that certain quitclaim deed dated May 14,
1992 and recorded in the BOC as Document No. 93-084805 on May 26,
1993, pertaining to the HPP property; (b) that certain quitclaim
deed dated June 9, 1992 and filed with the Assistant Registrar of
the Land Court of the State of Hawai'i as Document No. 2029945 on
June 1, 1993, noted on Transfer Certificate of Title No. 342,305,
pertaining to the Kaneohe property; (c) that certain quitcleim
deed dated May 27, 1993 and filed with the Assistant Registrar of
the Land Court of the State of Hawai'i as Document No. 2029946 on
June 1, 1993, noted on Transfer Certificates of Title No. 342,305
and/or 414,762, pertaining to the Kaneohe property; (d) that
certain confirmatory quitclaim deed dated October 25, 1993 and
filed with the Assistant Registrar of the Land Court of the State
of Hawai'i as Document No. 2080638 on October 27, 1993, noted on
Transfer Certificates of Title No. 342,305, 424,555, and/or
417,762, pertaining to the Kaneohe property; and (e) that certain
quitclaim deed dated October 25, 1993 and filed with the
Assistant Registrar of the Land Court of the State of Hawai'i as
Document No. 2080639 on October 27, 1993, noted on Transfer
as
‘+++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
Certificates of Title No. 424,555 and/or 424,556, pertaining to
the Kaneohe property.
We therefore remand the case to the circuit court for a
new trial as to (a) whether the Kekonas can demonstrate that the
transfers were fraudulent by “clear and convincing evidence,” (b)
whether the Kekonas can demonstrate, by “clear and convincing
evidence,” that Bornemann conspired to fraudulently transfer the
Kaneohe and HPP properties, and (c) the appropriate remedies to
be assessed against Borneman, if any."
Peter Van Name Esser and
Edward J. Bybee for petitioner
Michael Borneman, M.D.,
Fred Paul Benco for :
respondent Benjamin Paul ROAM Romo
Kekona and Tanae M. Kekona
on the response Bras co Ce uel iT
Goren €. Duds br»
Te E k.10. Re
ie reiterate the point thet Absstillas and Smith failed to present
any meritorious argunent in their applications for write of certiorari.
Notably, neither Abastilles nor Smith raised the insufficient standard of
proof issue in their applications to this court. It 4s fundamental that
E[gluestions not presented... will be disregarded.” ARAP Rule 40-2 (2) (1)
le do not perceive the requisite prejudice warranting a plain error analysis.
Seq HRAP Role #0-1(4) (1) ("the supreme court, at its option, may notice @
Plain error not presented.”).. Accordingly, the ICA's opinion and the circust
Court's February 26, 2001 “Amended Revised Final Judgment” ere affirmed as to
Shem
20
|
4b449d2e-7348-48c4-a998-0ba111ddfe0b | Onaka v. Onaka. S.Ct. Order Denying Motion for Reconsideration, filed 09/20/2006 [pdf]. | hawaii | Hawaii Supreme Court | AW LIBRARY
+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER **
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
-=-000-=-
vs.
ALLYSON L. ONAKA, Defendant-Appellant.
No. 24463
APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
(FC-D NO. 96-0431)
AUGUST 30, 2006
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY NAKAYAMA, J.
Allyson Lesli Onaka (hereinafter “Allyson”] appeals
from twenty-four orders of the second circuit family court’
concerning the division of property and debts. On appeal, this
court is faced with the following two issues: (1) Clarence
Shizuo Onaka’s [hereinafter “Clarence”] argument that this court
lacks jurisdiction inasmuch as Allyson’s multiple notices of
appeal were either invalid or untimely; and (2) Allyson’s
contention that the family court violated her due process right
to be present at trial by denying her motions to continue, which
were based upon her alleged inability to travel due to her
pregnancy. Although Allyson presents other points of error on
appeal, they fail to comply with the mandatory requirements of
the Hawas'i Rules of Appellate Procedure [hereinafter “HRAP”)
‘The Honcrsble Eric G. Ronsnensk presides.
"+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER **
Rule 26(b) (4). Accordingly they have not been properly preserved
for appeal and we do not address them.
Based upon the following analysis, we conclude that
Allyson's August 3, 2001 notice of appeal vested this court with
jurisdiction and that the family court did not violate Allyson’s
fe right to be present. Accordingly, we affirm the
due proc
orders appealed from.
T. BACKGROUND
A. Factual Background
Allyson and Clarence resided on Mavi and were married
on August 1, 1986. Clarence’s primary income was derived from
Tasty Crust Restaurant [hereinafter “Testy Crust], an
establishment that he purchased in August 1982. Clarence also
owned a business known as Quality Lighting and Supply Co.
(hereinafter “Quality Lighting”). Allyson managed Quality
Lighting from approximately 1989 to 1986, Allyson also helped
Clarence manage several real estate properties located in Hawai'i
and Nevada, which were acquired during the pendency of the
narriage.
In March 1996, Allyson and Clarence separated.
Allyson thereafter moved to Las Vegas, Nevada.
B. Procedural Background
On August 27, 1996, Clarence filed 2 complaint for
divorce in the second circuit family court. The court entered a
divorce decree on Decenber 30, 1999, bifurcating the proceedings
and reserving the property division issues for trial.
FOR PUBLICATION IN WEST'S HAWAMI REPORTS AND PACIFIC REPORTER
1. Allyson's motions to continue
Amidst chaotic pretrial proceedings, Allyson filed a
motion te continue trial, which was scheduled to commence on
January 20, 2000. Her initial motion, filed on November 19,
1999, requested a continuance to permit her attorneys more time
to obtain and review additional documents and potentially depose
persons identified on Clarence’s witness list. On November 29,
1999, Allyson filed a supplemental affidavit offering an
additional, more compelling reason to continue trial. Therein,
she claimed that she was pregnant‘ and that the high-risk nature
of her pregnancy made it impossible for her to travel to Hawai't
to attend trial. Allyson thus requested that the court continue
trial until after her date of delivery, approximated to occur on
May 22, 2000. The court thereafter ordered Allyson to submit to
‘an independent medical examination to verify her medical
condition.
on January §, 2000, the court conducted an evidentiary
hearing, at which Allyson’s treating physician, Dr. Richard Litt,
testified by telephone in support of Allyson’s motion, stating
that “[sJhe is @ high risk patient because of her age, the fact
that she’s had two ectopic pregnancies, one (inaudible)
resection, and she’s had some recent vaginal bleeding (inaudible)
unknown etiology[,]” and that she should “[s]tay off her feet as
much as possible, no travel, no exercise, no intercourse, no
stress, no strain, to lead as quiet time as she can until the
+ alayson's pregnancy was the result of her intimate relationship
with Willian Bernere
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER **
baby is delivered.” To the contrary, the doctor who conducted
the independent medical examination, Dr. Benjamin Berry,
testified that traveling to Hawai'i for trial during the second
trimester of pregnancy would not increase the risk of harm to
either Allyson or her unborn child. The court considered the
testimony of beth doctors, but concluded that Dr. Berry was more
credible and denied Allyson’s motion on the basis of her
pregnancy. Nevertheless, the court continued trial until
February 17, 2000, based upon Allyson’s attorney’s representation
that approximately eight-thousand pages of documents had yet to
be reviewed.”
on February 15, 2000, Allyson filed another motion for
8 continuance alleging a medical relapse and degenerating health.
She asserted that because the family court ordered her to be
Present at a pretrial conference on February 15, 2000, she
attempted to comply by traveling from Las Vegas, Nevada to Los
Angeles, California on February 13, 2000. She further alleged
that she suffered an episode of elevated blood pressure while in
transit and subsequently visited Dr. Robert Karns, a physician
located in Beverly Hills. Dr. Karns determined that she was “too
brittle” to travel, and that “(sJuch an elevated blood pressure
was consistent with preeclampsia, and could pose great danger to
both mother and child.” Also, Dr. Litt was dismayed when he
discovered Allyson’s attempt to travel to Hawai'i, and stated, by
On February 23, 2000, the court menorisiized ite oral relinge in
an “Order Granting In Fart’And Denying In Part Defendant’ s Motion Te Continue
Trial And Extend And Clarify Discovery Cutoff Filed On November 19, 1955.”
4
1+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER **
letter, that Allyson suffered from anxiety attacks, preeclampsia,
and gestational diabetes.
on February 17, 2000, the first day of trial, the
family court denied Allyson's February 15, 2000 motion te
continue, ‘The court first noted that the parties had stipulati
to the fact that Allyson was, at that time, unable to fly from
Las Vegas, Nevada to Maui, Hawai'i. However, balancing the
rights of the parties, and based upon a consideration of the
record, the court determined that trial should commence. In
order to mitigate the prejudice to Allyson, the court ordered
that she be permitted to participate de bene esse, by videotaped
deposition. Allyson nevertheless declined to take advantage of
the court's accommodation because of the alleged “dangers that
such a procedure would create for [her] and her baby.”
2. Teial
‘Trial commenced on February 17, 2000 and concluded on
February 24, 2000, without Allyson’s presence.‘
on June &, 2000, the family court filed its findings of
fact and conclusions of law. The court also filed its property
division order, inter alia, (1) awarding title and possession of
all of the marital real estate properties to Clarence, subject to
a1] indebtedness secured by the properties and owed on account of
the use and ownership thereof, (2) quashing all of the lis
pendens filed by Allyson in connection with other civil actions
filed by her, (3) ordering Clarence to assume and pay all current
Litigation °
ison’ s attorneys were present at each stage of the
++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
debts owed to his parents, Tsuneo and Nancy Onaks, and his
sister, Karen Burry-Onaks, (4) ordering Allyson to pay Clarenc
the amount of $227,178.96 for the wasting of assets belonging to
Tasty Crust and Quality Lighting, and (5) awarding Clarence
attorneys’ fees and costs based upon multiple sanctions imposed
on Allyson.*
3. Family court post-decree proceedings
on June 20, 2000, Clarence filed a motion requesting
that the family court adopt three additional findings of fact --
clarifying whether the family court adjudicated Allyson's claim
that Clarence wasted marital assets -- for the benefit of the
circuit court judge presiding over a separate civil proceeding
filed by Allyson.*
On June 23, 2000, Clarence filed a motion for fees and
costs in the amount of $262,181.15, pursuant to Hawai'i Family
Court Rules [hereinafter “HFCR”) Rule 68.7
On October 1, 2000, Clarence filed a motion to anend
the family court’s findings of fact to reflect that Allyson moved
her residence from Las Vegas, Nevada to Cedar City, Utah on
February 28, 2000.
On November 13, 2000, the family court filed three
+ on duly 7, 2000, Allyson filed a notice of appeal trom, inter
alia, the family court's June ,” 2000 Property division order, thereby
Eennencing eppea romber 23597." However, en Ganvary si, 2001, thie court
Gtenissed appeal nunber 25877 for ack of Suriaciction inassuch ea Allyaen's
Suly’5,°2000 netice of appecl, violates the autenatic stay triggered bye
bankruptey petition filed By her on June 20,2000
* Allyson fled = menorandum in opposition on July 10, 2000.
Allyson Led » nenorendim
opposition on July 10, 2000.
FOR PUBLICATION IN WES’
post-decree orders granting each of the foregoing motions
4. Bankruptcy proceedinas
Allyson filed @ petition for bankruptcy in the United
States Bankruptcy Court for the District of Utah on June 20,
2000.
Clarence thereafter filed a motion in the bankruptcy
court requesting relief from the automatic stay triggered by
Allyson's bankruptey petition. On September 20, 2000, following
a hearing held on September 5, 2000, the bankruptcy court granted
Clarence’s motion and lifted the stay for the limited purpose of
enforcing the June &, 2000 property division order.
on September 26, 2000, Clarence filed 2 complaint for
an adversary proceeding in the bankruptcy court, arguing that (1)
the obligations imposed by the June 8, 2000 property division
order were not dischargeable pursuant to 11 U.S.C. § $23(a) (15),
and (2) Allyson failed to fully and accurately disclose her
assets and liabilities, and therefore should be denied discharge
pursuant to 11 U.S.C. § 727(a) (4).
on July 11, 2001, the bankruptcy court filed an “order
Discharging Debtor.” Thereafter, on July 27, 2001, the
benkruptey court filed an order entitled, “Final Decree And Case
closed.”
on August 3, 2001, Allyson filed a notice of appeal,
+ pilysen filed her
\cond notice of appeal on Decenber 11, 2000,
\9 from these post-decree orders, thereby commencing appeal number
Tlouevers on Merch 27, 2001, this court dersesed oppeat number 23944
‘FJorisciction insofar ae Allyson’s Decenser 11, 2000 notice of
tiled in vielation of the automatic stay
** FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER.
thereby initiating the present appellate proceedings.”
On August 21, 2001, the bankruptcy court commenced a
separate, two-day trial to adjudicate whether Allysen’s debt to
Clarence was dischargeable. On September 18, 2001, the court
filed a judgment discharging Allyson’s debts to Clarence as
established in the June 8, 2000 property division order.
IX, STANDARDS OF REVIEW
A. Constitutional Questions
We review questions of constitutional law de nove,
under the right/wrong standard. See State v, Friedman, 93
Hawai'i €3, 67, 996 P.2d 268, 273 (2000) ("We anewer questions of
constitutional law by exercising our oun independent
constitutional judgment based on the facts of the case. Thus, we
review questions of constitutional law under the right/wrong
standard.”) (Quotation marks omitted.) (Citations omitted.).
B. Motions te Continue
We review @ trial court’s decision to grant or deny 2
motion te continue for an abuse of discretion. see State v,
Escobido-Ortiz, 109 Hawai'i 359, 364, 126 P.3d 402, 407 (App.
2005) ("The trial court's decision to grant or deny @ continuance
is reviewed for an abuse of discretion.”); State vs Lee, 9 Haw.
App. 600, 603, 856 F.2d 1279, 1281 (1983) (“A motion for
continuance is addressed to the sound discretion of the trial
court, and the court’s ruling will not be disturbed on appeal
+ She subsequently filed an anended notice of appeal on October 3
2001 to correct clerical errors in the august 3, 2001 notice.
5
FOR PUBLICATION IN WEST'S HAWA REPORTS AND PACIFIC REPORTER
absent a showing of abuse of that discretion.”), reconsideration
denied, © Haw. App. 660, 661 P.2¢ 767, cert, denied, 75 Haw. 51,
861 P.2d 736 (1993); State v. Gacer, 45 Haw. 478, 488, 370 P.2d
739, 745 (1962) ("The granting of a continuance is within the
discretion of the trial judge and is not reviewable except for
abuse of that discretion.”).
It ds well established that “(an abuse of discretion
occurs if the trial court has clearly exceeded the bounds of
reason or disregarded rules or principles of law or practice to
the substantial detriment of a party-litigant.” Keahole Def.
Coalition, Inc, v. Bd. of Land and Natural Res., 110 Hawai'i 419,
436, 134 P.3d 585, 602 (2006) (citations omitted).
IIT. DISCUSSION
A. Jurisdiction
Clarence contests the jurisdiction of this court to
hear the present appeal. Thus, we initially retain jurisdiction
to decide the jurisdictional issue. See State v. Bohannon, 102
Hawas's 228, 234, 74 P.3d 980, 986 (2003) ("A court always has
jurdediction to determine whether it has jurisdiction over a
particular case.”) (Quotation marks omitted.) (Citing State v.
Brandimart, 68 Haw. 495, 496, 720 P.2d 1009, 1010 (1986).
Clarence argues that Allyson is barred from pursuing
her app
insofar as: (1) this court dismissed her July 7, 2000
and Decenber 11, 2000 notices of appeal as invalid; (2) the
automatic bankruptcy stay continued until the termination of
Clarence’s adversary proceeding on September 18, 2001, thus
++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER **
xendering Allyson's August 3, 2001 notice of appeal void absent
retroactive annulment: and (3) Allyson’s October 30, 2001
Yamended notice of appeal” was filed more than thirty days after
the September 18, 2001 termination of Clarence’s adversary
proceeding and was thus untimely.
Allyson, on the other hand, argues that her first two
appeals were dismissed without prejudice based on a lack of
jurisdiction created by the automatic stay in effect during the
pendency of her bankruptcy case, and that her August 3, 2001
notice of appeal was timely under both bankruptcy law and the
applicable appellate rules. We agree.
11 U.S.C. § 362 (2000) provides, in relevant part, that
a petition filed under section 301, 302, or 303 of this title . .
comencenent of contineation «11 sof a Judicial, sdministretive
or other action or proceeding against the debtor’ that was or could
Rave been commenced before the conmencenent of the case under this
eielet]
Pursuant to the foregoing language, we dismissed two of Allyson’s
prior attempts to pursue an appeal, insofar as her July 7, 2000
and December 11, 2000 notices of appeal violated the automatic
stay.
However, despite the invalidity of her first two
notices of appeal, Allyson’s third notice of appeal, filed on
August 3, 2001, adequately vested this court with jurisdiction
gee OA C.d.5. Bankruptey $ 67 (2988) ("IT]he automatic stay
incluces a stey of the conmencenent of continuation of 3 jusicial acticn or
proceesing against the derecr that wae or could have been commences
or te recover a prepetition clain. This provision applies te
pict, regardices of whether t
‘iieellane cr-anapceliee,*]~ (Footnotes omitted.) (Enphesis eageas
10
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inasmuch as the automatic stay had been previously terminated on
duly 11, 2002.
11 U.S.C. § 362(c) provides, in pertinent part, that
(2) the stay of any other act under subsection (a) of this section
continues until the earliest of
(A) the time the case is clos
(B) the time the case is dismissed; or
concerning an tadieitusl crattave SnOen CMpteE Sate ae ae 29
ofthis titie, ihe tine a discharge je arated or deniedt |
(Emphases added.) As previously mentioned, the bankruptcy court
filed an order discharging Allyson’s debts on July 11, 2001.
That discharge terminated the automatic stay pursuant to the
express terme of 11 U.S.C. § 362(c) (2) (C).
Clarence attenpts to circumnavigate the foregoing
conclusion by asserting that the July 11, 2001 discharge was not
effective as to him insofar as his September 26, 2000 adversary
proceeding objecting to Allyson’s discharge was still pending.
He concludes that the automatic stay continued until September
18, 2001 when the bankruptcy court entered its judgment in favor
of Allyson, thereby rejecting Clarence’s objection to Allyson’s
discharge. However, Clarence’s position is untenable insofar as
an adversary proceeding is @ proceeding distinguishable from the
bankruptcy case. 11 U.S.C. § 362(c) expressly binds the life
10 Coliser on Bankruptcy 4 7003.02 (Alan N. Resnick et al. eds.,
ath ed. rev. 700€) describes the cistinction as fellows
The scversary proceeding, which is ccmmenced by filing
complaint pursuant to Bankruptcy Rule 7003, must be differentiated
fron the Cede case itself. the conmencenent cf the Code case is
(cont inved!
a
** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER **
of an automatic stay to the case -- not to a related adversary
proceeding -- and thus where a discharge is granted in the case,
the mere continued existence of a related adversary proceeding is
of no consequence. See Moody v, Comn’r of Internal Revenue, 9
T.C. 655, 664 (1990) (concluding that the bankruptcy court's
confirmation of a chapter 11 plan constituted a discharge and
that “the existence of a pending adversary proceeding [did] not
serve to continue the stay."); cf. Allison v, Conn’ of Internal
Revenue, 97 T.C. 544, 548 (1991) (“Accordingly, we hold that when
2 bankruptcy case is closed, dismissed or a discharge has been
granted or denied pursuant to 11 U.S.C. section 362(¢) (2), the
automatic stay is terminated, and the reopening of 2 case does
not, absent an order from the bankruptcy court, reimpose the
stay.”) (Emphasis added.).
Having concluded that the automatic stay terminated on
Joly 11, 2001, the remainder of the analysis is perfunctory.
RAP Rule 54 (2001) provides, in relevant part, that
(w)henever a feders bankruptcy court Lifts or terminates 2 stey
of proceedings that has been entered with respect to # civil cere
in Snich an appeal ic permitted by law and no notice of appeal has
been files, the provisions of Rule 4 shail apply ae if the date of
Lifting or termination of the stay was the date of entry of the
Jedgnent appealed fron(-)
HRAP Rule 4 (2001) mandates, in relevant part, that “the notice
(.s-continved)
commenced by filing @ petition, as provided in Sankruptey Rule
1002(a) and sections 301-303 of the Code. The word “ease” mean
the entire matter that is Before the court, Within the context of
the case there may be proceedings Co resclve cisputes; one type of
such proceedings is defined as an “adversary proceeding”
proceecings that weula fit within that definition are specified in
Benkroptcy Aule 7003.
wz
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
of appeal shall be filed within 30 days after entry of the
judgment or appealable order." Accordingly, Allyson was required
to file her notice of appeal within thirty days after the lifting
or termination of the automatic stay, or July 11, 2002.
We prudentially note that Clarence contests the
applicability of HRAP Rule $4 insofar as two notices of appeal
have, in fact, been filed. However, Clarence overlooks the fact
that both notices of appeal were inadequate to vest this court
with jurisdiction insofar as they were filed during the pendency
of the automatic stay. Generally, most courts consider actions
taken in violation of an automatic stay void. See In re Halas,
249 B.R. 182, 191 (Bankr. N.D. T11. 2000) ("Some courts have held
that actions taken in violation of the stay are voidable.
Most courts, however, have found such actions to be void.”);
Bronson v. United States, 46 F.3d 1573, 1877 (Fed. Cir, 1995) ("A
majority of the circuits have held that actions taken in
violation of the automatic stay are void.”) (Footnotes
omitted.); 3 Collier on Bankruptcy § 362.11{1] (Alan N. Resnick
et al. eds., 15th ed. rev. 2006) ("Most courts have held that
actions taken in violation of the stay are void and without
effect.”). Actions thet are void have no legal effect. See
Black's Law Dictionary 1573 (6th ed. 1990) (defining the term
“void” as “having no legal force or binding effect”). Applying
that definition, the situation wherein two notices of appeal have
been filed without legal effect is the functional equivalent of
the situation wherein no notice of appeal has been filed. Thus,
Allyson's appeal violates neither the letter nor the spirit of
13
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTEI
HRAP Rule 54.
Based upon the foregoing analysis, we believe that
Allyson complied with the requirements of HRAP Rules 54 and 4 by
filing her notice of appeal on August 3, 2001. Her notice of
appeal thus serves as an appropriate conduit through which we are
vested with jurisdiction. Having resolved the jurisdictional
matter, we next consider the merits of the arguments that have
been properly presented.
Motions to Continue
Allyson’s first point of error asserts that the family
court violated her due process right to be present when it denied
her Novenber 19, 1999 and February 15, 2000 motions to continue
trial. More specifically, Allyson argues that she was physically
unable to travel to Maui to attend trial due to her high-risk
pregnancy and other related impairments, and that the family
court's refusal to grant her motions effectively denied her
fundamental right to be present at every stage of her civil
proceeding. We disagree.
Tt is well settled that an accused has 2 fundamental
Hight to be present at each critical stage of the criminal
proceeding. See Rushen v. Spain, 464 U.S. 114, 117 (1983)
(stating that the right to personal appearance at every critical
stage of the trial constitutes @ “fundamental right{] of each
criminal defendant”); Diaz v. United States, 223 U.S. 442, 455
(1912) (stating that @ criminal defendant's right to be present
at every stage of trial is “scarcely less important to the
accused than the right of trial itself"). Although it is
us
** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
generally acknowledged that civil litigants have 2 similar right
to be present, it is equally clear that the right is not
absolute." Nevertheless, the arbitrary denial of a civil
a gee “ » 705.24 361, 373
we, 2001) (Pin concert with courts throughout the Country, we have made clear
thet & party to a civil litigation hes s fight to'be present for and te,
participate in the trial of his/her case")? ne Yaligs 31 S:w.30. $66, $73
(enn. Gt. "App. 2000) (ile ‘generally recognize that the party litigant ie
entitied ic Be present in ail stages of the actual trial of the cases")? Gary
‘i. Onesks ings, 940 P.2a'203, 204 (Okie. 1999)
ideals behind due process endo fair trial pernit party to be present in the
Courtroom absent extrene conditions|.]"); Meson v. Moore” £26°R.b.20'993, "984s
641 Nov.5.20 195, 197 IN.Y-A.D. 1996) ("it da aziGmetie Chet, absent an
xpress waiver of unusual circumstances, 8 party toa civil action ie ontitied
telbe present during #1! stages of eriai(.]"); fussbaus v,-stelabeza, 162
Wisc26 524, S25, G16 N.¥.8:20 166, 168. (ey. Sup. A904) There Teno question
that the be process clause of the Constatucion provices every Litigent the
right to be present during every stage of the trie) of an cetion(«))7 Beams
wvst, Jossch's Hose, i Heelth Center, S36 NeWsi0 G66, C09 N.b. ise) SERS
recess anc the right to s fair trial ordinarily preciuge courts trem
Sxcloding thove parties who are able to unceratend the proceedings end to
Sssist counsel in the presentation sf their actions"); a «85
$0.20 886, 888 Ila. Ct, App. 1966). ("ike find the right cf a Gary tebe
Present at each stage of @ lousuit virtoally ssctossnce and ceresinly
Paramount to en opposing party's mere fear sf dove-taiied or hend-nede
Eestinony.°) “lepphasis in ordginel-|7 delfferien ve Farley, (13 head 523,
(Conn. Super. 1980) ("The right of a party te be present sering the course
trial ts basic to the triel process.")i Exons v. Bisehott, 217 N.We2d 850 B58
tse. 1979)" the general rule is that 2 party to a civil action has a right
go be present ot trial.) 326 NiE.20 92,
93 (Il. Ct. app. 1975) (Sceneraily, a rule thet seeures fundamental feirness
applies to all cases, civil es well ae criminal. $0 it ie with the role
thet gives & defendant the right to be present at the trial of his case")?
Burke v. Scott, 410 $.W.20 626, 829 (Tex. Civ. App. 1967) (“in addition to the
Fight to be physically and mentally able to aid in the preparation of his
trlel, © litigant also has the valuable right to be present st his triel for
Feasohs that are cbvious.”); Raper v, Berrie, $7 §.£.26 782, 764 (N.C. 2957)
(The public, and especially the parties are entitled to see\and heat whet
goesJon in the courts.”1; Eillinmon v, United Albion vein Slate co., 250 U.s.
6, 61 (1818) (We entertain no Goubt that the orderly conduct of «trie! by
jury, essential to the preper protection of the right te be neard, entities
the Parties who attend for the purpose to be present in person cr’ by counsel
at 21] proceedings from the tine the jury is inpaneled until it is discherged
after rendering the verdict”)
» see 126.8.4.34 733, 735 (Me. Ct. App. 2003)
(wmether » trial court has abused its discretion in proceeding to trlel and
jusgnent in the absence of party or his attorney must be deternined upon the
particular tacte eng circunstences in the case under considerations”)
(céntinued. ..)
as
HAWAI REPORTS AND PACIFIC REPORTER
JLICATION IN WEST
Litigant’s right to be present implicates the due process clause
of the fifth amendnent to the United States Constitution. see
Helminski v. Averst Labs., 766 F.2d 208, 213 (6th Cir. 1965) (“We
believe that the extent of a civil litigant’s right to be present
at trial is appropriately analyzed under the due process clause
of the Fifth Amendment."), cert, denied, 474 U.S. 961 (1985).
rly establishes that
The foregoing precedent cl
Allyson had a qualified right to be present at her civil trial.
Here, however, that right was unobstructed inasmuch as the fanily
court did not preclude Allyson from attending. Rather, the court
merely denied her motion to continue, and she had no fundamental
Hight to have trial conmence at the time of her choosing.
Absent violation of a fundamental right, the relevant
inquiry is whether the family court abused its discretion insofar
as it is axiomatic that the decision to grant or deny a motion to
continue is within the discretionary realm of the trial court and
Will be upheld absent a showing of an abuse of that discretion.
See C8. v, People, 83 P.3d 627, 638 (Cole. 2004) (“Because the
(continued)
(Quotation marke omitted.) (Citing Sau Fin. Comp. vs Blaix, 260 5.W.2¢ 675,
OS" the, Cen App. 1988) <1 Tits es h-0. 28 669, 690, 134 KeYs8.3d
527, $28 (W.y.ArD. 2001) ("It is now well settled that 2 litigant does not
have an absolute right to be present at al stages of « civil proceeding(«]")1
Ssbeun, 162 Misc.2d at S25, E18 N-¥.S.26 at 169 ("The defendant's right te
be present at 2 civil criai ie not sbsoivte.")? Waster of Donne K., 132 4.0.20
3004, 1004, $26 N.Y.8.26 269, 290 (N.Y.A.D. 1967) (While every litigant has @
fundanentei right, guaranteed by the coe process clase of both the Federe)
and State Constitutions, to be present at every stage of the trial... this
Fight is net apsclote in civil sctsone(.]"): i
phnscn, 642 R.2d 1114, 2126 (Pa, Soper. 1962) (While we recognise that the
Fight of 2 litigant to'be present st the tine bis case is heard is a cher!
ed
Fight... we alec are aware thot the right ie not sbeolute."); Casson v,
Hotton, 174 Azo Se1, Se2" (mG, 1961) (holding that 2 civil Iitigant “hea te
abeoluve right to be’ present”)
16
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denial of C.S.'s motion to continue did not affect her
fundamental rights, we review the district court’s order only for
abuse of discretion.”); see also discussion at Part I1.B. supra.
1, November 19, 1989 motion to continue
e, the record indicates that Allyson’s first motion
to continue was filed on November 19, 1999. In support of her
motion, Allyson presented the family court with the testimony of
her treating physician, Dr. Litt, indicating that Allyson
suffered from the following maladies: (1) a history of epilepsy:
(2) @ high-risk pregnancy “because of her age, the fact that
she's had two ectopic pregnancies, one (inaudible) resection, and
she’s had sone recent vaginal bleeding (inaudible) unknown
etiology”; and (3) an “increased risk for hypertension,
gestational diabetes and abnormal labors.” Dr. Litt also
testified that Allyson previously underwent @ surgical operation
during which the top portion of her uterus was renoved, thus
increasing the risk of rupture as her pregnancy progressed and
she increased in size. Dr. Litt ultimately reconmended that
Allyson “[s]tay off her feet as much as possible, no travel, no
exercise, no intercourse, no stress, no strain, [and] lead as
quiet a time as she can until the baby is delivered.”
By contr
ty Dr. Benjamin Berry, testified that Allyson
Was copable of traveling to Hawai'i during her second trimester.
Dr. Berry conducted an independent medical examination, and
reported his findings to the family court as fellows:
A. Based upon cbjective findings from her ultra sound
fexanination and review of her medical records, 1 cane te the
Sonciusion that the would be able te fly te Reweil Curing her
uv
FOR PUBLICATION IN WEST'S HAWAl REPORTS AND PACIFIC REPORTER.
second trimester without increasing risk of harm to herself or her
tisborn ehila.
O. ifd like to refer you to == I'm sorry.
Do you feel that physical examination would have
changed that evaluation?
O. Why de that?
Bl Edged on the cbjective evidence of the ultra sound
examination performed on Decenber 16th, there was envisble
intrauterine. pregnancy with a normal placental locstion.
There had been normal growsh from the initial ltrs
sound examination performed by Dr. Lite on November sth 1995,
‘There ues no mention of any evidence of @ separation
of the placenta which would have caused her to have any bleeding,
‘bh abnormal location of the plecents, ‘nor wae there any mention of
Gny abnormalities at far as the cervicel length. That is, if you
had shortening of the cervix, then there might be 2 possible risk
of early labor, but there wae no mention of eny cervical
Shortening:
(.. Are you snare that Allyson claims that she is et high
risk because ahels had tho ectopie pregnancies?
Re yess
G.___ Is the fact of her ectopic, her two ectopic
pregnancies, change her ability to travel in the second trimester?
Re Not in this casi
0: Woutd! you explain to the Court, please?
R. Yes. Ber first ectopic pregnancy was in the left tube
and it was treated by uhat we call a linear salpingcstosy. That
SS, they cpenes the tube and rencved the products ef conception
aocceusfully. The tube was not removes
‘ith ber second ectopic pregnancy it was in the sane
tube, but the tube was so badly damaged thet it required renovel
of the tube, what ve call salpingectony.
and one of the procedures that is frequently perforned
‘at the sane tine is called o cornual resection of the uverss.
Which mean{s] the renoval of a snail portion of the tube as it
goes into the uterus itsel!, This is performed to help to prevent,
what we call cornval pregnancy, an actuel pregnancy, in thet
Section of the uterus with a possitie later pregnancy. 50 it’s
done as a prophylactic procedure.
‘The fact that she had an intrauterine pregnancy, which
was normal, both en Novenber the 18th end again on Decesber’ 16
eens that her previous history of ectopic pregnancy if of no
Consequence with this current pregnancy.
(G. De you understand Allysen to be 40 years old?
Rl Yess
@: Does that change her risk facter for travel?
lM.
0: You understand that Allyson alleges thet she has
epilepsy?
hr Yee.
@! Have you reviewed her medical records uith respect te
her alleges epilepsy?
Re” Yes.
@! —osie you tela the Court what your findings are, wos
ae
** FOR PUBLICATION IN WEST'S HAWAN REPORTS AND PACIFIC REPORTER,
there objective evidence of epilepsy?
4K.” “There is no docunented, objects
epileptic disorder er convulsive disoraer.
‘She gives a2 history of having had gran mal seizures,
but none of this is docunented By any physiciens
She dia have =- there is e'-~ there are reports in her
records, one of @ normal EEG, and this was back in 1966 or ‘65;
Slightly sbnormal E2¢'in 1989 unich the report or non-specific
Changes that could be sssociated with © seizure disorder. Bot
they are net S- there's no conclusive evidence that this Je
associated with @ seizure disorder
‘she gives a# history of having been on Dilantin during
the 1960s bot she discontinued this on ner own, and By ner report
has hac no seizures since that tine.
‘There were reports of what we call mild chronse
activity which, in 1989, ot the tine that she had her last known
Bes, and St that particoler tine she was experiencing sleep
deprivation and also severe stress. And by “myoclonic activity”,
we're talking about muscle Jerks which iz, sometimes sone of us
have experienced in going to sleep or with sleep deprivation that
you can get that type of Jerking activity, And this is what she
Feported:
evidence of # true
And she wae prescribed Depekote by a nevrologist at
that time, but she did net toke the medication and did ast follow
up with nie visite
So to my knowledge and to any report in the records,
which I reviewed, there are no reports of any seizure activity
‘She has an unrestricted driver's license, and she’ hi
obviously, traveled Back and forth between Eawsil and the meinlend
without being cn any type of medications. And, um, her age and
her pregnancy do not offer any sdditional rick of seizure
scesnity
‘G._Thank you, Would you (inaudible) Allyson te be an
accurate historian with respect of her medical nistory?
he Roe
G! thet are the factors that prompt you to reach thet
conclusion?
Ti She has failed to report, at least in the histories
fang physicals which I’ve reviewed, on various cocasions she’s
failed to report » pregnancy termination in 1962, she has foiled
to report herpes Sinpley virus infection, the initial date of
which T do not. know.
There ig no mention from the neurologist, who did her
EEG, that she had seizure activity, apparently, when she wae on
Quealuce and Placiayl which are substances, wich can be abused,
When she woe Sn ner 202.
Or hae ts Placteyl?
BR. Flacidy2 is e sleep medication treated for insomnia.
And what are Quesludes?
AL Qussludes are iilegs! druge at this time. They were
stimulated drugs
Now, Allyson hed a laparoscopy performes by or.
Incuye?
a. Correct.
© Houle’ that have been under genera? onesthesia?
as
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
BO Yes
8, __Did'the disclose her epilepsy, alleged epilepsy ==
excuse me -- to Dr. Inouye at that tine?
‘Ru There ig no record in Or. Inouye’s records of any
seizure discraer.
(G.Now, Allyson's affidavite allege diarrhea end vomiting
as further preciuaing her from traveling
there documentation of thie complaint in any of
Uinavatbies?
GO. Now, Af Allyson’ ellegations of
vouiting were true, woule you expect her toe
och condition?
RS Yes
© Thave no further questions for this witness, Your
Honor
Jere darshes and
fteatnent for
Faced with the conflicting
timony of Dr. Litt and
Dr. Berry, the family court expressly subscribed to Dr. Berry's
conclusion that traveling to Hawai'i for trial would not increase
the risk of harm to either Allyson or her unborn child. Given
the family court's consideration of the testimony of both
doctors, we cannot say that the family court's crediting of Dr.
Berry's testimony was an abuse of discretion inasmuch as it is
axiomatic that reconciling conflicting testimony is beyond the
scope of appellate review. See State v, Martinez, 101 Hawai'i
332, 340, 68 P.3d 606, 614 (2003) (“But ‘[i]t is well-settled
that an appellate court will not pass upon issues dependent upon
the credibility of witnesses and the weight of the evidence: this
is the province of the trier of fact.'") (Alteration in
original.) (Citations omitted.); State v. Mitchell, 94 Hawai'i
388, 393, 15 P.3d 314, 319 (App. 2000) ("The appellate court will
neither reconcile conflicting evidence nor interfere with the
decision of the trier of fact based on the witnesses’ credibility
or the weight of the evidence.”) (Citation omitted.).
20
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February 15, 2000 motion to continue
Allyson filed a second motion to continue on
November 15, 2000, which the family court orally denied at a
February 17, 2000 hearing, as follows:
Without making # detailed set of findings at this
point, 1 wosld, I guess, Just sunmarize it by saying that, in
[ooking et the status of this case, first of ali, it's not in
Gispute. The parties have stipulated that Hs. Onake is not today
Sble to fly fron Las Vegas to Maul, Hawaii because of her present
necice: condition and the fact that she is now considered to be at
B'point of Raving a high-risk pregnancy and in her seventh month,
‘Vee also coneiseres, of course, the fact that the
defencont has been able to travel earlier from Las Vegas to Mavi,
Howes, at least up to or on or Before the 20th of January of this
Jeet which was the previous date thet wae set for trial and she
AisTnot do se. “That wes the finding of (the pretrial judge) at
the Cine e's nearing held sa cr abaut the 20th. 2 can't renenber
the exact cate, but I’m really bound by it, but, T think, by that
Eines at Jeast up to that point, she was able to travel and could
have participated in 9 trie) here on Maui.
P'think talso have to consider the fact that the
Gefendant has been, I guess, afforded an opportunity to provide
festincnial evidence by way’ of deposition, either « regular
Sepssieion cf evens video tape deposition, but never the less, &
Sepesition, prior to the trial date back in December and since
hens up until, 1 guess, teaay, really, but she has not done so.
Ang 1 think T have also coneicered and locked at the
record in this case, and in looking at ner responses to some of
the discovery mach earlier on in the year 199%, remarketly,
think, #8 [Clarence's counsel] has pointed cut in her menorendun,
Bae"itr2'sn the record in this case, really, since some of the
things go back a way, she just can't renenber a whole lot about
Sone ef what 1 coneider to bey material
[Stues of fact here st triel.| So I don’t know, even if she were
presents te what extent she would in fact be able to participate
Rossel!’ by giving testimony. I recognize there are other reasons
why 8 party needs to be present. But that ise factor that is,
tito; P'thlaks wertay ef/ recognition. And sy conclusion thet the
Triel should proceed se in recognition of the fact that both
parties, the pleintitf and the gefendont, do have due process
Fights to participste in their civil trial, which this-is. And,
[oeking st'the rights of both the plaintiff ond the defendant
ind. pricr te today, this is © case that J have hed to,
thy, Balance those rights. And what I have concluded 4
Chet in balancing those rights, the prejudice to Mrs. Onaka by not
being present here cn basi during the trial, being able to aseist
her lenyere in perticipeting in that trial, ‘being eble to, ins
Sense, confront any of the witnesses that would be called’ én th:
EGeil ‘case, which dea slightly ifferent right then & cefendant
Soa criminal case would have, Put, never the less, we recognize
that parties do have the Fight to be present and confront the
2
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evidence in # civil proceeding, All of these rights at this tine
are outweighed by the rights of the plaintif® to proceed to have
this matter resolved at this tine. And in calencing those rights
B, also, at this tine, find there is a way to mitigate the
prejugice to the defendant, and in doing so 1 woole order that she
be allowed to participate, if she chooses to do so, in
consultation with her attorneys, by giving s deposition as
Scheduled and noticed by her attorneys, not by spposing attorneys,
niet by opposing counsel, provided that ‘opposing counse: receive
Rotice ang are sllowed to be present
Te would be Helpful to ne ifs depesition it so
scheduled that it be 2 vides deposition since the parties have
indicated to ne the credibility is an issue. nd T think
credibility is, to sone extent, at least a little better on
viseo tape than it is by written transcript. And the right £0
Schedule # deposition for Mrs, Onaka would be a right that 1 would
extend to her at any tine during this trial -- we're scheduled to
complete this trisi next week -- but 1 would even allow a
Fessonable period of tine st the conclusion of the evidentiary
portion of the trisi to schedule s deposition because I don't
Expect her counsel to, between now and whenever we finish next
Week, get up to Vegas, fut T would give time after the concivsion
Of trial next week to do that’ And, in talking about a reasonable
Eine, I would Say a period of at least up to 10 days, 1 think,
would be"reasonable.. If you can convince me thet more tine <¢
hhecessary, then 1 would consider it- But I intend to bring the
evidentiaty portion of this case toa conclusion as socn a©
Possible so that we can get a ruling out alse as soon es possible.
As noted by the family court, the parties stipulated
that Allyson was no longer able to fly to Maui to attend trial
due to her medical condition. A high-risk pregnancy would
ordinarily constitute @ legitimate basis for a continuance if it
precluded a party from attending or participating in trial. To
that end, in Gaspar v. Kassm, 493 F.2d 964, 969 (34 Cir. 1974),
the Third Circuit Court of Appeals stated as follows:
It 4s customary to grant @ continuance on the ground of illness of
a party. We conclude that Facen's testimony was necessary for the
defense of his case, that the granting cf @ continuance would not
have unduly prejudiced the other parties, eng that the continuance
notion was not motivated by procrastination, bad planning or bea
faith oh the part cf Kessn or his counsel, It Sethe lew that
Where none of the foregcing appear, the denial of a continvance
for ilinces Le abuse of discrets
22
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER +
Other courts are generally in accord."* Nevertheless, we cannot
conclude that the family court abused its discretion inasmuch as
the record indicates that Allyson falsely exaggerated the
incapacitating effects of her pregnancy. Allyson must be
precluded from perpetuating @ fraud upon the court.
lihsle arguing Allyson’s February 15, 2000 motion to
continue, Allyson’s attorney represented to the family court as
follows:
So, the medica) question is that she is pre
travel, she cannct be subjected to any acre
anything for the nest © gneil ner Gelivery, she can't, besicelly,
So anything except renain sn bed on her left side, getting up only,
ke go to the bathroom, and for meals, that's it.
Despite the foregoing representation and the fact that she indeed
* See Lathan v, Crafters, ince, 492 F.2d 913, 815-16 (4th Cir. 1974)
[concluding thet the trial court abused its discretion where, among other
things, the motion for continuance uae based upen “the intervening éllnese of
a party” and the party's vestinony was important to the case); Davie vy
nes, 378° F.26 101, 102 (10th Cir. 1967) ("We spouse
Observe thet iiiness of a litigant severe enough to prevent hin from appearing
in court 1s always a lecitinate ground for asking for s continuance. Even
hen the judge has doubts about the existence cf the clained iliness, the
movant should be afforded an opportunity to substantiate his claim by proper
proof. well F118 F.24 396, 396-99 (D.C. Cir. 1941)
(although the granting of & continuance or of notions for vacation of
juconent and for new trial sre sddresses to the discretion of the trial court,
thet discretion mist be exercised in the interest of justice. Where, 08 he
appellant war ill snd was the most materiel witness in support of her om
‘ee conclude that the sotione should heve been granted.”). (Footnotes
enitted.)) Harrah v, orgarshau, 69 F.26 863, 664 (D.C. Cir. 1937) ("If there
were anjthing in this recora challenging the good faith of the motion for
Continuance, ‘the profersienal ability or character or truthfulness cf the
Physicians who nade affidavit to the inability ef Dunning to appear, oF even
Ee’there were « showing that continuance would have resulted in serious loss
to the other parties, we should not now hesitate to sustain the action of the
ewer court: Bot here we are confronted with @ cate in which, se appears, the
pleinti#! was hie only witness and uae so seriously il] that his appearance in
Eoare noord prosebly have zesuited in nie ceath:’ Insiecing opon e trial
ae clestences must necessariiy have resultea in prejuaice ¢0 Sonning’
Highte:s], gebradented, 68 F.2a 668 (1937) 262 F. 251, 252
(cele. 19997 Bare ve Easton, 212 Now, 12, 102-79" (Neb- 1920) 7 Borman v.
Geib, 221 F.'100¢, 100e-07 (Okla. 1973); Howse v. Cardizal, 122 Nee. tT, 32
(Ing, Ce. App. 1918)) Mathews v, Wilieushby, 17 SE, 620, €20 (ca, ies0i.
23
++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
Gid not attend trial, Allyson testified before the United States
District Court for the District of Utah that she moved from Las
Vegas, Nevada to Cedar City, Utah on February 28, 2000." Her
relocation fell within the precise period of time during which
she claimed that she was essentially bed-ridden.
Allyson was also extended the courtesy of a post-trial
deposition on March 6, 2000 to provide her with an opportunity to
provide testimony, de bene esse. However, Allyson’s attorney
cancelled the March 6, 2000 post-trial deposition as follows:
Portuant to ay conversations today with Ms. Onaks and her
ing pnyeician, Richard Lite, t.0., Me. Onaka iil got be able
ve her viseotsped testimony’ taken’ on Harch €, 2000 in Lss
Nevada beceuse of the cengers such = procedure would create
Vega:
fer NS. Gnaka and her Baby.
(Emphasis in original.) She thus continued te rely upon her
alleged incepacity while conveniently failing to disclose the
fact of her travel -- another activity that she claimed would
pose an unacceptable risk of harm to her and her unborn child.
Allyson’s falsity exposed, we perceive no abuse of
Giscretion insofar as we cannot conclude that the family court
“clearly exceeded the bounds of reason or disregarded rules or
principles of lew or practice to the substantial detriment of a
% Allyson does not dispute thet che traveled from Nevada to Utah.
Indeed, she does not even mention that fact in esther ber opening cr reply
briefs. “The erly conceivebiy related argument cen be found in ner reply
brief, which asserts that "[tJhe many references to matters that allegedly
occurred in Aliyson's Eankruptcy case should be struck as that case 1s not
part ef the record.” That is cinply e misstatement of the law, inasmuch as it
[e'Settied that we ay take Judicial notice of the record in a related case.
See State v. Kido, 109 Hawai'i «58, 661 n.7, 128 F-38240, 344 1-7 (2006)
Although the fact of Kide'e re-cenviction does not appear in the record en
appesi in the instant case, this court may take Judicial notice of the records
ane fizee in cr. Ne. 01-1"0265.")<
24
HAWAII REPORTS AND PACIFIC REPORTEI
“OR PUBLICATION IN WES1
party litigant.” Keahole Def, Coalition, Inc., 110 Hawai'i at
436, 134 P.36 at 602.
¢. Hawai'i Rules of Appellate Procedure Rule 28 (b) (4) (434)
We next take a moment to comment on the failure of the
opening brief to comply with HRAP Rule 28(b) (4) (144).
Preliminarily, we note that
sitihe rule in this suriedietion . . . prohibits an
appellant. from complaining for the first tine on appeal of error
COuhich he hes acguiecced or to which he failed to object.”
Skuhars ve groigs, si Haw. 253, 255, 456 P.zd 226, 230 (1965)
citations oniteed); gs alsa #RS € 641-2 (2004) (“The appellate
Gourt - "need not consider @ point that was not presented in
Eke triai court in an sppropriete asnner."); Craft 9, Peebles, 76
Hawai'i 267, 20¢, 693 Poze 196, 145 (1985); Hawaid Rules of
Procedure (HKAP) Rule 28(b) (4) (143) (2004) (noting that
Ghappeiient’s opening Brief shall state “where in the record the
aiieges error Met objected to or the manner in which the alleged
Error wos brought te the attention of the court or agency.")
‘There are sound reasons for the rule. It is unfeir to the
trial court to reverse on @ ground that no one even
Soggested might be error. Iv is unfair to the opposing
party, whe might nave net the argument not made below.
Flneliyr ie dees not comport with the concept of erderly and
cificiane method of soministration of justice
Kawmate Farms, inc. v United keri Prods,, 66 Hawai" 214, 248,
H4e Peid i088, 1085 11997} teitation omatted) «
Querubin v. Thronas, 107 Hawai'i 48, 61 n.5, 109 P.3d 689, 702
n.5 (2005) (ellipses in original) (citation omitted).
Commensurate with the duty to object is the duty to
identify where in the record that objection occurred. To thet
end, HRAP Rule 28(b) (4) (144) (2002) requires that “[e]ach point
shall state . . . where in the record the alleged error was
objected to or the manner in which the alleged error was brought
to the attention of the court or agency.” Here, Allyson has
failed to indicate where in the record she objected to the
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER **
actions of the family court from which she now takes exception.
The record before this court contains over seven thousand pages,
contained within twenty-eight volumes. We have repeatedly warned
that an appellate court will not sift through a voluminous
record, Kienker v, Bauer, 110 Hawai'i 97, 104 n.12, 129 P.3d
122, 1132 n.12 (2006) ("The appellate courte are not obligated
to search the record to crystallize the parties’ arguments.”);
Lanaico., Inc. v. Land Use Comm'n, 105 Hawai'i 296, 309 n.31, 97
P.3d 372, 385 n.32 (2004) (“This court is not obligated to sift
through the voluminous record to verify an appellant's
inadequately documented contentions.”); Mivamoto v. Lum, 104
Hawai'i 1, 11 n.14, 84 P.3d 509, $19 n.14 (2004) ("None of the
parties direct us to the April 1, 1999 report's location in the
cord on appeal, and we will not sift through ten volumes of
records to find the report.”), Additionally, we have stated that
“{clounsel has no right to cast upon the court the burden of
Searching through a voluminous record to find the ground of an
ebjection. . . . It is counsel’s duty to cite accurately the
portions of the record supporting counsel's position.” Int'l
Bhd, of Elec. Workers, Local 1357 v. Howai‘ian Tel. Cox, 68 Haw.
316, 323 n.7, 723 P.26 943, 950 n.7 (1986).
Accordingly, we decline to canvas the record to verity
whether Allyson appropriately preserved her points of error on
appeal by making @ timely objection to the challenged actions,
This defect is particularly unacceptable considering the fact that
eviously struck Allyscn's opening brief for feiling te comply with HRAP
(a) ang 321b) (2002). We specificslly ordered Her to filed an anended
opening brief “that fully complies mith the roles of appellate procedure.”
26
1+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
and her appellate argunents are deemed waived. See HRAP Rule
28 (b) (4) (“Points not presented in accordance with this section
will be disregarded.”)
Iv. concnusion
Based upon the foregoing analysis, we conclude that
Allyson’s points of error are either without merit or have been
waived. Therefore, we affirm the orders appealed from.
on the briefs:
Terry L. Day for
defendant -appellant
Bllyson Lesli Onaka 4
Ufiiem
Joy Yanagida
for plaintiff-appelles -
Clarence Shizuo Onaka here Pretharnaser
Rieu OS nNudeLLLy Cure
a
Cane, Detéye th +
20
|
ba01e5b6-b5b8-4eca-a852-688f50b073b8 | State v. Bryant | hawaii | Hawaii Supreme Court | ‘** NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER **
No. 25480
IN THE SUPREME COURT OF THE STATE OF HAWAI'D|
STATE OF HAWAI'I, Plaintiff-Appellee
vs.
VAGAN LEE BRYANT, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(TRAFFIC HPD NO, 002268576)
(ey: Moon, ¢.., Levinson akayana, Rebs, and Duffy, 20.)
defendant-Appellant Vagan Lee Bryant (“Bryant”) appeals
from the judgnent and sentence of the District Court of the First
cizeuit! (‘district court”) entered on October 15, 2002, At
trial, Bryant was found guilty of (1) operating a vehicle while
under the influence of an intoxscant (*QVUII") in violation of
wns § 2916-61 (Supp. 2001) (effective January 1, 2002),? and (2)
disregarding a red traffic control signal in violation of HRS §
291c-22(a) (2) (8) (2993)?
+The Honorable George Y. Kimura presiced.
+ Rs § 251E-€1 (Supp. 2001), the version in effect at the tine of
Bryant's arrest, provided in pertinent part:
(a) A person commits the offense of operating a vehicle under the
Inkitenee ef an intoxicent if the person operates or assumes
Actual physical control of # vehicle:
(2) While under the influence of alcohol in an amount.
sufficient to impair the person's normal mental faculties or
SELLEy Co care for the person and guard against casualty:
2 aRS § 291¢-32 2) (3){A) provides in pertinent part:
fic facing a steady red signal alone shall stop at 2
Ly marked stop iine, but if none, before entering the
oad
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On appeal, Bryant essentially contends: (1) the
district court committed rev
sible error in accepting
Ancompetent evidence of the horizontal gaze nystagmus (*HGN")
subtest of the field sobriety test (“FST”) given by police (in
this case, HPD Officer Daniel Jacso) to check for DUI violations,
where (a) Bryant had taken muscle relaxant medication on the day
of his traffic stop such that the HGM test's relisbility was
questionable, and (b) in any event, the HGN test was improperly
administered: (2) the failure of Officer Jacso to ascertain that
Bryant’s medication would not affect his performance on the other
two subtests of the FST (the “walk-and-turn” and “one-leg stand”
tests) “diminished” their reliability; (3) no “wealth of
overwhelming and compelling evidence” exists to support Bryant’ s
conviction for DUI such that any error in improperly admitting
evidence of the HGN subtest mist be deened harmless
notwithstanding the error; and (4) no substantial evidence exists
to support Bryant's conviction for DUI.
pon carefully reviewing the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we hold as follows:
(2) Addressing Bryant's Points of Error Numbers 1, 3
and 4 together:
(a) First, as to Point of Error #1, the
prosecution made clear at trial that Jacso’s HGN testimony
was not being used as substantive evidence of Bryant's
Af none, then
ding’ unt?
entering the inte
fan indication to proc
shown]
‘** NOT FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER **
intoxication, but only to establish probable cause.
Inasmuch as Bryant does not raise lack of probable cause as
fan issue on appeal, this point of error is arguably moot.
In any event, Bryant’s arguments as to HGN are unavailing
because “this was a bench trial, and it is well established
that 2 judge is presumed not to be influenced by incompetent
evidence.” State v. Vliet, $1 Hawai'i 268, 298, 983 P.2d
169, 199 (1999) (emphasis added) (citation omitted)
(internal quotation marks omitted). “This means that when
evidence is admissible for @ limited purpose, we presume
that the judge only considered the evidence for the
permissible purpose." State v. Licsn, 106 Hawai'i 123, 133,
102 P.34 367, 377 (App. 2004) (citations omitted).
Bryant can only point to two ambiguous statements
from the district court’s ruling (*[t]here’s the field
sobriety test” and. . . . from the performance on the
field sobriety test, his exiting the vehicle, and the light,
I find the Governnent has proved each and every element of
the crime for which the defendant has been charged beyond a
reasonable doubt ()*) in support of his bald assertion that
. the trial judge found the HGN and FST results
critical in finding Bryant guilty of DUI."* Admittedly, the
district court does not expressly exclude the HGN subtest
from “field sobriety test.” However, the mere presence of
+ the record reflects that the trial court carefully considered the
evidence in its ruling, a= it discussed the elenents of the DUT offense,
Bryant's consumption of alcohol, the relative credibility of the witness
Bryont’s physicel state after exiting venicle, "and the light” (presumably,
intended to mean “and the like”), in addition to the FST.
3
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an ambiguity cannot, by definition, affirmatively rebut the
presumption that the district court properly linited
consideration of the HGN subtest to probable cause and not
substantive purposes. See Viet and Licen, supra. As such,
Bryant's first argument must fail.
(=) Second, as to Point of Error #3, assuming
axguendo that (1) the district court accepted Jacso’s GN
testimony as substantive evidence, in contravention of the
prosecution’ s representation that such testimony was only to
be used for probable cause purposes, and (2) that the
testimony was incompetent evidence, the inguiry does not end
here.
As this court noted in State v. Kaiama, 61 Hawai'i
15, 22-23, 911 P.2d 735, 742-43 (1996):
{E]rror is not to be viewed in isolation and considered
ately in the abettact- "Te must be examined in light of the
EHLIY procetalngs and‘given the efsect unten the shole
Sint proc nant have ecntriusted te-sonsictiane
(Emphasis added.) (Citation omitted.) “where there is a
wealth of overwhelming and compelling evidence tending to
show the defendant guilty beyond @ reasonable doubt, errors
in the admission or exclusion of evidence are deemed
harmless.” State v, Tovomura, 60 Hawai'i 6, 27, 904 P.2d
893, 912 (1996).
Following sedulous review of the record, ve
discern ample overwhelming and compelling evidence,
independent of Jacso’s HGN testimony, tending to show that
Bryant was guilty of operating his vehicle “while under the
© NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER **
influence of alcohol in an anount sufficient to impair the
person's normal mental facilities or ability to care for the
person and guard against casualty.” See Tovomura, 60
Hawai'i at 27, 904 P.2d at 912 (citation omitted), and HRS §
2916-61 (a) (1) (Supp. 2001). Accordingly, we hold that there
is no reasonable possibility that Jacso’s HGN testimony
could have contributed to his DUI conviction.
(c) Third, as to Point of Error #4, in light of
our holding that overwhelming and compelling evidence exists
on the record such that any error committed by the district
court in accepting and considering incompetent evidence is
rendered harmless, a fortiori, we hold that there was
substantial evidence to uphold Bryant's OVUIT conviction.
Seq State v. Eastman, @1 Hawai'i 131, 135, 913 P.2d 57, 61
(1996). As such, Bryant’s OVUII conviction is affirmed.
(2) As to Bryant’s remaining contention, Point of
Error #2, we observe that Bryant has raised it for the first tine
on appeal. In State v, Nagole, 62 Haw, 563, 570, 617 P.2d 620,
826 (1980), this court stated that
[iit is the general role that exidence to sich no chisction hes
and ite
Eazission will not constiture ground for reveres!. [tas equally
sutablished that an neue raised for the {iret tine on anneal will
Sethe consigered by the reviewing cours’ Only where the ends of
Sostice require it, and fundanental rights would otherwise be
denied, will there be a departure fron these principles.
(Emphases added.) The record reflects that Bryant had ample
opportunity to object to Jacso’s testimony as to the “walk-and-
turn” and “one-leg stand” subtests which also comprise the FST.
Hig failure to do so below precludes him from asserting error for
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‘the first time on appeal. See Nacole. Consequently, we
disregard Bryant's remaining point of error.
(3) Because Bryant raises no discernible argument as
to his HRS § 291C-32(a) (3) (A) (1993) (disregarding a red traffic
control signal) conviction, it is affirmed.
Therefore,
IT IS HEREBY ORDERED that the judgment and sentence of
the district court is affirmed.
DATED: Honolulu, Hawai'i, August 25, 2006.
pubive Gerenses,
for Defendant-Appellant eleven
vanes M. Anderson, pecseu Li reeyone
deputy prosecuting attorney,
for Plaintiff-Appellee
State of Hawai'i BN
Gcomn Ss
|
bd306a0c-6a9f-412a-abe7-ebdf5577537e | Hui Kakoo Aina Hoopulapula v. Board of Natural Resources, State of Hawaii. Concurring and Dissenting Opinion by J. Acoba, with whom Judge Del Rosario joins [pdf]. | hawaii | Hawaii Supreme Court | LAWLIBRARY
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SSS
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
---000--~
HUI KAKO'O AINA HO'OPULAPULA, a domestic non-profit
WAIMANA ENTERPRISES, INC.; and
corporatic:
ALBERT S. N. HEE, Appellants-Appellants,
BOARD OF LAND AND NATURAL RESOURCES, STATE OF
HAWAI'I; DEPARTMENT OF LAND AND NATURAL RESOURCES,
HAWAT'T ELECTRIC LIGHT COMPANY, INC.,
STATE OF HAWAT"
@ Hawai'i corporation, Appellees-Appellees.
SSS
No. 27159 gj
8
&
s
=
2
s
Orns
APPEAL FROM THE THIRD CIRCUIT COURT =
iF
(CIV. NO. 04-1-00051K)
2
SEPTEMBER 21, 2006
MOON, ¢.d., LEVINSON, J., AND CIRCUIT JUDGE CHAN, IN
PLACE OF DUFFY, J., RECUSED; ACOBA, J., CONCURRING AND
DISSENTING SEPARATELY, WITH WHOM CIRCUIT JUDGE
DEL ROSARIO, IN PLACE OF NAKAYAMA, J., RECUSED, JOINS
OPINION OF THE COURT BY MOON, C.J.
In this secondary appeal, appellants-appellants Waimana
+ and Hui Kako'o Aina
Enterprises, Inc. (Wainana), Albert S.N. Hi
Ho'opulapula (Hui Kako'o) (hereinafter, collectively, Appellants]
appeal from the Circuit Court of the Third Circuit's February 4,
2005 final judgment’ entered in favor of appellees-appellees
‘The Honorable Ronsld Ibarra presided over the underlying proceedings.
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Hawaiian Electric Light Company, Inc. (HELCO), Department of Land
and Natural Resources (DLNR), and Board of Land and Natural
Resources (BLNR) [hereinafter, collectively, Appellees) and ti
circuit court's April 1, 2005 orders denying the Appellants
post-judgment motions for relief. Eesentially, the circuit court
dismissed Waimana’s and Hee’s appeal for lack of jurisdiction,
concluding that Waimana and Hee [hereinafter, collectively,
Waimana Parties) were collaterally estopped from litigating
whether they have standing in the instant matter. As to Hui
Kako'o, the cixcuit court ruled, inter alia, that Hui Kako'o
lacked standing in the instant matter and that it failed to
follow specific procedures promulgated by the DLNR in requesting
a contested case hearing, thereby precluding judicial review
pursuant to Hawai'l Revised Statutes (HRS) § 91-14(a) (1993),
quoted infra.
on appeal, the Appellants claim, inter alia, that the
circuit court erred in concluding that it lacked jurisdiction to
review their appeal. For the reasons discussed below, we
conclude that the Appellants’ contentions lack merit inasmuch as
a contested case hearing did not occur in the instant case,
thereby precluding judicial review pursuant to HRS § 91-14(a).
Accordingly, we affirm the circuit court’s February 4, 2005 final
judgment and April 1, 2005 orders denying the Appellants’ post-
judgment motions for relief.
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The parties to the instant appeal, except for Hui
Kako'o, have been involved in extensive litigation for more than
a decade regarding HELCO’s plans to expand the Keahole Generating
Plant, an electric generating station, on the ieland of Hawai'i,
resulting in several dispositions by this court. See, eg.
/ ra » 102
Hawai'i 257, 75 P.3d 160 (2003) (hereinafter, HELCO]; Keahole
Ref, Coalition, Inc. v. Bd. of Land & Natural Res., 110 Hawai'L
419, 134 P.3d 585 (2006) (hereinafter, Maimana 1); Waimana
Enters. inc of Land & Natural Ree., No. 26539 (Haw. May
25, 2006) (mem.); Wasmans 2. Inc. v. Bd. o} & Natural
Rea., No. 26559 (Haw. Nay 25, 2006) (mem.). As discussed more
fully infra, the instant case concerns HELCO’s request to the
BLNR for a long-term water lease at the Keahole Generating Plant.
A. Factual Backeround
on February 24, 2004, HELCO sent a letter to the DINR,
requesting the issuance of “a loog-term lease of water [from the
Keauhou aquifer] for the use of brackish water for its industrial
use and fire suppression needs at its Keahole Generating Plant
site” on the island of Hawai'i. HELCO requested the sale of a
long-term water lease at a public auction pursuant to HRS
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§ 171-58(c) (1993).? By letter dated March 8, 2004, the DLNR
informed HELCO that the BLNR would consider HELCO’s request at
the BLNR’s public meeting on March 12, 2004, which was
eubsequently placed on the agenda as “Item D-16."
At the March 12, 2004 meeting, a BLNR staff member
recommended that the BLNR “authorize the sale of a water 1
public auction.” At that point, counsel for Waimana Parties,
Deborah Jackson, came forward to provide testimony to the BLNR.
According to the minutes of that meeting, Jackson informed the
BLNR that,
4m pecenber 2002[,"] her colleague, Michelle Luke (,]
Eequested contested cage searing on behalf of her
Clientel, lass, Waians Parties) At that neetingl, duce, a
Becenber' 12,2603 SuNR meeting.) the (BLNR] decided to grant
{a revocable permit for water ise to HELCO for the Heshole
Generating Plast]: Ne. Jackson contends the (BLVR) issued
HELCO a revocable permit based on 2 199¢ Environmental
» ups § 171-58(e) provides:
Disposition of wa
public auction a8 provic
Eemporary
Conditions whieh will best serve the intereste of the state
[ease shall be subject co disapproval by the legislature by
two-thirds yote of either the senate or the house of
Scprenescacives Or by tajority vote of both in any zeguiar
or special session next following the date of disposition:
provided further that after e certain land or vater Use has
Been authorized by the board subsequent to public hearings
land conservation district use. application and eavirconental
inpact statement approvala, water used in nonpolluting ways,
for nonconeumptive purposes Because it is returned to the
jane strean or cther besy of waver fron which ie was drawn,
feeentially not affecting the volume and quality of water or
Biota in the stream or other body of water, may also be
Teased by the board with the prior approval of the governor
and the prior authorization of the legislature by concurrent
Fesolution:
It appears that the reference to ‘Decenber 2002" should be “Decenber
2002."
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Impact Statement (G15). She went on to inform the (BLAR
that.) subsequent to their Decenber 12, 2003 meeting(s] the
[wand Use Commission (UC)} ordered HELCO to prepare a new
BIS. Because the new EIS has yet to be prepared, Mo.
Jackson feels the (SLNR) should not render a decision on
thin matter today, inetead(,] the (BLNR] ehould wale until
che’ new BIS Ss prepares.
Consequently, Jackson requested the BLNR to defer "decision
making at this time until the [new] EIS is completed." Jackson
then informed the BLNR that, if “they are inclined to make a
decision today[,] they should reject” HELCO’s request for a long-
term water lease. Finally, Jackson stated that, if the SINR
accepted HELCO’s request, she will “ask for a contested case
hearing."
Dickie Nelson, the vice-president of Hui Kako'o,* next
testified on behalf of Hui Kako'o against HELCO’s request for a
long-term water lease. The meeting minutes reveal Nelson stated
that
acres of Iand in Keahole of which 153 acres
abut HELCO["s) power plant. He feels these lands shoula be
fade available fo Native Hawaiians on [the Department of
Hawaiian Hone Land's (DMML)] wastlist. He noted hie
organization[, Lie.) Hui fako'o], hae serious concerns
Fegarding the potential impacts that this water lei
have on their fenbers{') rights to lease these lands.
feels there have not Decc'edequate studies done on the
impacts of the water (lease). Mr. Neleon noted [chat] Kicah
Kane[, the executive officer of DHHL,] spoke in support of
this iten on behalf of the DHHL and those individuals who
already have honestead leases. In contrast {, weleon)
Fepresents those individuals on the SHH waitlist
may
Nelson also requested the BINR to “defer this matter until more
information can be provided,” stating further that, if a decision
* Hui Kako'o “is an organization that represents the benefici
native Hawaiians on the Hawaiian Home Lands wait lists” FOP No. 13”
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ie made today, he would request a contested case hearing to
receive more information.
Inmediately thereafter, the BLNR convened in an
‘Executive Session" with deputy attorney general Yvonne tzu to
discuss the Appellants’ oral requests for a contested case
hearing as well as the impact of the BIS. After less than ten
minutes, the BLNR reconvened and stated that ‘a contested case
hearing is not available.* HELCO’s request for a long-term water
lease was thereafter unanimously approved by the BLNR.
B. Procedural History
on April 12, 2004, the Appellants jointly filed a
notice of appeal with the circuit court pursuant to HRS § 91-
24(a)° and Hawai'i Rules of Civil Procedure Rule 72 (2005).¢ The
© wag § 91-34, entitled *sudicial review of contested cases, provides
in relevant part:
(a) Any person aggrieved by a final decision and order ina
contested case or by a preliminary ruling of the nature tha
Seferral of review pending entry of a subsequent tinal’
Et deprive ea z
bus
fothing in this section ehall be deaned to prevent Fesort to
Gther seane of review, redress, relief, or trial de nov,
Gneluding the right of trial by jury, provided by law
Notwithstanding any other provision of this chapter to the
Contrary, Zor the purposes of this section, the term "person
aggrieved” shall include an agency that is'a party to &
Cdatested case proceeding before that agency or ancther
agency.
(emphasis added.)
+ Wmcp mule 72 provides in relevant part:
(a) Yow taken. here a right of redeternination or review
in a circuit court is allowed by statute, any person
adversely affected by the decision, order or action of =
Governmental official or body other than a court, may appeal
fron euch decision, order or action by filing a notice of
(continued...)
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Se
notice of appeal indicated that the Appellants were appealing
from the BLNR’s “action” taken at its March 12, 2004 meeting with
respect to the authorization of the sale of the long-term water
lease by public auction,
On July 13, 2004, Waimana Parties filed a “Motion for
Stay of Decision Dated March 12, 2004." Essentially, Waimana
Parties requested the circuit court to enter an order staying the
to HELCO pending resolution
issuance of the long-term water le.
of the instant appeal.” on duly 19, 2004, Hus Kako'o similarly
filed a “Motion for Stay of Decision Dated March 12, 2004,
equesting the same relief as Waimana Parties. Mainena Parties
subsequently Joined in Hui Kakoo’s motion on July 23, 2004, and
Hui Kako'o joined in Waimana Parties’ motion on August 4, 2004
A hearing on the motions for stay was held on August 11, 2004.
At the conclusion of the hearing, the circuit court orally denied
the motions."
continves)
‘appeal in the circuit court having jurisdiction of the
satter. Xs used in this rule, the term ‘appellant’ neans
any peraon or persons filing @ notice of appeal, and
vappeliee” seans every governtental body or official (other
Ehan a court) whose decision, order or sction 2 appealed
from, and every other party to the proceedings
(amphasis in original.)
* Barlier, on July 1, 2004, a public auction vas held for the sale of
the long-term water lease, and HELGD purchased the lease.
* on August 30, 2008, the circuit court entered ite written order
denying the actions for acay
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Sse
In the meantime, Hui Kako'o filed its opening brief
with the circuit court on August 9, 2004, Hui Kako'o contended,
fnter alia, that the BLNR (1) erred in denying its oral request
for a contested case hearing and (2) failed to comply with HRS
§ 172-58(c), see supra note 2, before authorizing the sale of the
long-term water lease. On the same day, Waimana Parties filed
their opening brief with the circuit court, raising, in essence,
the same contentions as Hui xako'o.
on August 26, 2004, HELCO filed a motion to dismiss
Wainana Parties’ appeal, in which the BLNR and the DLNR joined on
Septenber 3, 2004. HELCO asserted that, inasmich as the circuit
court had already ruled in the "1994 Remand order“? that Waimana
+ Im @ Novenber 9, 1994 remand order, the circuit court entered the
following relevane conclusions relating to Wainana’s lack of standing to
Chalienge NELCO'e conservation istrict use application (COUA) with the Bim
SRL S295.t co wedernise and expand the Keshole Generating Plant (hereinafter,
fhe 1994 Remand Order]:
(6) Although kaimana argues it is a native Hawaiian
Controlled entity whose economic’ interests, enviroonental
SRterests ana interests in ceded lands are at stake and
that, eherefore, it has constitutionally protected property
Gbterests, tne [eircuse) court concludes otherwise: as an
tntity neither physically located near the site of HELCO’s
proposed expansion nor whose purpose is to protect
Rnviroonental or Hawaiian interests, Wainana’s interest in
Contesting the CDUA appears. to be purely econonic, an
Sheerest shich the DIN® recognized in recomending Wainana’
[ntervention in the CDUA proces
{weisana} is an energy company. It has conducted
Studies and obteined @ lease for development of
Generator station at an alternative site, Kavaihec,
Egat may be superior to the Keahole site. Expansion
Of the Keahole generating station may suppress
Gevelopment of [wainana’s] project.
(6) Waimana Goes not have a due process right to contested
Gate hearing because ita economie interest does not
Constitute *property” within the meaning of the due process
Clauses of the federal and state constitutions;
(continued...)
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lacked standing to challenge issues relating to the expansion of
the Keahole Generating Plant, it follows that Waimana and
Waimana’s privy, Hee," are precluded from litigating the issue
whether they have standing in the instant matter. Thus, HELCO
maintained that the circuit court lacked appellate jurisdiction
to consider Waimana Parties’ present appeal.
On September 10, 2004, Hui Kako'o filed a memorandum in
opposition to HELCO’s motion to dismiss Waimana Parties’ appeal.
Hui Kako'o asserted that HELCO “nisconstrue(d] the dispositive
legal issue in this administrative appeal (,] which is whether the
(BLNR] properly complied with the statutory provisions of [ERS)
§ 171-58 (c) prior to the approval of the [long-term] water lease
to HELCO." Moreover, Hui Kako'o argued that “standing should not
be a barrier to the right of appeal.’ (Capital letters altered.)
*(.-scontinuea)
(8) Not having a right to a contested case hearing by
eatute, rule(,] or by the constitution, Waimana lacks
tanding to file this Appeal pursuant to [HRS §) 91°4(a) [,
see supra note 5]
Wajmana I, 110 Hawai‘ ac 422-23, 134 P.34 at 588-08 (e11ipees and eephases
omitted)" Waimana did not appesl the 1994 Remand Order, which was
incorporated in a final judgment entered by the circuit court; thus, it did
not challenge the circuit court's devermination that it lacked standing. Sa,
ae 423, 134 P.3d at 569.
Hee ‘is the president, incorporater{,] and majority shareholder of
Waimana(.]*
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on Septenber 13, 2004, Waimana Parties filed their
memorandum in opposition to HELCO’s motion to dismiss their
appeal. Waimana Parties contended that, ‘Iw]here a party
dismissed from an action, based upon a determination that the
party lacks standing, res judicata unequivocally does not apply.
A hearing was held on HELCO’s motion to dismiss Waimana
parties’ appeal on Septenber 20, 2004. At the conclusion of the
hearing, the circuit court instructed the parties to submit
proposed findings and conclusions on their respective positions
regarding standing as well as the merits of the appeal.
Also on Septenber 20, 2004, the BLNR and the DLNR
jointly filed their answering brief to Waimana Parties’ opening
brief. The BLNR and the DLNR contended that the circuit court
lacked jurisdiction because Wainana Parties did not meet the
requirenents of HRS § 91-14, Specifically, the BLNR and the DLNR
argued that Waimana Parties have not been “specially, personally
and adversely affected by special injury or damage to his [or
her] personal or property rights" and that they “did not
participate in a contested case nor [were they] entitled to a
contested c
fe." On the same day, the BINR and the DLNR jointly
filed their answering brief to Hui Kakoo’s opening brief. The
BUNR and the DINR asserted that the circuit court lacked
jurisdiction because Hui Kako'o, like the Waimana Parties, did
not meet the requiremente of HRS § 91-24. Specifically, the BLNR
and the DINR argued that Hui Kako'o was not “personally
-10-
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aggrieved" by the BLNR’s decision authorizing the issuance of the
long-term water lease and that Hui Kako'o did not participate in
a contested case nor was it entitled to one, ‘The BINR and the
DINR algo contended that, notwithstanding the lack of
jurisdiction, the BLNR fully complied with the requirements of
URS § 172-58(c).
HELCO also filed its answering brief to Hui Kakoo's
opening brief on September 20, 2004. HELCO contended, inter
alia, that Hui Kako'o lacked standing to bring the instant
appeal. Moreover, HELCO asserted that the BLNR’s decision
authorizing the issuance of the long-term water lease on March
12, 2004 did not arise from a contested case hearing.
Specifically, HELCO alleged that it was undisputed that “the
BLNR’s March 12, 2004 public meeting was not a contested case
hearing[] and that Hui Kako'o did not comply with Hawai'i
Administrative Rule[s] (HAR) § 13-1-29["] by submitting a timely
29 provides in relevant pare:
(a) A hearing on a contested matter my be requested by
‘the board on its ova motion or upen the written
petition of any government agency or any intel
Person who then properly qualifies to be adm
Party. “An oral or written request for a cont
Gese hearing must be made by the close of the public
hearing (3f one ie required) or the board meeting a©
which the matter is scheduled for disposition (if a5
Public hearing is required). in either situation, the
mae sail a ei
EL ‘or the board meetin shever
‘The time for aking an orai_or written
request and submitting a written petition say be
waived by the Board
(continued...)
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written petition to the BLNR for a contested case hearing.”
Consequently, HELCO maintained that the circuit court lacked
appellate juriediction to entertain Hui Kakoo's appeal.
on the same day, HELCO filed its answering brief to
Waimana Parties’ opening brief. HBLCO alleged, inter alia, that
Waimana Parties “lack standing to challenge issues relating to
the Keahole (Generating Plant].* HELCO basically reiterated the
arguments it had made in support of its motion to dismiss Waimana
Parties’ appeal, to wit, that, inasmuch as the circuit court had
earlier ruled in the 1994 Remand Order that Waimana lacked
standing to challenge issues relating to the expansion of the
Keahole Generating Plant, it follows that Waimana and Waimana’s
privy, Hee, are precluded from litigating whether they have
standing in the instant matter. HELCO also contended, as it did
in its answering brief to Waimana Parties’ opening brief, that
the BINR’s decision authorizing the issuance of the long-term
water lease on March 12, 2004 did not arise from a contested case
hearing. Specifically, HELCO argued that the BLNR’s March 12,
2004 meeting was not a contested case hearing and that Waimana
Parties did not comply with HAR § 13-1-29 by submitting a timely
written petition to the BLNR for a contested case hearing. Thus,
HELCO contended that Wainana Parties’ “procedural default [vals
fatal to their appeal.”
3 (. continued)
(eephasis added.)
o225
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On October 11, 2004, the circuit court heard oral
argument on the Appellants’ appeal, at which time the parties
essentially reiterated the argunents made in their briefings to
the circuit court. At the conclusion of the hearing, the cireuit
court stated that it would take the matter “under submission.”
On October 28, 2004, the circuit court entered its
order granting HBLCO’s motion to dismiss Waimana Parties’ appeal
and the BLNR’s and the DLNR’s joinder therein. on Novenber 3,
2004, the circuit court entered its findings of fact (FOPa),
conclusions of law (Cols), and order affirming the BINR's March
12, 2004 decision. The circuit court entered the following
elevant. FOF:
37, on March 12, 2008, the BLNR held @ duly-noticed
necting to consider HELCO's request for approval of an
auction for the lease for brackish water from the Keauhou
18. (The Appellants] appeared at the meeting and
requested a contested case hearing.
35. “mui Kako 1 an organization that represents the
beneficiaries and native Hawaiians on the Hawaiian Home
Lands walt list
20. Hui Kako'o failed to present any testimony or
other evidence to the BLNR during the March 12, 2008 meeting
that they (and{.] in Mui Kakoo's case, its members) actually
Used the area surrounding the Keahole generating station for
native Havaiian traditional and customary practices.
21, Mul Kako'o failed to present any evidence in this
appeal £0 prove that ite menbere actually used the area
Surrounding the Keahole generating station for native
Hawaiian traditional and customary practices.
22. Rui Kako'o did not present any testimony or other
evidence to the BLM® denonstrating any harm to the
environsent from HELCO's use Of the Brackish water from the
Keauhou aquifer.
23.” The SLNR denied the [Appellants’) requests for a
ed case he:
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25. Pursuant to public notice, the public auction for
the [long-term water] lease was held on July 1, 2008, HELCO
was the prevailing bidder and the lease vas executed with
HELO on July 29, 2004
(Emphasis added.) The circuit court also entered the following
relevant CoLs
2, (WRG) § 91-24(a) sete forth the following
jurisdictional requirenents for an agency appeal: (1) the
Proceeding that resulted in the unfavorable agency action
ust have been a “contested case” hearing that vas "required
By law’ and “determines the rights, duties, and privileges
Of specific parties"; (2) the agency action must’ represent a
Sine! decision and order or 2 sprelisinary ruling" that
such deferral of review would deprive the claimant of
Adequate vellet; (3) mane .
‘and have been involves "int a
QShtested case hearing; and (4) the claimant's legal
‘ues, the claimant
Snterest must have been injured
have standing to appeal. "Bub. ward
wait conm'n], 79 Hawai: 425, 432, 903
Prtd ise, 1352 (1998) (BASIE
5." iui Kako'o has failed to demonstrate that it has
standing to appeal the BLNE's March 12, 2004 decision.
G. ful kakc'o has failed tn its burden to denonstrate
that if has standing to appeal the BLNR's March 12, 2004
Gecision
ia! ‘a’ person or entity asserting standing mst prove
standing at the beginning of the ca
at's ‘Touriem AUCs 2 100
Hawaii 242, 257, 59 P3677, 652 (2002). ful Kako'o (and
iwainana Parties]} tailed to prove standing at the beginning
of the case.
13 ius Kako'o failed to produce evidence to show
that i or ite menbers have any "personal" interest as
ative Hawaiians who traditionally ané customarily exercised
practices for subsidence, cultural, or Feligicus purposes
as Hui Kako'o failed to assert before the
uur, or thereadter, to adduce evidence that te members had
actually exereised traditional and custonary native Hawaiian
practices that could be affected by the lease of the
brackish water.
[5. "itul Kakoo'® arguments to [the circuit] court for
‘the £428 time on appeal and unsupported by evidence] chat
[ts menbers may" exercise such practices is insufficiest as
a natter of law to confer standing.
$e, sven assuming that #ul xako'o has standing to
bring thie appeal, the BLYR’s March 12, 2004 [Gecision) mu
still be affireed:
37. ui Rakoo’# appeal of the BLIR’s March 12, 2004
approval of the sale of the lease at public auction does not
arise fron a “contested case’ hearing pureuant to the
jurisdictional requirenents of HRS § 91-14(a), and
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accordingly, thie [clourt lacks appellate jurisdiction to
bear thelr appeal.
18. The BLIR's March 12, 2004 public meeting w
4 contested case hearing.
3. i ©
ed wi Sai-2s BY aubeitting = Wr
‘he BLIR ested fe
March 12 eluents om ictal
‘Solbnared Sua fom Sa a aS
a
20. The BLNR was algo not required “by law" to
conduct a contested case hearing where, ae here, the BLNR's
faction involved the custodial managenent of pubiie property
fee ‘vs stat jawai't Deptt 1
Beall, 6e wav. 632, 673 F.2d 2030 (2983) (noting chat
internal management of an agency necessarily includes the
custodial management of public property entrusted to the
fagency, and hoiding that'a contested case hearing wat not
‘require by law" for BLNR decisions relating to such
wnanagesent) {.)
21. HELCO’s lease request was granted pursuant to HRS
4271-58, That statute does not require or suggest that «
contested case hearing is required Before the SLVR nay
exercise its custodial function to grant water rights by
Tease at public auction. [iil Kakoo) has tailed to
Genonstrate any statutory basis for a contested case
esting
22. the [circuit clourt further finds that the
Appellante were not constitutionally entitled to a contested
cate hearing,
36, “wouco satisfied its burden to prove that ite
request to the SLNR for an auction for a [long-term wacer
Tease} from the Keauhou aquifer was consistent with the
public trust doctrine.
(rine sunk fully complied with uRs
san-ssiedi.i
(Emphases added.)
On November 5, 2004, Waimana Parties filed a motion for
clarification of the circuit court’s order granting HELCO’s
motion to dismiss Waimana Parties’ appeal. Waimana Parties
requested the circuit court to disclose:
(2) (tIhe factual and legal basis upon which thle
cireuit clourt apparently detersined that’ [vainana] lacked
standing to bring this administrative appeal;
(2) ‘(rIhe factual and legal baste upon which thle
cixeuit clourt apparently deterninea that’ [Heel lacked
standing to bring thie administrative appeal; and
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a
(3) (the Leentitication of any factual findings or
egal conclusions derived from outside the submissions on
HeLeo’s motion and che argument at (the) hearing on
Septenber 20, 2004() thle circuit clourt considered and
Felied upon in granting HELCO’s Motion to Dismiss (.]
(iumbering altered.) Wainana Parties alternatively requested the
circuit court to enter findings and conclusions with respect to
its order granting HELCO’s motion to dismiss. On Novenber 30,
2004, the circuit court entered its order denying Waimana
Parties’ motion for clarification, stating that:
mcP Rule £2 (a) [(2005)") does not require the court to
Wisue {Pore] ‘and (cote) with respect to motions to dismise
for lock of jurisdiction because appellants lack standing as
Avaatter of law; and findings and conclusions are not
aetessary in relation to (waimana Parties}, a6 tne record in
this agency appeal clearly sete forth the basis for the
Court's order The court iagued (FOPe) and [Cols] relating
fot: akoove] appeal on November 3, 2008.
on February 4, 2005, the circuit court entered final judgment in
favor of the Appellees and against the Appellants.
on February 23, 2005, Hui Kako'o filed a motion for
relief from the circuit court’s FOFs, COLs, and order affirming
the BLNR’s March 12, 2004 decision pursuant to HRCP Rule 60(b) (6)
(2005), which Waimana Parties joined on March 9, 2005. Hui
Kako'o stated that:
1S wacP Rule 52(a) provides in relevant part that *{FOPs) and [cous]
are unnecttsary on decisions of motions under Rules 12 ((noticns pleading
see eiettefensea)] or se fiotions for summary juégeent)] or any other notion
SECS s provided in subdivisions (b) and (c) of this rule.” Subdivisions
‘Sy and {c) are not relevant to the instant case.
2 gacp Rule 60(b) provides in relevant part that, *[oln sotion and
pon such terme as are just, the court may relieve s party oF a party's legal
Woletestative tron a final Judgment, order, or proceeding for the following
eee eee Te “any other reason justifying relief fron the operation of
the Judgment .*
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Im lece than three sonths after the [circuit] court
saved its order in the instant appeal, the BNR granted a
[contested case hearing) to challenge the proposed issuance
of a water lease under (WS) § 172-88.— On J
fhe BLAR, in consultation with the office of
fe Aetorney,
General, ‘authorized a hearing officer to conduct
Diversion and Portions of a
Kaua't Zeland Utilities Cooper Clearly, the
BLUR’s inconsistent positions ave resulted in the denial of
Wai Kakoo'a due process righte toa full and fair
opportunity to be neard ana to eneure that ite
Constitutional rights are protected.
on the same day, Waimana Parties filed their motion for relief
from the February 4, 2005 final judgment pursuant to HRCP Rule
60, primarily raising the same contentions as Hui Kako'o.
on March 4, 2005, HELCO filed ite memorandum in”
opposition to Waimana Parties’ motion for relief. HELCO
jons cited by [Waimana
contended, inter alia, that “(tihe
Parties) for relief from the final judgment do not relate to the
dismissal of their appeal for lack of standing, and they cannot
be ‘conferred’ standing based upon a subsequent proceeding before
the BLNR in an unrelated matter(, d.e., the KIUC matter) .”
altered.) Moreover, HELCO pointed out that,
(Capital Lette
although a contested case hearing had been requested in the KIUC
matter, the BLNR had not yet ordered one. On the same day, HELCO
filed its memorandum in opposition to Hui Kakoo’s motion for
relief, essentially asserting the same argunents it had advanced
against Waimana Parties.
Also on Mach 4, 2005, the BLNR and the DINR jointly
filed their memorandum in opposition to Hui Kakoo's motion for
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i
relief, The BLNR and the DLNR contended that Hui Kakoo’s failure
to submit @ subsequent written petition for a contested case
an independent basis upon
hearing pursuant to HAR § 13-1-29 we
which the circuit court could, and did, affirm the BLNR’s March
12, 2004 decision. The BLNR and the DLNR also maintained that
the KIUC matter was irrelevant to the instant case inasmuch as
“{e]here is no basia for [Hui Kako‘o] to contend or (the circuit
clourt to conclude that [the] KIUC [matter] is the same as this
case." On the same day, the BLNR and the DLNR jointly filed
their memorandum in opposition to Waimana Parties’ motion for
relief. Again, the BLNR and the DINR contended, inter alia, that
the KIUC matter was irrelevant to the instant case
The circuit court held a hearing on the Appellants’
motions for relief on March 14, 2005. At the conclusion of the
hearing, the circuit court orally denied the Appellants’ motions
for relief. On April 1, 2005, the circuit court entered two
separate written orders denying Hui Kakoo’s and Waimana Parties’
motions for relief
prior to the circuit court’s entry of the April 1, 2005
orders, Hui Kako'o filed its notice of appeal on March 3, 2005,
and Wainana Parties filed their notice of appeal on the same day.
‘The foregoing set of appeals was assigned appeal No. 27159. On
April 29, 2005, Hui Kako'o filed a second notice of appeal, and
Waimana Parties filed their second notice of appeal on the same
day, ‘The second set of appeals was assigned appeal No. 27276.
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Both sets of appeals were consolidated under appeal No. 27159 by
this court on July 14, 2005.
IT, STANDARDS OF REVIEW
A. Subject Matter Jurisdiction
“The existence of subject matter jurisdiction is a
question of law that is reviewable de nove under the right/wrong
standard.” Qames Funding Corp, v. Mores, 107 Hawai'i 95, 98, 110
P.3d 1042, 2045 (2005) (internal quotation marks, brackete, and
citations omitted). If a court lacks jurisdiction over the
subject matter of a proceeding, any judgment rendered in that
proceeding is invalid. Therefore, such a question is valid at
any stage of the case, and though a [circuit] court is found to
have lacked jurisdiction, we have jurisdiction here on appeal,
not of the merits, but for the purpose of correcting an error in
jurisdiction." Bush v. Hawaiian Homes Comm'n, 76 Hawai'i 128,
133, 870 P.24 1272, 1277 (1994) (internal quotation marks,
original brackets, and citation omitted).
B. Findings of Fact
This court reviews the circuit court’s FOFs under the
clearly erroneous standard. Usoka v. Szymanski, 107 Hawai'i 386,
393, 114 P.3d 892, 899 (2005) (citations omitted).
Ala] [F08) is clearly erroneous when,
despite evidence to support the finding, the
appellate court is left with the definite and
Firm conviction in reviewing the entire evidence
that a mistake has been committed. An) (POF)
is also clearly erroneous whea the record lacks
substantial evidence to support the finding. We
have defined substantial evicence ae credivie
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evidence which se of sufficient quality and
probative value to enable a person of Feasonable
Eaution to support s conclusion.
mer v. , 104 Hawai'i 43, 51, 85 P.3d 150, 158 (2004)
(quoting Beneficial Hawai'i, Inc. v. Kida, 96 Hawai'i 289, 305, 30
P.3d 895, 911 (2002)).
Cc. Conclusions of Law
‘This court reviews the circuit court’s COLs de novo.
Ud. at 51, @5 P.3d at 158 (citation omitted). "A COL is not
binding upon an appellate court and is freely reviewable for its
correctness." Allstate Ing. Co, v, Ponce, 105 Hawai'i 445, 453,
99 P.3d 96, 104 (2004) (citations and internal quotations marks
omitted). Moreover, ‘a COL that is supported by the [circuit]
court's FOFs and that reflects an application of the correct rule
of law will not be overturned." Id. (citation omitted, internal
quotation marke, and original brackets omitted) .
TIT. DISCUSSION
‘As this court has previously stated:
preliminarily, we reiterate the well-settied principle
that appellate courte have an independest cbligaticn to
Insure they have juriediction to bear and Geternine each
case. Kerian'v. tanaka, 7 Haw. 1, 15, 85€ P.24 1207, 1215,
(1993), Starer—Moniz, 69 Haw. 370, 342, 742 P.2d 373, 375,
(i987); “Hacon'y- Harlin, 6@ Haw. 64a, 650, 727 P.24 1127,
2129. (i9e6). Tals duty arises from the equally
Svell-settied rule that the legislature may define and Limit
the right of appeal because the renedy of appeal ie not a
Connon law right and it exists only by authority of
statutory or constitutional provisions(.]* in re Attorney's
$9 Hawai's ty 4, 32 P-3d 647, 650 (2001)
(citations onitced)- In light of the legislature
prerogative of fixing the limits of appellate Jurisdiction,
fn appealing party's."
roseduree ibe ie obuaae
Grattatior! v. stare, 79 Hawai'i 10, 13, 697 P.24 937, 940,
(3995) (emphasis sazea)
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SS
Inte Doe, 102 Hawai'i 246, 249, 74 P.3d 998, 1001 (2003)
(brackets in original), Consequently, we firat address the
Appellees’ contention that the Appellants’ failure to comply with
the specific procedures promulgated by the DNLR, namely, HAR
§ 13-21-29, in requesting a contested case hearing precludes
judicial review pursuant to HRS § 91-24(a).
“HRS § 91-14(a) provides the means by which judicial
review of administrative contested cases can be obtained. Among
ite prerequisites, the section requires that a contested case
must have occurred before appellate jurisdiction may be
exercised." Pele Defense Fund v. Puna Geothermal Venture, 77
Hawai'i 64, 67, 882 P.2d 1210, 1213 (1994) (citation omitted) .
Im addition, “[a]ppellants seeking judicial review under HRS
§ 91-14 must also follow agency rules ‘relating to contested case
Proceedings . . . properly promulgated under HRS [c]hapter
sil.J'" Id. at 67-68, 881 P.2d at 1213-14 (quoting Simpson v._
Dep‘t of Land & Natural Res., @ Haw. App. 16, 24, 791 P.2d 1267,
1273 (1990) (third set of brackets and ellipsis in original),
421 Hawai'i 124, 139 P.3d 712 (2006)); PASH, 79 Hawai'i at 433,
903 P.ad at 1254.
In Simpson, the Intermediate Court of Appeals (ICA)
held that a public hearing required by law is not a contested
case where (1) the agency has properly promilgated specific
procedures for a contested case hearing and (2) a party has
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eee
failed to follow such procedures. Id, at 24-25, 791 P.2d at
1273, In that case, the petitioner had applied for a mooring
permit from the DLNR and participated in a public hearing
required by law. id. at 18, 791 P.2d at 1270. The petitioner,
however, did not request a contested case hearing pursuant to the
DLNR‘s agency rules regarding contested case proceedings,
specifically, HAR § 13-1-29, gee gupra note 11. Id, at 19, 792
p.2d at 1271. After the BLNR denied the petitioner's application
for a mooring permit, the petitioner filed a notice of appeal to
‘The circuit court dismissed the appeal
the cireuit court. Id.
on the ground that it lacked subject matter jurisdiction inasmuch
as there was no final decision from a contested case. Id, at 19-
20, 791 P.2d at 1272.
on appeal, the ICA agreed with the circuit court that
the petitioner's appeal was not from a contested case. Id. at
is, 791 B.24 at 1270. Specifically, the ICA concluded that,
inasmuch as the petitioner failed to request 2 contested case
hearing as required by HAR § 13-1-29, there was no contested case
from which the petitioner could appeal, pursuant to HRS
§ 91-14(a). Id. at 24, 791 F.2d at 1273. The ICA went on to
state:
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SS
‘The basic purpose of [elubchapter § of the (DLKR’s
“ules of bractice and Procedure*') is to provide the
(SuwR) an opportunity to establish an adequate foreal record
for judicial review of its deciaion and order. ‘Since [the
petitioner] aid not request a contested case bearing,
Fecord of the proceedings before the Bosra in sparse
inadequate for' judicial review. Transcripts of witne:
testimony at the public hearing, exhibite, if any, presenved
at the hearing, and the Board's findings of fact’ anu
conclusions of aw are lacking. In fact, it is difficult to
Getermine from the record who, other than [the petitioner:
testified at the public’ hearing. The Board's decision
and order seem to be based entirely on a staff planners
vunazy of the proceedings and recomendations.” Tas, we
hold that the public hearing before the Board was not a
“contested case hearing’ in accordance wien the DLR’
Rules. To hold otherwise would vitiate the right of
‘agencies to make and enforce such rules
Id. at 24-25, 791 P.2d at 1273 (bold emphasis added) .
s ritle 13, chapter 1 of the HAR is entitled “Rules of Practice and
Procedure" (Rules). In turn, subchapter s, encitied "Contested Case
Proceedings," is contained in title 13, chapter 1 of the HAR. HAR § 13-1-29
Ae contained in Title 13, chapter 3, subchapter 5.” The ICA noted that che
“DLNR had adopted the Rules establishing formal procederes for contested case
proceedings. The Rul
SL, are part of the public record." 1a. at 24, 791 Pad ar i273 lespheste
‘aaded) =
= Me note that, four years after Simson was decided by the ICA, this
court in Bele Defense fund criticized gimpgon's decision to reverse and remand
"he case to the circuit court in light of the DLNR's and the BLIR's fallure co
inform the petitioner “of hia right to request @ ‘contested case hearing’ and
the tine within which such request must be sade-" Simpson, 8 Haw, App. at 26,
‘79% P.ad at 1274. In Bele Defense Fund, thie court stated that,
[a] though the TcA found that the circuit court lacked
Jurisdiction because (the petitioner] id not participate ia
43 contested case, it nonetheless reversed the Gismiseal of
(the petitioner's) claim and Fenanded with direction ¢o
Yenand the satter to the Dik for # contested case rearing.
disaise the appeal. “Requiring a Fenand to the DINR vith
instructions to provide « contested cae hearing directly
contradicts the proper finding of a lack of jurisdiction in
Simson. Jurisdiction is the base requireneat for any court
considering and resolving an appeal of original action,
fe 20u) et <
onsiac ease raedier
Setlons—“wishoue Taneegieetg Sumisaal of the-anneel or
ko -consider the case further:
77 Hawai'i at 69.10, 681 P.2d at 1215 n.20 (citation and internal quotation
(eontinued..-)
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oo
Likewise, in this case, HAR § 13-1-29 is the applicable
agency rule delineating the specific procedures for requesting a
contested case hearing. As previously stated, HAR § 13-1-29
provides in relevant part
(a) A hearing on a contested matter may be requested by
the board on ite ava motion or upon the written
petition of any government agency or any interested
Rerecn who then properly qualifies to be admitted as a
‘An oral of written request for a contested
wFing muse be made by the close of the public
hearing [if one ie required) or the board veeting at
Thich the matter ie scheduled for disposition (Jf no
Jublic hearing ie required). In either situation, the
person or agency requesting the contested case hearing
Zile (er mail and postmark) a written petition
ith the board not later than ton days after the close
Ue'the public hearing or the board meeting, whichever
Ge applicable. the time for waking an oral or written
Fequest and submiteiag a written petition may be
waived by the bosrd.
(Bold and underscored emphases added.) The parties agree that
the Appellants made oral requests for a contested case hearing
prior to the close of the Maxch 12, 2004 meeting before the BLNR.
However, as the Appellees point out and the Appellants do not
Gispute, the Appellants failed to subsequently submit a written
petition to the BLNR, requesting a contested case hearing
Indeed, the circuit court's unchallenged FOF No. 24 indicates
that ‘Hui Kako'o failed to subsequently file (or mail and
postmark) a written petition with the BLNR for a contested case
(.- continued)
marks omitted) (bold and underecored emphases added); ee Bush, 76 Hawai'i at
30 P28 at 3260, (holding that judicial review by the circuit court of
Fra genial of the appellante’ request for a contested case hearing as
Kae SSCL ew of the merite cf the agency's decision “is unattainable due to
Sor of subject satter Juriediction’). In fact, this court recently
SretGhnea Simson sco the extent that ic required’a renand to the DLNR with
SHeCRucticaatts provide a contested case hearing when it lacked jurisdiction
GE'S "So-s Manlakepupy, 123 Hawal's at 136, 199 P.34 at 724.
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a SSSSsSSSSSSSSSSSSSSSSSSSSSS
hearing as required by (HAR] § 13-1-29." As euch, FOF No. 24 is
binding on this court. See In re Lock Revocable Livine Trust,
109 Hawai" 146, 154, 123 P.3d 1242, 1249 (2008) (POPs not
challenged on appeal are binding on the appellate court); Okada
1. v Water Supply, 97 Hawai'i 450, 458, 40 P.ad
73, 81 (2002) (same). Although the circuit court did not enter
any findings relating to Waimana Parties’ failure to subsequently
file (or mail and postmark) a written petition with the BLNR for
@ contested case hearing as required by [HAR] § 13-1-29, Waimana
Parties do not point to any evidence in the record that they
followed their oral request for a contested case hearing with a
subsequent written petition “not later than ten days after the
close of the (March 12, 2004] board meeting[.
* accordingly,
inasmuch as the DLNR had properly promulgated specific procedures
for a contested case hearing, see supra note 14, and the
Appellants failed to follow the requisite procedures, there was
no contested case from which the Appellants could appeal,
pursuant to HRS § 91-14(a).
Nonetheless, the Appellants contend on appeal that
their non-compliance with the DLNR’s specific procedures for a
contested case hearing should be excused because such compliance
would have been "futile." Although this court has recognized
that, *[w]henever exhaustion of administrative remedies will be
futile(,] it is not required{,]" Poe v, Hawai'i Labor Relations
Bd., 97 Hawai'i 528, 536, 40 P.3d 930, 938 (2002) (internal
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quotation marke, original brackets, and citations omitted), it
submitting a written petition requesting a
cannot be said th:
contested case hearing after the BLNR's oral rejection of the
Appellants’ earlier oral requests would have been a futile act.
Gf. Boe, 97 Hawai'i at 531, 40 P34 at 933 (holding that a
spublic employee pursuing an individual grievance exhausts his or
her administrative renedies when the employee completes every
step available to the employee in the grievance process and a
request to the employee’s exclusive bargaining representative to
proceed to the last grievance step, which only the representative
« jertake, would be futile*) (emphases added); Winslow v.
State, 2 Haw. App. 50, 56, 625 P.2d 1046, 1052 (1981) (holding
that the “appellant could not be required to exhaust contractual
remedies in an action againet the union where no such renedies
actually exist”) (emphasis added). Here, it appears, based upon
a review of the events that occurred at the March 12, 2004
meeting, that the BLNR's consideration of the Appellants’ oral
requests were somewhat perfunctory, At that meeting, the
Appellants orally requested contested case hearings. The BLNR
then convened in an “Executive Session" with deputy attorney
general Yvonne Izu to discuss the oral requests. The minutes of
the March 12, 2004 meeting reveal that the Executive Session
lasted no more than ten minutes. ‘The minutes also indicate that
the BLNR had several remaining items on its agenda to address
during the March 12, 2004 meeting. Consequently, given the
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nunber of other items on the meeting's agenda that required the
BLNR’s attention, coupled with the seemingly cursory
consideration of the Appellants’ oral requests for a contested
case hearing, it cannot be said that the BLNR had ample time to
fully consider the merits of the Appellants’ oral requests.
Moreover, HAR § 13-1-29(a) appears to recognize that a
denial of a timely oral or written request will be reconsidered
by the BLNR upon the filing of a written petition that compli
with the requirements set forth in subsection (b) of HAR
§ 13-1-29."" As previously stated, HAR § 13-1-29(a) require
that *[a]n oral or written request for a contested case hearing
must be made by the close of the . . . board meeting at which the
matter is scheduled for disposition” and that, “[iln either
situation, [i.e., orally or in writing,] the person .
ted case hearing mst file. . . a written
requesting the cont
petition with the board not later than ten days after the close
of the . . . board meeting." HAR § 13-1-29, however, is silent
jubsequent written petition
% WAR § 13-2-29(b) provides chat ehe
‘concise statements” of
requesting a contested case hearing contain
(2) The legal authority under which the proceeding
hearing or action is to be held or nade;
@ oner's interest that maly] be
(3) The disagreenent, denial, or grievance wnich i
being contested by the petitione:
(4) The Basic facts and issues raised) and
(5) The reliet fo which the party or petitioner
seeks or deens itself entitied
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with respect to the conditions under which a written petition is
required, i.e., upon either the grant or denial of an oral
request or only upon the denial of an oral request. Based on a
plain reading of HAR § 13-1-29, a written petition is required
even if the oral request is granted. However, requiring a
already
petitioner to file a written petition after relief hi
been granted is nonsensical."” Thus, given the substantive
requirements for a written petition, it is apparent that HAR
§ 13-1-29 anticipates exactly what occurred in this case -- an
oral request and insufficient tine to deliberate, resulting in a
perfunctory ruling. The filing of a subsequent substantive
written petition would not only allow the petitioner ancther
opportunity to convince the BLNR of his or her position, but
would allow the BLNR to more carefully and deliberately
reconsider its ruling and reverse itself, if appropriate. In
that regard, the BLNR’s oral rejection of an oral or written
request for a contested case hearing presented by the close of a
board meeting cannot be said to be absolute or final. To
conclude otherwise would effectively void the latter portion of
HAR § 13-1-29(1), which mandates the filing of “a written
© tm fact, HAR § 13-1-29 appears to anticipate such a scenario by
providing the SLR with auchority to waive the tine requirenent for making an
Brel or written request and subniteing a written petition. WAR § 13-1-29(a)
(ine time for making an oral or written request and submitting a written
petition may be waived by the board.*)
-28-
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
petition with the board not later than ten days after the close
of the public hearing or the board meeting." In other words, if
the BLNR’s oral rejection of a petitioner's oral or written
request made by the close of a public hearing or a board meeting
is deemed conclusive, then HAR § 13-1-29's requirement that the
oral or written request be followed by a written petition would
be superfluous or of no significance. Consequently, any
interpretation that the BLNR’s oral rejection ie absolute or
final in the context of HAR § 13-1-29 would ignore the “cardinal
rule of statutory construction that courts are bound, if rational
and practicable, to give effect to all parts of a statute, and
that no clause, sentence, or word shall be construed as
superfluous, void, or insignificant if a construction can be
legitimately found which will give force to and preserve all
words of the statute." Coon v. City & County of Honolulu, 98
Hawai'i 233, 258, 47 P.3d 348, 374 (2002) (internal quotation
marks and citations omitted); see Medeiros v. Hawai'i Dep't of
Labor & Indus. Relations, 108 Hawai‘i 258, 265, 118 P.3d 1201,
1208 (2005) (stating that “(t]he general principles of
construction which apply to statutes also apply to administrative
rules* (citation omitted))
Finally, as previously stated, because it cannot be
said that the BLNR had ample time to fully consider the merits of
a
the Appellants’ oral requ it follows that the Appellants
-29-
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
a
should be afforded another opportunity to provide more
information to the BLNR, However, HAR § 13-1-29 already provides
the Appellants a second opportunity to submit additional
information in order to convince the BLNR of their position. Had
the Appellants presented 2 subsequent written petition
permitted by HAR § 13-1-29, they could have taken advantage of
the opportunity to state, inter alia, their “interest that aly)
be aftected{,]* HAR § 13-1-29(b) (2), i.e., their basis for
standing. Consequently, “the source of the alleged ‘futility’
[was] not the administrative process but, rather, the part [ies]
Inxe Doe
who [were] seeking relief [, i.e., the Appellants)
Children, 105 Hawai'i 38, 60, 93 P.3d 1245, 1167 (2004) (holding
that the complainant could not avail herself of the “futility
exception" because she could have requested an impartial due
process hearing but chose not to do so). Accordingly, we hold
that the Appellants failed to comply with the specific procedures
promilgated by the DNLR, specifically, HAR § 13-1-29, in
requesting a contested case hearing and that such failure
precludes judicial review pursuant to ERS § $1-14(a).“*
% tm light of this court's holding, this court need not address the
renainder of the Appellants’ contentions.
-30-
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
IV. CONCLUSION
Based on the foregoing, we affirm the circuit court’s
February 4, 2005 final judgment and April 1, 2005 orders denying
Appellants’ post-judgment motions for relief.
on the briefs: Yorn
Dawn N.S. Chang, .
for appeliante-appellante Pec P/ Liriano
Hui Kekolo Aina Ho'opulapula
Michele-Lynn 2. take and Delf
Leshan D. Jayasekers
(of Richards & Luke), for
appellante-appellants
Waimana Enterprises and
Albert 8. N. Hee
Warren Price, III and
Robert A. Marks (of Price
Okamoto Himeno & Lum),
and John T. Komeiji and
Brian A. Kang (of Watanabe
Ing & Komeiji), for appellee-
appellee Hawaii Electric
Light Company, Inc.
Sonia Faust and Linda L. W.
Chow, Deputy Attorneys General,
for appellees-appellees Board
of Land and Natural Resources,
Department of Land and Natural
Resources, State of Hawai'i
“1
|
5d7a806d-1e03-4e00-89bd-72b3cca22f2c | State v. Kahapea | hawaii | Hawaii Supreme Court | LAW LIBRAR)
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
000
ei
STATE OF HAWAI'I, Plaintiff-Appellee,
yea 1 VIN
aa
ite
MICHAEL KAHAPEA, Defendant-Appellant,
ge6 WY OC HV 9002
and
NORMAN TAM, RUSSELL WILLIAMS, aka R.J. Williams and R.J. Hauling,
CLAUDE HEBARU, aka Titan Moving and Hauling, DONALD HALL, SR.,
aka A-l Hawaii Trucking and Equipment, DONNA HASHIMOTO-ABELAYE,
aka Specialty Pacific Builders, Inc., DAVID BRIAN KAAHAAINA, aka
American Hauling, and STEPHEN SWIFT, Defendants.
ee
No. 27278
APPEAL FROM THE FIRST CIRCUIT COURT
(Ce. No. 98-1135)
AUGUST 30, 2006
MOTION FOR RECONSIDERATION
MOON, C.J, LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
‘The motion filed by the defendant-appellant Michsel
Kehapea on August 21, 2006, requesting that this court reconsider
its August 9, 2006 published opinion, is hereby denied.
on the motion:
Richard Naiwieha Wurdenan
for the defendant-appellant G
fienocl fanepes
Pesce Cremer are
Boe
Von t: Days Bes
|
3a2d87f9-5413-46a2-b7c8-75cd0704936b | Kim v. Wilson | hawaii | Hawaii Supreme Court | no. 28229
IN THE SUPREME COURT OF THE STATE OF HAWAT'?
a 8
KYONG HO KIM, Petitioner FE 8
vs Br
os SF b=
THE HONORABLE MICHAEL D. watson, Bie =
Judge of the Fizst citeuie Court, Reeponegge 2
aa
s
ORIGINAL PROCEEDING
ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba and Duffy, JJ.)
Upon consideration of the petition for a writ of
mandamus filed by petitioner Kyong Kim and the papers in support,
it appears that petitioner has @ right to appeal if he is
convicted in Cr. No, 0S-1-0213. If petitioner is convicted, the
respondent judge's refusel to substitute ‘retained counsel for
reviewable on appeal from the judgment of
appointed counsel
conviction entered in Cr. No. 0$-1-0213, petitioner will have a
remedy by way of appeal from the judgment of conviction and a
writ of mandamus is not intended to take the place of an appeal.
‘Therefore,
IT IS HEREBY ORDERED thet the petition for a writ of
mandamus is denied without prejudice to any remedy petitioner may
have by way of appeal.
DATED: Honolulu,
Randall Oyama
for petitioner y
on the petition
Peni roearicre
toe N
Gone. segs
Hawai'i, November 8, 2006.
|
21f60412-b54c-4362-ada7-85bac94485c7 | Granger v. Government Employees Insurance Company. | hawaii | Hawaii Supreme Court | LAW LIBRARY
*FOR PUBLICATION in WEST’S HAWAT'T REPORTS and PACIFIC REPORTER*
000 ===
IN THE SUPREME COURT OF THE STATE OF HAWATT
MARGARET GRANGER, Plaintiff-Appellant,
GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant-Appellee,
and
No. 25457 =
APPEAL PROM THE FIRST CIRCUIT COURT
(Civ. No. 01-1-2454-08)
oats
August 8, 2006
MOON, C.J, LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY LEVINSON, J.
‘The plaintiff-appellant Margaret Granger appeals from
the October 31, 2002 judgment of the circuit court for the first
circuit, the Honorable Dexter D. Del Rosario presiding, in favor
of the defendant-appellee Government Employees Insurance Company
(GEICO) and against Granger.
On appeal, Granger argues that the circuit court erred
in granting summary judgment against her inasmuch as she was
entitled to declaratory judgment as a matter of law
(2) requiring GEICO to “either consent to the settlement . . . or
+ assume (Granger‘s) position in the underlying action by
‘*FOR PUBLICATION in WEST’ S HAWAT'T REPORTS and PACIFIC REPORTER*
paying [her] the amount she would have received from the Chongs”;
and (2) rejecting GEICO’s proposal that the defendants Jane Chong
(Jane) and Jeanette Chong (Jeanette, apparently Jane’s mother)
(hereinafter, collectively, “the Chongs”} and their insurer, the
United States Automobile Association (USAA),' be required to
agree to a settlement such as that hypothesized in Taylor v.
GEICO, 90 Hawai" 302, 978 P.2d 740 (1999), whereby “the victim
releases the tortfeasor from all personal claims but preserves
the [underinsured motorist (JUIM[)] carriers right of
subrogation,” 90 Hawai'i at 312, 978 P.2d 750 (footnote omitted)
[hereinafter, “a Taylor release”).
For the reasons discussed infra in section III.B, we
hold that the circuit court erred in granting summary judgment in
GEICO’s favor. Accordingly, we vacate the circuit court's
October 31, 2002 judgment and remand for further proceedings
consistent with the following analysis.
1. BACKGROUND
In a May 13, 1997 traffic accident, Jane rear-ended
Granger and thereby caused injuries in excess of $100,000.00. At
that time, the Chongs were covered by $100,000.00 in liability
insurance through their policy with USAA. Granger had UIM
coverage through her policy with GEICO.? On November 19, 1999,
v USAR is not @ party to this case.
+ the policy apparently provided that GEICO
will pay damages an insured is legatly entitled to recover for
bodily injury caused by accident and arising out of the cnnership,
Raintenance, or use of an underinsured motor vehicle. However, we
Will not pay until the total of all eedily injury {(BI)) Iiabiisey
[continted...)
*FOR PUBLICATION in WEST'S HAWAI'I REPORTS and PACIFIC REPORTER*
Granger filed suit against the Chongs. Granger and the Chongs
apparently arrived at a proposal for a settlement whereby Granger
“would dismiss . . . all of her claims against the Chongs . .
in exchange for a payment of $90,000.00." In an April 5, 2001
letter, Granger (1) requested GEICO’s consent to the settlenent
and (2) advised GEICO that she “w[ould) be pursuing a{ UIM]
claim." On April 10, 2001, GEICO responded that it “clould Jnot
refuse consent or consent to waive [its] subrogation interest at
th(at] time.” Rather, GEICO requested additional information:
In order to determine shether we may grant any consent
Sse must evalsate our povential JIN subrogation. If
yy assets information on [Jane], please send us
= advise us if [her] parents had any...
9° Please
eto this lose
(Ylou may'not present a UIN claim until the BY case is
By Judgment or settlement
‘Once [we are] in possession of these various itens,
we] would then expect fo discuss any consent issues and
potential UIM claim (s)) with you.
On April 16, 2001, GEICO advised Granger that, “[fJollowing
review of [its] initial asset check information, (its) UIM
subrogation appears viable . . . and (GEICO) cannot consent to
any BI settlement that fully releases [Jane]'s parents from
[EICo"s) UIN subro[gation] interests at this time.” GEICO
further requested that Jeanette complete an assets disclosure
*(. -continved)
insurance available nas been exhausted by payment of judgnents or
settlenents.
(Emphases omitted.) The policy contained an exclusion whereby “(t)his
coverage does not epply to (61) to an insured if the insures... has made
settlement... without our prior written consent.” (Enphaser omitted.) A
Section entitied “trust agreement” read in rele
ne parts) "The insured will
ry which he may have against
He will do whatever ie
‘will do nothing after the less
-
xo Secure all rights of recovery an
‘sdice these rights.” (Formatting altere
3
FOR PUBLICATION in WEST’S MAWAT' REPORTS and PACIFIC REPORTER?
affidavit, whereupon st “w(ould) . . . further review the matter
and advise [Granger] whether (it) must refuse consent or if [it]
may consent.” Alternatively, GEICO proposed that “USAA may . . .
elect to use a Taylor . . . release,” and cautioned Granger to
“send [GEICO her] proposed release to be sure [GEICO’s] UIM
subro[gation] rights are, in fact preserved.” (Emphasis added.)
on April 20, 2001, Granger wrote to GEICO, advising that the
Chongs had “indicated that the settlement w[ould] be withdrawn if
the release (Granger) provides is anything less than a full
release by [Granger].” Granger further asked GEICO to “forward
to (her) immediately . . . $90,000, which will cover the
settlement payment [she] would have received from [the]
Chongis}.”
on August 22, 2001, Granger filed a complaint in the
circuit court praying, inter alia, for declaratory judgment as
follows:
1... . (7]hat GEICO cannot refuse to consent te the
settlescnt Sf'the underlying action and thereby compel
Granger] to either pursue sais underlying action to
jusgnent or forfeit her rights to (UIK) coverage:
2... [T]hst GEICO must either consent to the
seteiencnt |! cor’, -. asaune Granger's) position in the
tonderlyang action by’paying (her) the amount she would have
Feceived fram the chongs «= . 3, (and)
(tyhat th(e Ckzeuit] court determine the
je of « Tavlor. . » release(.)
(Emphasis added.) GEICO answered Granger’s complaint on
September 14, 2001 and, on December 20, 2001, moved for summary
Judgment in its favor, In its motion, GEICO argued:
(xt was appropriate for [GEICO] to. . . refuse to consent
to the settienent . . . where the settienent as proposed
would nave prejudiced the subrogation right. (GEICO) would
have ‘Also, . . » [GEICO] is not required to assume
(Grangeri‘s posttin in ine underiying action «
“POR PUBLICATION in WEST'S HAWAT'E REPORTS and PACIFIC REPORTER*
By April 16, 20021,1 GEICO had conducted an
initial asset check ang had preliminarily determined that
ite Ulu subrogation interest appeared viable against the
tertteasor and had requested information to further eveluate
ite Olt subrogation petential. Although GEICO did not
receive the information... , st did continue Sts oun
Erweatigation of the aasgte that might Be evaileble shosla
ie obtain e subrogation interest =
11 imine undertying case could be dismissed without
prejudice by way of @ settienent agreement releasing the
Chongs from ell claine except the yor to be determined
fanount, if any, of any (UIM] coverage paid to [Granger].
= isranger} is not being forces to trial by GEICO. “she
is veing forced te trial by (USAA]"s refusal [of a Taylor
ease)
Zo! require GEICO to pay the amount of al).
Exial and the risk
settlenent... . would put tne cost of
ofa + + judgment for less than that ancunt on
ExCo.
«tn addition, At de unlikely that (Granger?
would be'noeivated to expend the time and/or effort to aid
GEICO... Lf she already has receives full conpensstion
=. GEICO should not be required to... pursue the
tort action of a party that is making s claim against it,
The interests of (Granger) and GEICO are adversarial and in
Conflict with ene another...
(Capitalization altered.)
on February 6, 2002, Granger filed a menorandun in
opposition. She argued:
The position GEICO advocates . . . would grant the UI
insurer the unilateral power to force cases to go to trial.
In}he purposes of the Hawai("]: UIM law ould be
dubverted if each injured insured were forced to proceed to
trial against the tortfeascr for the sole purpose of
preserving the DIM inevrer's contingent right to
Subrogation.
Granger cited several cases from other jurisdictions, including
Lambert vy, State Farm Mut, Auto, Ins, Co., 576 So. 2d 160, 167
(Ala. 1991); Grinnell Mut, Reins. Co, v, Recker, 561 N.W.2d 63,
68-70 (Towa 1997); MacInnis v. Aetna Life & Cas. Co., 526 N.E.2d
1255, 1260 (Nass. 1988); Schmidt v, Clothier, 338 N.W.2d 256, 263
(Minn. 1963); McDonald v. Rep.-Franklin Ins. Co., 543 N.B.2d 456,
‘*FOR PUBLICATION in WEST'S HAWAI'I REPORTS and PACIFIC REPORTER*
460 (ohio 1989); Gibson v, state Farm Mut, Auto, Ins, Go, 704
N.B.2d 1, 6 (Ohio Ct. App. 1997); Hamilton v, Farmers Ing, Co. of
fiash,, 733 P.2d 213, 219 (Wash. 1987); and Yost vs Schroeder, 383
N.W.24 876, 881 (His, 1969), in support of her alternative
azgunent that GEICO shovld at least subrogate itself to Granger's
claims against the Chongs.
on February &, 2002, GEICO filed its reply menorandun.
Tt argued that the New Mexico Suprene Court, in March v. Mtn,
States Mut, Cas. Cou, 687 F.2d 1040 (NM, 1984), reasoned that
“she consent provision is not designed to control the insured’s
access to the courts, but rather to protect the insurer’s
subrogation rights." (Quoting Zavlor, 90 Hawai'i at 311, 978
P.2d at 749 (quoting March, 687 P.2d at 1044).)
on February 14, 2002, the circuit court conducted =
hearing on GEICO's motion for summary judgent. At the hearing,
GEICO conceded that Granger “correctly states the law in.
various other jurisdictions,” but urged the court to follow
Taylor as the applicable law in Hawai'i. Granger responded that
Taxes actually does not address this issue[.)
The focus of 1s we nas the consent £0
settlenent clause and the exhaustion clause. What the court
ee Sdealt with... was... whether the refusal to
Goisent'. . | in that case tag feasonsble or unreasonable.
(Emphases added.) She reiterated that “the only way GEICO can
have the right to pursue claims against . . . the Chongs{} is to
step into. . . Granger’s shoes.”
The circuit court granted GEICO"s motion and, after
denying Granger’s March 25, 2002 motion for reconsideration
and/or clarification and her June 13, 2002 motion for further
relief, entered its October 31, 2002 judgment in favor of GEICO
‘
‘FOR PUBLICATION in WEST'S HAWAI'I REPORTS and PACIFIC REPORTER?
and against Granger, further ruling that “{s]aid Judgment extends
to and is binding on (the Chongs)” and that “{t}here are no
remaining claims . . . or parties.”
on November 8, 2002, Granger filed a timely notice of
appeal to this court.
17, STANDARD OF REVIEW
ie review the circuit court's grant or denial of
summary Jusgnent de govg. Hawai Clelevi.l Fedt | Credit
Union. Keka, 94 Rewari 213, 221, 11 F307, 3 (2000)
The standard for granting « motion for summery Judgment se
setclea:
(Slusmary judgnent 12 appropriate if the pleadings,
Gepositicns, answers to interrogatories, snd
Sanissions on file, together with the affiaavite, if
any, show that there is no genuine issue a2 to any
Raterial fact and that the moving party 4s entitled to
Sudgnent a5 2 matter of sw. A fact ig material If
Proof of that fact would have the effect of
Establishing or refuting one of tha essential elenents
Sf a cause of action or defense asserted by the
Parties. The evidence must be viewed in the Light
Rost favorable to the nen-noving party. in cther
we must view all of the evidence and the
‘ances drawn therefres in the light most favorable
to the party opposing the motion
Id. (citations and internal quotation marks omitted)
Querubin v, Thomas, 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) (quoting Simmons v. Puy, 105
Hawas's 112, 117-18, 94 P.3d 667, 672-73 (2004) (quoting Kahale
Mu City & County of Honolulu, 104 Hawai'i 341, 344, 90 P.3d 233,
236 (2004) (quoting SCI Mamt, Corp, v, Sims, 101 Hawai'i 438,
445, 71 P.3d 389, 396 (2003) (quoting Coon v. City & County of
Honolulu, 98 Hawai'i 233, 244-45, 47 P.3d 348, 359-60
(2002)))1))
*FOR PUBLICATION in WEST'S HAWAI'I REPORTS and PACIFIC REPORTER?
TI, pIscussi0n
‘The Parties’ Arcuments
on appeal, Granger argues that, in accordance with
public policy and the intent of the legislature in enacting HRS
§ 431:10C-301(b) (4) (1993), GEICO should not be able to refuse a
settlement agreement and effectively leave her no other
alternative to the risk and expense of trial: “Under GEICO’s
view, if [it] elects not to consent to the release of the
[chongs], [Granger] must choose to either forego the UIM coverage
she paid for by settling with the tortfeasor over GEICO’s
ebjection, of take the case against the (Chongs] to trial.”
According to Granger, “the purposes of (HRS § 431:10C-301(b) (4)]
would be subverted if each injured insured were forced to proceed
to trial . . . for the sole purpose of preserving the UIM
insurers contingent right te subrogation. It defeats the whole
purpose for buying [UIM) coverage in the first place.”
In the alternative, Granger proposes that we adopt the
rule established in several other jurisdictions, whereby, if
GEICO withholds its consent, it must at least “step into [her]
shoes” as her subrogee “(bly paying her an amount equal to what
the Chongs have offered in settlement.” See Lambert, 576 So. 2d
> HRS § 431:10C-301, entitled “Required rotor vehicle policy
.ge," provides in relevant part:
(b) A motor vehicle insurance policy shail include
lai Coverage for lose resulting from (B1] or death suffered by any
person legally entities to recover damages fro owners oF
Cperatore of underinsured motor vehicles
Effective June 19, 1997 and July 20, 1998, the legislature amended this
fection in respects not germane to this appeal. Gee 1998 Haw. Sess. L. Act
255, $8 1é and 27 at 926625, 940; 1997 Hane Sess. Ly Act 251, 65 36 and 70 ot
534235, 553.
*FOR PUBLICATION in WEST'S HAWAI'I REPORTS and PACIFIC REPORTER?
at 167; Grinnell] Mut, Reins, Co., $61 N.W.2d at 70; Macinnis, 526
N.E.2d at 1260; Schmidt, 338 N.W.2d at 2637 McDonald, 543 N.E.2d
at 460; Gibson, 704 N.E.2d at 6; Hamilton, 733 P.2d at 219; Yoot,
383 N.W.2d at Bel.
In its answering brief, GEICO counters: (1) that its
refusal to consent to the settlement was “reasonable”; and (2)
that Granger’s alternative prayer for a “payoff” equal to the
proposed settlement would require us to overturn Tavlor in favor
of other states’ models that we and the legislature have -- at
least implicitly -- rejected:
[A)11 the cases cited by Granger predate (Javier)
‘Schmid s Macingists) es + and Gipson...
Were cited 3h Sauer’... althcugh’the other cazes
mentioned by Granger were not cites in Zavior, given, the
Sates of those decisions and the treatises cited in Tavior,
itis likely that this Court was well ovare of the nanner in
Which those few other Jurisdictions handled matters euch ae
this and rejected that approach - This Court would
fe(d] the use of 4 “Linited release” if it
‘Spproach advocated by Grange:
‘ Pavior was decided on May 5, 1999. There have
been three full sessions of the... legislature since thet
tine. [{] If the Legislature... ‘felt that the decision
War conehow inconsistent with ste legislative intent
ree ee]. st could have passed legisiation to change the
dpprdach taten[,] incluaing the adoption of the procedure
ow advocated by Granger. it has net done 80
(Formatting altered.) Moreover, GEICO argues, the consent-to~
settle provision in its policy would be enforceable in most
jurisdictions, including Hawai'i.
Furthermore, GEICO seems to urge that we should somehow
foxce the parties and USAA into a Tavlor release and that, if
anybody acted unreasonably, it was USAA and the Chongs by
“GEICO filed ite answering brief on March 19, 2003.
8
POR PUBLICATION in WEST’ S HAWAI'I REPORTS and PACIFIC REPORTER*
refusing to agree to a limited settlement.’ (Quoting Taylor, 90
Hawas'i at 311-12, 978 P.2d at 749-750.)
Finally, GEICO contends that Granger’s position
requires it to assume a risk of the unknown, inasmuch as the true
monetary value of Granger’s injuries remains unadjudicated.
Moreover, GEICO argues, it should not be required to advocate
Granger's position in the tort context while at the same tine
defending against @ possible contractual dispute with Granger
concerning her UIN claim.
8. Analysis
1. GbICO"s refusal to consent, after investication,
fo prot 7 ranoer's
subrogee, was reasonable,
In Taylor, the plaintiffs were injured by an
underinsured motorist. 90 Hawai'i at 304, 978 P.2d at 742.
Notwithstanding a provision in GEICO’s* policy thet “[UI™)
coverage does not apply . . . if the insured . . . has made a
settlement . . . without our prior written consent," the
plaintiffs “executed a joint tortfeasor release and indemnity
agreenent,” against GEICO’s wishes, whereby the underinsured
torte
sor would pay the plaintiffs an amount less than “the
bodily injury policy limits of the (tortfeasor’s) carrier.” 90
Hawas‘i at 304-05, 978 P.2d at 742-43 (emphases omitted).
We held that consent-to-settle provisions do not, “per
se, contravene the intent of HRS § 431:10C-301(b) (4)," see supra
GEICO’s Fequest for this court to smpose o Zavler release, upon
‘the Chonge and USRA ~~ "a non-party -- is injusticisble for want of personal
jurisdiction.
GEICO was sige the ple!
otiffe! inevrer in Taylor.
10
*FOR PUBLICATION in WEST’S HAWAI'I REPORTS and PACIFIC REPORTER*
note 3.7 90 Hawai'i at 307-09, 978 P.2d at 745-47. Moreover, we
‘agree{d] with GEICO that the protection of the UIM carrier's
subrogation rights would be @ reasonable basis for a refusal to
consent to settlement. . . . The preservation of a UIM carrier's
subrogation rights is consistent with the interests of this
state's public policy." 90 Hawai" at 310, 978 P.2d at 748.
Nonetheless, we held that, because GEICO justified its
withholding of consent to the settlement “solely upon an invalid
exhaustion clause” and not a “desire to preserve its subrogation
rights,” Taylor’s failure to obtain consent “was... not...
a legitimate basis for denying the [appellants’] application for
OIM benefits”:
[T]he legitimate invocation of 2 consent-to-settle provision
“requires the insurer to denonstrate prejudice fron the
Ansured"s failure to obtain the insurer's consents ss.
“Sig the carrier denies the claim .
Inte its merits.".”.',° the carrier may
Hts... (The investigation
factors such de “the anoint of assets held by
the tortfeasor, the likelihood of recovery via subrogation,
and the expenses and risks of 1itigating the insured’s cause
of action.”
90 Hawai's at 309-12, 314, 978 P.2d at 747-49, 752 (emphasis in
original) (quoting Greenvall v, Maine Mut, Fire Ins, Co., 715
A.2d 949, 954 (Me, 1998); Allstate Ins, Co, v, Beavers, 611 So.
2d 348, 351 (Ala. 1992); Gibson, 704 N.E.2d at 6) (some citations
omitted).
The legislative history of ARS § 431:10C-301(b) (4), which took
effect on dune 13, 1966, pee 1988 Hou. Sess. L. Act 306, $61 and 4 at 75-77,
does not aid this court's analysis of the present appeal except to confirm
that the purpose of adding HRS § 431:10C~301(b) (4) Mas “to provide protection
for persons who are injured by [UIM]s." Sen. Conf. Comm, Rep. No. 215,
in'1906 Senate Journal, at 615) Hae. Cont, Comm. Rop, Ne. 126-08, in 198
House Journal, st £26; se. Stand. Conn. Rep. NO. 1190-68, in 1908 House
Joornal, at 124
u
POR PUBLICATION in WEST'S HAWAI'I REPORTS and PACIFIC REPORTER*
on the other hand, in the present matter, GEICO
undisputedly investigated factors that would render subrogation
more or less favorable to GEICO. Even Granger's complaint
acknowledged that “GEICO. . . demanded that [she] obtain
information regarding the personal assets of the Chongs” and that
GEICO later concluded that “the Chongs ha[d] personal assets.”
Consequently, we believe that GEICO's refusing to
consent in order to protect its subrogation rights, in light of
onable pursuant to this court's dictun
in Taylor. Nevertheless, it was unnecessary in Taylor for us to
ite investigation, was re
discuss what further steps would be required of a UIM insurer
that did withhold consent reasonably.
2. t
se must tender
Granger.
We agree with Granger that GEICO, having withheld its
consent, must put itself in the position of Granger's subrogee by
paying her $90,000.00, the amount of the Chongs' offer.
At least eighteen jurisdictions have adopted the rule
that, after the UIM insurer has a reasonable opportunity to
consider the implications of a pending settlement, it must either
allow the settlement to proceed or tender to its insured a
payment equal to the tortfeasors’ settlement offer (up to the
Limits of the insured’s UIM coverage). See, e.g., Lambert, 576
So. 2d at 166 n.4, 167-68; Grinnel] Mut. Reins, Co., 561 N.W.2d
at 70; Nationwide Mut, Ins. Co. v. State Farm Auto, Ins. Co., 973
S.W.2d 56, 58 (Ky. 1996); MacInnis, $26 N.E.2d at 1260-61;
Schmidt, 338 N.W.2d at 263; Hamilton, 733 P.2d at 220; Yoat, 383
2
‘*FOR PUBLICATION in WEST’S HAWAI'I REPORTS and PACIFIC REPORTER*
N.W.2d at 982, 883 6 n.8; Irvin E. Schermer & William J.
Schermer, 3 Automobile Liability Insurance § 42:17 (4th ed. 2004
& Supp. 2006); Alan I. Widiss & Jeffrey E. Thomas, 3 Uninsured
and Underinsured Motorist Insurance $ 43.6 (3d ed. 2008) ("[T]he
insurer bears the risk that a subsequent recovery will be less
than the amount paid to the insured.”) (emphasis added). The
Alabama Supreme Court, in Lambert, described the procedure to be
followed when a victim who is covered by UIM insurance is injured
by an underinsured motorist
If the tort-feasor’s liability insurance carrier and the
Ineurea enter into negotiations that ultimately lead Co.
proposed compronise or settlenent ... , and if the
Betelenent would Felease the tort~feasor’ from all 1iabiiity,
then the insures, before agreeing te the settlement, should
immediately notify the (OIK) insurance carrier of the. «
iryne insured should also inform the carrier as
to whether the insured will seek [UIM) benefits in addition
to the benefits payable under the settlenent proposal, £0
that the carrier can determine whether it will refuse te
consent to the settienent, will waive its right of
Subrogation against the tore-fearor, oF will deny any
obligation to pay (UIM] benefits. - [T]he carrier
Should innediately begin investigating the claim, ("|
Conclude such investigation within a reasonable time, and
Spotify ite insured of the action st proposes =
‘The insured should not settle with che
tort-flagor without first allowing the [UIM) insurance
Carrier a reascnable tine within which to snvestigate the
Sngurea’s claim and to notify its insured of its proposed
action.
ifthe Ulm) insurance carrier wants to protect
ite oubrocation rishts, It aust. within « reasonable tine,
ana, in any event before the tortfeasor is releases by the
Sarrier's insured,
516 So. 2d at 167 (emphases added). The Minnesota Supreme Court
© The insurer's cbligation to consent or be subrogated “is not
triggered {f"the ineured nas faileg to satisfy ite contractual
Obligation to provide information te the underineurer to assist the
Uncerineurer in determining densges.” pitts v. rust of Kngeppel, 698 N.W.20
561, 776 (wie, 2005)
13
‘POR PUBLICATION in WEST'S HAWAI'I REPORTS and PACIFIC REPORTER*
more thoroughly fleshed out the cost/benefit analysis that the
insurer performs:
If the underineurer were to determine after assesenent that
Fecovery of underinsurance benefits vas. uniikely
(e.g., where the liability limits axe exhausted or nearly so
and the tertfeasor is judgnent~proct), it could simply let
the “grace period” expire and permit the settlenent and
release.
TE, "of the other hand, dasages were substantially more
than the Lisbility limite and the tortfeasor had substantial
assets, the underinsurer could aubseituee its payment to the
Sneored in an amount equal to the tentative settienent.
Schmidt, 338 N.W.2d at 263. Of course, having thus preserved its
subrogation rights, the insurer could then pursue its oun action
against the tort
At least twelve states have statutorily codified this
procedure and the duration of the insurer’s grace period. Ark.
Code Ann. § 23-89-209(d) (1) and (3) (2004 6 Supp. 2005) (allowing
the UIM insurer a thirty-day grace period); Fla. Stat. Ann.
§ 627.727(6) (b) (West 2005 & Supp. 2006) (same); 215 11. Comp.
Stat. Ann. § $/1432-2(6) (West 2000 & Supp. 2006) (same); Ind.
Code Ann. § 27-7-5-6(b) (LexisNexis 1999 & Supp. 2008) (same);
Kan, Stat. Ann. § 40-284(f) (2000 & Supp. 2005) (sixty days); Ky
Rev, Stat. Ann. § 304.39-320(4) (LexisNexis 2001 6 Supp. 2005)
(thirty days); Md. Code Ann., Ins. § 19-511(c) (LexisNexis 2006)
(same); N.C. Gen. Stat. § 20-279.21(b) (4) (2005) (same); N.D-
cent. Code § 26.1-40-15.5.2 (2002 & Supp. 2005) (same); Okla.
Stat. Ann. tit. 36, § 3636.F.2 (West Supp. 2006) (sixty days);
Tenn. Code Ann. § $6-7-1206(k) (2000 & Supp. 2005) (thirty days);
W. Va. Code Ann. § 33-6-31e(c) (LexisNexis 2003 & Supp. 2006)
(sixty days). Our research reveals no contrary authority.
uu
*POR PUBLICATION in WEST'S HAWAI'I REPORTS and PACIFIC REPORTER*
In the present matter, no party disputes that the
Chongs offered Granger $90,000.00 for 2 full release, nor that
Granger notified GEICO of the Chongs’ offer. GEICO should have
been left to the task of estimating whether (1) “buying” itself
the right to sue for $90,000.00 and then incurring the time and
expense of Litigation will net @ more favorable outcome than (2)
permitting the compromise and then reimbursing Granger for her
compensable danages that exceed $100,000.00, see Zavior, 90
Hawai'i at 313, 978 P.2d at 751 (quoting Longworth v, Van Houten,
538 A.2d 414, 423 (N.J. Super. Ct. App. Div. 1988) (“{T]f the
victin does accept less than the tortfeasor’s policy limits, his
(or her) recovery against his [or her] UIM carrier must
nevertheless be based on a deduction of the full policy
Limits.")). If GEICO, in good faith, prefers to prolong the
lawsuit against the Chongs for its own benefit, it may do so.
See discussion supra in section III.B,1. Nonethell
we cannot
allow GEICO to conscript Granger as its “vicarious plaintiff” for
the purpose of recovering, at substantial cost, funds that she
already paid GEICO to bear the risk of providing in the event of
See Pitts v, Trust of Knueppel, 698
an underinsured injury.
‘Ae noted gupta in section 1, GEICO posed the question in its
Decenber 20, 2001 aataon for summary judgnent whether Granger "would be
hotivated to expend the time and/or effort to aid GEICO” in ite subrogation
Eeticn were GEICO to tender $30,000.00 to her. However, according to the
Guprese langosge of GEICO’s UIM'pelicy, which GEICO attached to its motion,
Grenger 12 subject toa duty to "so whatevs
fend... do nothing efter the loss to prejudice these Tienes.”
{Emphasis added.) ‘We Believe thet this “cooperation clause” would impose upon
Granger such specific duties 25 submitting to interviews by GEICO, giving
GEIce information with which to reconstruct the pertinent events, “(a)t!
Sepositions and ether. proceedings suchas © - trials] +. . [and
Giiving truthful testimony and following the Girection of counsel.” Sea
Sietzey Wi Steepel, Stempel on Insurance Contracts §9.02(A] 4 8.19 (340d.
(eontinved...)
nding
15
‘FOR PUBLICATION in WEST’S HAWAI'I REPORTS and PACIFIC REPORTER*
N.W.2d 761, 773 (Wis. 2005) ("(T]he transfer of risk is the only
reason that insureds pay premiums to insurers"); Yost, 383
N.W.24 at 682.
IV. CONCLUSION
We hold that the circuit court erred in granting
summary judgment in GEICO’s favor and, accordingly, vacate the
circuit court’s October 31, 2002 judgment and remand for further
proceedings consistent with this opinion. On remand, the circuit
court shall grant Granger the declaratory relief she seeks in
paragraphs 1 and 2 of her prayer, see supra section I; that is,
having received notice of its possible subrogation interest and
having concluded its investigation into the Chongs’ assets and
insurance coverage, GEICO must, within a reasonable time
following the circuit court’s ruling on remand, either
(2) consent to the proposed settlement among the Chongs, Granger,
and USAA, gr (2) pay Granger the proposed settlement amount of
$90,000.00 and thereby assume the position of Granger's subrogee
with respect to the Chongs.
on the brief
Roy K.S. Chang and Harvey Peete Oey once
M. Denetrakopoulos
(of Shim and chang) for
Plaintiet=appeliant Anan N
€ Bedisn Bh
7 -continved
2006) (Hizine typiesl cooperation clause i# short and generic, seplicitiy
Empoving's duty. . Gerived fon conan senge."1feSescions’ omitted)
1é
*FOR PUBLICATION in WEST'S HAWAT'T REPORTS and PACIFIC REPORTER*
Carleton B. Reid
(of Miyagi, Nohr & Myhre)
for defendant-appellee
Government Employees
Insurance Company
Michael F. 0’Connor
(of Oliver, Lau, Lawhn
Ogawa & Nakamura) for
defendant s-appellees
Jane Chong and Jeannette
chong
Terrance M, Revere and
Jacqueline E. Thurston
(of Motocka Yamamoto &
Revere) for United
Services Automobile
Association
|
3768b8b7-7b3f-4061-a7c5-825c2ee8edcc | Lathrop v. Sakatani. | hawaii | Hawaii Supreme Court | *** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
IN THE SUPREME COURT OF THE STATE OF HAMAT'Z
---000.
‘and as members of KIWI KAHALA
Limited liability company, and on behalf of @)
NAOTO LATHROP and GLENN NOBUKI MURAKAMI,
indiv:
LLC, ‘a Hawai’
KIWI KAHALA LLC, a Hawai'i’ limited liability
company, Plaintiffs-Appeliante,
MICHABL DAVID SAKATANI, individually and as a menber of
KIWI KAHALA LLC, a Hawai'i limited
Liability company,
and as the controlling person of 808 DEVELOPMENT LLC,
@ Hawai'i limited liability company; MICHAEL DAVID
SAKATANI and CHRISTINE MARIE
SAKATANI, as
husband and wife; and 808 DEVELOPMENT LLC, a
Hawai'i limited liability company, Defendants-Appellees,
and
TITLE GUARANTY ESCROW SERVICES, INC.
@ Hawai'i corporation,
as third-party Account Holder of Escrow No. Ad-105-0047,
established pursuant to that certain Account Control
‘Agreement, dated February 6, 2004; JOHN DOES 1-10;
JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOB
CORPORATIONS 1-10; DOE ENTITIES 1-10;
and DOR’ GOVERNMENTAL
UNITS 1-10, Defendants.
wo. 27472
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 05-21-0870)
AUGUST 21, 2006
MOON, C.J., LEVINSON, ACOBA, AND DUFFY, JJ.; AND CIRCUIT
SunGe'GRAULTY, IN PLACE’ OF NAKAYAMA, J., RECUSED
arms
*** FOR PUBLICATION ***
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OPINION OF THE COURT BY MOON, C.J.
The instant appeal is narrowly confined to whether the
plaintiffs-appellante Naoto Lathrop and Glenn Nobuki Murakami
(hereinafter, collectively, the plaintiffs], menbers of Kivi
Kahala LLC (Kiwi Kahala), are entitled to record a lis pendene
(4ie., a notice of an action pending against real property)! on
4908 Kahala Avenue, Honolulu, Hawai'i (the Kahala property or the
property), formerly owned by defendants-appellees Michael David
Sakatani (Michael), who is alec a member of Kiwi Kahala, and his
spouse, Christine Marie Sakatani (Christine) [hereinafter,
Michael and Christine are collectively referred to as the
Sekatanis). Briefly stated, thie litigation arises from a bitter
partnership dispute between the plaintiffs and Michael. The
plaintiffs principally alleged that Michael exerted unauthorized
control and management of Kiwi Kahala and fraudulently diverted
company assets to hinself, the Sakatanis, and/or 808 Development
LLC (808 Development), of which Michael ie the sole menber
(hereinafter, the Sakatanis and 808 Development are collectively
rred to as the defendants]. The plaintiffs also alleged that
the defendants then used Kiwi Kahala’s assete and monies for
3 an Hawas'S, the doctrine of Lis pendens is codified in Hawai'i Revised
Seatucen (ins) #5 501-151 (1993) (lane court registered property) and 634-51
(Supp. 2005) (non-registered land). HRS € 501-151 authorizes the filing oF
recording of 2 Lis pendant agsinst registered land for actions “affecting the
title co veal property or the use ang occupation thereof er the buildings
thereon{.]" similarly, HRS § 634-51 authorizes the recording of @ lis pendent
against non-registered land in the bureau of conveyances to provide
Constructive notice of the pendency cf the action to a future purenaser. The
me lis pendens, notice of the pending action, and notice of pendency of the
action are used interchangeably,
*** FOR PUBLICATION ***
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their real estate purchases and 608 Development's construction
projects. The plaintiffs sought, inter alia, the dissolution of
Kiwi Kahala, an accounting, and the return of Kiwi Kahala’s
assets, monies, and property.’ Subsequently, the plaintiffs
filed a Lie pendens upon the Kahala property. However, the
Circuit Court of the First Circuit, the Honorable Eden Elizabeth
Hifo presiding, expunged the lis pendens on August 30, 2005,
pursuant to its grant of the defendants’ motion to expunge the
notice of pendency of the action (the motion to expunge)
On appeal, the plaintiffs raise 2 single point of
error, essentially contending that the circuit court erred in
expunging the lis pendens because the plaintiffe’ complaint
specifically sought partial title to, and partial possession of,
the Kehala property -- and not only money damages or equitable
relief -- as required by §. Utaunomiva Enterprises, Inc. v.
Moomuku Country Club, 75 Haw. 480, 510, 866 P.2d 951, 966 (1994)
(holding, inter alia, that the application of lis pendens ie
restricted to “actions directly seeking to obtain title to or
possession of real property" (emphasis omitted)).
Based on the discu
ion below, we hold that the
plaintiffs’ appeal be dismissed as moot because the Kahala
been gold.
property hi
Title Guaranty Escrow Services, Inc. (TGES) ie algo naned af a
defendant in the complaint inasmuch ae it 3 the holder of a certain sun of
tnonies in escrow for the Sa Which monies allegedly belong to Kivi
Kabala. GES, however, is not a party to this appeal
*** FORPUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
1. BACKGROUND
As previously stated, the plaintiffs and Michael are
members of Kiwi Kahala, a menber-nanaged Hawai't limited
liability company formed to purchase, develop, and sell real
estate. The plaintiffs and Michael hold @ one-third interest
each in Kiwi Kahala.
on May 31, 2005, the plaintiffs filed a complaint
against the defendants, The plaintiffs alleged that Michael
assumed “control over the books and records and the business,
financial, and investments affairs of Kiwi Kahala," without their
consent, and, inter alia, fraudulently diverted Kiwi Kahala’s
assets, monies, and property
into real estate purchases, transactions, and sales
including those of his personally and of the Sakatanie
perecnally and of 808 [Development] personally, and/or into
Construction projects of 608 (Development), including and/or
Snvelvingl,] for instance, ‘1908 Xahaia Avenue(-]
Consequently, the plaintiff:
as the majority members of Kiwi
Kahala, sought to dissolve Kiwi Kahala, pursuant to HRS §§ 428-
801 (4) (8) and -801(4) (B) (2004), and to wind up its affairs.
> was § 421
02 provides in relevant part:
A limited Liability company is dissolved, and ite
business shall be wound Up, upon the occurrence of any of
the felloving events
ia} Gn application by 2 menber or 2 dissociated
member, upon entry of a judicial decree that?
ip) " Another member has engaged in conduct
relating to the company’s business that
sakes it not reasonably practicable to
carry oh the conpany’s business with that
Benber; (ane)
(continued...)
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
‘The plaintiffs also aeserted claims against Michael of,
dnter alia, breach of fiduciary duty, fraud, and breach of
contract and prayed for, inter alia, an accounting. Moreover,
the plaintiffs asserted claims of fraudulent transfers and
conveyances against all defendants and sought an imposition of
constructive trusts as to “all monies and all personal and real
properties" that were allegedly wrongfully diverted to the
defendants.*
‘Thereafter, on June @, 2005, the plaintiffs filed a
notice of pendency of the action with the circuit court. The
notice provided that,
fon May 32, 2005, thie eivil action was filed by the
Ipliasnetten
‘The cutcone of this cage will affect title to the real
property situated at 4908 Kahala Avenue in the City
and county Ot Honolulu
2(. continued)
(B) The managers or members in contro} of the
company have acted, are acting, or will
act ina sanner that is illegei,
Gppressive, fraudulent, or untairly
prejudicial to the petitioner.)
+ tm anewering the complaint, the defendants algo counterclained
against che plaintiffs, essentially alleging similar claims ae the plaintiffs
of, inter alia, breach of fiduciary duty to Kivi Kahala and ite menbere, the
Gigsolution of Kivi Kahala, fraud, and breach of contract, for whch they
Likewise seught an accounting.
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The Lis pendens wae immediately recorded at the State of Hawai'i
Bureau of Conveyances against the Kahala property,’ which the
Sakatanis owned as tenants by the entirety.'
fon August 18, 2005, the defendants moved to expunge the
is pendens, on the grounds, inter alia, that the plaintiffs, in
their complaint, did not claim to have any interest concerning or
affecting the title or possession of the property, as required
under Hawai'i case law and HRS § 634-51.” In other words, the
+ ag previously stated, Hawai't law authorizes the filing of notice of
pendency of lawsuit, or Lis pendens, to render constructive otice of the
Suit to purchasers of real property. HRS § 634-51 provides in relevant parts
a1 property or affecting
on’ of real property, the
Plaintiff, at the tine of filing the complaint... may"
Fecord in'the bureau of conveyances a notice of the pendency
of the action... . Fron and after the time of recording
the notice, a person who becoses purchaser or incumbrancer
of the property affected shall be deeued to have
constructive notice of the pendency of the action and be
ound by any judguent entered therein if the person elaine
through a party to the action|.
+ In mid-2005, the Sakatanie ved over $4,000,000 on the property and
were making monthly interest-only paymente of $93,275.26.
> thie court interpreted HRS § 624-51 in
Anc._v, Moomuks Country Club, 75 Waw. 480, 66
TA) is pendens may only be filed in connection with an
action (2) *eencersing esl property,” (2) "aftecting title"
S.Uteunoniva Buterprises.
Ta ssi (1394), and held that:
to reat property, or (3) "affecting | . . the right of
possession of real property." ens Tower Dev
Gorm,, 72 Haw. 267, 269-70, 914 P.2d 396, 397 (198i) (eiting
ns § 634-81)
Ad. at 505, 866 P.24 at $64 emphasis and ellipsis in original). Therefore,
“the doctrine of lig pendens protect |e) = plaintiff fron having his or her
claim to the property defeatea by the subsequent alienation of the property to
Dona fide purchaser during the course of the laweuit." id, at s0b, 666 F.2d
at 965 (citation onitted) ; gee algo TEA Int'l ind. v. shiniai Corp., 92
Hawai'i 243, 266, 990 7-26 713, 736 (1999) Thin court, consequently.
‘concluded chet
che lis pendens etatute must be strictly construed and that
the application of Lie nendent action
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in West's Hawai'i Reports and the Pacific Reporter
defendants averred that the instant lawsuit was not an action for
which @ lis pendens could be filed and that ite filing
constituted an improper attempt to obtain prejudgment attachnent.
Further, because the defendants had contracted to sell the
property to @ third-party buyer and the escrow closing was set
for August 20, 2005, Michael stated in his declaration that:
If my wife and I do not close the escrow because of
the Notice of Pendency of Action, we will have to continue
paying the carrying coses on thia property until this
Titigacion is finalized.
‘on April 16, 2006, my Promieeory Note . . . will be
due, and{,) if thie litigation se not resolved(,j T will be
unable to refinance that mortgage and will go into default.
A hearing on the motion to expunge was held on August
24, 2005. Om August 30, 2005, the circuit court granted the
defendants’ motion to expunge. On the next day, the plaintiffs
filed their notice of appeal. That sane day, August 31, 2005,
the plaintiffe filed with thie court, and recorded at the state
(continued)
‘diss
property,
of res
| 75 Haw, at 510, 666 P.24 at 966 (some emphasis
Added and tone in original)
+ an order expunging a lis pendent is immediately appealable as a final
order under the collateral order doctrine. Such an order
conclusively resolves whether the lis pendens should or
should not be cancelled because nothing further in the uit
Gan affect the validity of ene notice. The order cancelling
the lis pendeng does not address the merite of the
Underlying claim. And if the movant had to wait until final
Jusonent on the underlying claim, the realty could be sold
before the ieeue was resolved, thereby rendering the order
unreviewsble.
v, Foote, 102 Hawai'i 82, 65, 63 P.3¢ 388, 383 (2003) (citations
omitted) tholding that an order expunging @ lig pendeng is co}lateral order,
fang, thus, ehie court has juriediction over the appeal).
*** FORPUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
Bureau of Conveyances, a second lis pendens on the Kahala
property. In response, the defendants filed ancther motion to
expunge with this court, which was granted on November 21, 2005.
IT, STANDARD OF REVIEW
sWhether 2 lie pendene should be expunged is =
question to be resolved in the exercise of the trial court's
Giseretion; accordingly, the trial court's decision ts
Feviewed for an abuse of that discretion.” S. Uteunoniva v
Moomuku Country Club, 75 Naw. 480, 504, 066 Pad 951,964
(iss) (citations omitted). “in deteraining the validity of
a Lig pendens, courte have generally restricted their review
fo the face of the complaint.” id. at S05, S66 Pad at 36s
(citations omitted).
Knauer, 101 Hawai‘ at 83, 63 P.3d at 291; see also TSA Int’)
Lids, 92 Hawai'i at 253, 990 P.2d at 723. “The [circuit] court
abuses its discretion if it bases ite ruling on an erroneous view
of the law or on a clearly erroneous assessment of the evidence."
vw, wy, 103 Hawai'i 26, 30, 79 P.3d 119, 123
(2003) (citation omitted). stated differently, an abuse of
discretion occurs where "the [circuit] court has clearly exceeded
the bounds of reason or has disregarded rules or principles of
law or practice to the substantial detriment of a party
litigant." Roxas v, Marcos, 89 Hawai'i 91, 115, 969 P.2d 1209,
1233 (1998) (citation and internal quotations marke omitted).
IIT. DUSCUSSION
As previously stated, the plaintiffs maintain that the
Lis pendens was valid under Hawai'i law and, thus, the circuit
court erred in granting the motion to expunge. Specifically, the
plaintiffs argue that their complaint clearly indicates that they
are not seeking only money damages or equitable relief, but also
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
partial title to and partial possession of the Kahala property to
the extent that their partnership monies purchased the aforesaid
property and/or the construction materials that are now a part of
the property. In response, the defendants contend that: (1) the
plaintiff’ appeal is moot inasmich as, during the pendency of
this appeal, the Kahala property was sold, thereby preventing
this court from granting any effective relief; and (2) the
circuit court did not abuse its discretion when it expunged the
is pendens because the plaintiffs’ complaint does not concern
title to or possession of real property, and there is no
allegation that Kiwi Kahala owned the property. The plaintiffs,
in their reply brief, counter that the sale was fraudulent.
Moreover, they argue that, even assuming that the sale renders
moot the issue presented on appeal, this court nevertheless
should decide the matter because it falls within an exception to
the mootness doctrine.
“thie court has long held that jurisdiction is the
base requirement for any court resolving a dispute because[,]
without jurisdiction, the court has no authority to consider the
case.” ISA Int'] Ltd., 92 Hawai'i at 265, 990 P.2d at 735
(internal quotation marke and citations omitted). Further,
[eIhe duty of thie court, ae of every other judicial
tribunal, a to decide actual controversies by = juagment
hich can be carried into effect, and not to give opinions
Spon noot questions or abstract propositions, or te declare
principles or rules of law which cannot affect the water in
Tesue in the case before it
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Courte will not consume tine deciding abstract
propositions Of law or moot cases, and have no jurisdiction
Wong_v. Bd. of Recents, Univ. of Hawai'i, 62 Haw. 391, 394-95,
616 P.2d 201, 204 (1980) (citations omitted). Thie court further
reasoned that “the objection to deciding moot cases wae that the
judgment of the court could not be carried into effect, or that
ble to grant.” Id, at 395, 616 P.2d at 204.
Inasmich as this court does not have jurisdiction to “decid{e]
abstract propositions of law or moot cai
"dd. (citation
omitted), we examine the mootness question in light of the
defendants’ argument, i.e., whether the sale of the Kahala
property renders the plaintiffs’ appeal regarding the removal of
the lie pendens moot .
It is well-established tha
doctrine is said to encomps
Gestroy the Justicsability of
previously suitable for determination. Put
Suit sust rensin alive throughout the course of litigetion
to the movant of final appellete disposition. ite chief
purpose ie co sasure that the adverssry system, once eet in
‘operation, renains properly fueled. The doctrine sens
appropriate vnere events subsequent to the judgment of the
trial court have so affected the relations between the
parties that the two conditions for jurticiabiiiey relevant
Ga appeal -- adverse interest and effective renedy —~ nave
been conpromie
Id. at 394, 616 P.2d 201, 203-04 (1980); see algo Okada Trucking
So. v, Bd, of Water Supply, 99 Hawai'i 191, 195-96, 53 P.34 799,
803-04 (2002); Kona Old Hawaiian Trails Group v. Lyman, 69 Haw.
62, 87, 734 P.2d 162, 165 (2967)
In the instant cai
, the defendants insiat that
-10-
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
the doctrine of moctness precludes this court from deciding this
appeal because the Kahala property was sold to a third-party
purchaser, and, thus, “there is no longer an effective remedy
available to the [plaintiffs] or an adverse interest between the
parties." Specifically, the defendants argu
First, assuming arguendo, [the plaintiffs] vere to prevail,
the only renegy aveilable to then would be to allow (the
plaintiffs) to file a 148 pendens egainet the Sakatani
Kahala property. Because, however, the sakatanis’ Kahala
Property wes sold, that renedy is ho longer available.
Becond. because the Sakatanie no longer evn the property,
they ave no longer in confiiet with (the plaintiffs) over
fhether of not a 142 pendens should be placed on the Kanale
property,
Although the plaintiffs do not dispute the fact that the property
has been sold, they maintain that “[the] sale was merely to a
etraw buyer, constituting yet another fraud on [the plaintiffs]
land now on this [court.]* They argue that the sale was “phony”
and we
entered into by the defendants in an attempt to defeat
the plaintiffe’ recovery while looking for real buyers.”
Tesues surrounding the sale of the property --
fraudulent or not -- are not before this court in this appeal.
‘The only iesue before this court is whether the circuit court
erred in expunging the Lis pendens. See State v. Harper, 1 Haw.
App. 481, 484, 620 P.2d 1087, 1090 (1980) (*the scope of the
* an support of this argunent, the plaintiffe attached to their reply
brief a letter, dated April 20. 2006, from the thiré-party buyer who was also
fnvolved in another foreclosure cage, to the circuit court. The third-party
buyer stated that the property hae been sold and that he no longer had say
Tnterest in the property. The aforementioned letter, however, is not part of
the record and cannot be consigerea by this court simply because it is
attached toa brief, HRS § 661-2 (Supp. 2005) ("Every appeal shall be taken
Gn the record, and no new evidence shell be introduced in the euprene
court")
are
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
eview of appellate courts is limited to iesues preserved and
raised on appeal"). Even assuming, but not agreeing, that the
circuit court erred in granting the defendants motion to expunge,
the plaintiffs would not be able to record another lis pendens
upon the Kahala property inasmuch as the property has been sold
and the Sakatanis do not hold title to it. See Chizeo v. Gateway
Qaks, LLC, 384 F.3d 307, 308-09 (6th Cir. 2004) (dismissing the
plaintiff’s appeal of the removal of his lis pendens upon the
defendant’s condoniniun because “the selling of [the defendant‘s]
condominium(] renders the lis pendens issue moot"), Accordingly,
the sale of the property prevents the appellate court from
granting any effective relief. See Chaney v. Minneapolis Cnty
Dev. Agency, 641 N.W.2d 228, 335 (Minn. Ct. App. 2002)
(dismissing the appeal as moot because “the property [the
plaintiffs] seek is owned by others unaffected by the[]
proceedings”) .
Moreover, “it is appellant's burden to seek a stay if
post-appeal transactions could render the appeal moot." In re
Gotcha Int'l L.P., 313 B.R. 250, 255 (B.A.P, sth Cir. 2004)
(citing In-xe Filtercorp., Inc., 163 F.3d 570, 576-77 (sth Cir.
1996)); see also In xe Onowli-Kona Land Co,, 846 F.2d 1170, 1174
(sth Cir. 1988) [hereinafter, Qnouli-Kona] (also noting that
“It]he burden of obtaining a stay pending appeal . . . falls on
[the] individual parties*). In Qnouli-Kona, a bankruptcy case,
the United States Court of Appeals for the Ninth Circuit held
<12-
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
that a notice of Lis pendens does not serve the same function as
fa stay and does not preserve the requirement of a live case or
controversy. Id, at 1175. In that case, which challenged the
confirmation of a foreclosure sale, the Ninth Circuit determined
that the sale of the property during the pendency of the appeal
rendered the case moot, despite the filing of a notice of lis
pendens because “filing of li pendens does not substitute for
[glebtor’s failure to obtain a stay." Id.; see also In re the
Brickyard, 795 F.2d 1154, 1158 (9th Cir. 1984), implicitly
overruled on other rounds by In re Sweet Transfer & storace
Inc., 896 F.24 1189 (1990).
In this jurisdiction, Hawai‘i Rules of civil Procedure
(HRCP) Rule 62 (2004) provides the means for an appellant to
obtain a stay pending appeal. HRCP Rule 62 states in relevant
part
(c) Injunction pending appeal. when an appeal is
taken from an interlocutory oF final Judgment granting,
Giseolving, or denying an injunction, the court in ite
Siseretion may suspend, modify, restore, or grant an
Snjunction during the pendency of the appeal upon such terms
je to bond or otherwise as it considers proper for the
Security of the rignte of the adverse party-
(@)" stay upon ampeal. when an sppeai ic taken(,] the
ppellant by giving a supersedeas bond nay obtain a
stay ‘The sond may be given at or after the tine of
filing the notice of sppeal or of procuring the oréer
Allowing the appeal
effective when the supersed
and ne
asoveale not Lisited. The provisions in this role do not
[inte any power of the suprene court or of the intermediate
court of sppesie or of a justice or jucge thereof to stay
proceedings during the pendency of an appeal or to s\
fore, or grant an injunction during the
‘OF make any order appropriate to pre!
-13-
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
status quo or the effectiveness of the judgment subsequentiy
fo'be entered.
(underscored emphases in original.) (Bold emphases added.)
Here, the plaintiffs failed to seek a stay on the execution of
the circuit court’s order expunging the lis pendens pending the
disposition of the appeal. In addition, the plaintiffs were
aware that 2 sale transaction had been scheduled. See, 2.g.,
B =. Certain Rea! longing to
Hayes, 943 F.2d 1292, 1294 (11th Cir, 1991) (failure to request a
etay of execution pending appeal or to post supersedeas bond,
combined with subsequent sale of the property to third-party
deprived the court of in xem jurisdiction); Chun v, Bd of Trs, of
Employees’ Ret, Sys, of the State of Hawai'i, 106 Hawai'i 416,
429, 106 P.3d 339, 352 (2005) (the defendant sought a stay of
proceedings to enforce post-judgment order pending appeal) ; MDG
Supply. inc. v. Diversified inve., inc., $1 Haw. 480, 482, 463
P.2d 530, 532 (1969) (the defendant moved, pursuant to HRCP Rule
62(g), for a stay of the foreclosure sale pending app
2);. Such
failure permitted the 4
ndants to proceed with the
transaction.” Consequently, the completed sale rendered the
plaintiffs’ appeal moot.
Alternatively and assuming this court holds that the
issue presented by this appeal is moot, the plaintiffs urge this
court to consider the exceptions to the moctness doctrine.
© the plaintiffs could have aleo sought an injunction to prevent the
eale if, a they allege, the sale was fraudulent; they di¢ not.
wade
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
‘There ie a well settled exception to the rule that appellate
Courte will not consider most questions. When the question
ely if the nature of things chat similar questions
satiate on
be made. the exception is invoked.
Johnston v. Ing, 50 Haw. 279, 381, 441 P.2d 138, 140 (1968)
(emphasis added). In cther words, the case must involve
questions that affect the public interest and are “capable of
repetition, yet evading review.” Carl Corp. v. State of Hawai'i.
Rep't of Educ,, 93 Hawai'i 155, 165, 997 P.2d 567, 577 (2000)
(internal quotation marks and citation omitted).
criteria considered in determining existence of
fare the public or
public officers, and the likelinood of future recurrence of
The question.
Okada Trucking Co., 99 Hawai'i at 196-97, 53 P.3d at 804-05
(internal quotation marks and citation omitted).
Here, the plaintiffe argue that the issue whether they
are entitled to file a lis pendens on real property to which they
king only partial title and partial possession (1) affects
the public interest becat
there “is [a] need to clarity
the . . . doctrine* as announced in §, Utaunomiva Enterprises;
and (2) “is likely to reoccur and to become moot again and again
without appellate consideration becoming possible." The
plaintiffs, however, do not advance any reason for this court to
clarify S$. Utsunomiva Enterprises. The plaintiffs simply state
that such clarity is necessary to “protect those cases like thie
nase
FOR PUBLICATION * **
in West’s Hawai'i Reports and the Pacific Reporter
that fall in between the broad common law doctrine and the
restrictive view adopted in [S. Uteunomiva Enterprises). We
fail to see how the question posed here is of public concern when
this court in §. Utgunomiva Enterprises has provided the clear
guidance that “the application of lis pendeng should be limited
actions direct) in title to or possession of
real property[,]”" 75 Haw. at 510, 866 P.24 at 966 (some emphasis
added and some in original), and such holding has been followed
by subsequent cases, see, ¢.c., Knauer v. Foote, 101 Hawai'i 81,
63 F.3d 389 (2003
TSA Int’) Ltd v. Shimueu Corp., 92 Hawai'i
243, 990 P.2d 713 (1999); In ye 2003 and 2007 Ala Wai Blvd. cit
and County of Honolulu, 85 Hawai'i 398, 944 P.2d 1342 (App
1997), overruled on other grounds by Knauer v. Foote, 101 Hawai'i
81, 63 P.3d 389 (2003).
Further, with respect to whether the issue is “capable
of repetition, yet evading review,” Car] Corp,, $3 Hawas‘i at
165, 997 P.2d at 577 (internal quotation marks and citation
omitted), this court has stated that
elhe phrase, “capable of repetition, yet evading review,"
means that "a court will not dismiss @ case on the grounds
(Of moctnese where s challenges governmental ection woula
evade full review Because the passage of time would pr
Guy single plained! from remaining subject to the
Featriction complained of for the period necessary to
complete the laweuie.*
Id. (some internal quotation marks and citation omitted). as
previously discussed, the plaintiffs permitted the sale of the
property te go through by failing to either seek a stay of the
-16-
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
August 30, 2005 order expunging the lis pendens or an injunction
to block the gale of the property based upon their allegations of
fraud. Had they done so, the issue before this court would not
have evaded review. However, because they did not avail
themselves of the mechanisms that would have preserved the issue
for review, we are compelled to hold that the issue is moot and
the exceptions to the mootness doctrine do not apply.
IV. CONCLUSTON
Based on the foregoing, we dismiss the plaintiffs’
appeal as moot.
on the briefs: Z
Gary Victor Dubin, Gi
for plaintiffe-appellants Bhi Gdhorinenn
arin 1. Holna and
Arava Harrell (of Bays, JP
Beever, Lung, Rose Baba),
for defendants-appeliees Grrr, Ducegs +
“types tl,
a7
|
1a81747a-1679-4830-a0dc-95aff17c75da | Regan v. State | hawaii | Hawaii Supreme Court | LAWLISRARY
No, 27508
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
ANTHONY L. REGAN, Petitioner-Appellant,
STATE OF HAWAI'I, Respondent-Appellee.
3
APPEAL FROM THE FIRST CIRCUIT COURT
(S.P.P. NO. 0-1-0076; (CR. NO. 02-1-2155))
(By: Nakayama, J. for the court’)
Upon consideration of appellant’s motion for
reconsideration of the August 7, 2006 order denying the motion
for release pending appeal, the papers in support and the record,
IP IS HEREBY ORDERED that the motion for
reconsideration is denied.
IT 18 FURTHER ORDERED that appellant’ s request for a
copy of HRS § 804-4 is denied.
DATED: Honolulu, Hawai"i, August 28, 2006.
FOR THE COURT:
Pees ONO
Associate Justice
‘considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.
|
37c4fa7b-cbb5-4bdc-94a8-9b3950d1dc40 | 808 Development, LLC v. Murakami | hawaii | Hawaii Supreme Court | No. 26610
IN THE SUPREME COURT OP THE STATE OF HAWAI'I
808 DEVELOPMENT, LLC, Lienor-Appellant /Cross-Appell.
JOSEPH E. SPADARO aka JOSEPH ELTO SP)
individually and as Trustee under that ce:
Declaration of Trust dated October 3, 200
JOHN NELSON SPADARO; JIM HOGG; LISA HOGG; and
AMERICAN SAVINGS BANK, F.8.B., Respondents-Appellees,
GLENN NOBUKI MURAKAMI and ANN SUE ISOBE, A 2
Respondent s-Appel lees /Cross-Appel iants i ee 8
and Se a
= SH 3S &
= o
2
o
and
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; DOE ENTITIES 1-10; and
DOE GOVERNMENTAL UNITS 1-10, Respondent:
APPEAL FROM THE FIRST CIRCUIT COURT
(M.L. NO. 04-1-0002))
for the court!)
(By: Moon, C.
IT 1S HEREBY ORDERED that the opinion of the court in the
above captioned matter, filed August 14, 2006, is amended as
1 is bracketed and stricken; new material
follows (deleted mate
ie double underscored
Coneigered by: Moon, C.J. Levinson, Acoba, and Duffy, JJ.2 and
Intermediate Court of Agpesis Associate Judge Watanabe, in place of Nakayama,
3. recused
Ak _the bottom of page 34 to the top of page 35
In addition, 808 Development's failure to discuss
Hixaga goes not render(s] its argunente frivolous
because Hixaga promotes strict adherence to the
requirements of the relevant statutes as they
relate to a lien application, whereas 608
Development’'s arguments centered on why the court
should exempt it from the strict statutory
requirements.
The Clerk of the Court is directed to incorporate the
foregoing changes in the original opinion and take all necessary
steps to notify the publishing agencies of these changes.
DATED: Honolulu, Hawai'i, September 7, 2006.
FOR THE COURT:
SEAL
Cece
No. 26610 Devel 1 i -- order of
‘Amendment.
|
a178fccb-24cc-4482-ba88-1c770a3c2ee2 | Barnhard v. Phillips | hawaii | Hawaii Supreme Court |
no. 28088
DANE JAY BARNHARD, Petitioner
‘THOMAS PHILLIPS, MAUI COUNTY - CHIEF OF POLICE, Respondent
ORIGINAL PROCEEDING
ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
upon consideration of the petition for a writ of
mandamus filed by petitioner Dane Barnhard and the papers in
support, it appears that petitioner’s claim of violations of
Hawas's Revised Statutes § 291C-112 and Maui County Code
§ 13.04.160 ie not supported by any evidence and the claim is not
clear and certain, Therefore, petitioner has failed to
demonstrate a clear and indisputable right to relief and is not
entitied to a writ of mandamus, See In Re Disciplinary Bd, of
Hawaii Supreme Court, 91 Hawai'i 363, 984 P.2d 688
(1999) (Mandamus relief is available to compel an official to
perform a duty allegedly owed to an individual only if the
Andividval’s claim is clear and certain, the official's duty is
ministerial and so plainly prescribed as to be free from doubt,
and no other remedy is available.). Therefore,
aang
IT IS HEREBY ORDERED that the petition for a writ of
mandanus is denied
DATED: Honolulu, Hawai'i, August 3, 2006.
Dane Jay Barnhard,
petitioner, pro se
Foo
|
f69fa0e8-8263-4961-a237-67bcaae0d954 | State v. Razo | hawaii | Hawaii Supreme Court | No. 26604
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
STATE OF HAWAI'T, Plainti¢f-Appellee 3
vs, 2 4m
VINCE WILLIAM RAZO, Defendant-Appellant <= SE
APPEAL FROM THE sécoND cuncuIT cour |F
(CR. NO. 03-1-0293) al 2
‘ORDER
(ay: Duffy, J. for the court!)
upon consideration of the motion for extension of tine
to file an application for a writ of certiorari, it appears that
HRS § 602-59(c) (Supp. 2005), as amended by Act 149, 2006 Hawai'i
Session Laws, does not authorize the appellate court to extend
the ninety-day period for filing an application for a writ of
certiorari. Therefore,
IT IS HEREBY ORDERED that the motion for extension of
time to file an application for a writ of certiorari is denied.
DATED: Honolulu, Hawai"t, December 19, 2006.
FOR THE COURT:
Yen €. Dads
Associate Justice
‘considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy,
gs
|
046efff0-551c-40ee-b6e4-a6e9fad81c71 | State v. Perez. | hawaii | Hawaii Supreme Court | LAW LIBRA
***FOR PUBLICATION IN WEST'S HAWAT' REPORTS AND PACIFIC REPORTER***
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
000
Wo, 27548
APPEAL FROM THE THIRD CIRCUIT COURT
(CR. NO. 04-1-0393)
AUGUST 28, 2006
MOON, C.J-, LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY DUFFY, J.
Plaintiff-appellant State of Hawai'i (hereinafter, the
prosecution] appeals from the Circuit Court of the Third
Circuit's Septenber 30, 2008 order granting defendant-appellee
Alvin Kalaokoa Perez's motion te suppress evidence of drugs and
drug paraphernalia found in his coin purse after he was arrested
for shoplifting, given a pat-down search, detained for two hours,
and then had his coin purse searched pursuant to a search warrant
issued based on a canine screening of his coin purse at the end
of the two-hour detention. On appeal, the prosecution contends
that the circuit court erred when it concluded that the police
{the Honorable Gienn §. Hara presided over this matter
***FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER***
did not have justification to detain Perez after the pat-down
search; therefore the evidence recovered upon the search of Perez
should not have been suppressed. Perez counters that the circuit
court did not err in concluding that his detention after the pat-
down search was unjustified, and thus the evidence was properly
suppressed as the fruits of an unlawful seizure.
Based on the following, we affirm the circuit court's
order of suppression.
1. BACKGROUND
on July 16, 2004, the prosecution filed a complaint
charging Perez with the offenses of promoting a dangerous drug in
the third degree, Hawai'i Revised Statutes (HRS) § 712-1243(1)
(1993),? and prohibited acts related to drug paraphernalia, HRS
§ 329-43.5(a) (1993).? On February 15, 2005, Perez filed a
notion to suppress the evidence of drugs and drug paraphernalia
found in his possession, arguing that it was the fruit of an
unjustified seizure of his person and closed coin purse. At
2 as § 732-1243(1), entitled "Fronoting a dangerous drug in the third
degree," provides: "A person commite the offense of promcting 2 dangerous
Grug ih the third degree if the person knowingly possesses any dangerous drug
fn any amount.”
> aRS § 329-43.5, entitled “Prohibited acts related to drug
paraphernalia,” provides in relevant part
a) Te Ss unlawful for any person to use, oF to possess with intent to
se, drug paraphernalia to plant, propagate, cultivate, grow, harvest,
Hansfacture, compound, convert, produce, process, prepare, test,
Enalyze, pack, repack, store, contain, conceal, inject, ingest, sn
Grctherwise introduce into the suman booy # controlled supstance in
Slolation of this chapter:
**9FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER***
hearings on June 14 and August 16, 2005, Perez conceded that he
had been validly arrested for shoplifting and that the police had
probable cause to arrest him on the drug charges after a police
dog scented drugs in his coin purse. He agreed with the circuit
court, therefore, that the key issue was whether there was “any
legal basis” for detaining him and the purse until the dog
arrived.
on Septenber 30, 2005, the circuit court, having
concluded that there was not any such legal basis, entered an
order granting Perez's motion. The order contained the following
findings of fact (FOF) and conclusions of law (COL):
The Court makes the following Findings of Fact:
1. on duly 14, 2004, at about noon, Rawas"i County Police
Sétlcere thpotiol Kepoe and Jenn Gandolf arrested (Pere:) at
fhe FIA store in Kainea, Hawa:'l- (Perez) was avrestea for
Shoplifting air-freshener, the glass container for which can
Be Used to snoke crystal nethanphetanine
2. officer Kepeo told (Perez) that bail for the shoplifting
Sharge would be $50.00. The usual beil for shoplifting is
£50.00, as testified to by Officer Gendolf. —(Pere2) had
Over $60.00 in cash on his person at he tine of his arrest
From the KTA storel, Perez] was transported to the waines
police station, which vas about five minutes away from the
KoA store. At that station, [Perez] was allowed to use the
toilet. hile at the toilet, with his back to Officer
Gendeli, * pinging notae was heard by Officer Gandolf.
Officer’ Gendolf aid not see anything insice the toilet, but
vias concerned about [Perez] having a possible weapon.
Ofticer Gendolf cid a pat-down search of (Perez's) person,
and found a cloth or leather coin purse, 3s well as. some
IGose money. ‘The coin purse was zipped closed. Officer
Gandelf, while starting to unzip the coin purse, asked
IPerez) 1f 1t was alright for Officer Gandolf to pat the
loose money into the coin purse. Officer Gandolf nad the
ccin purce unsipped about half-way when [Feres) told him
Shor Officer Gandolf rezipped the coin purse closed. He
Gid not see what was ineise the coin purse.
-FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER***
4. [Peres] was then placed back into cell, and officer
Gandolf called a Detective Hodson sbout [Perez] at sbout
12:18 pins. Detective Hodson told Officer Gandolf that
(Peres) was a known dru desler, ang to hole [Perez] there
until he rrived at the Waimea station. [Perez] wae left in
the cell, and all processing of him on the shoplifting
charge ceased. The tine for processing an individual on a
Shoplifting charge runs from one hour to two hours. Te Wil
fake one hour if the cosputer system is working properly and
Tf'things are “smosen.”
5. {Perez} remained in the jai2 cell while Detective Hodson and
Detective Diego drove fram Kona to the eines station. They
arrived at the Maines station about 1:55 p.n., and cevective
Hodson performed canine screening on (Peres) coin purse
at 2:10 p.m. Ine canine alerted on the coin purse. [Pere2)
Was then arrested at 2:15 p.m, for pousible drug offenses)
6. Based primarily upon the canine screening, a search warrant
was obtained fer [Perex’s] coin purse. The search warrant
Was executed, and methanphetanine and drug paraphernalii
Plastic packets, were recovered.
‘The Court makes the following Conclusions of Law:
1, Officer Gandolf had a reasonable suspicion of possible
weapons to allow hin te pat down [Perez] at the toilet
2. After the pat-down of [Ferez], there was no further
Justification for further Getention of [Perez] except for
the shoplifting charge
fed for the
3. After the pat-down of [Perez], he was not proc
shoplifting charge and allowed to pest bail.
After the pat (-Idown search, police had no reascnable
suspicion other than the shoplifting. The ceasing of
Processing of [Perez] for shoplifting resulted in his being
Setained for reasons other than shoplifting, which aid not
ancunt to probable cause to arrest {Perez}. As [Perez] nad
Deen patted down previcusly, there was no reason to further
detain him for s pat[-Idown or frisk for the safety of the
officers, and detaining (Perez) for the sole purpose of @
Ganine screen was, under the circumstance, unreasonable and
Snlaweul
5. The canine screening of [Perez’s) coin pouch was the result.
of [Perez's] illegal seizure, and therefore, the search
warrant was based on facts illegally obtained
‘The methanphetanine and drug paraphernalia, plastic packets,
Fecovered here the “Eruies” of the illegal seizure of
[Peres] ana nis property, and violated (Peres's) right to be
free fzom unreasonable searches, seizures, and invasions of
privacy under Article 1, Section 7 of the Hawai't
Eonet tution
*+**FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER***
on October 12, 2005, the prosecution filed a timely notice of
appeal in this court.
IT. STANDARD OF REVIEW
(t]he proponent of a motion to suppress has the burden of
establishing not only thet the evidence sought to be excluded was
Uslawfully secured, but also, that his or her own Fourth Anendnent
Fights were viclated by the search and seizure sought to be
Challenges. The proponent of the motion te suppress must satisfy
this burden of proof by @ preponderance of the evidence.
State v, Anderson, 84 Hawai'i 462, 467, 935 P.2d 1007, 1012
(1997) (internal citations, quotation marks, brackets, end
emphases omitted). ‘The appellate court reviews 2 “circuit
court’s ruling on 2 motion to suppress de nove to determine
whether the ruling was ‘right’ or ‘wrong.’” State v. Kauhi, 86
Hawai'i 195, 197, 948 P.2d 1036, 1038 (1997) (citation omitted).
TIT. pIScuSSION
To restate, the issue in this case is whether the
police had any justification for holding Perez and his coin purse
from 12:15 p.m. until the detectives arrived and conducted the
dog-sniff at 2:10 p.m, The prosecution challenges the circuit
court’s COL 2, 4, 5, and 6, in which the court concluded that
there was no justification. The prosecution argues that these
conclusions are erroneous as a matter of law for two reasons:
(2) dt could reasonably have taken the police two hours to
process Perez on the shoplifting charge and the dog in fact
arrived within two hours, such that Perez's release was not
unnecessarily delayed; and (2) the police had reasonable
‘*+*FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER***
suspicion to detain Perez, independent of the shoplifting charg
after the “unusual activity in the toilet.” In response to the
first point, Perez concedes that if the dog had arrived within
one hour, the detention and search would have been valid, but
“ [bly detaining Perez an additional hour based only on his
reputation as a drug dealer and his reaction to Gandolf’s attempt
to open nis purse, the police violated Perez's right to release
without unnecessary delay.” As to the second point, Perez argues
that the police did not have reasonable suspicion to detain him
apart from the shoplifting charge, and even if reasonable
suspicion existed, the length of the detention was excessive.
For the reasons set forth below, we conclude that Perez's
arguments have merit.
A. The Circuit Court Did Not Err in Concluding that Perez’s
tion Not Be J Pursuant tine
Arrest.
Perez was initially arrested for shoplifting, a petty
misdemeanor. See HRS $$ 708-830(8) (1993) and 708-833.5(3)
(1993) (providing that where the value of the stolen property is
less than $100, shoplifting is classified a petty misdemeanor).
As both the prosecution and Perez acknowledge, this court has
stated that “a person arrested for a petty misdemeanor or
misdemeanor offense possesses not an absolute right to release,
++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER**"
but rather a right to release without unnecessary delay upon
State v. Langley, 62 Haw. 79, 81, 611 P.2d
payment of bail.
‘the holding in Vance and Lanaley with regard to when the right to bail
in a misdemeanor case attaches wag based on HRS § £0¢~4, Hauas's Rules of
Criminal. Procesure (HRCEP] Rule 5(a) (2) and Federal Rule of Criminal Procedure
(encre) Rule Sia) Vance, 61 Haw. at 300-01, 602 P.24 at M0-€1. See alse
Hawal't Roles of Penal Procedure (HREP) Rule 46 ("The right to bail Before
conviction or upen review, the form and amount thereof, and the matters of
Justification of sureties, forfeiture of bail, and exoneration of cbligors and
Zureties shall be as provided by law, (See Hawai'i Revised Statutes, Chapter
G0s:)"). ‘In the intervening years, the pertinent part of HRS § 604-4 has
ined unchanged. Congare HRS § 804-4" (Supp. 2008) (providing that, in
faves. such ao Feres’ s, "a defendant may be aumitted to bail before conviction
fs a matter of right”) with HRS § 804-4 (1972) (providing that va defendant
may be adsitted to bail before conviction as a matter of right"), quoted in
Yaice, ef Haw. at 200, 602 P.2 at 940. Similarly, the pertinent langvage of
FRCP Rule 5(aj remains unchanged. Compare FRCP Rule Sa) (1) (A) (2008)
(proviging thet (a) person making an affect within the United States must
ke the defendant without unnecessary delay before a magistrate Judge, oF
before a stete or local judicis) efficer .. -") with FRCe Rule S(a) (1992)
(Gsing the sane: Naignose uineceseary delay” longubpely guotad in Vance, 62
‘e301, 602 Pe2d ae Sel
The jdwai'i rule, on the other hand, has endergone @ change that
requires mention. In the 1960 version, relied upen by the Vanes Court, NRCP
Fale Sa) (2) provided in pertinent part as follows:
hy person or officer who shall arrest a person without @ warrant
Schall, except where and to the extent the detention of the
arzeated petaon i authorized by law, take the arrested person
tithout unnecessary -delay before the magistrate having
Jurisaiction, or, for the parpese of acnission te bail, before any
jodge, other magistrate or officer authorized by law to admit the
accused person to bail.
Vance, 61 Haw. at 300-01, €02 P.2d at 940 (emphasis and ellipsis in original)
The current version of HREP Rule 5(g], an the cther hand, has separate rules
for worrentless arseste and arrests with a warrant. “The rule for arrests with
avwarrant maintains the original ‘without unnecessary delay” language, Seg
HRPP Role $(a) (1) (2003) (van officer making an arrest under a warrant shal
take the arrested person without Unnecessary delay before the district court
having juriediction, or, for the purpose of admission to bail, before any
judge cr officer authorized by law to ednit the accused person to bail.")» In
Qontrast, the rule for arrests without s warrant’ provices:
‘hg s00n a6 practicable, and, Rule (5 potwithstanding, not later
than 42 houfs after the warrantless arrest of s person held in
custody, 2 district judge shall determine whether there was
probeble cause for the arrest. No Judicial determination of
Probable ceuse shell be mace unless there is before the judge, st
The minimus, an affidavit of the arresting officer of other person
making the arrest, setting forth the specitic facts to find
Probable cause to believe thot an offense hos been committed and
Ghat the ervested pereon has committed it, If probable cause 1s
found as afcressid, an eppropriate order chall be filed with the
Court as soon as practicable. If probable cause 1a not found, or
a proceeding to determine probable cause is not held within the
(Continved.
+*2FOR PUBLICATION IN WEST'S HAWAL'T REPORTS AND PACIFIC REPORTER*™**
130, 132 (1980) (per curiam); see also State v, Vance, 61 Haw.
291, 300-01, 602 P.2d 933, 940-41 (2979) (same). “{W)hat
constitutes ‘unnecessary delay! requires the consideration of all
the facts and circumstances at the time.” Langley, 62 Haw. at
81, 611 P.2d at 132. In Vance and Langley, a delay in
defendants’ admission to bail was held necessary due to their
physical condition. Langley, 62 Haw. at 82, 611 P.2d at 152
(holding that delay was necessary due to defendant's intoxicated
condition) + Vance, 61 Haw. at 302, 602 P.2d at 941 (holding that
delay was necessary due to defendant's disturbed and belligerent
state). However, the Yance Court clarified that “a delay will be
found necessary only upon clear justification; the defendant‘ s
“(cs econtinued)
Tine period provided by this subsection, the arrested person shall
beverdered released. and discharged from custody.
REP Role S(0)(2] (2001), Curiously, the rule is now silent as to when the
Tubject cf a warrantless arrest mst be presented for admission to bail;
Sitheagh che language “person hela in custody,” does by opposition implicitly
Sanit Of cases where & warrontiess arrestee 1¢ released, presumably on bail,
Sfter arrest. RSP Role S{a)(3) further provides that the probable cause
Rearing in subsection (a) (2) may be combined with # bail hearing und
Dobsecticn (ai {ll. ft thus appears that the current rule may be read to
Sctherize the police to hold s warrantless arrestee until it is practicable to
Sikes probasie couse determination. However, it would be odd, if not unjust
arbitrary, thet a person for whom ¢ probatle cause determination has
Siready been sade (dec, an initial judicial inprimatur on the validity of the
Selined hes 2tresdy Been given and thos there is presumably less Likelihood
that the person has been seized withost justification) is entitled to
SGnlstisn’to Beil “without unnecessary delay” unile « person whose seizure has
fot been passed upon at all by the Judiciary has a lesser entitlenent to beil
Given thet the Nawas's constitution protects defenants from the “unreasoneble
Srarbitrary deniel of beil,” dusnus «. shimosa, 6f Haw. 527, 539, 644 P.2e
Ste, 976 (1962), we conclude that the better approach is to ead the current
Zale": silence, along with the lack of any material change in HRS § 60-4, a
Implicitly continuing the prior rule under which persons had equal right of
adhission to bail ive, without unnecessary delay), regardless of whether
they were arrested with a warrant or without. This approach is particularly
Spplopriste where, oe here, the prosecution dees not dispute the applicability
oPtne Usnce Lansley melding. Accordingly, we follow that holding here
Geapite the change in the language of the rule.
‘
“FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER***
right to freedom from unreasonable searches and seizures
prohibits such delays as a pretext to unjustified pre-
incarceration searches.” Vance, 61 Haw. at 303 n.11, 602 P.2d at
941 n.11. See also Langley, 62 Haw. at 61-82, 611 P.2d at 132
(same). Here, the prosecution does not challenge the circuit
court’s finding that normal processing time for shoplifting
arrests runs from one to two hours, but is one hour if things are
running smoothly. It is also undisputed that Perez's detention
ran into a second nour not because things were not running
smoothly, but because his processing had ceased while waiting for
the narcotics detectives. Accordingly, given that the second
hour of Perez's detention was concededly pretextual, it cannot be
justified under Vance and Langley.
The prosecution nevertheless makes an additional
attenpt to justify the search of the coin purse as a search
incident to the shoplifting arrest for fruits of the crime. In
State v. Kaluna, this court held that “where the nature of the
offense makes it reasonable to assune that evidence of that
offense may be located on the arrestee’s person or in the
belongings in his possession at the tine of the arrest, then the
police may search those areas without a warrant.” 55 Haw. 361,
372, 520 P.2d $1, 60 (1974) (citation and footnote omitted). The
Kaluna Court noted that “a search conducted at the station house
a reasonable time after a valid arrest is no less ‘incident’ to
***FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER***
that arrest than one conducted at the scene thereof." Id. at
364-65, 520 P.2d at 56 (citation omitted). Here, the prosecution
argues that, given that Perez had been arrested for shoplifting,
“there was a distinct possibility that additional fruits of the
crine could have been secreted within the chenge purse,” and thus
the police could validly have continued to unzip and look within
the purse during the station-house search that took place a few
minutes after the arrest at the KTA store. The prosecution
reasons that if Kaluna would have authorized a warrantless search
of Perez's purse, it would be perverse to penalize the police for
having taken the extra step of trying to obtain 8 search warrant.
This argument is without merit due to the time lag
between Perez’s arrest and the search of the coin purse. Kaluna
only authorizes searches incident to a lawful arrest if they are
conducted “within a reasonable time” after arrest: here, however,
the pelice aborted the initial search and chose to detain Perez
and his purse for an additional hour beyond the necessary time
for processing on the shoplifting charge. That one-hour
detention of Perez's person (and purse), as a separate seizure
leading to a separate search, must be separately justified. See
State v. Goudy, 52 Haw. 497, $03, 479 P.2d 800, 804 (1972) (“IAIN
investigative action which is reasonable at its inception may
violate the constitutional protection against unreasonable
searches and seizures by virtue of its intolerable intensity and
“**FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER***
scope.”). See also Terry v, Ohio, 392 U.S. 1, 20 (1968) (stating
that the inguiry into the reasonableness of a search is twofold,
requiring first whether the action was justified at its
inception, and second, whether the search as actually conducted
‘was reasonably related in scope to the circumstances which
justified the interference in the first place"), quoted with
approval in In-re Doe, 104 Hawai'i 403, 408, 91 P.3d 485, 490
(2004), overruled on cther arounds by Ine Doe, 105 Hawai'i 505,
507, 100 P.3d 75, 77 (2005). Because the search of the coin
purse as actually conducted (ise, a search for drugs two hours
after arrest) was not reasonably related either in time or to the
circunstances which might have justified it* (ies, the
shoplifting arrest and a search for evidence of that offense) in
the first place, it cannot retroactively be sanitized under the
umbrella of the earlier arrest. Accordingly, the prosecution's
alternative attempt to justify the search and seizure pursuant to
the shoplifting arrest also fails.
B. 1
Dig Not Have Reasonable Suspicion to Detain Perez
‘The prosecution next contends that, even if Perez's
detention cannot be justified pursuant to the shoplifting arrest,
it was justified as an investigative action based on reasonable
in holding that the search of the coin purse cannot be justified uncer
Kauna due to the 1d not decide whether “the nature of the
(shoplifting] fade) it reasonable to aesume thet evidence
Of thas offense aecated in the coin purse
n
**+FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER***
suspicion. First, the prosecution cites to Perez's testimony at
the suppression hearing, where he admitted that he flushed 2
Pyrex tube, which he had intended to use for smoking crystal
methamphetamine, down the toilet. The prosecution contends that
Perez's “wilful destruction of drug paraphernalia gave the police
reasonable suspicion to believe that [he] was in possession of
additional contraband or paraphernalia.” However, as Perez
correctly notes, the foregoing is all hindsight -- the police did
not have the benefit of Perez's admissions at the time of the
arrest and detention, nor could they see what he was doing in the
toilet. As the circuit court found in its unchallenged FOF, the
police were aware only of @ pinging sound, which gave rise to the
concern, subsequently dispelled by the pat-down search, that
Perez might have a weapon.
Tt is axionatic that subsequently discovered facts
cannot retroactively justify an investigative action, For
example, this court recently affirmed that the existence of
probable cause is determined based on the facts and circumstances
as known to the police at the tine of the search or seizure.
State v. Kido, 109 Hawai'i 458, 462, 128 P.3d 340, 344 (2006).
Similarly, reasonable suspicion, which may be used to justify an
investigative search or seizure under circumstances not rising to
the level of probable cause, requires the police
te point to specific and articulable facts which, taken t
With rational inferences from those fects, reasonebly war
32
*+*FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER***
intrusion. ‘The ultimate test in these situations must be whether
from these facts, measured by an objective standard, a nan of
Fessonable caution would be warranted in believing that criminal
activity mas afoot and that the action taken was appropriate:
State v. Barnes, $8 Haw. 333, 338, S68 P.2d 1207, 1211 (1977)
(internal quotation marks and citations omitted). Again, this
standard requires reasonable suspicion to be based on facts known
to the police at the time of the search or seizure. Here, the
police did not have knowledge on July 14, 2004 of the facts
testified to by Perez at the suppression hearing, and thus they
cannot serve as a basis for reasonable suspicion justifying his
detention.
However, the prosecution also points to facts that were
known to the police at the time of the detention, namely tha
(2) Perez had stolen a container that can be used to smoke
crystal methamphetamine; (2) Perez had refused to consent to the
search of the coin purse; and (3) Detective Hodson had provided
information that Perez was a known drug dealer. The circuit
court concluded, however, that th
facts did not give rise to
reasonable suspicion and we agree.
Aman of reasonable caution would not have been
warranted in detaining Perez's purse, much le:
re2's person,
because the facts identified by the prosecution do not amount to
specific and articulable facts suggesting that drugs or drug
paraphernalia were in the purse or otherwise in Perez's
possession, First, “under the prevailing view . . . refusal [to
2
+**FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER***
consent to a search] may not . . . be considered with other
information in making a detezmination of probable cause or
reasonable suspicion.” 4 Wayne R. LaFave, Search and Seizure §
8.1, at 6 n.10 (4th ed. 2004), quoted with approval in Clark v.
fisbster, 364 F.Supp. 24 371, 362 n.21 (D. Me. 2005). Second,
although awareness of prior criminal history may factor into a
reasonable suspicion determination, State v. Kaleshano, 99
Hawai'i 370, 380, 56 P.34-138, 148 (2002), here the fact that
Perez was a known drug-desler, when coupled with the fact that he
had stolen an item that could be used to smoke crystal
nethanphetamine, gave rise only to the inchoate suspicion that
Perez might intend to engage in drug activity in the future.
There were no specific facts, however, to suggest that criminal
activity was currently afoot (ie, that Perez had drugs or drug
paraphernalia in his possession). Consequently, neither
reasonable suspicion nor probable cause to detain Perez existed,
and the circuit court correctly concluded that “detaining [Perez]
for the sole purpose of a canine screen was, under the
circumstance, unreasonable and uniawfui.”
‘tn Light of ovr conclusion that suspicion to detain Fere:
rgunent that, even if
feasonable suspicion existed, the Length jetention was excessive.
xicnatic that because the subsequent search and evidence
recovered therefrom were the fruit of an unlawful seizure, the circuit court
properly suppressed the evidence. See State v. Eau, 72 Haw. 505, 508, 24
E5635, 296 (1992) {holding that evidence Obtained in violetion of the
federal end state constituticnal prohibitions against unressohable search and
Seizure may not be used to secure's defendant's conviction); ole,
teontinaed =")
vie ae
+++ FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER***
Iv. coNcLUSION
Based on the foregoing, we affirm the circuit court's
September 30, 2005 order granting Perez’s motion to suppress.
on the briefs:
ie Filo ne—
sense buble oerenaer,
2or Geeendant-appeliee Saute away ane
Qa”—
Yaron €, Duaiyy Sr
continued)
65 Haw. 2650 272, €50 P-2d 1356, 1365 (1982) (holding that _an i2legal seizun
fetally taints all subsequent police sctions ang reguires suppression of
|
44a1f324-9b68-4c28-83ab-6030be46eb10 | State v. Legro | hawaii | Hawaii Supreme Court | NOT_FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER **
No. 25914
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
STATE OF HAWAI'I, Plaintiff-Appellee,
JAMES LEGRO, Defendant-Appeliant.
APPEAL FROM THE DISTRICT COURT OF THE FIFTH CIRCUIT
(CASE NUMBER 5P103-166 & 257432MK)
un
Moon, C.J-, Levinson, Nakayama, and Duffy, JJ.
(By:
Ju, concurring in the result only)
‘and Acoba,
befendant-Appellant, James E. Legro [hereinafter
suegro”] appeals from the district court’s? May 16, 2003 judgment
convicting him of the offenses of (1) failing to carry no-fault
insurance, in violation of Hawai'i Revised Statutes [hereinafter
srs”) § 431:10C-104 (Supp. 2001),? and (2) criminal contempt of
+ the Honorable Joseph Kobayashi presias
follows:
2 RS § 431:100-104 provides
104 Conditions of operation and registration of
Encepe as provided in section €31:10C-105,
‘ele upon any public
veh
‘s431:10¢
motor Vehicles. (a)
Fo peresn shall operate or use 2 motor vehi
Fe eee roads or Aighway of enie State at any tine unley
ESESENehiete is insured at all tines under 2 motor vehicle
Tneurance poliey-
NE Peery ouner of a motor vehicle used or operated at any
time upen any peblic street, road, oF highwey of this State shail
SothunPe"norer' vehicle insurance policy upon such vehicle which
secede: the coverage required by this article end shall maintase
Phe moter vehicle insurance policy at all tines for the entire
notor vehicle registration peried,
We iy iparacn who vaclates the provisions of this section
anei Le’ supjdee to che provisions of section 432:10C-117 (a)
iS) “Ene provisions of this article shall not apply to any
venicle emned by of registered in the nane of any agency of the
federal government, of te any antique motor vehicle as defined in
section 249¢1
qaqa
1+ NOT_FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER,
court, in violation of HRS $ 710-1077(g) (1993).? On appeal,
Legro contends that the district court committed plain error by
failing to suppress evidence that was obtained via an illegal
traffic stop.
upon carefully reviewing the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we hold that Legro
failed to preserve his argument for appeal. Legro admits, and
the record likewise indicates, that he failed to object to the
admission of the evidence that he now contends were the “fruits”
of an illegal search and seizure. See Querubin v. Thronas, 107
Hawai'i 48, 61 n.5, 109 P.3d 689, 702 n.S (2008) ("*[T]he rule in
this jurisdiction . . . prohibits an appellant from complaining
for the first time on appeal of error to which he has acquiesced
or to which he failed to object./”) (Citing Qkuhara v. Broida,
51 Haw. 253, 255, 456 P.2d 228, 230 (1969) (citations omitted) .)
(Brackets in original.) (Ellipses in original.); State v. Vliet,
81 Hawai'i 288, 299, 983 P.2d 189, 200 (1999) (“A complete
failure to object will waive the point.”); State v. Corpuz, 3
Haw.App. 206, 211, 646 P.2d 976, 980 (1982) ("The general rule is
that a reviewing court will not consider issues not raised before
the trial court.”). Furthermore, insofar as Legro openly
admitted at trial that he was driving without no-fault insurance,
we fail to perceive any prejudice to Legro’s substantial rights
that would justify invocation of the plain error doctrine. See
State vi Staley, 91 Hawai'i 275, 282, 982 P.2d 904, 911 (1999)
+ as $ 720-1077 (2) (g) provides that “(a) person commits the offense
Impt of court if... [t]he person knowingly cisobeys or
Sngunction, or other mandate of « court.]”
2
+ NOT_FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER **
(We may recognize plain error when the error committed affects
substantial rights of the defendant.”) (Citing State v. Cullen,
86 Hawai'i 1, 8, 946 P.2d 955, 962 (1977).).¢
Therefore,
IT IS HEREBY ORDERED that the judgment from which the
appeal is taken is affirmed.
DATED:
on the briefs: g Yy -
Steven R. Nichols, Henson
deputy public defender,
for defendant-appellant
Honolulu, Hawai'i, August 25, 2006.
James Legro Nesta Cobumerare
Tracy Morakani,
deputy prosecuting attorney, Yan e Dutt:
for plaitniff-appellee
State of Hawai'i
CONCURRENCE BY ACOBA, J.
Pm
I concur in the result only.
« aegro offers no argunent or rationale justifying reversal of his
conviction of criminal contenpt of court. He has thus waived the right to
Challenge that conviction. See #awei's ules of Appellate Proceauve mule
eid) (4) (2003) ("Pointe not presented . . will be dieregarded(.]")-
|
881faa28-d8fc-4a4b-a8cd-53c96526bf2a | Kemp v. State of Hawaii Child Support Enforcement Agency. | hawaii | Hawaii Supreme Court | ‘s#+FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REFORTER***
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
000.
ANN C. KEMP, Individually and as Next Friend for
LINDSAY AGNES KEMP, on Behalf of Herself and Others
Similarly Situated, Plaintiff-Appellee/Cross-Appellant
STATE OF HAWAI'I CHILD SUPPORT ENFORCEMENT AGENCY:
STATE OF HAWAI'I, Defendants-Appellants/Cross~Appellees
No. 26084
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 98-3615)
AUGUST 21, 2006
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY ACOBAL J.
Defendants-Appellants/Cross-Appellees State of Hawai'i
Child Support Enforcement Agency and State of Hawai'i (CSEA or
collectively, CSEA as the case may be) appeal from the Final
Judgment of the circuit court of the first circuit! (the court),
filed July 16, 2003, determining that (1) the CSEA has a
fiduciary duty to disburse child support payments subject to
Hawai'i Revised Statutes (HRS) § 571-52.2(e) (Supp. 2005)? within
| the Honorable Sabrina S. McKenna presided.
2 Hawas's Reviges Statutes (HRS) § 571-52.2 (Supp. 2005), entitled
cputomatic asssgnnent by court or administrative order of future income for
payment of chila support,” provides in relevant part
(continue)
‘*¥*FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER***
two days of receiving notification that a negotiable instrument
has cleared or within two days of receiving a cash payment,
(2) the CSEA breached its fiduciary duty to obliges whose child
ncashed check” or “bad
support payments were held in the
address” accounts; (3) the named Plaintiff, Ann C. Kemp (Kemp),
contin)
(e)__An employer receiving an sssignnent order shall
end the anounts withheld to the designated obliges or, if
Fequested, to this State's child support enforcement agency
within five working days after the obligor is paid. The
‘ceployer shall begin withholding no later than the first pay
period occurring within seven business days following the
Bote. a copy of the order is mailed to the employer. As used
Sn this subsection, the term "business day” means @ day on
which the employer's office is open fer regular business.
The employer shall withhold funds os directed in the order,
Cncept that when an enployer receives an incone withholding
‘Srder Aneued by another state, the employer shell apply the
Sneone withholding lau of the state of the obligor’s
Principai place of smployeent in’ deternining:
‘The employer's fee for processing an income
assignment order;
(2) The maximum amount permitted to be withheld trom
the obligor'e income under section 303(5) of the
Conguner ‘credit Protection Act (15 J.8.c. §
aers (BI)
(3) The tine periods within which the employer aust
Implenent’ the incone withholding order and
forward the child support payment
(4) The priorieses for withholding and allocating
incone withheld fer multiple child support
obliges; and
(5) Any withholding terns or conditions not
specified in the order.
An employer who Complies with an incone assignnent
order thet is regular on its face shall not be subject to
elvil Llabilley to any person or agency for conduct in
cenpliance with the order.
‘An employer who is required to withhold amounts from
che incone of sore than one obligor may renit 2 sum total of
the amounte in one check, with a listing of the amounts
‘applicable to each obligor”
Within two working days after receipt of the anounte
withheld by the enployer, the child support enforcenent,
Soency shall disburse those snounts to the obligee for the
Benefit of the child, except that the child support
enforcenent agency aay delay the distribution of collections
toward arrearages until the resclution of any timely request
for @ hearing with respect to such arrearages.
2
‘**FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REFORTER***
was an adequate representative of the class; (4) a common fund
was created for the purposes of paying the attorneys’ fees and
costs of Kemp, Individually and as Next Friend for Lindsay Agnes
Kemp, on Behalf of Herself and Others Similarly Situated
(collectively, Plaintiffs]; and (5) attorneys’ fees and costs be
awarded to Plaintiffs. We hold that, (a) as to items (1) to (4),
the obligees included in the “uncashed check” and “bad address”
categories were not adequately represented by Kemp, therefore,
any judgment regarding their claims against the CSEA was
incorrect; and (b) as to item (5), because Plaintiffs are not the
prevailing party, the award of attorneys’ fees and costs was also
incorrect. Accordingly, we vacate the court’s Final Judgment in
part to the extent that it determined that (1) the CSEA breached
its fiduciary duty to obliges in the “uncashed check” and “bad
address” categories; (2) Kemp was an adequate representative of
the Class; and (3) Plaintiffs were entitled to attorneys’ fees
and costs, and remand with instructions to dismiss as to those
matters.
* We affirm the courts July 16, 2003 Final Judosent ineofar as it
Getermined that (1) named Plaintift, Ann C. Kemp, has 8 property interest in
Child support payments collected on her behalf By Oefendant-Appellant /Cross
Jppeliee State of Hawai" Child Support Enforcement Agency (CSEA), (2) the
CEEA is" flasclary for the purpose of disbursing child support payments, and
(3) the SEA has @ fcuclary daty to disburse child support payments within
two working days of receiving notification that a negotiable instrument hes
cleared, oF within two working days of receiving cash.
Ke discussed with respect to Plaintitfs" cross-appeal, we alse
effizm the court's (1) grent of summary judgment with respect to (a) accrued
Interest for child support disbursements, and (5) the determination that
Plaintifts are not entitied te an scecunting of accrued interest, cs well as.
(2) the court's ruling in the Final Judgment that the CSEA does not have
implied contractual duties to obligees
*++EOR PUBLICATION IN WEST’ S HAWAI'I REPORTS AND PACIFIC REPORTER***
Plaintiffs cross-appeal from the Final Judgment
challenging the findings contained in the Sunmary Judgment Order,
filed July 14, 2000, that (1) Plaintiffs had no cognizable
property interest in any interest earned on delinguent child
support disbursements and (2) as such, Plaintiffs were not
entitled to an accounting of any interest earned on delinquent
disbursements. Plaintiffs also challenge the court’s conclusion
in the Final Judgment that the CSEA does not have implied
contractual duties to obliges. We hold that (1) the court did
not err in granting CSEA summary judgment on the grounds that
Plaintiffs do not have a property right on accrued interest for
child support disbursements made outside the statutory two-day
period, (2) Plaintiffs are not entitled to an accounting of the
accrued interest, and (3) the CSEA does not have implied
contractual duties to obliges. Accordingly, we affirm those
parts of the Summary Judgment Order and Final Judgment from which
the Plaintiffs cross-appeal
I.
aL
A brief history of the development and purpose of the
CSEA is useful. In 1975, Congress created a federal-state
cooperative program of child support enforcement under Title IV-D
of the Social Security Act. The Auditor, State of Hawai'i,
Follow Up Management Audit of the Child Support Enforcement
Agency, A Report to the Governor and the Legislature of the state
of Hawaii, Rep. No, 00-06 at 1 (February 2000) [hereinafter,
4
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SSS
2000 Audit}. The CSEA was established pursuant to HRS chapter
5760 and was originally placed under the administration of the
Department of Social Services and Housing (now Department of
Hunan Services). Id, In July 1987, the CSEA was made a division
of the Attorney General's Office. Id. The CSEA is charged with
enforcing child support orders.‘ The CSEA collects payments from
non-custodial parents and disburses the collected amounts to
state and federel government agencies and to custodial parents.
‘The program has two primary purposes: (1) to recover public
assistance benefits paid by the government for dependent children
from non-custodial parents; and (2) to help custodial parents who
are not receiving public assistance remain self-sufficient by
assisting them in the collection of child support. Id. at 2.
‘The CSEA must receive and disburse child support
payments when required to do so by @ child support order. Id.
‘The agency locates and contacts non-custodial parents who fail to
comply with child support orders. Id, If necessary, the agency
uses statutory powers to enforce compliance, including submission
to genetic testing to establish paternity, seizure of income tax
+The 2000 Audit defines child support in the following manne:
weniid Support” means payzent for the necessary
support and maintenance of 2 dependent child as required by
Ione, Typically, a court or administrative agency issues an
order establishing thet a parent who does not have
(physical) custody of the child (the noncustodial parent)
Shes chile support to or on behalf of s child, or to the
ferent, quardian, cr other person having custody of the
Enild {the custodiel parent); In some cases, the payment
goes directly to a government agency a# “reimbursement” for
Meltare benefits received by the child.
The Auditor, State of Hawas't,
semen’ Report tou or and the Leaisisture of
Siiawaii, Rep. No- 00-06 at 1 (February 2000).
5
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returns, forfeiture of property, denial of passports, suspension
Id
of licenses, and freezing of financial asset:
B.
Pursuant to 42 U.S.C. § 652 (2000)* the federal
government monitors the CSEA for “substantial compliance” with
the statutes and regulations governing the disbursement of child
support payments, meaning that 75%* of payments be made within
+ 42 U.S.C. § 65244) (3) {A} (444) (2000), entdtied “Child Support and
Establishnent of Paternity; Duties of Secretary; Chllé support management
information system,” provider in pertinent part, se fellows
(3) The Secretary (of Health and Hunan Services) may
waive any requirenent of paragraph (1) [requiring approval
Of the autonsted asta processing system) ] of any condition
Specified under section 654(16) of this titie [Iproviaing
Guidelines for automated systen)} and shall waive the single
Statewide system requirenent under sections 654 (16) and 68
of this title with respect to a state if =
(a) the State demonstrates to the satisfaction of the
Secretary that the State has oF can develop an
alternative system or systens that enable the State ——
* (Gis) to substantially comply with the
requirenente of this part{-T
(emphasis added.)
4 45.C.F.R. § 308.2(b) (2008), entitied “Required program compliance
criterias Establishment of paternity end support order,” provides in pertinent
part:
ib)... The State must have and use procedures
required in thie paragraph in at least 75 percent of
the cases reviewed,
(2) Tf an erder for support is required and
eetablished during the review period, the cose
ects the requirements, notwithstanding the
Tinefranes for: establishment of cases. 2
specified in Sec. 303.2(b) of this chapters
provision of services in interstate Iv-O caces
per $303.7(al, (bl, (c)(4) through (6), and
{e)(8) and (5]'of this chapter; and location and
support order establishment under $6 303-3(b) (3)
ana (5), an¢.303-4(@) of thie chapter
(2) If tn order was required, but not
established curing the review perioc, the State
Bust determine the last required action and
Getermine whether the action wae taken Within
the apprepriste tinefrane.
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the various time frames established under 45 C.F.R. § 302.32
(2004) .”
745 c.F.R. § 302.32(b) (2008), entitled “Collection and
disbursement of support payments by the IV-D Agency,” provides in pertinent
part:
(b) Tinefrancs for disbursement of support payments by State
Giebureenent nit (S00) under section 454B Of the (Social
Security) Act.
(2) Ih interstate 1V-0 cases, ancunts collected by the
responding State on behalf of the initiating state must be
forwarded to the initiating State within 2 business dave of
the date of receipt by the SOU in the responding sta
accordance with §203.7(¢) (7) (iv)
(2) Anounts collected by the IV-D agency on behalf of
recipiente of aid under the State's title IV-A or IV-E plan
fer whom an assignment under sections 408 (2) (3) oF
251 (a) 7) ef the Act 4s effective shall be disbursed by the
S00 within the Zollowing timeframes!
{s) except aa specified under paragraph (b) (2) (4¥) of
this section, if the SDU sends payment to the family
(other than payments sent to the family from the state
share of assigned support collections), the SOU must
Send these payments a
{in which the payment was received by the
‘S00. Any payment passed through to the family from
the ‘state share of assigned support collections must
be sent to the fonily Miehin 2 businese gave of the
date of receipt by the S00.
(AL) Except a6 specified under paragraph (b) (2) (4v) of
this section, when the SOU sends collections to the
family for the month after the month the family
becones ineligible for title IVA, the SOU must send
collections to the family within 2 business dave of
the date of receipt by the sbU.
(i) Except as specified under paragraph (b) (2) (iv)
Of this section, when the SDU sends collections to the
I-E fester care agency under § 302.52(b) (2). and (4)
of this part, the SOU must send collections to the
IV-E agency within 15 business dave of the end of the
‘outh in which the support was received by the S00;
iv) Collections as 2 result of Federsl incone tax
refund offset paid to the fanily under section
457 (a) (2) (dy) 0f the Actor distributed in title IV-E
foster care cases under § 302.52(b) (4) of this part,
must be sent to the 1V-A faniiy or IV-E agency, as
appropriste, within 30 calendar davs of the date of
Snitisl receipt by the 1¥-0 agency, Unless state lav
requires s postvoffsct appeal process anc an appeal ie
filed timely, in which case the SoU must send any.
payment to the IVR fanily or IV-E agency within 25
Eslendar days of the date the appeal is resolved.
(3) (4) Except as provides uncer paragraph (b) (3) ($4)
of this section, amounts collected on behalf of individuale
Feceiving services under § 302.33 of this part shall be
Gisbursed by the SOU pursuant to section 45) of the Act,
of receipt by the S00
TET} Collections due the family under section
(continued.
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on March 30, 1999, Michael Meaney (Meaney), then
administrator of the CSEA, filed a report with the federal
government stating that the CSEA was in “substantial compliance”
for the period of July 1, 1998 through December 31, 1998. A
preliminary report for the first quarter of 1999 indicated that
the CSEA distributed 91.48" of payments within the time limits
prescribed by law, well above the federal government’ s
substantial compliance standard.
In recent years, there have been many complaints sbout
CSER, primarily concerning alleged shortcomings in processing
child support payments and poor agency response to clients’
problens. Margery Bronster, then-Attorney General, and Meaney
testified before the State Senate Ways and Means Committee that
the CSER's voice response unit averaged 2,500 calls per day since
Joly 1998, when the agency’s new automated system was
implenented. One thousand callers per day were served by the
automated system, but the remaining 1,500 requested to speak to a
"(osontinved)
157 (a) (2) (iv) of the Act as a result of Federal income tax
Fefund offset must be sent to the family
Gaus of the date of initial receipt in the IV-D agency,
(a) TE State law requires 2 post-offeet appeal
process and an appeal is timely flied, in which case the S00
must send any payment to the fanily within 15 calendar dave
Of the date the appea is resolved: or
(B) Ae provided in §303.72(h) (5) of this
chapter
cempni
ised.)
+ according to Michsel Meaney, the statistics reported to the
fal goversnent regarding timeliness of payments exclude “unidentified or
held payments.” Alten Kagaws, chief accountant for the CSEA from 1986 to
1596, explained that federal iaw allows the CSEA to exclude unidentsties
payments, properly held payments, and non-Title IV-D cases from the reports on
Eimely disbursement of child support payments.
8
0
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Live operator, The CSEA estimated that the average call required
15 minutes to complete. The volume of calls overwhelmed the CSEA
staff. The apparent lack of customer service was compounded by
the fact that the ratio of cases to caseworker in Hawai'i wi
1,000 cases per caseworker, although industry stendards dictate
that @ ratio of $00 cases per caseworker is unacceptably high.
‘Alton Kagawa (Kagawa), the chief accountant of the CSEA
from September 1986 to September 1988, explained that the KEIKI
systen was designed to meet requirements for the timely and
accurate processing of payments and disbursements. It was @
significant change from the previous system, KFRI, which was
designed primarily for bookkeeping in 1984, but was used for
additional purposes as well. With KEIKI, the CSEA had 2 fully
automated system that integrated financial, enforcement,
paternity and order establishment, and modification services.
Agency officials asserted that the rush to complete the
KEIKI system may have had unanticipated outcones, resulting in an
overwhelming need for assistance among agency clients. The 2000
Audit noted that, in Report No, 96-12, Audit of the
Implenentation of the Child Support Enforcement Agency’ s
Infomation System, the Auditor “found fault with the overly
ambitious initial scope of the information system project,
inadequate technical resources assigned to the project, and .
[xecommended) completing # support and maintenance plan.” 2000
audit at 8.
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In 1999, the Office of the Auditor of the State of
Hawai'i (the Auditor) conducted a follow up management audit of
the agency.” In the 2000 Audit, the Auditor noted that
the agency has failed to address longstanding weaknesses in
ite financial management and has not implenentea
Feconmendations of previous audite pertaining to financial
Sanagenent. Bank accounts are not reconciled snd accurately
Feported and accounting for interest earnings 1s
Isproper ‘The deficiencies include (a) inadequate
Gata cleanup; ixsining, and maintenance for the agency's
Sctenated systems; (B) weak personnel management, including
failure to inplenent an"agency reorganization? and {c) the
inability to respond effectively to the needs of ite clients
(eustedial and nencustedial parents)
Id. at 11. The Auditor further found that “‘Bad data’ -
erroneous information stored in agency computer records - lead to
such problems as KEIKI . . . generating duplicate records or
erroneously initiating or suspending activities, contributing to
client frustration and complaints.” Id. In addition to these
problens, the Auditor discovered that “[t]he agency may have
improperly used interest earnings for purposes not authorized by
law and has commingled state and federal funds in violation of
legislative intent and accounting principles.” Id, at 15.
The financial management of CSEA has improved
significantly since the publication of the 2000 Audit. Many of
the recommendations of the Auditor, such as monthly bank
reconciliations, have been adopted. Also, CSEA hired a Certified
+ Management audits “examine the effectiveness of prograns or the
efficiency of agencies or both.” The Auditor, state of Hawai'i Follow Up
Manasenent Audit of the Chilo dupcort Enforcement Aaenev, A Report to The
Governor and the Lesislatize of the State of fasta, sep Ne. 00-0 at
Preface (Feb, 2000). Moreover, “{t]hese audits are also called program
Sugits, when they focus on whether prograns are attaining the cbjectives ond
Fesults expected of then, and operations audits, when they exanife how well
agencies are organized and managed and how efficiently they acquire ane
stilize resources.” dd.
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_
Public Accountant, Sherry Wang (Wang), as its Chief Financial
officer, which the Auditor had been recommending since 1992. Id.
at 8.
1.
AL
on May 19, 1998, in FC-D No. 98-1824, Kemp was divorced
from her husband. Under the divorce decree, Kemp was awarded
custody of their minor child. As reflected on the May 19, 1998
order of Income Assignment, Kemp was awarded child support in the
amount of $380 bi-weekly. On May 20, 1998, Kemp's attorney sent
copies of the Order of Income Assignment to the Department of
Finance Payroll Office of the husband’s employer and to the CSEA.
The payments were deducted from the husband’s paychecks starting
on Nay 29, 1998. Despite numerous inquiries to CSEA, the agency
did not issue checks to Kemp until July 20, 1998 and July 22,
1998, as a result of “glitches” caused by the transfer to the new
KEIKI system. Kemp testified that all of her payments since then
have been timely.
B.
on August 26, 1998, Kemp filed suit against the CSEA on
behalf of herself and all others similarly situated, The
complaint contained six counts: (1) Count 1, for declaratory
relief; (2) Count 11, for injunctive reliefs (3) Count 111, for
danages caused by breach of implied contract; (4) Count IV, for
damages caused by breach of fiduciary duty; (5) Count V, for an
u
‘***FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER***
accounting and information; and (6) Count VI, for the creation of
a common fund.
On February 5, 1999, the court" designated the suit as
complex litigation. On May 17, 1999, the court! entered an
“order Certifying Class and Class Issues” (Class Order) providing
that the “case shall proceed as a class action under Hawaii Rules
of Civil Procedure [(HRCP)] Rule 23(b)(2)["] only." The Class
Order defined the Plaintiff Class as follows:
All Persons vho, within to years prior to the filing
of the Complaint herein, were entitled to receive child
Support payments through the CSEA of the State of Hawas't;
and all Persons who, more than two years before the filing
‘subject to a legal disability,
Child support payments through the
CSEA of the State of Hawai'i, and whose legal disability
sd. one year prior to the filing of the ney anc
I Persone who sre hereafter entitled to
fuppore payments through the CSEA of the State of Hawa,
within the tine
Halts set forth In the Hawaii Revised Statutes, including
Persons for whose benefit child support payments ore
tendered.
(Emphasis added.)
‘The court determined that the conmon questions of fact
and law included, but were not limited to (1) whether Defendants
violated any law by disbursing child support payments after the
“the Honorable Kevin S.C. Chang presided,
"the Honorable Gail C. Nakatani presided.
© Hawai'i Rules of Civil Procedure {MRCP} Rule 251b)(2) (2006),
entitled “clase actions maintainable,” provides in relevant part
an action may be maintained es cless action if the
prerequisites of subdivision (a) fe satisfied, and sn
beaitson:
iz) the party opposing the class has acted or refused
to act on grounds generally applicable te the class, thereby
hnaking appropriate final injunctive relief or corresponding
Geclaratory Telief with respect to the class as a wnelel-]
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time periods set by lew: (2) whether Plaintiffs are entitled to
any Anterest earned on child support payments held in the
interest-bearing account; (3) whether retention of interest
earned on child support payments after the expiration of the tine
period set by law constitutes a taking of property without due
process of law; and (4) whether Plaintiffs are entitled to an
injunction requiring the CSEA to comply with the time periods set
by law.
On June 7, 1999, the case was assigned to Judge
McKenna. On April 26, 2000, Kemp filed a Motion for Partial
Summary Judgment seeking: (1) @ ruling that Plaintiffs have
property rights in the interest earned on child support payments
that are not paid within the time limits prescribed by law; (2)
ruling that the retention of the interest on delinguent payments
by the CSEA or the State of Hawai'i is @ taking of private
property for public use without just compensation within the
meaning of the United States Constitution and the Hawai'i
Constitution; and (3) an order that the CSEA and/or the State of
Hawai'i must provide Plaintiffs with a full and complete
accounting of the funds that they have had in their possession.
on April 28, 2000, CSEA filed a Motion for Summary
Judgment, asserting various defenses against Plaintiffs’ clains.
Defendants asserted that the suit was barred by sovereign
inmunitys that the action was barred because HRS § 576D-10 (Supp.
3
‘**EOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REFORTER***
2005)” “earmarks” any interest earned for other purposes; that
there was no statutory basis for Plaintiffs’ claim to interest
earned; that state statutes specifically provide that Plaintiffs
were not entitled to interest prior to judgment being obtained:
that Plaintiffs did not have a property interest in any interest
that may have accrued on child support payments; and that the
amount of money, in the form of interest, was de minimis and did
not rise to a constitutionally protected property right.
on July 14, 2000, the court entered its Sumary
Judgment Order (the Sunnazy Judgment Order) granting CSEA partial
sunnery judgment. In the Summary Judgment Order, the court
concluded, inter alia, that the nenbers of the Plaintiff class
did not have a cognizable property interest in the interest
generated by child support payments held by CSEA in an interest-
bearing account thet were disbursed delinquently. However, the
court did conclude that the Plaintiffs had a protected property
interest in the corpus, or principal, of the child support
payments and, accordingly, ordered 2 future accounting regarding
the corpus of child support payments that remained unpaid within
the prescribed time periods as of July 31, 2000." Pursuant to
% ans § £760-10 (Supp. 20051, gntitied “Collection and disbureel of
child supports direct. payment exception,” provides in pertinent pare that the
Gheerest' Fealized fron the special interest bearing account for Child: soppore
paynents be used for “related coate of the neintensnce and operation of the
Credit Of the general func." she statute was suended in 1559 te reflect that
Snterest shal2’alse be used “(tio inprove the child support enforcement
agency’s ability to promptly disburse payments to the custedial parent.” 1989
Haw. Sess, L, Act 300, 3 at 821.
‘ry Wang, CSEA'S Chief Financial Officer, wes initially unable
fon regarding delinquent and held paysents fron the
(cominved.)
4
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the Stipulation Re: Accounting Date approved and filed on
July 11, 2002, the relevant date was changed to February 28,
2002.
um.
Following the court's grant of partial summary
judgment, the following matters were left for determination.
Count 1 Declaratory Relief:
(a) wyether delay by the CSEA in disbursing child
support payments Within the tine {vanes specified violates
HRS § s71=22-2(€)7
(2) Whether child support payments become the property
of the minor obliges upon expiration of the two or five
working-dey period specifies by HRS § S71°52.2(e) and
hether of not 0 concluding and/er not concluding that any
accrued interest after that point is also the obliges’ s
Property would frustrate the purpose of HRS chapter $72
bna/er would provice an incentive for renaining in violation
of a valia seacute
(3) wether RS $5 571-52.2(e) and $760-10 are
statutes which are in pari materia and must be read in 3
henner consistent wath their Legislative purpose and which
oes not emaacolate oF delete one another:
a) ‘whether Defendants hold child support payments for
the benefit of the oblig to HRS § 5760-10, and
wisther Defendants are fiduclaries for the purpose of
‘Sisbursine those pements~
OF the ident ses
Of the persons to wnom child support disbursenents are still
Count 11, requesting Injunctive Relief
(1) hether Plaineitfs are entitled to an injunction
cizecting Defendants to inmedletely [begin] disbursements of
delinguent chile support payments; and
(2) whether Plaintiffs are entstled to an injunction
directing defendants to implement e system by which chile
Support payments will be disbursed within the tine frame
required by statute.
“ccominaes)
aysten, “ae required by the court's Sunmary Judgnent Order. She eventuslly
persuaded CSEA staff to create = program that would allow her to obtain that
Enformetion from the REIKI aystem: his allowed her to comply ith the
court's Summary Jusgnent Order with respect to an accounting, provide the
federal government with accurate information regarding the collection and
distrizution of child support, and to fully understand the CSEA's financial
picture by 2002.
as
‘**FOR PUBLICATION IN MEST’S HAWAI'I REPORTS AND PACIFIC REFORTER***
count 111, claiming damages for Breach of Implied
Contractual Duties:
a
uShurse chi euppes ine
{range requires by MRS § S71-82.2(@17
(2)St eo, ubether the Defendants axe failing to
Fequired by Whe $ S1i-S2-z(e17 and
(3) If s0, waether through such failure, the
Detenaante have materially Breaches any #vch implied
contractual duties
count 1¥, claiming damages for Breach of Fiduciary Duty:
(1) nether under HRS § S76D-10, Defendants are
required to hold collected child support payments in trust
fer the benefit of the sbligees, particularly the childrens
asd
(2) 14 20, whether Defendants have foiled te abide by
pavmente withia the tine Trane requires by HRS $577
Srzie)
Count v, requesting an Accounting/Information
child support psvmente ona Pisely batiay and
(2) Tf eo, x7 7
provide Plaintiffs with an accounting or information
concerning such persons;
Count VI, requesting the Creation of 2 Common fund, for the
benefit Of the Class; to distribute any delinquent child
support payments.
(emphases added.)
A bench trial took place with respect to the foregoing
matters from September 10 to 20, 2002, with Kemp, individually,
as next friend of Lindsay Agnes Kemp, and as representative of
the Plaintiff Class as defined in the Class Order, see supra
section II.B, and the CSEA as parties. Plaintiffs’ expert, steve
Sakamaki (Sakanaki), presented testimony questioning whether up
to nine million dollars in child support payments had sonehow
disappeared in the CSEA’s accounting system and renained
unaccounted for, based on his inability to reconcile information
obtained from the KEIKI system to the CSEA’s bank accounts.
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on October 22, 2002, the court entered its Memorandum
of Decision (the Menorandun of Decision). Regarding Plaintiffs’
allegation that there were up to nine million dollars in unpaid
child support payments, upon which the entire complaint was
based, the court found that Plaintiffs failed to meet their
burden of proof. The court found that, based on the improvements
made to the KEIKI system, see supra note 14, it was likely that
Sakamaki's inability to reconcile the information in the KEIKI
system with CSEA’s bank accounts was caused by “bad data” and
incomplete data, rather than actual mismanagement of funds.
Pertaining to the timeliness of disbursenents, the
court first noted that, although the class action lawsuit had
been pending for over four years, Kemp vas the only custodial
parent class menber to testify to a delay in the processing of
payments since the KEIKI system was implemented in 1998. The
court then concluded that the “overwhelming majority of child
‘support payments” were being disbursed in a timely manne:
[t]he strong weight of uncontroverted evidence indicates
that after the initial problems of 1998, and excluding
Eituations involving "bed addressee” or other “holds” on
disbursement authorized by 1a", the CSEA has been disbursing
tthe gverwhelaine naiority of child support payments received
that ore subject to [HRS] § $71-52.2(e) within two days of
ite receipt of the forwarded checks.
(Emphases added.)
Although the trial revesled evidence that, for the most
part, the CSEA was making timely disbursements of child support,
it also revealed that there were problems with “uncashed checks”
v
‘s+POR PUBLICATION IN WEST’S HAWAI'T REPORTS AND PACIFIC REPORTERS**
and holds due to “bad addresses.” The CSEA issued checks
totaling $619,016 to custodial parents from @ Bank of Hawas'l
account that had been inactive since the implementation of the
KEIKI system in 1998, that remain uncashed. There were
additional outstanding checks from other accounts which were
opened subsequent to the implementation of the KEIKI system in
1998 that also renain uncashed. The CSEA reported an additional
$1,079,000 in checks issued from these accounts and outstanding
for more than 90 days as of February 28, 2002. The CSEA checks
state that they are void if not cashed within 90 days. The CSEA
had been aware of the problem of “uncashed checks” but had not
attempted to rectify the situation to ensure that financial
support reached custodial parents.
The court found that, as of July 4, 2002, the CSEA had
$1,711,532 on “hold” due to “bad addresses.” All CSEA checks
contain a warning, stated in the following manner:
You must notify the child support enforcenent agency
Innediately of any change fo your mailing address to insure
Gninterropted distribution of available
Change of address Information should be
Ghile support office if you live in Havai's, or to the
Feturn acdress on the envelope if you live out of state,
If you move or change your address without netif}
peynent will be nailed to the forwarding eddress that i3
provided by the Fost Office. Sopport payments that cannot
Bevnelled because of the lack of a good nelling address may
be returned te the obl:gor/payor.
When a check is returned because of a “bad address” the CSEA
requests forwarding information from the United States Postal
Service. In recent years, automated computer cross-checks with
other agencies’ databases have been implemented. The CSEA has
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made no other attempt to locate the persons whose checks have
been returned due to “bad addresses.”
‘The court decided that although there was no evidence
of nine million dollars of unpaid child support, the CSEA was
holding $3,609,548 in child support payments because checks had
been issued and not redeemed or the checks had been returned as
undeliverable (i.e., the “uncashed check” and “bad address”
funds).
The court, relying on Office of Hawaiian Affairs v.
State, 96 Hawai'i 368, 400, 31 P.3d 901, 913 (2001), found that
Count 1, claim 1, regarding violation of HRS § 571-52.2(e), was
not justiciable because there was a “lack of judicially
discoverable and manageable standards{.)” Furthermore, the court
found that the requisite “actual controversy” mandated by HRS
§ 632-1 (1993)* did not exist because the parties agreed that
the two-day time limit was “triggered” upon CSEA’s receipt of the
check. The court therefore declined to grant a declaratory
Judgment on this issue.
In connection with Count I, claim 2, regarding the
property rights of minor obligt
sand the allegation that
allowing the agency to retain interest earned on late payments
would create an incentive to violate a valid statute, the court
entitled "Juriedietion: controversies subject
ratory judgment may be granted in civil
cases where an actual controversy existe between contending
parties, oF where the court is satisfied that antagoalseic
Elains are present between the Farties involved which
Gndicate insinent and inevitable 1itigation(-)
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ee
found that Plaintiffs “undoubtably” have a cognizable property
interest in the child support payments granted on their behalf at
the point in time when the CSEA's bank receives notification that
the negotiable instrument has cleared in situations involving
such instruments or upon receipt of @ cash payment by the CSEA.
The court found that the remainder of the claim did not request
declaratory relief available under HRS § 632-1. Therefore, the
court only granted declaratory relief to the extent that
Plaintiffs had a cognizable property interest in the child
support paynents collected on their behalf when the CSEA's bank
notifies the agency that @ negotiable instrument has cleared or
when the CSEA receives a cash payment.
The court found that Count I, claim 3, requesting 2
declaration that HRS $5 571-52.2(e) and 576D-10 are statutes
which are in pari materia, was not @ proper request for
declaratory relief. The court found that Plaintiffs were merely
seeking an advisory ruling and, therefore, denied this request
for declaratory relief.
The court declined to issue a declaratory ruling
regerding Count I, claim 4, requesting a declaration that the
agency holds child support disbursements for the benefit of minor
obligees, because it did not concern an actual controversy. The
court stated, “there is no actual controversy with respect to the
issue of whether Defendants hold child support payments for the
benefit of the obliges pursuant to H.R.S. § $76D-10 -- it is
axionatic that they do.” The court did grant Plaintiffs’ request
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for declaratory relief to the extent that it found that CSEA has
a fiduciery relationship with the obligees.
Regarding Count I, claim $, concerning the CSEA'Ss
fiduciary and implied contractual duties, the court found that as
2 consequence of its fiduciary relationship with the obligees,
CSEA has a fiduciary duty to disburse child support payments
within two days of receipt, noting that the duty was triggered at
the time when (1) CSEA's bank notified CSEA that 2 negotiable
instrument had cleared or (2) upon receipt of a cash payment.
Therefore, the court oranted Plaintiffs’ fifth request for
declaratory relief inasmuch as CSEA had a fiduciary duty to
disburse payments in a timely manner. However, the court found
that CSEA did not have an implied contractual duty te disburse
payments within the time limits set forth in HRS § $71-52.2(e),
noting that in cases where inplied contracts had been found to
exist, there were only two parties involved and there was a
mutual intent to contract. The portion of the request for
declaratory relief regarding implied contractual duties thus was
denied.
In connection with Count I, claim 6, requesting an
accounting of obligees who were owed child support disbursements,
the court had ordered, in its Summary Judgment Order, that CSEA
provide 2 full and complete accounting of overdue child support
payments in its possession as of July 31, 2000. By stipulation,
the relevant date was changed to February 28, 2002. Based on the
evidence adduced at trial that CSEA is now disbursing child
2
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support payments within the time limits prescribed by HRS § 571-
52.2(e), the court set aside that part of the Summary Judgment
Order. However, the court did order CSEA to provide an
accounting regarding funds in the “uncashed check” and “bad
address” categories, finding that the plaintiffs in the “uncashed
check” and “bad address” categories fell under the third
definition of the class:
[ALL Persons who were after the filing of the Class order on
Nay 19, 1999, entitled to recesved (sic) child support
payments through the CSEA of the State of Hawal't, and who
Gig not or wili not, receive their chile support payments,
Without legal justification, within the tine limits
Yoreh in the Ravel Revised Statutes, ineluding persons for
hose Benefit child support payments are tendered.
‘Therefore the court ordered as follow
ae ete seecun! ae
Becenberii,2002, ord that this sccoonting most be
Eotted and proviced in tho separate liste: (1) ¢ list
En alphabetical order by the custodial parent? last
Raness which shall also. snclvge. the first names of the
Elstodsal. parents, the check dates, the check numbers,
Sha the angunte ef the outstanding checks: and (2) a
Uise'In chronological’ order by check dates, which
Shall also include check manbere, amounts of checks,
tnd custodial parents’ last ond first names
©) ih ey duty to or:
the Teae address” sith respect
he CSUR Zor “bad addresses” and have rensineg
‘gutstending forat Least 20 dave as of December 31,
Haag "ike accounting must be sorted end provided tn
uo separate lists: {1} a list in alphabetical order
by the custodial parents’ last names, which shall also
Exclude the first nanes of the custodial parents, the
Gheck dates, the check numbers, ond the amounts of the
‘sutstanding’ checks; and (2) 2 List in chronological
order by check dates, which shall also include check
funbers, ancunts of checks, and custodial parents’
Jast and first nanes(.]
(Emphases added.) Plaintiffs note that the CSEA has never
provided such an accounting.
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With regard to Count II, claim 1, seeking an injunction
requiring the CSEA to innediately begin disbursing delinquent
child support payments, the court found that Plaintiffs vere
requesting prospective relief and, therefore, CSEA's defense of
sovereign immunity did not apply. Furthermore, the court found
that Plaintiffs had prevailed on the merits of the case,™ that
custodial parents would suffer irreparable injury absent
Anjunctive relief, that the prospective harm to Plaintiffs
outweighed any harm threatened by the injunction, and that the
public interest would not be adversely affected by the injunction
but, rather, would be served by it.!” Accordingly, the court
found that Plaintiffs were entitled to 2 mandatory injunction
requiring CSEA to disburse the child support payments in the
“outstanding checks” and “bad address” categories.
Regarding Count II, claim 2, which would require the
CSEA to institute @ system by which child support payments would
be disbursed in a timely manner, the court found that Plaintiffs
failed on the merits because CSEA proved that it was disbursing
the overwhelming majority of child support payments pursuant to
“According to the court, Plaintiffs prevasied inasmuch as the court
declared that they had s constitutionally protected property interest in the
Serpe of child support payments collected by the CSEA. The court ordered an
Sccouneing of funds held in the “outstanding check” and "bad addre:
estegories, anc concluded that CSEA hada fiduciary duty te disburse child
Support payments.
© gins fourcprong kest for the granting of ingunctive 1
tthe court is set forth in, et
Hotes Fin. Aosasy, 66 Fead'ieees 2809 (ist Gare SEDI
23
set used by
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orders of income assignment within two days. Therefore,
Plaintiffs were not entitled to injunctive relief on this issue.
c.
Regarding Count III, requesting damages for breach of
implied contractual duties, the court found in favor of
Defendants based on the finding that CSEA had no implied
contractual duties to disburse child support payments within the
time Limits set forth by the Hawai'i Revised Statutes.
D.
‘The court ruled on Count IV, requesting damages for
breach of fiduciary duty, in conjunction with Count Vz,
requesting the creation of a common fund. Regarding Count IV,
claim 1, whether the CSEA is required to hold collected child
support payments in trust for the benefit of the obligees, the
court found that no express trust wes created by the statutory
schene governing the CSEA. However, the court opined that
trust relationship did result fron the statutory scheme, which
could be characterized ae “implied,” “resulting,” or
“constructive.” Regarding Count IV, claim 2, the court found
that CSEA had not breached its fiduciary duties by failing to
disburse child support payments in the time frames provided by
law because Plaintiffs had failed to prove any continuing
violations of the relevant statutes. However, because the court
had determined that there was an ongoing problem with payments
being held in the “uncashed check” end “bad addr
8” funds, the
court ordered that the relief sought in Count VI be granted and
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—_
any money in those categories not disbursed pursuant to the March
31, 2004 accounting, to be discussed infra, would becone part
of a common fund to benefit the Plaintiff Class.
In ordering that the child support payments held in the
“uncashed check” and “bad address” categories become a common
fund, the court found that the designation of the class under
HRCP Rule 23(b) (2) did not preclude monetary relief, since the
primary relief sought was declaratory and injunctive. The court
further found that the issue of whether Plaintiffs were entitled
to monetary relief was tried by the express or implied consent of
the parties pursuant to HRCP Rule 15(b)** inasmuch as the
Complaint requested an accounting and the court ordered an
accounting in its Summary Judgment Order. Hence, according to
% th dts memorandum of decision, the court states thet “the
accounting shell be provided by March 21, 2002.” However, the memorandum of
Gecision is dated and was filed on October 22, 2002.” The Award Order issued
By the court en July 26, 2003, eiscussed infra, makes clear that the proper
Soe ie March 31) 200
% —Rce Role 15(b) (2006), entitied “Amended and supplenental
pleadingsy Anendnents to conform to the evidence,” states:
nen Leaves not raised by the pleadings are tried by
express of implied consent of the parties, they shell be
treated in all respects o8 if they had beon raised in the
pleadings. “Such amendment of the pleadings as may be
Recesssry to cause then to conform to the evidence and to
Teise these dseues sey be made upon motion of any party at
any tine, even after judguent; But failure so to enend does
fot affect the resvit of the trial of these issues. If
Ceidence is objected to at the trial on the ground that it
Se not within the issuer nade by pleadings, the court nay
allow che pleadings to be amenced nd ehali do so freely’
then the presentation of the merits of the action ill be
[ubserved thereby and the cbjecting party fails to satisty
the court that the adnissien of such evidence would
prejudice the party in maintaining the party's action or
Befense open the nerite. The court say grant a continuence
te enable the cbjecting party to meet such evidence.
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the court, CSEA was put on notice that Plaintiffs were seeking
monetary damages.
Regarding Count V, which requested an accounting and
information, the court ruled that there were persons who had not
received child support payments on a timely basis and ordered an
accounting of such by March 31, 2004, as discussed supra.
Ww.
on December 9, 2002, the court entered its Order Re:
Post-becision Hearing which required Plaintiffs to submit motions
dealing with attorneys’ fees and costs and the creation of @
conmon fund and the uses to which such 2 common fund would be
put.
on Decenber 17, 2002, Kemp filed a Motion for an Award
of Interim Costs and Attorneys’ Fees. Kemp requested attorneys’
fees in the amount of $628,607.54 and costs in the amount of
$99,065.40.
on Decenber 18, 2002, Kenp filed a Motion Regarding a
Common Fund. Kemp argued that any undisbursed funds from the
“uncashed check” and “bad address” categories be used for the
benefit of the Class consistent with the purposes of the Child
Support Enforcement Act under the cv pra doctrine, rather than
escheat to the State. Kenp claimed that escheating the money to
the State would reward the State for “failing to perform its
fiduciary duty to get this money to the proper recipient.”
According to Kemp, the cy pres doctrine allows the court to
distribute unclained funds “‘for the indirect prospective benefit
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of the class.'" (Quoting In Re: Airline Ticket Comm'n Antitrust
tig., 268 F.3d 619, 625 (8th Cir. 2001).) (Citations omitted.)
Kenp suggested that the unclained funds be distributed to the
Legal Aid Society of Hawai'i (LASH), which would provide
assistance to custodial parents encountering difficulty getting
their child support disbursements from the CSEA regardless of the
custodial parent's income. The CSEA opposed this motion,
contending that such distribution of the unclaimed money would
violate the purpose of the Child Support Enforcement Act by
“expropriating money from the affected custodial parent payees in
the ‘bad address’ and ‘uncashed checks’ categories and spending
it on services unrelated to the provision of child support to the
intended custodial parent payees.”
on January 7, 2003, Kenp filed a “Motion for Incentive
Award Payment to Class Representative Ann C. Kemp,” stating that
“[clourts routinely approve incentive awards to compensate named
plaintiffs for the services they provided and the risks they
incurred during the course of the class action litigation.” The
CSEA opposed the request for an incentive award on the grounds
that there is no statute or Hawai'i precedent allowing for such
an award against the State: that Kemp filed the lawsuit
voluntarily and any inconvenience was therefore undertaken
voluntarily; that where public monies are involved, the law does
not require compensations that the monies for which the court has
ordered an accounting are outside the parameters of the complaint
2
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and outeide the class for which Kemp is @ representative: and
that Kemp did not prevail on many of the issues raised.
on January 22, 2003, the CSEA filed its memorandum in
opposition to the award of attorneys’ fees. The CSBA argued that
Plaintiffs were not entitled to attorneys’ fees because
(2) sovereign inmunity precludes the action upon which an award
of attorneys’ fees would be based and there is no statute
entitling Plaintiffs to such an awards (2) the fees and costs
must be rejected or discounted because Plaintiffs did not prevail
on a majority of the issues; (3) trial of the issues on which
Plaintiffs prevailed was unnecessary and Plaintiffs’ counsel
should not be rewarded for bringing such issues to trial: (4)
“common benefit” did not extend to Plaintiffs in this actions
(5) @ class fund had not been established and unless one was, the
award of attorneys’ fees would be premature; (6) Plaintiffs’
attorneys were not “private attorneys general”; and (7) if
entitled to attorneys’ fees and costs, Plaintiffs had the burden
to submit documentation of reasonable hours relating to distinct
clains.
on July 3, 2003, CSEA filed a supplementary menorandum
in opposition to Plaintiffs’ request for attorneys’ fees.
Attached to this memorandum was the declaration of James P.
> ihe, private, attorney general” doctrine ig referred to in Inne
Sons, 96 Hawaii 27, 29-32, 28 Psd 602, 604-07
(2001. The privete attorney general doctrine requires consideration of
Sia}, the strength oF socletal inportance of the public policy vindicated by
the Litigation, (2) the necessity for private enforcement and the magnitude of
the resultant Gurden on the plaintsf® (and) (3) the number of people standing
to benefit fron the decision.” Jd, at 29, 25 F.3dat €0¢ (internal quotation
sarks ond citation omitted)
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Schratz (Schratz), an attorney specializing in auditing billing
statenents, who had audited the statements submitted by
Plaintiffs’ counsel in support of their request for attorneys’
fees. Schratz identified overbilling and duplicative activity
and recomended that the award for attorneys’ fees and costs be
reduced accordingly. Schratz also recommended that the court
disallow the costs associated with Sakamaki’s testimony, in
consideration of the fact that Sakamaki’s testimony was
disregarded by the court. After these deductions, the remaining
fees that Schartz suggested were fair and reasonable amounted to
$261, 381.50 and the costs he deened to be fair and reasonable
amounted to $63,277.61
on July 16, 2003, the court entered its Award Order.
The court granted Plaintiffs’ Motion for Costs and Attorneys’
Fees pursuant to the “conmon benefit,” “common fund," or “private
attorney general” doctrines. ‘The court found that Plaintiffs’
counsel expended over 2,000 hours to
pureve @ novel, complicated, and difficult case, with no
Seeurance that they would receive one penny of compensation
for their efforts. Although Plaintafts’ counsel did not
prevail on the claim for interest on pat due child support
Payments, they did, inter alla, establish the availability
Of sudicial intervention to enforce constitutional rights te
the corpus of chile support peysents, over the strenusus and
repeated sovereign immunity arguments of the State
In recognition that sone of the work of the Hawai'i and mainland
attorneys was duplicativ
the court reduced the hourly rate from
$350.00 billed by the mainland attorneys and $250.00 billed by
the Hawai'i attorneys to $185.00. Furthermore, the court
disallowed the 32.08 hours billed by associates of the mainland
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associates who were not specially adnitted to practice in Hawai'i
for this case. However, the court allowed an additional 50 hours
for time spent in the future proceedings," for a total of
2,201.47 hours, resulting in attorneys’ fees of $403,951.20.
Although Schrat2 urged the court to disallow costs pertaining to
Sakanaki's testimony, the court did not accept that
reconmendation, finding that, although the court rejected his
conclusions, his testimony was beneficial to the court's
understanding of the CSEA’s accounting practices. The court did,
however, accept CSEAs objection to $2,354.45 in travel costs,
thus awarding $96,710.95 in costs. The court declined to assign
the funds remaining in the “uncashed check” and “bad address”
categories after distribution of all distributable funds to LASH.
Instead, the court ordered that any funds remaining in those
categories after March 31, 2004, be applied to the attorneys’
fees and costs ordered under the conmon fund theory, or to be
“held or distributed by Defendants pursuant to applicable law."
Finally, the court denied Plaintiffs’ motion for an incentive
award payment to Kemp.
v.
on July 16, 2003, the court entered its Final Judgment,
which reiterated the Memorandum of Decision but also included
the “future proceedings” contesplated by the court included
preparation of proposed clase action notice and mencranda regarding the
Proposed role of e neutral sccountant to oversee the accounting order by the
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orders for giving Notice to Class Menbers about the Final
Judgment.
on July 28, 2003, CSEA filed a Motion to Anend Findings
of Fact and Conclusions of Law and to Anend Judgment.
Specifically, CSEA objected to the court's findings that the
issues regarding monetary relief and the “reasonableness” of
CSEA’s retention of funds in the “uncashed check” and “bad
address” categories were tried by express or inplied consent of
the parties, claiming that the issue was tried only in regards to
Plaintiffe’ claim to the interest generated from late payments,
not to any claim on the payments held in the “uncashed check” or
“bad address” categories. CSEA contended that “[t]he only
factual issues in the case that were tried by the parties were
the timeliness of payments to custodial parents under [HRS] §
571-82.2(e) [,]" not the reasonableness of efforts to locate
obligees with bad addresses or of efforts to make payees with
uncashed checks redeem their paynents.
CSEA claimed that it was never put on notice that the
“real claim” being tried was whether the agency acted reasonably
in attempting to disburse the child support payments held in the
“uncashed check” and “bad address” categories. CSEA further
contended that it did not expressly or implicitly consent to
trying those issues. According to the CSEA, under HRCP Rule
15(b),# the court could not treat the complaints as amended to
‘See supca note 19.
a
++#POR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER***
fit the facts adduced at trial because “the course of the trial
did not depart so materially from the image of the controversy
pictured in the pleadings or by the discovery process that it
would become necessary to adjust the pleadings to reflect the
case as it was actually litigated in the courtroom.” (Emphasis
omitted.) CSEA maintained that the issue of the “uncashed check”
and “bad address” categories was tried only in the context of
timeliness raised by the Complaint, and not in the context of the
reasonableness of the agency's actions. On August 14, 2003, the
court denied this motion.
on September 11, 2003, the CSEA filed its Notice of
Appeal, appealing from (1) the Award Order; (2) the Final
Judgment; and (3) the Anendnent Order. The CSEA also challenges
the Memorandum of Decision. On Septenber 25, 2003, Plaintiffs
filed their Notice of Cross-Appeal appealing from (1) the Sunmary
Judgment Order; and (2) the Final Judgment. Plaintiffs also
challenge the Nemorandum of Decision.
vi.
CSEA raises five points of error on appeal. It argues
that the court erred (1) in its conclusion that CSEA breached its
fiduciary duty regarding uncashed and undeliverable checks and
violated the constitutional rights of recipients in those
categories; (2) in determining that Kemp could adequately
represent persons who had failed to cash checks or notify CSEA
when they changed their addresses; (3) in its conclusion that the
Plaintiff Class had created a conmon fund of undistributed money
32
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for the purposes of awarding costs and attorney's fees; (4) in
awarding attorney's fees because the CSEA was protected under the
doctrine of sovereign immunity: and (5) in awarding Plaintitt
Class attorney's fees and erred in the amount, “particularly
given [P)laintiffs’ overall lack of success.”
In conjunction with its first point of error, CSEA
argues that “[it] did nothing wrong.” In conjunction with its
second point of error, CSEA maintains that the class definition
wes inproperly expanded to include persons in the “uncashed
check” and “bad address” categories. Finally, in conjunction
with its third point on appeal, CSEA contends that (a) the court
disregarded the rights of the federal government and the non-
custodial parent in its conclusion that Plaintiffs had created a
conmon fund, and (b) the court discussed “three different legal
theories (connon fund, conmon benefit, private attorney general)
without analysis or discussion of any of them.” CSEA requests
that the court’s Final Judgment be reversed and the case remanded
with instructions to enter judgment on its behalf.
In response, Plaintiffs assert that (1) the issues
raised by CSEA regarding breach of fiduciary duty, violation of
constitutional righte, the identity of the class representative,
and the definition of the class are moot inasmuch as CSEA has
fully complied with the provisions of the Final Judgment related
to an accounting, notice, and disbursement; (2) “the court’s
actions were proper in response to the request for an accounting”
because “one of the hallmarks of an action for an accounting is
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that it confers upon the court broad power in equity to fashion a
remedy that is appropriate to the facts of the cases” (3) “Kemp
was an appropriate class representativer” (4) under HRCP Rule
23(b) (2), the class definition did not have to be precise; and
(5) the award of fees was proper because (a) CSEA is not
protected by sovereign inmunity, and (b) fees were appropriately
awarded and were of @ proper amount.
In reply, CSEA maintains that (1) there is no legal
basis for requiring the CSEA to take further action with respect
to uncashed checks and “bad address” checks; (2) CSEA’s
compliance with the Final Judgment does not render the issue of
the attorney's fees moot; (3) the federal governnent has an
interest in the funds deposited with the CSER; (4) the 2000 audit
which concluded that the CSEA had “substandard internal
accounting practices” does not mean that CSEA has failed to make
timely external payments, has breached a fiduciary duty, or has
infringed on constitutional property rights; and (5) although the
court initially ordered an accounting, the court subsequently
approved a stipulation extending the accounting date, and later
set aside its summary judgment order in this respect.
Plaintiffs raise three issues on cross-appeal: (1) the
court erred in ruling that the class had no property interest in
the interest earned upon child support payments that were not
paid within the time required by law; (2) “the court erred by not
ordering CSEA to provide Plaintiffs with an accounting of
interest that had been earned with regard to individual class
34
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members whose child support had not been paid within the tine
Limits prescribed by law"; and (3) the court erred in concluding
that the CSEA did not have an implied contractual duty to
disburse payments within the time frame provided by law.
In conjunction with their points on appeal, Plaintiffs
argue that (1) “the CSEA is required to disburse payments within
two business days of collection and is authorized by statute to
retain [interest] earned only during that limited period
(2) “earned interest is property taken without just
compensation”; (3) “the position taken by Plaintiffs is
consistent with Hawai'i precedent”; (4) “sovereign immunity does
not prevent an accounting”; and (5) “CSEA had an implied
contractual duty to disburse child support payments in = timely
manner.” Plaintiffs request that this court reverse the Summary
Judgment Order insofar as it orders that Plaintiffs do not have a
property interest in the interest earned on the corpus of child
support payments held by the CSEA. Plaintiffs further request
that the Final Judgment be reversed and that the case be remanded
to the court with instructions to permit the accounting requested
by Plaintiffs. Finally, Plaintiffs request that the Memorandum
of Decision, as reiterated in the Final Judgment, be reversed and
that the court rule as a matter of law that an implied-in-fact
contract existed between Plaintiffs and the CSEA regarding timely
disbursement of child support payments.
In response, CSEA asserts on cross-appeal that
(2) “Plaintiffs seek an advisory opinion on their entitlement to
35
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interest” because the court’s finding that CSEA was not
delinquent was not challenged; (2) “Plaintiffs are not entitled
to an accounting of interest” on late payments because the
court's finding that CSEA was not delinguent was not challenged:
and (3) “Plaintiffs seek an advisory opinion on the existence of
fan implied contract” because (a) the issue of an implied contract
is moot inasmuch as the court’s finding that CSEA was not
delinquent was not challenged, and (b) “Plaintiffs are asserting
an implied-in-law contractual duty based on their subjective view
of what is ‘equitable’ and such claim is barred by sovereign
immunity.
In reply, Plaintiffs contend that (1) the Summary
Judgment Order should be reviewed de nove: (2) CSEA misrepresents
the court's finding that it was not delinquent; (3) the issue of
whether Plaintiffs have @ property interest in interest earned on
money held by CSEA is not moot inasmuch as Plaintiffs have not
“had a chance to do discovery or present evidence on that issues”
(4) “this court should recognize a property interest in interest
earned by the CSEA on delinquent payments;” (5) if such property
interest is recognized, Plaintiffs are entitled to an accounting:
and (6) this claim is based upon an implied-in-fact contract
which “has all the elenents of a bailment.”
vit.
Based on our conclusions, supra, we only discuss the
standards of review relevant to this disposition. The CSEA's
first issue on appeal, whether CSEA breached its fiduciary duties
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and violated the constitutional rights of the class members, is a
question of law. See Lewis v. Knutson, 699 F.2d 230, 235 (Sth
Cir. 1983) (holding that the existence of a fiduciary duty is a
question of law).
westions of law are reviewable de novo under
the right [or] wrong standard of review.” Mikelson v. Unit
Serve. Auto. Ass'n, 107 Hawai'i 192, 197, 111 P.3d 601, 606
(2005) (quoting Ditto v, McCurdy, 102 Hawai'i 518, 521, 78 P.3d
331, 334 (2003)). Inasmuch as Plaintiffs also claim a
constitutional violation of their property rights, we review
questions of constitutional law under the right or wrong
standard. Freitas v. Admin, Dir. of Courts, 108 Hawai'i 31, 37,
116 P.3d 673, 679 (2005).
‘The CSEA’s second issue on appeal questions whether the
court erred in finding that Kemp adequately represented the class
members who fell under the “uncashed check” and “bad address”
categories.
A trial court ie vested with “broad discretion in deciding
ether to certify a class,” and discretionary authority 1s
homaliy tndisturbed on review. Filipe v. chang, €2 Haw.
626, 636, 610 F.2d 298, 301 (1980). But where the record
Giscloses 2 possible misapprehension or misapplication of
Role 25" criteria, it is sncunbent upon us te conduct ©
careful review of the rule's application to the facts
involved, especially where questions respecting the adequacy
of representation are raised.
Life of the Land v. Land Use Comm'n, 63 Haw. 166, 180, 623 P.2d
431, 443 (1981) (footnote omitted) .
‘The CSEA's third issue raised on appeal, whether the
court erred in ruling that the Plaintiff Class had created a
common fund that could be used for attorneys’ fees and costs, is
reviewed de novo under the right or wrong standard. See Montalvo
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va Chang, 64 Haw. 345, 642 P.2d 1321 (1982), overruled in part
by, chun ve rs. of ¢ Ret, Sys., 92 Hawai'i
432, 922 P.2d 127 (2000) (applicability of common fund doctrine
reviewed de novo).
Kemp's first two issues on appeal, whether the court
erred in ruling that the Plaintiff Class did not have a
constitutionally protected property interest in any interest
accrued by child support payments held by the CSEA and whether
the court erred in not ordering an accounting of such interest,
arise from the court’s Summary Judgment Order. The court's grant
or denial of summary judgment is reviewed de novo. Hawaii Cntv.
Fed, Credit Union v. Keka, 94 Hawai'i 213, 221, 11 P.3d 1, 9
(2000) (citation omitted). Pursuant to HRCP 56, summary judgment
Ss granted only when “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 ae a matter of law.” Pioneer Mill Co, v. Dow, 90
Hawas't 289, 295, 978 P.2d 727, 733 (1999).
Kemp's third issue on appeal, whether the court erred
in concluding that the CSEA did not have an implied contractual
duty to disburee child support payments in a timely manner, is a
question of law, which is reviewed de novo. Mikelson, 107
Hawai'i at 197, 111 P.3d at 606.
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vain.
A
CSEA’s second issue on appeal is discussed first
because our detexmination that Kenp was not an adequate class
representative is dispositive of other issues on appeal. To
reiterate, CSEA’s second point on appeal challenges the court's
determination that Kemp could adequately represent class members
in the “uncashed check” and “bad address” categories. Plaintiffs
assert that CSEA never filed 2 motion challenging Kenp’s ability
to act as class representative. hile no separate motion was
filed, CSEA did object to Kenp acting as class representative in
its “Memorandum in Opposition to Plaintiff’s Motion for Order
Determining Class Issues.” CSEA argued that “[Kenp)‘s non-Title
IV-D status raises serious questions about [her] standing to
bring suit on behalf of Title IV-D participants and about the
alleged conmonality te facts and law that allegedly underpin this
action, in regards to [Kenp]'s burden under HRCP [Rule] 23(a)."
Plaintiffs also allege that the issue of the propriety
of Kenp as class representative is moot, along with the issues of
breach of fiduciary duty and definition of the class, because
CSEA has fully complied with the provision of the Final Judgnent
related to an accounting, notice, and disbursenent.
B.
We first address Plaintiffs’ mootness argunents
inasmuch as moctness implicates this court's jurisdiction to
address the issues herein. See Life of the Land v. Burns, 59
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Haw. 244, 250, 580 P.2d 405, 409 (1978) (stating that,
ordinarily, “‘courts will not consume time deciding abstract
propositions of lew or moot cases, and have no jurisdiction to do
sol]’" (quoting Territory v. Aldridge, 35 Haw. 565, 568 (1940))
Plaintiffs assert that CSEA’s arguments regarding breach of
fiduciary duty, violation of constitutional rights, identity of
class representatives and the definition of the class are moot
inasmuch as CSEA complied with the provisions of the Final
Judgnent requiring CSEA to (1) provide an accounting with regard
to persons falling within the “bad address” and “uncashed check”
categories, (2) send notice and follow-through with a claim
procedure to persons in those categories, and (3) disburse money
to those submitting claims to the CSEA.
With respect to mootness, the following has been stated
by this court:
A cose is moot if it hae lost its character as a present,
Live controversy of the kind that must exist if courts are
fe avoid advisory opinions on abstract propositions of Law.
The role is one Of the prudential rules of judicial
Eelt-governance founded in concern about the proper-and
Broperly linited-role of the courts in a denocratic society.
fie have said the sult must remain alive throughout the
course of Litigation to the moment of final appellate
Sisposition to escape the mootness bar.
Kona Old Hawaiian Trails Group v. Lyman, 69 Haw. 61, 87, 734 P.2d
261, 165 (1987) (internal citations, quotation marks, and
brackets omitted). Simply put, “lal
is moot if the
reviewing court can no longer grant effective relief.” City Bank
vs Sale Ventures II, 7 Haw, App. 130, 134, 748 P.2d 812, 815
(1988) (quoting United States v. Oreaon, 718 F.2d 299, 302 (9th
cir. 1983)).
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Sn
CSEA’s contention that the issues it raises are not
moot is persuasive. The effective relief it seeks is the vacatur
of the court's award of attorney's fees. CSEA argues that
“{elhere was no legal basis for imposing any liability or
injunctive relief on CSEA for uncashed checks and bad addresses.”
Accordingly, inasmuch as @ live controversy remains as to the
imposition of liability on the CSEA, including the award of
attorney's fees, and in light of the availability of effective
relief, the issues raised by the CSEA are not moot
notwithstanding its compliance.
‘The party seeking class certificetion assumes the
borden of “establishing the four prerequisites for class
certification delineated in Rule 23(a)” as well as “demonstrating
the presence of a suitable situation for the maintenance of a
class action” under HRCP Rule 23(b). Life of the Land, 63 Haw.
at 180-81, 623 P.2d at 443 (internal citations omitted). "A
failure to satisfy the burden in any respect can result in a
denial of the necessary certification.” Jd, at 181, 623 P.2d at
443 (citations omitted). HRCP Rule 23(a) entitled “Prerequisites
to a class action,” states as follows:
One or more menbere of a class may sue or be sued as
cepresentative parties on benelf of all only if (1) the
Eises is so tunerous that Joiner of all members is
Inpracticable, (2) there are questions of lew or fact common
tothe class, (3) the clains or defenses of the
Fepresentetive parties are typical of the clains or defenses
Gf the close, and. (4) the representative parties will felrly
Ghd adequately protect the interests of the class.
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upon review, this court must determine whether Kemp met these
requirements and was thus an appropriate class representative.
The CSEA contends that Kemp's claims were not “typical
of the claims or defe
of the class.” In Life of the Land,
this court stated that “(t]he crucial question here is
paraphrased in (Moore's Federal Practice] as ‘what Is The
Individual Claim (Or Defense) Of The Class Representative,’ and
the primary requisite is that his claim or defense be essentially
similar to the claims or defenses throughout the class." Id. at
182, 623 P.2d at 444 (citing 3B Moore's Federal Practice 1 23.06-
2 at 23-191 (1980)). As to the requirement of HRCP Rule 23(a) (3)
that the claims of the representative be typical of the claims of
the class as a whole, this court has equated typicality with the
absence of conflict of interest. Id. at 183, 623 P.2d at 445.
Kemp fails to meet the requirement of HRCP Rule
23(a) (3). “{A) class representative must be part of the class
and ‘possess the same interest and suffer the same injury’ as the
class menbers.” Amchem Prods. Inc. v. Windsor, $21 U.S. $91,
625-26 (1997) (quoting E, Tex, Motor Freight Svys., Inc.
Rodriguez, 431 U.S. 395, 403 (1977) (quoting Schlesinger v.
Reservists Comm, to Stop the War, 418 U.S. 208, 216 (1974)).
Kenp's individual claim was that she was entitled to interest
earned on child support payments that were disbursed in an
untimely manner. Kemp's claim was based on the presumption that
the CSEA was not disbursing child support payments within the
time periods prescribed by la. On the other hand, the claim of
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the Plaintiffs in the “uncashed check” and “bad address” category
was inherently dissimilar to Kemp's claim. The court found that
those plaintiffs were entitled to the corpus of child support
payments made for their benefit that were sent out by the CSEA in
a timely manner, but were not redeened.
The claims of the Plaintiffs in the “uncashed check”
and “bad address” categories rested on the fact that the CSEA was
disbursing child support payments in @ timely manner, but
allegedly wae making no attempt to ensure that the obligees
actually received the funds. Kemp's claims and the clains of
obligees whose child support payments were held in the “uncashed
check” or “bad address” categories are based on failures at
different times in the disbursement process. Kemp's claim is
grounded on the CSEA’s alleged failure to comply with its
statutory duty to disburse child support payments within the time
specified in HRS § 571-52.2(e), whereas the claims of the
“uncashed check” and “bad address” Plaintiffs are premised on the
failure of those Plaintiffs to redeem checks that were sent in a
timely manner or to notify the agency of their new address.
Hence, Kemp's claim to interest made on late child support
Gisbursenents was not “essentially similar” to the claims of the
Plaintiffs in the “uncashed check” and “bad address” categories
such that Kemp satisfied the typicality requirement of HRCP
23(a) (3).
Plaintiffs concede that Kemp “did not have a personal
situation that covered all the relief provided by the court.”
a3
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a
However, Plaintiffs assert that she had claims “related” to the
other claims and that she performed her responsibilities as class
representative in an exemplary manner. As discussed supra, a
claim must be more than “related” to satisfy the requirements of
HRCP Rule 23(a). Also, with all due regard to Kemp's role, the
manner in which she performed her duties is wholly irrelevant to
whether she was an appropriate class representative. The fact
remains that she did not “‘possess the same interest and suffer
the same injury’ as the class members.” Bmchem Products, $21
v.s. at 625-26.
Further, the significance of Kemp's role is illustrated
by the binding effect of 2 judgment on class members. ACP Rule
23(c) (2) states in relevant part:
In eny class action maintained under subdivision (b) (3), the
Court shall direct to the nenbers of the class the best
notice practicable under the circunstances, including
Tralvidval notice to all mesbers who can be identified
through reasonable effort The notice shall advise
meaber thats = (8) "
wl iL ah ta
(Emphasis added.) See also Akau v. Olohana Corp,, 65 Haw. 383,
368, 652 P.2d 1130, 1134 (1982) (explaining that “[a] judgment in
a class action consisting of the people actually injured will
bind the members who aze all those allowed to sue(]").
In DuPont v. Wvly, 61 P.R.D. 615, 621 (D. Del. 1973),
the United states District Court for the District of Delaware
Giscussed the importance of @ proper class representative:
‘The requtrenent thet the representative parties will
feirly and agequately protect the interest of the class
playe’s crucis! rele in the class action scheme of amended
Rule 23. Since thet schene holds the potential of binding
Clase menbere who have no actual knowledge of the suit, the
Sequizenenss of due process, 2 well as the necessity for
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a
confidence in the judicial proce:
Sepresentative parties cen be counted upon to
defend the interests of all menbers of the cl
‘See also Van de Walle vy. Unimation, Inc., @ Del. J. Corp. L. 623,
628-29 (Del. Ch. 1983) (stating that “[i]t is agreed, by all
demands assurance that
sehfally
courts, that the selection of a proper class representative is an
important consideration”); World Forei 1 1
Romeo, 55 F.R.D. 26, 29 (S.D.N.Y. 1972) (concluding that
Plaintiff was not an appropriate class representative because the
concerns of the plaintiffs he would represent were “of no concern
to [him]"). We agree with the proposition in yly that an
appropriate class representative that can “faithfully defend the
interests of all menbers” is of the utmost importance in 2 class
action, Wyly, 61 F.R.D. at 621.
‘The CSEA also argues that the “class” as defined by the
court in its Memorandum of Decision, was an improper expansion of
the class as defined in the Class Order. The class was
originally certified to include obliges “who did not or will not
receive their child support payments, without leaal
Justification, within the time limits set forth in the Hewai'i
Revised Statutes{.]” The CSEA argues that the “without legal
justification” qualification necessarily excludes those obligees
who did not receive their child support payments as a result of
their own actions, i.e, failing to redeem timely mailed checks
or failing to notify the CSEA of a change of address. We believe
the CSEA's argument is persuasive. “Without legal justification”
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implies that the child support payment did not reach the obliges
because of the CSEA’s actions. The CSEA cannot compel a
custodial parent to redeem the child support check or to submit
the necessary information informing the CSEA of a current address
for the custodial parent. Rather, the failure of the custodial
parent to redeem the check or to update his or her address is 2
“legal justification” for the CSEA’s inability to disburse funds
held in the “uncashed check” and “bad address” categories.
Therefore, we hold that the court erred in including those
obligees in the class definition.
Because Kemp could not adequately represent obligees
whose child support payments were held in the “uncashed check”
and “bad address” categories and because those obligees were not
included in the class as it was defined in the Class Order, the
judgnents in favor of the obligees whose child support payments
were held in the “uncashed check” and “bad address” categories
are vacated and remanded with orders to dismiss. Amchem, 521
0.8. 592; Lierboe v, State Farm Mut, Auto, Ins. Co, 350 F.3d
1018 (9th cir. 2003).
a.
‘The CSEA claims that the court erred in finding that
the agency breached its fiduciary duty to custodial parents whose
payments were held in the “uncashed check” and “bad address”
categories. Because we have determined that the Plaintiffs in
the Yuncashed check” and “bad address” categories were not
adequately represented, the conclusion that the CSEA breached its
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fiduciary duty towards those plaintiffs must be vacated. Anchen,
521 U.S, $91; Lierboe, 350 F.3d 1018.
x.
‘The CSEA's third point on appeal alleges that the court
erred in awarding attorneys’ fees to Plaintiffs. In its Opening
Brief, CSEA states that “[e]ven though there was no valid class,
[the] CSEA has complied with and does not argue on appeal the
invalidity of the relief concerning notice and disbursement to
the ‘class’ menbers. However, the award of attorneys’ fees,
based in part on the existence of a ‘class’ was error[.]”
Plaintiffs note that the CSEA was able to distribute millions of
dollars from the “uncashed check” and “bad address” funds within
several months of being ordered to do so. The CSEA itself agrees
that it has “fully complied with the portion of the judgnent
requiring, where possible, notice to and repayment of persons in
the uncashed check and bad address categories.”
Plaintiffs misinterpret the CSEA’s appeal of the award
of fees and costs ae an argument that the court “exceeded its
authority in ordering disbursement of these funds(.]” On the
contrary, the CSEA is arguing that the money remaining in the
“uncashed check” and “bad address” accounts after March 31, 2004
was not under the control of the court and thus was unavailable
for an award of attorneys’ fees and costs. The CSEA contends
that the federal government, the non-custodial parents, and the
Hawas't Legislature all had superior claims to the money.
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CSEA maintains that the federal governnent has a
superior claim to the money in order to reimburse the government
for public assistance payments nade to families who were supposed
to receive child support payments through the CSEA as provided
for under 45 C.F.R. § 302.32. See supra note 7, Further, the
CSEA contends that the non-custodiel parents have a superior
claim to any money in the “bad address” category that is not
Gisbursed by Narch 31, 2004 based on the warning that is printed
on all CSEA checks. As noted previously, the warning states in
relevant part, “Support payments that cannot be mailed because of
the lack of @ good mailing address may be returned to the
obligor/payor.” Finally, the CSEA argues that the State has a
superior claim to any money left in the “uncashed check” and “bad
address” funds after that money is deened abandoned pursuant to
HRS § 523A-13 (1993)* and goes through the lengthy process to
escheat the abandoned funds to the State’s general fund set forth
in HRS chapter 523.
Pursuant to the “Anerican Rule,” each party usually
pays its ovn litigation expenses. Schefke v. Reliable Collection
Agency, Ltd., 96 Hawai'i 408, 444, 32 P.3d 52, 88 (2001); Chun,
92 Hawai'i at 439, 992 P.2d at 134. There are several exceptions
to this general rule which allow fee-shifting such that the
losing party pays the fees of the prevailing party, “when so
RS § $29K-13_ (19931, entitled “Property held by courte and public
agencies,” provides that “[ilntangible property held fer the omer by s court,
State, of other governsent, governmental subdivision or agency, public.
Corporation, ef public authority which remsine unclaimed by the owner for more
than one year after becoming payable or sistributable is presuned ebancened.”
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OO
authorized by statute, rule of court, agreement, stipulation, or
precedent.” Id, (citations omitted). Inasmuch as we have
determined that the obligees whose child support payments were
held in the “uncashed check” and “bad address” categories were
not adequately represented by Kemp, thus rendering it improper
for the court to decide issues pertaining to those obliges,
Plaintiffs cannot be considered the prevailing party such that 2
fee-shifting exception to the American Rule, such as the common
fund doctrine, can be inveked. An improper award of attorneys’
fees and costs is reversed. See e.c., JAZ, Inc. v. Foley, 104
Hawai'i 148, 85 P.34 1099 (App. 2004) (reversing award of fees
following reversal on appeal of lower court’s decision on the
merits). Based on the foregoing, the award of attorneys’ fees
and costs is reversed.
XI.
‘The CSEA’s fourth point of appeal contends that it was
protected from the award of attorneys’ fees under the doctrine of
sovereign immunity. The court never made a specific ruling
regarding the applicability of sovereign inmunity to the request
for attorneys’ fees. Because we have already determined that the
award of attorneys’ fees and costs was improper inasmuch as
Plaintiffs have not prevailed on their claims, we need not
determine whether such an award was barred by sovereign immunity.
XII.
he CSEA’s £1fth point on appeal is that the court
erred in awarding fees and costs to Plaintiffs and erred in the
4
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amount of the award, especially considering Plaintiffs’ overall
lack of success on the pleaded complaints. Having already
reversed the court's award of attorneys’ fees and costs pursuant
to the conmon fund doctrine, because Plaintiffs were not entitled
to such an award, we need not determine whether the amount the
court awarded was appropriate.
xu.
A
Plaintiffs’ first and second points on their cross~
appeal concern their claim to interest earned on allegedly
delinquent child support payments and their request for an
accounting of said interest. Plaintiffs contend that the court
erred in ruling
hat based on (HRS) §§ 5760-10, (") 661-8, [") 662-2, ("") and
662-8, [°] Plaintifs has no state property interest on
peyments not made within the tine pericd prescribed by [HRS]
§ 271-52.2(e]. Therefore, members of the Plaintift (C)lass
have no Gognizable State Constitutional property interest
Dazed’ on (HRS) § 571-52.2(e) on any interest accrued on
Teterpaid child support payments:
Plaintiffs also contend that the court erred in granting summary
* see sumza note 19.
® as § 661-8 (1993), entitled “interest,” provides that “Inlo
shall be allowed on any claim up to the time of the rendition of
thereon by the court, unless upon a contract expressly stipulating
Tor the payment of interest, or upon a refund of a payment into the *Litiga
clains fund" as provided by’ Law.
% RS § 662-2 (1993), entitled "Waiver and Liability of state,”
provides that “[tihe State hereby waives its inmonity for Liability for the
Ecrea of its employees and shall be liable in the same nanner and to the
extent as ¢ private individual under like circumstances, but shail not be
Llable for interest prior to judgrent or for punitive damages.”
® uns § €62-8 (2993) provides that “{ojn 312 final judgments
rendered against the State in actions instituted under this chapter, interest
Shall be computed at the rate of four per cent = year from the date of
Judgment up to, but not exceeding, thirey days after the date of approval of
any appropriation act providing for paysent of the judgnent.”
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OO
judgment in favor of the CSEA regarding the Plaintiffs’ request
for an accounting of “accrued interest on monies paid into the
Anterest bearing account since 1987. . . because members of the
Plaintiff (C)lass have no cognizable property interest in such
interest,” as discussed above.
Although the court ruled against the Plaintiffs
regarding their claim to interest earned on delinquent child
support payments, the court reserved the issues regarding
entitlement to the cozpus of any delinquent child support
payments for trial because there was a genuine issue of material
fact of whether such payments existed. As stated supra, the
issue of whether there were delinquent payments was tried, with
Kemp being the only custodial parent class menber providing
testimony. As mentioned before, after the trial, the court
concluded that “the strong weight of uncontroverted evidence
indicates that after the initial problems of 1998, and excluding
» . sholds'
disbursenent authorized by las, the CSEA has been disbursing the
overwhelming majority of child support payments received that are
subject to [HRS] § 571-52.2(e) within two days of its receipt of
the forwarded check (Emphases added) .
CSEA, however, argues that Plaintiffs’ challenge to the
court's ruling on interest and accounting therewith is “moot”
inasmuch as Plaintiffs failed to challenge the “court’s finding
= hs noted, Kemp use the only custods
had received paymenté late.
parent to testify that she
2
‘*44FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER***
of non-delinquency.” CSEA argues that this failure on the part
of Plaintiffs renders the court's finding binding on this court.
However, as Plaintiffs maintain, it appears that the
CSEA misconstrues the court's finding. The court found that as a
result of the transition from the KFRI system to the KETKI
system, “glitches occurred, resulting in delay of child support
payments for several months.” The court also determined that
payments to Kemp were not paid on time. The court observed that
millions of dollars in the “bad address” and “uncashed check”
categories remained with the CSEA. But, the court also found
that an “overwhelming majority” of payments were being made ina
timely fashion. Thus, there remained a number of payments that
were being disbursed outside of that period. Inasmuch as the
CSEA's reliance on the moctness doctrine is grounded on its
nisinterpretation of the court's finding in this regard, the
moctnese doctrine, assuming it was germane, is inapplicable.
The question remains as to whether Plaintiffs have a
property right in the interest earned on child support payments
not disbursed within the statutory time period. The court
observed that Plaintiffs “specifically assert that they are not
requesting recognition of a property interest based on Title IV-D
but rather based on Hawaii law, the Hawaii State Constitution,
and the (United States) Constitution{,]” and further ruled that
“the governing federal statutes and federal regulations are
silent on the issue of interest.” Apparently, Plaintiffs
“ss4f0R PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER***
i
specifically requested relief under HRS § 571-52.2(e).*
With respect to the existence of a property interest,
the court relied on Bd. of 2 2 vy, 408
U.S. S64, 577 (1972), for the general proposition that
“{p)roperty interests . . . are not created by the Constitution.
Rather they are created and their dimensions are defined by
existing rules or understendings that stem from an independent
source such as state law-rules or understandings that secure
certain benefits and that support claims of entitlement to those
benefits.”
‘The court noted thet Plaintiffs, in seeking declaratory
relief, specifically requested a ruling from the court that “any
accrued interest on child support funds in interest bearing
accounts created pursuant to [HRS] § 576D-10 after the expiration
of the statutory period(s) under [HRS] § 571-52.2(e) is the
obligee’s property.” In footnote 2 of the Sunmary Judgment
order, the court recognized the possibility of a property right
in interest:
Although there appears to be case low requiring
ninterest” oF “blight camages” to be paid when payment after
a “taxing” hae occurred, see ¢.9., (Kashiwa v. Coney], $5
Hows 650; 659-59, [372 P.2a 348, 352-53] (1962), the court
has been unable to find any Haueii cases holding that a
delay in payment constitutes a taking. If the child support
payments have bean wrongfulsy withheld, then the court
» — piaintitts argue thet [t]he legislative history of (HRS)
§ 571.52.2(e] reflects a Fecogniticn By the [l]egisiature that custodial
farents urgently need support paynente and. . . shes concern thet the
Payments. . Be transmitted » . . 98 quickly 4s posaibie” and that “(t)here
Pome Tenguage in either the statute or the legislative history to indicate
+s PC siylingent s+ 1 to provide the CSEA with a financial windfall if it
1ée'tg fellow the legislative mandate to get the money out to the proper
perton within the tinefrane provided by law.” These arguments, however, do
Pecveseabliah fleintifts’ entitlement to accrued interest in the CSEA funds
Under the statute:
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agrees thet, 9 under Eennettl vy, white, 865 F.2d 1395 (34
Cies"i969)], a taking has occurred; it is then possible that
porguant to’ Kashiugy (45 Haw at 657, equitable, entitlenent
fo interest may exsot. See alas,
ek Cores), 151 F.58 1i9¢" 119981," for a cisconsion on the
Ecamon Law “interest follows principal” rule, which
apparently is an entrenched rule under English common Law,
Which may apply in Hawaii pursuant to (HRS) § 1-1 (1983).
(Emphasis in original and emphasis added.)
As
Flier noted, in granting partial summary judgment
in favor of the CSEA, the court held that neither Kemp nor
members of the Plaintiff Class have “cognizable state
constitutional property interest(s] based on [HRS] § 571-52.2(e)
on any interest accrued on late-paid child support payments.” A
review of the statutes cited by the court in its ruling confirms
that the statutes are silent as to whether Plaintiffs possess a
property right in the accrued interest for payments disbursed
outside of the two-day period.”
‘The court determined that Plaintiffs do not have a
property right to interest based on the court's interpretation of
the relief sought by Plaintiffs. Inasmuch as the court's
interpretation of the relief sought by Plaintiffs is not
challenged on appeal, it cannot be said that the court was wrong
in its ruling that the CSEA was entitled to partial sunmary
judgnent on the basis that Plaintiffs “have no cognizable state
constitutional property interest based on [HRS] § 571-52.2(e) on
* see supra note 13.
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ee
any interest accrued on late-paid child support payments.”
As related by the court in the quoted footnote above,
case law exists as to the possibility of a property right under
the common law “interest follows principal” rule. See generally,
Schneider, 151 F.3d at 1199-1201 (providing a background and
relevent case law on the conmon law “interest follows principal”
rule). However on appeal, Plaintiffs do not argue @ common law
property right. Under the circumstances, we affirm the court’s
ruling in this respect.
Given that in this case Plaintiffs do not have @
property right to the accrued interest on CSEA’s delayed
disbursements under HRS § 571-52.2(e), it follows that Plaintiffs
are not entitled to an accounting of these funds. Hence, no
reason exists to disturb the court's ruling with regard to
Plaintiffs’ second argument on cross-appeal.
xIv.
a
Plaintiffs’ final iseve on appeal is that the court
erred in finding that the CSEA did not have an implied
contractual duty to disburse payments within the time frame
provided by law.” In its Memorandum of Decision, the court
stated that
ag stated gupga, in conjunction with their third point on appesl,
Plaintiffs maintain that “CSEA had an implied contractual duty to disburi
EG Ruppert payments ins tinely manner." Plaintiffs use the terns “timely
Sanners* within the statutory pefiod of tine,” and “within the statutory
Tides’ we assume that they mean within the two day statutory period by all
55
‘S44F0R PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REFORTER***
the various cases in which “implied contracts” were found to
exist are distinguishable from the case at hané
Smportantiy, they involved two party transact son()
sieutions, as compared to the facts of this cese, which
involves #¢ least four parties... « In addition «
ine’ parties Intended to
enter into a contractual relationship, and “implied
Contracts” also require the existence of a mutual intent to
‘The court does not find that the statutory schene involved
in this case evidences an intent to contract. The law
creates statutory and fiduclary obligations, but no implied
With respect to implied contracts, this court has stated as
follow:
in fact, res
their acts, as in the case where @ person performs service
for anther, who accepts the sane, the services not being
performed under such circumstances av to show that they were
[otended to be gratuitous, or where @ person performs
services for snother on request
Durette v, Aloha Plastic Recycling, 105 Hawai'i 490, $04, 100
P.3d 60, 74 (2004) (emphasis added) (internal citations and
quotation marks omitted) (citing Wall_v. Focke, 21 Haw. 399, 404-
05 (Haw. Terr. 1913)).
Based on this definition, it is apparent that the
court’s determination that no implied contract exists between the
CSEA and obligees was correct. The essential element of an
implied contract that is missing from this factual situation is
an apparent mutual intent to forma contract. Pursuant to the
definition employed above, the intent to incur mutual obligations
is implied from the actions of the parties. Contrastingly, in
the instant situation, the mutual obligations are created by a
complex and comprehensive statutory and regulatory structure
which creates obligations for the agency, the non-custodial
56
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OO
parent, and the non-custodial parent's employer. The actions of
these parties do not create the obligations, therefore, they
cannot be said to create an implied contract. Based on the
foregoing reasoning, the conclusion of the court that no implied
contract existed is affirmed.
5
As stated supra, in conjunction with their argument
that an implied-in-fact contract existed, Plaintiffs assert in
their reply brief on cross-appeal that “a transaction such as
this . . . contains all the elements of a bailnent.” Plaintiffs
make this argument for the first time on appeal. “As a general
rule, if a party does not raise an argument at trial, that
argument will be deemed to have been waived on appeal; this rule
applies in both criminal and civil cases.” State v, Moses, 102
Hawai'i 449, 456, 77 P.3d 940, 947 (2003); see also State ws
Hoglund, 71 Haw. 147, 150, 785 P.2d 1311, 1313 (1990) (stating
that “(glenerally, the failure to properly raise an issue at the
trial level precludes a party from raising that issue on
appeal {
. Accordingly, this argument has not been preserved
for appeal and we do not address it.
xv.
For the foregoing reasons, with respect to CSEA's
appeal, the July 16, 2003 Final Judgment of the court is vacated
in part and remanded with instructions to dismiss that part of
the Final Judgment determining that (1) the CSEA breached its
Hiduciary duty to obligees in the “uncashed check” and “bad
37
‘*9FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER***
address” categories; (2) Kemp was an adequate representative of
the Class; and (3) Plaintiffs were entitled to attorneys’ fees
and costs, but is affirmed in other respects.”
With respect to the Plaintiffs’ Cross-Appeal, we affirm
(2) the conclusions in the Summary Judgment Order that Plaintiffs
had no cognizable property interest in any interest earned by
delinquent payments and, thus, had no right to an accounting and
(2) the conclusion in the Final Judgment that the CSEA had no
implied contractual duties to obliges in the “uncashed check”
and “bad address” categories.
on the briefs: Gro
Dorothy Sellers, Adina L. .
Cunningham, and Kimberly Bhi Lome
Tsumoto, Deputy Attorneys
Goneras, for Beeendanes! Dea Srey ree
Mepetdenes sess Scent
sepeiices!
Francis T. O’Brien and A S
Christopher D. Ferrara for
Plaintiffs-Appellees/ Wom €. Butts th
Cross-Appellants.
‘See sumza note 3.
58
|
b569a42a-fbc4-4479-8446-6727772fa110 | Thompson v. AIG Hawaii Insurance Company, Inc. | hawaii | Hawaii Supreme Court | LAW LIBHAR
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IN THE SUPREME COURT OP THE STATE OF HAWAT'L
n-+ 000 +
TERRIE L. THOMPSON and DWIGHT THOMPSON,
Plaintiffs/Counterclaim Defendants-Appel lees,
AIG HAWAII INSURANCE COMPANY, INC., a Hawai'i
corporation; and AMERICAN INTERNATIONAL ADJUSTMENT
COMPANY, INC., a Delware corporation, Defendants/
counterclainants Cross-Claim Plaintiffs/Cross-Claim
Defendants-Appellants,
BURTON D. GOULD, Defendant/Cross-Claim Plaintift/
Cross-Claim Defendant,
TARRY MARK POLSKY, Dei
ndant /Crosa-Claim Plaintiff,
POLSKY & GOULD, a Hawai'i partnership, Defendant/
cross-Claim Defendant /Cross-Claim Plaintiff-Appellee,
JOSEPHINE D. MEDEIROS, Defendant /Cross-Claim
Plaintiff-Appel1
JOHN DOES 2-10, DOB CORPORATIONS 1-20, DOE
PARTNERSHIPS 1-10, AND DOE ENTITIES 1-10, Defendants.
gq 8
No. 27463 ge 8 oa
APPEAL FROM THE secon cxRewir cous ABZ,
(CIV. NO, 93-0140(1)) SEI", m
Be 2 9
ES
SEPTEMBER 5, 2006 2
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY MOON, C.J.
‘This appeal concerns the sole question whether the
plaintiffs-appellees Terrie L. Thompson (Mrs. Thompson) and
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Dwight Thompson (Mr. Thompson) [hereinafter, collectively, the
plaintiffs] are entitled to rescind a settlenent agreement,
releasing all claims for personal injuries arising from an
automobile accident, on the ground of unilateral metake,
purauant to Restatement (Second) of Contracts (hereinafter,
Restatenent] §§ 153 and 154 (1981), quoted infra. Briefly
end motor vehicle
stated, Mrs. Thonpecn was involved in a reai
collision caused by defendant Josephine D. Medeiros, who is not a
party to the instant appeal. The plaintiffs! eventually settled
their personal injury claim with Medeiros in the amount of
automobile liability
$35,000, which was paid by Medeiros
insurer, defendant-appellant AIG Hawai'i Insurance Company, Inc.
(AIG), through its adjusting company, defendant-appellant
American International Adjustment Company, Inc. (ATAC)*
Ihereinafter, AIG and AIAC are collectively referred to as the
defendants]. At the time of the settlement, the plaintiffs
believed that the $35,000 represented the liability limit of
Medeiros’s motor vehicle insurance policy when, in fact, the
policy limit was $300,000. The plaintiffs brought suit against
Medeiros, their former attorneys, AIG, and AIAC, seeking, inter
alia, rescission of the settlenent agreement. Ultimately, the
Although Mrs. Thompson was the only one involved in the accident, Mr.
‘Thonpeon asserted 2 claim for lose of consortium.
2 ae ali times relevant herein, AIAC, as the adjusting agent for AIG,
handled ali liability claims against AIG. Thus, the acts of AINC and/or ite
‘employees and agents are imputed to AIG.
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Circust Court of the Second Circuit? found that the settlement
agreenent was unenforceable on the ground of unconscionability
and granted the plaintiffe’ motion for summary judgment. An
amended final judgment was entered on August 2, 2005.
on appeal, the defendants advance two points of error
committed by the circuit court. First, the defendants contend
that the circuit court failed to apply Hawai'i Revised Statutes
(uRS) § 490:2-302 (1993), quoted infra, which dictates that
unconscicnability is determined under the circumstances existing
at the time the contract was made. Second, the defendants clain
that there are genuine issues of material facts regarding whether
the settlement agreement was unconscionable, thereby rendering
summary judgment inappropriate.
For the reasons discussed herein, we vacate the circuit
court's August 2, 2005 amended final judgment and remand this
case for further proceedings consistent with this opinion,
1. BACKGROUND
actual Backsround
on October 6, 1990, Mrs. Thompson was involved in a
rear-end motor vehicle collision caused by Medeiros (the
accident). As a result of the accident, Mrs. Thompson sustained
severe pergonal injuries, including bilateral temporonandibular
> the Honorable Reinette M. Cooper presided over the underlying
proceedings unless otherwise indicated
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joint displacements, post-traumatic stress disorder, depression,
and cervical, thoracic, and right shoulder injuries.
Shortly after the accident, the plaintiffs retained
defendant Burton D. Gould -- a non-party to the instant appeal --
as counsel to represent them in connection with their personal
injury claim against Medeiros (hereinafter, the personal injury
action]. As a result of settlenent negotiations between Gould
and the defendants’ senior clains adjuster, Billie R. Long, the
plaintiffs entered into @ settlement agreenent on June 26, 2992.
In return for a payment of $35,000, the plaintiffs released all
clains arising fron the accident [hereinafter, the 1991 release]
against Medeiros. The plaintiffs executed the 1991 release based
upon Gould's representation that Long had informed him that the
$35,000 represented the entirety of Medeiros’s liability
insurance coverage when, in fact, the policy limit was $300,000.
Gould testified in hie deposition that Long had represented that
she was paying the policy limit of $35,000 in order to settle the
personal injury action:
© IBy plaintiffs’ counsel) At the time that you
purpertedly settled [ehe plainéifts') claims again
meseiros} for $35,000, you were under the inpression
that. [Medeiros] had only’s $35,000 minimum policy
Limit of bodily injury Liability coverage through
(AIG), “correct”
[By Goula) Ye
ow did you gain that inpression?
Well, in talking with (Leug], I remember asking for a
lot tore, and then part of the conversation went well,
2 don't =
wen you say “asking for a lot more," what do you
You know, I am talking about memory now. I think I
might have asked for seventy or something like that.
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©. In other words, you thought [NMr#. Thompson’ a] claine
were worth a 10t more than $35,000, correct?
A. Yes, double, something Like that, yes. And then she
4 something co the effect, weil, we don’t have
that. Rll there is, ie the chirty'five, Something
ifke enae
° Are those the exacts words?
Al Okay, 1am going to try to get the exact worde. When
we were negotiating, she sald, you can have the
thirty-five, 1 renenber. And with everything else she
said before ~~ taking it out of context, it’s hard,
‘snd with che fact
je, was just a private person,
you know, not a’ business percon, and with what she
Baid, 1 believe there was only thirty-five. when she
Said, well, we don't have that, all I have ie the
thirty-five.” To me, that would mean the thirty-five
tsinimim policy.
+ In other words, she didn't say, vell, 1 can
Stter you thirty-five and that’s it. She Said, you
Gan have the thirey-five, Tome, that meant that.
Gould further testified that:
©. [By plaintiffs’ counsel) when you were taiking about
the humbers in excess of $35,000, she had said, we
don't have that?
A. ‘By Gould) “Yes. Like, oh, no, but you can have the
eniety-five
9. Your impression wae she didn’t have insurance coverage
for the value of claim in excess of §35,0007
A. Yes, yes. And the impression wasn’t gained from just
one’ set of words or phrases, it was the entire
conversation and the previous calls, just her
actitude. . . . The thirty-five to me means that’s
‘tat their policy limits are, because there was 20
tention of thirty-five before, where che had made an
offer, and said, well, you can have the thirty-five
that I offered you last time. She said, you can have
the thirty-five that we have, or something Like that.
rt is undisputed that Gould never inquired about Medeiros’ s
a,
policy Limit, or requested a declaration page from AIG. Ine!
as indicated above, Gould assumed that the $35,000 offer by Long
represented Medeiros’s policy limit.
Long, however, testified that she represented to Gould
that $35,000 was all the authority that she had to settle the
personal injury action. Specifically, Long state
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Me. Gould cane down to $55,000 from hie initial demand. 1
advised I could order the check today if he would accept the
(Emphasis added.) Long's testimony further reveals that:
©. [By plaintiffs’ counsel] [YJou . « . found out that
rt. Thompson’ e Sedical special danages eotaied
37,273.08, is that correct?
a. ay tong)’ Yee
@." Go at chat point on april 1, 2991, you knew chat mre.
‘Thompaon was receiving chiropractic treatment, that
her injuries were whiplash, snd that her medical
xpentee were §7,273-00, 18 that correct?
a vee
—And’at that point, you then requested a
Case of $35,000?
@: hy’ dia you choose the number $35,000 for the reserve?
KL Reserving ie just guese work. “You just try to pick an
amount that you think te appropriate and that your
Settlement will be under thet amount.
©. what would happen if you just said, iet’s reserve this
t'$300,000.
A. Gh, T couldn't have. There wae nothing to support it.
Your paper mst support what you're requesting
@ So it’s not really guess work. It’s an estination,
then:
a. Seve'an estimation.
G: okay. what went into the estimation that this should
be Yeserved at $35,000?
A. The fact that {,] within eix months, che had $7,000 and
fone dollare worth of medical bills. f had no idea
hhow long she would be treating or how much coverage
she had
0. And 0 with your
specials, you requ
a Yee.
@.” " And ds it correct that your goal is to settle cases
for as little as possible?
AL My goal is to settle cases for their valve.
When asked the reasons why she considered the settlement with the
plaintiffs a “good settlement” -- i.e,, specifically, “is that an
teled the ci
indication on your part that you thought you had
cheaply?" -- she replied, ‘No. I settled it for ite true value.”
Additionally, Gould recommended that the plaintiffs
pursue a claim for underinsured motorist (UIM) benefits from
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their own no-fault insurance carrier, Fireman's Fund Insurance
Company (Fireman’s Fund). That same day, June 26, 1991, Gould
presented a UIM claim to Firenan’s Fund, stating in his letter
that
Mire], Thompson wae very seriously injured in an accident on
October €, 1990 [sic]. [Medetres’s] insurance company,
Ric... paid their full policy Limit of ¢35,000 on June
26, issn:
‘Thereafter, Fireman's Fund refused the UIM claim on the basis
that the plaintiffs had failed to obtain the full available
bodily injury liability insurance coverage from Medeiros.‘
B. Procedural History
a. ‘The Complaint
on February 22, 1993, the plaintiffs, via their new
attorneys, filed suit against their former attorneys -- Gould,
defendant Larry Mark Polsky, and their attorneys’ law firm,
defendant Polsky & Gould,* -- and the defendants based on the
«prior to Fireman's Fund's discovery of Medeiros's policy linit,
Pireman‘a Fund offered $15,000 in which to settle the plaintiffs’ UIM claim.
However, Gould eclined such offt
* as previously stated, Gould Je not a party to the instant appeal;
similarly, Polsky and Poleky & Gould are not parties to this appeal
thereinatter, Gould, Polaky, and Polsky 4 Gould are collectively referred to
ae the former sttorseys). On Apri? 23, 1983) ‘and Polsky £ Gould moved
for partial summary judgnent in the instant ¢ reing that
Gould did not becone associated with Polsky until
october 1, 1992(, when they formed the partuership of Polsky
E Gould).” Polsky has never had any physical contact with
{ene plaineitfel, and(,] in point of fact, Polaky's only
contact in this atter was to make certain that the lawsuit
Which (could) filed on behalf of [the plaintiffs] against
{Medeires) was expeditiously carries forvara in a conpetent
manner, Also, (Gould and Polsky] agreed that any
abilities eltner might possess vie a vie thelr law
practices, would be borne personally by each other; said
(eoneinued....)
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circumstances surrounding the settlement of their claims arising
out of the accident.‘ On March 10, 1994, the plaintiffs amended
their complaint to add Medeiros as a party.’ The amended
complaint alleged: (1) negligence as againet Medeiros and the
former attorneys; (2) breach of fiduciary duty against the former
attorneys; (3) negligent misrepresentation against Gould and the
defendants; (4) fraud and unfair claime practices against the
defendants; (5) unfair deceptive acts or practices, in violation
of HRS § 480-2 (1993), against the defendants and the former
attorneys; and (6) joint and several liability against all
defendants [hereinafter, the rescission action] .
continued)
Tiabilities having occurred prior to the date the
partnership was formed, to wit, prior to Ocrober 2, 1952,
‘The plaintiffs, hovever, in their oppotition, maintained that, shortly after
the fornation Sf Poleky'& Gould, Polsky took over the representation of the
plaintiffs and responsibility for the personal injury action £led by Gould
fn April 27, 1992. The motion for partial summary judgrent wae orally denied,
‘on May 20, 1993.
+ In their request for exenption from the court annexed arbitration
program, filed on February 22, 1993, the plaintiffs indicated that Mrs
‘Thompson's wedicai and therapeutic treatment expenses vere in exce
$54,000. They further stated that the jury verdict value was expected to be
substantially in excess of 150,000." The plaintiffs’ request for exemption
was granted the next day. Also,'in their anowering brief, ‘filed on March 10,
fe plaintiffs maintain that Mrs. Thompson's medical bills have
1d €o $135,000 as a result of the accident
* on October 27, 1994, Medeiros £11ed a motion requesting the circuit
court to sever the case against her fron the instant action. therein,
Medeiros argued that it would be unfair to have her case decided
Simultaneously with the insurance case and professional malpractice case
inagmuch as it would be *inpossible ae the case ie presently structured for
[Medeiros] to have this case decided withour prejudicial information with
regard co the issue of insurance and the amounts of coverage.” Medeiros’
notion was subsequently granted on January ¢, 1998.
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2. Motion to Rescind the 1991 Relea
on December 9, 1994, the plaintiffs filed a motion to
rescind the 1991 release (the motion to rescind). ‘The plaintiffs
asserted that, under Gossinger v. Association of Apartment Owners
Rege: a Wai, 73 Haw. 412, 835 P.2d 627 (1992), this
court held that, in order to rescind a release, the “mistake”
must relate to a “past or a present fact." 1d. at 421-22, 635
P.2d at 632 (“If the mistake relates clearly to a past or a
present fact ,] the renedy of cancellation will be awarded.
(Citation omitted.)). The plaintiffs argued that they and/or
Gould entered into the 1961 release agreement under the mistaken
belief that $35,000 was the bodily injury liability policy limit
of Medeiros’s coverage with AIG. They contended that the fact
that Medeiros had a $300,000 policy limit vas a “past or a
present fact” at the tine the purported release was signed. The
plaintiffs, therefore, maintained that they were entitled to
rescind the 1991 release because of their and Gould’s unilateral
mistake as to Medeiros’s policy limit. On December 19, 1994, the
defendante filed their opposition to the plaintiffs’ motion to
rescind, contending that a unilateral mistake by the plaintitts
and/or the plaintiffe’ attorney regarding the amount of available
insurance coverage was not a valid basis to rescind the 1992
release.
At a hearing held on December 19, 1994, the parties
stipulated that the motion to rescind would be treated as one for
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summary judgment. The parties further agreed that there was no
dispute that, at the time the plaintiffs signed the 1991 release,
the plaintiffs and Gould believed that the plaintiffs were
receiving Medeiros's policy limit. The circuit court* determined
that Gossinger was controlling and that the plaintiffs had made a
unilateral mistake as to a “past or a present fact, thereby
entitling them to rescission. The circuit court issued ite
written order ranting the plaintiffs’ motion for summary
judgment on March 13, 1995 [hereinafter, the Summary Judgment
order].
3. The Settlement Agreement of the Rescission Action
On Decenber 12, 1995, the plaintiffs, the defendants,
the former attorneys, and Medeiros entered into a settlenent
agreenent (hereinafter, the 1995 settlement acreenent], wherein
they agreed
to terminate, settle and compromise a1] claims and
controversies, except a set forth herein, still existing
between them as get forth nore fully below:
THON, THEREFORE, [ehe parties) mutually (ebael +
i. ‘the total value of [ehe plaintiffs’) claim for
general danages as sot forth in their First Anended
Complaint ie $135,000, 2 portion of which M[re)- Thompson
has received as follove:
Op of about June 26, 1991, (the (plaintiffs)
received $35,000 from [the defendants] on behalf of
{nedei ros}
b. on February 10, 1995, [the plaintiffs}
received an additional $35,000" from (the defendants) on
benal? of [Medeiros]
+ the Honorable B. John McConnell presided over this matter.
-10-
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me current outetanding value of (the plaintiffe']
clains against. (Medeiros) iz $65,000, however, this amount
Shall only be due and owing to the [pllaintitte under the
following conditions:
‘a. (The defendante] chall appeal (the Sunmary
Judgnent order]
'B. If the Hawai'i state suprene Court affirms
(ene summary: Judgment order], then (the defendant) wil
pay, on behalf of [Medeiros], $65,000, general damages only.
fo (the plaintifte!
e. If the Hawai'i State Suprene Court reverses
(the Summary dudgnent] Order then a trial will be
held solely on the issue of the validity of the (1991
release
2. if the trier of fact determines that
the June 26, 1991 [velease] is invalid, [the defendants]
wilt pay, of behalf of [Medeiros], $65,000, general danag
Only, to (the plaintiffs)
Dl if the trier of fact determines that
che (1992 release ie valid, then there will be no
further payment to (the plaintiffs)
3. [the former attorneys) agree to pay (the
plaintifte] the sum of $6,000, (The plaintiffs) acknowledge
Phat €2,000 has already been received from (the former
attorneys]
<. All claine of (the plaintiffs) against (the
defendante) will be dismissed with prejudice except a6 to
the validity of the [release] dated June 26, 1951
In eum, all parties to the 1995 settlement agreement
agreed that: (1) the total value of the plaintiffs’ claim for
general damages was $135,000; (2) the plaintiffs had been paid
$70,000 by AIG on behalf of Medeiros; (3) the payment of the
remaining $65,000 would be conditioned upon the appellate court
resolution of whether the plaintiffs were entitled to rescind the
1991 release; and (4) the former attorneys would pay the
plaintiffs an additional $4,000, having already paid the
plaintiffs $2,000.
consequently, on March 24, 1995, the defendants filed a
motion for certification, pursuant to Hawai'i Rules of Civil
-1n-
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Procedure (HRCP) Rule 54(b) (2004),” of the Summary Judgment
order. The circuit court entered judgment in favor of the
plaintiffs on December 27, 1995.
4. Appeal Before the Intermediate Court of
Appeals (ICA)
on January 9, 1996, the defendants timely filed their
notice of appeal. This court, on two separate occasions, March
25 and September 3, 1996, dismii
d the appeal for lack of
juriediction because the circuit court's final judgment did not
resolve all clains against all parties. On Novenber 18, 1996,
the circuit court entered an amended judgment. Thereafter, on
Decenber 9, 1996, the defendants filed their notice of appeal
‘The defendants’ appeal was subsequently assigned to the
ICA. On Septenber 29, 1997, the ICA, via a memorandum opinion,
remanded the case to the circuit court with instructions for
+ ince Rule 54 provides in relevant part:
(©) dudanent upon multiple claine_ox involving,
multiple parties” When more than one claim for relief ie
Presented in an action. . or when mltiple parties are
Involved, the court may direct the entry of final judgment
as to one or more but fewer than all of the claine or
parties only upon an express determination that there {# no
Just reason for delay and upon an express ¢irection for the
entry of judgment. In the absence of such determination and
Sireceion, any’ form of decision =. which
aajudicatee fever than all the claims or the righte and
ifabilities of fever than all the parties shall not
terminate the action as to any of the clains or parties{.]
(emphasis in original.)
-12-
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Gisposition. Specifically, the ICA disagreed with the circuit
court's application of Gossinger, noting that
Im Gopsinger, the court cited as a general rule that{,]
LE1f a claim te made for damages for an snjury, @
lise settlenent is ordicarily not made voidable
eed
fe because the injury was greater and 1
longer than was expected at the tine of the
settlenent, if the parties knew or had reason to know
that the extent of the Injury was uncertain and chat
was the very reason for the Compromise
73 Haw, at 420, 25 P.2d at 622 (quoting € A. Corbin,
$ i292 (2962)). However,
(i)n cases [where there is a mistake as to the extent
of nature of injuries.) an important inquiry 8
“iether the mistake relied upon in aid of cancellation
related toa past or a present fact or related purely
£9 a surmise or opinion as to the future development
of @ know and existing illness or injury. 1¢ the
early to a past
‘istion will
135 P.24 at 632 [(citation onitted)]
‘Thus. Gossinger clearly amplies to cases involving
reociesion of a setelonent sareenent based upon a Mistake as
ko the nature ‘edo
‘following, we told that Gossinger dose not apply to cases
here the mistake is to the limite of an insurance colicy.
(Some brackets in original.) (Emphasis added.) The ICA
concluded that the proper application is set forth in AIG Hawai'i
Insurance Co. v. Bateman, 62 Hawai'i 453, 923 P.2d 395 (1996),
wherein this court adopted the general principles of Restatement
8§ 152, 153, and 154 regarding when a mistake is an appropriate
-13-
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basis for rescinding a settlement agreement." Id, at 457-58,
923 P.2d at 399-400. Restatement § 153 stati
here a mistake of one party at the tine a contract
was made se to a besic assumption on which he made the
Contract has s material effect on the agreed exchange of
performances that is adverse to him,
inder the rule stated inf is¢, and
ow e
of the contract would be unconscionable, oF
‘tbr
of big fault chused the mistake.
(Emphases added.) See also Bateman, 82 Hawai'i at 457, 923 P.2d
at 399, In turn, section 15¢ provides:
* gpecitically, the Ick stated that:
In Bateman, Billy Batenent (Bateman) was driving a car
owed by Flor corpuz (Corpus) when he was involved ina)
motor vehicle accident with Pat Vicente (Vicente). AIG wae
Corpix's automobile ineurance carrier. AIG brought «
Geclaratory action for a detersination of whether it had a
uty to defend Bateman because he was not « permissive user
Of the car and therefore not a “covered person.” The
Cizcule court denied such declaratory relief and AIO
appealed. However, during the pendency of
ane Vicente agreed to settle Vicente’ s bodily
ageinet Bateman for the policy limits of $35,000.
Thereafter, the supreme court held that Bateman was not a
permissive user of the insured vehicle and eherefore not a
“covered person” under the ingurance contract. 1d, at 457,
923 P.ad at 724-25. Ae @ regult, AIG brought a subsequent.
action to rescind the settienent agreement with Vicente on
the basis of a mitual mistake of law (i.¢,, mistake on
whether it had a duty to defend Bateman)” Although the
thea
jaa proper basis for rescinding a settienent acreesent—
Zd_At-auch, the principles eet forth in gatenan covers the
imediate determination of whether a unilateral aietake of
fact Gen mistake an co policy Linitel can serve asa
(Bxphasis added.)
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A party bears the risk of @ mistake when
(a)"the risk i allocated to him by agreement of the
parties, or
Tb) he ie auare, at the tine the contract is made, that he
has only Limited knowledge with respect to the facts to
hich the mistake Prelate but treate his linited knowledge
fe sufticient; oF
{c) the risk ie allocated to him by the court on the ground
Chat it ie reasonable in the circumstances to do 0
See also Bateman, 62 Hawai'i at 458, 923 P.2d at 400
In applying Restatement §§ 153 and 184, the ICA vacated
the Summary Judgment Order and remanded the case to the circuit
court with instructions that it determine whether the plaintifts,
vat the time the settlement agreement was made," had only limited
knowledge with respect to the limit of the liability policy.
specifically, the ICA stated:
‘The record on appeal does not eufficiently indicate the
extent of [the pllaintiffe’ knowledge with respect to the
GIales Of the lability policy, ana therein lies a genuine
woe of material fact. Ag such, we resand the case for a
determination of whether {the pliaintifts bore the risk of
Siatake as £0 policy Linite inder subsection (b) (of
Rettatenent § 154
‘The ICA further indicated:
if [the pliaineifts are ultimately found to have borne
tthe risk of mistake under sussection (b), then they are
precluded from feecinding the settienant agreement. Tf (the
Bilaineseee ave ultimately found to have not borne the risk
bf aistake under subsection (b), then [che plaintiffs can
Yeocind the settlenent agreenent only if there is a finding
that (1) the effect of the sistake ie such that enforcenent
Sf the contract would be unconscionable, or (2) the other
jarty had reason to know of the mistake or his or her fault
Caused the mistake.
None of the parties filed a motion for reconsideration of the
ICA's opinion as permitted pursuant to Hawai'i Rules of Appellate
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Procedure (HRAP) Rule 40 (2004),"* or an application for writ of
certiorari, pursuant to HRAP Rule 40.1 (2004) .””
5. Motion for Summary Judgment
Whether the Release was Unconscionable
Upon remand to the circuit court, the plaintiffs, on
January 28, 2002, filed a motion for summary judgnent on the
issue whether the 1991 release was unconscionable, which is the
basis of the instant appeal. The plaintiffs argued that, becaus
cies . . . stipulated [in the 1995 settlement
agreenent] that the value of the pisintiffe® claims is
$335, 000[,] ae a matter of lav, the $35,000 release, sought
fo be enforced by (the dJefendants, 18 unconscionable when
the stipulated value of the claims ie, $135,000.
t]he
on February 19, 2002, the defendants filed their
memorandum in opposition to the plaintiffs’ motion. They
maintained that unconscionability ie determined “under the
circunstances existing at the tine of the making of the
contract." (Quoting HRS § 490:2-302 cmt. 1) (Other citations
BAP Rule 40 provides in pertinent part:
(a) Time. A motion for reconsideration may be filed
by 2 party only within 10 days after the filing of the
opinion, dispositional order, of ruling unless by special
Yeave additional tine is granted during such period by =
judge or justice of the appellate court involved.
(Underscored emphasis in original.)
© WRAP Rule 40.1 provided in relevant part:
(a) Auplication: when filed. No later than 30 days
after the fi1ing of an opinion, dlepositionsl order, or
Fulings of the [TCA] '. ."., any party may apply in writing
fo the suprene court for a’writ of certiorari to review such
opinion, dispositional crder, or ruling
(underecored emphasis in original.) Although not applicable to this case, the
Hine perioa in which a writ of certiorari mst be filed vae later extended to
ninety daye. MRAP Rule 40-2" (2006)
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omitted.) The defendants, therefore, asserted that the $35,000
consideration for the 1991 release was “not a nominal or
unconscionable amount” in light of Mrs, Thompson’s medical
specials at the time of the execution of the 1991 release, which
was $7,273.08. The defendants further argued that Long's
testimony creates a genuine issue of material fact as to whether
the 1991 release was unconscionable. As previously stated, Long
testified that, when the 1991 release was executed, she
reasonably believed that she had settled the plaintiffs’ case for
its ‘true value" in view of Mrs. Thompson's medical specials at
the time.
‘A hearing was held on February 28, 2002, at which time
the circuit court orally granted the plaintiffs’ motion,
indicating that
I'm going to grant the Motion for Summary Judgment on
fe of wnether the [1991] release is unconscionabl
‘Think'that a claim -- ALO claim agent that settles
fof $35,000 knowing that, you know, a Plaintiff is
cling with her knowing that she's going elsewhere for
underinsured when ehe knows AIG's policy limit is 300,000,
Smacks of unconsclonability. And but for the fact that
Mire-] Thompson went and tried to get further danages from
the underinsured policy, that’s the only reason chey learned
that in Zact AIG hed a policy Limit of ($]300,000, sot
(6135, 000.
‘So i think -- 1 think, given all of those
circumstances, it appears to the court that the [1992]
Felease for $35,000 vas unconscionable.
on March 13, 2002, the circuit court issued its written order
Ihereinafter, the rescission order], which stated that:
YT 18 HEREBY ORDERED that, in following the directives
of the [IC's] ‘September 29, 1997 Menorandun Opinion herein,
the court finde, as a matter of lav, that it in
unconscionable to enforce a Release of personal intury
‘siaima_tor £15,000 when the stimulated value of those ciains
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i £125,009, and therefore, [the plaintiffs’ Motion for
Stenazy‘Juagnese on the Teive of Wether the (2991) Release
{fe Uncanscionable te. GRANTED.
(Capitalization and bold enphasis in original.) (Underscored
emphasis added.) The defendants, on March 22, 2002, filed a
motion for reconsideration of the circuit court‘s rescission
order. The defendants argued that the circuit court, at the
hearing on the plaintiffs’ motion, made a mistake of fact
regarding whether AIG's clains adjustor, ixe,, Long, knew prior
to June 26, 1991, when the 1991 release was executed, that the
plaintiffs or their counsel intended to make a UIM claim. The
defendants attached to their motion Long's affidavit, wherein she
attested that:
9. Gould never advised me orally or in writing that
he inteidea to make a{ Uim) claim cn behalf of [are
Thompson] prior to June 26, 1991, when the release was
executed. "I never had any converaations with or received
any correspondence from Pirenan’s fund... regarding ithe)
Umm clain until after Septeaber 20, 1993.
Jo. At no time prior to September 20, 1951 did I know
that (che plaineifts of] Gould sntendea to nake a UIM claim
ageinst Fireman's Fund arising from the October 6, 1990 auto
secidene
Tl, When I settled (Mra. Thompson's) claim for
$35,000 on June 26, 1981, T had no knowledge that Could o
{eho plaineiffs) iseended to make a UIN claim against
Firenan’s fund. The first time T becane aware that Gould or
(the plaintiff] intended co make @ UIM claim against
Fireman's Fund was on Septesber 20, 1991, when 1 learned
that Gould requested AIG's declaration sheet which indicated
that [J Medeiros had $300,000 in (bodily injury] peliey
Tinie.
The plaintiffs, however, argued in their memorandum in
opposition, filed on April 12, 2002, that the rescission order
Gid not contain such finding or mistake of fact. They further
reminded the circuit court of the ICA’ memorandum opinion in
which the ICA specifically remanded the case for the
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determination, inter alia, whether “the effect of the mistake is
such that enforcement of the contract would be unconscionable,”
as mandated by Restatement § 153, and not whether the 1991
release was unconscionable at the time of its execution,
on April 23, 2002, the circuit court held a hearing on
the defendants’ motion, wherein the circuit court stated:
have not heard any argunent that gives me pause to change
fy sing ae to my earlier ruling.
T hear that I may have been incorrect av to the
defendant (e'] knowledge of the] plaintiff (e’] intent to
file an underinsured Rotorist action. I’m not convinced
that AiG needs to be avare that they were planning to do
that when they entered into the contract oF the settlement,
‘iat {am faced with ie that AlG, on this case. had a
$300,000 policy Lime, They ofteres 535,000, which (the!
DIAINiETe believed were the Lisite, and there was an
Eceeptance. snot find for a case that bas « stipulated
value of [135,0001. that that release wag unconscionable,
eet eneta z pte
Taleo recall thet there were dealings eubsequent to
tthe $35,000 acceptance in which AIG offered ($35,000) more,
you know, and it eens to we that clearly that release wae
Unconseionable st $35,000 under the circumstance:
‘okay. So, Twill stand by my decision and deny your
motion fo¥ reconsideration
(emphases added.) The written order denying the defendante’
motion for reconsideration was entered on May 24, 2002.
prior to the issuance of the circuit court's May 24,
2002 order, the parties stipulated as to the plaintiffs’ “Limited
knowledge,“ pursuant to Restatement § 154(b), on May 15, 2002.
Specifically, the parties agreed that the plaintiffs did not sign
the 1991 release with “Limited knowledge’ with respect to
Nedeiros’s policy limit. Thus, in light of the ICA's Septenber
29, 1997 memorandum opinion, all triable issues had been
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resolved. Consequently, the circuit court entered final judgment
against the defendants on June 18, 2002.
on duly 8, 2002, the defendants timely filed a notice
of appeal from the June 18, 2002 judgment. This court, on
October 11, 2002 and May 19, 2003, diemissed the defendants’
appeal because the final judgment (1) failed to comply with HRCP
Rule 58 (2004)" and (2) lacked specificity ae to the claims that
have been resolved and dismissed, respectively. On August 2,
2005, the circuit court filed an amended final judgment. Notice
of entry of the amended final judgment was filed on August. 16,
2005. The defendants then timely appealed.
TT. STANDARDS OF REVIEW
A. Summary Judament
“We review the circuit court’s grant or denial of
summary judgment de nove." Simmons v. Puu, 105 Hawai'i 112, 117,
94 P.3d 667, 672 (2004) (quoting Hawai'i Cnty. Fed. Credit Union
vw. Keka, 94 Hawai'i 213, 221, 11 P.3d 1, 9 (2000)). This court
has noted that
in relevant parts
© ameP Rule $8 provias
When the court directs that a party recover only money oF
Costs or that all relief be denied, the clerk shall enter
Judgment forthwith upon receipt by'him of the direction; but
men the court directs entry of judgment for other relief,
the judge shall promptly settle or approve the form of the
judgnent and direct that it be entered by the clerk. The
Hiling of the judgnent in the office of the clerk
constitutes the entry of the judgment; and the judgment is
hot effective before such entry. The entry of the judgeent
shall not be delayed for the taxing of costs. Every,
Judgment shall be eet forth on a separate document
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(elumary Judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and adnissions on
Eile, together with the affidavits, if any, show that there
ie no genuine isgue ae to any material fact and that the
roving party i¢ entitied to juagnent ae a matter of law. 2.
fact dematerial if proof of that fact would have the effect
Of establishing or refuting one of the essential elevents of
cause of action or defense asserted by the parties. The
evidence met be viewes in the light most favorable to the
hon-moving party. In other words, ve must view all of the
Cvidence and the inferences drawn therefrom in the light
mnost favorable £0 the party opposing the motion.
Simmons, 105 Hawai" at 117-18, 94 P.3d at 672-73 (quoting Kahale
w.City & County of Honolulu, 104 Hawai" 314, 344, 90 P.3d 233,
236 (2004))-
B. Rescission
Rescivsion and cancellation are equitable renedié
‘The relief granted by 2 court in equity 1e discretionary and
Will not be overturned on review unless the circuit court
Gbused ite discretion by Lesuing a decision that clearly
exceeds the bounds of reason or disregarded rules or
principles of law oF practice to the substantial detriment,
Of the appellant.
AIG Hawai'i Ins, Co. v. Bateman, 82 Hawai'i 453, 456-57, 923 P.2d
395, 398-99 (1996) (citations, brackets, and internal quotation
marks omitted).
IIT. DISCUSSION
As previously stated, the sole issue before this court
ie whether the circuit court erred in determining, in the context
of a motion for summary judgment, that the effect of the
enforcement of the 1991 release would be, as a matter of law,
unconscionable, thereby entitling the plaintiffs to rescission.
‘The defendants contend that the circuit court erred becaus
(2) BRS § 490:2-302 dictates that unconscionability is determined
under the circumstances existing when the contract was made; and
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(2) there are genuine issues of material fact regarding whether
the 1991 release was unconscionable. We address each of the
defendants’ contentions in turn.”
AL whether 490:2-3 Lies to tant Case
The defendants contend that the circuit court failed to
apply HRS § 490:2-302 inasmich as it determined that the 1991
release was unconscionable -- “not under the circumstances
existing at the time, but rather under the circumstances existing
years later," pointing to the 1995 settlement agreement, wherein
the parties stipulated that the value of the plaintiffs’ claims
was $135,000.
HRS § 490:2-302, contained within the Uniform
Commercial Code, provides:
Baconscionabie contract or clause. (1) if the court
as a natter of law finds the contract of any clause of the
contract to have been unconscionable at the time it wae
mmade[,] the court may refuse to enforce the contract, or it
may enforce the resainder of the contract without the
unconscionable clause, or it may so limit the application of
fany unconscionable clause as to avoid any unconseionable
result.
{2)_wnen st in clained or appears to the court that
or any Clause thereof may be unconscionablel,]
all be afforded a reasonable opportunity to
present evidence as to ite comercial setting, purpose end
effect to aid the court in making the determination
M [We note that, inasmuch as the defendants failed to seek further
review of the ICh's ménorandun opinion by way of a notion for reconsideration
or an application for writ of certiorari, we need not address the defendante”
arguments challenging the 1CA's holding or analysie. See Ditto y, Mecurdy, 96
Hawai'i 123, 128, 44 P.34 274, 279 (2002) (stating that va determination of @
question of jaw made by an appellate court in the course of an action becomes
the law of the case and may not be disputed by a reopening of the question at
a later stage of the litigation") (citation and internal quotation marke
oniteed)
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al.) HRS § 490:1-103 (Supp. 2005),
(Bold emphasis in ori:
however, provides in relevant part
(a) This chapcer shall be Liberally construed ané
applies to promote ite uideriying purposes and policies,
E)' ro simplify, clarity, and modernize the law
governing ccnmercial transactions; tand)
(2) olpermie the continued expansion of comercial
Reactices through custos, usage, and agreement
Sf the parties (-1
(pmphases added.) Moreover, HRS § 490:2-102 (1993) defines the
scope of Article 2, entitled "Sales, within which HRS
§ 490:2-302 is located, to apply to
transactions in goods; [*) it does not apply to any
Eraneaction which(,] although in the form of an
Gneonditional contract to sell or present sale(.] ie
Intended to operate only asa security transaction[-]
Consequently, HRS § 490:2-302 is solely applicable to commercial
transactions concerning the sale of goods, as the subject statute
expressly provides that “the parties shall be afforded a
reasonable opportunity to present evidence as to its commercial
setting, purpose and effect to aid the court in making the
determination’ whether the contract or clause is unconscionable.
HRS § 490:2-302(2) (emphasis added). Indeed, the instant case
does not involve a commercial transaction relating to the sale of
% aoode" means
fall things (including specially manufactured goods) which
fre movable at the tine of identification to the contract
for gale other than the money in which the price is to be
paid, investment securities (Article 8) and things in
Retion.scoade" also includes the unbors young of animals
ind growing crops and other identified things attached to
fealty a8 described in the section on goods co be severed
from Fealty (section 490:2-107)-
HRS § 490:2-105 (2993).
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goods, and, therefore, HRS § 490:2-302 is inapplicable to the
rescission of a release ina personal injury action. The
defendants have not explained the reason that HRS § 490:2-302 ie
applicable to the execution of a personal injury release.
Moreover, as the ICA concluded in ite memorandum opinion, the
proper test to determine whether rescission of a release is
warranted is elaborated in Restatement §§ 152 (mutual mistake)
and 153 (unilateral mistake), which this court adopted in
Bateman, 82 Hawai'i at 457-58, 923 P.2d at 299-400. Accordingly,
we hold that the circuit court did not err in declining to apply
HRS § 490:2-302 in its determination whether the 1992 release was
unconscionable.
BE. eI 2: i
The defendants argue that the circuit court erred in
granting sunmary judgment because genuine issues of material fact
existed with respect to whether the 1991 release was voidable
based on unconscionability. specifically, the defendants
maintain that they
offered $35,000 believing this to be the fair and negotiated
value of (Mrs. Thompson's) claim in light of her previous
Known at that ime, June
[t]he evidence establishes that the June 26,
wae not unconscionable. A $35,000
eration for the [1991] release was not a nominal or
unconscionable amount. re vas five times more than ire.
‘Thompson’s) nedical specials as of June 26, 1991,
($7,273.08). There is no evidence [the p]iaintift{e were]
pre ‘OF improperly induced to settle her clain
Drenaturely. «
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Sees
(parenthesie in original.) The evidence to which the defendants
refer is Long's testimony that she believed the plaintiffs
personal injury action against Medeiros was settled for its “true
value" in view of Mre, Thompson’s medical specials at the tine
‘As such, the defendante contend that *[t]his testimony alone
ue of material fact
established, ipso facto, a genuine i
concerning whether the June 26, 1991 release was unconscionabl
The defendants further maintain, as they did in their motion for
reconsideration, that the circuit court’s ruling contained a
misstatement of fact regarding whether Long knew, prior to, June
26, 1991, that the plaintiffs intended to make a UIM claim. The
defendants argued that Long's affidavit, attached to their motion
for reconsideration, clearly established that Leng was not aware
of the plaintiffs’ intention to file a UIN clain.
As previously quoted, section 153 of the Restatement,
entitled ‘when Mistake of One Party Makes the a Voidable,”
provides:
Saterial fa ‘et
dable! aoe Tek
under the nile stated in #154, and
(a) the effect of the mistake is-sich chat enforcesent
to eeesetnet patty had reason to know of the miscake
of hie fault caused the mistake.
(Bmphases added.) Section 154 explains that a party bears the
risk of a mistake when:
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(a) the risk is allocated to him by agreement of the
parties, oF
(>) he is-aware, at the tine the contract is made, shat he
hag oslv- limited knowledge with respect to the facts es
nigh aces Bu 5
‘ae autticient, or
(CJ the risk ie ellocsted to him by the court on the ground
that it ie reasonable in the circumstances £0 30 #0
(Bmphasis added.) Inasmich as the ICA’s holding ie law of the
case, gee supra note 14, the issues central to the determination
whether the 1991 release was voidable, as announced by the ICA
and contained within Restatenent §§ 153 and 154, are:
(2) whether the plaintiffs executed the 1991 release with
“Limited knowledge" that they “treat (ed) as sufficient” such that
they should bear the risk of mistake, Restatement § 154(b); and,
(2) Af not, whether the effect of enforcement of the 1991 release
would be unconscionable, Restatement § 153(a).
Plaintiffs’ Limited Knowledge
As previously stated, the plaintiffs executed the 1991
release based upon Gould’s representation that Long had informed
hhim that the $35,000 offer to settle represented the entirety of
Medeiros’s liability insurance coverage, when, in fact, the
policy limit was $300,000. Gould, however, never inguired or
either by direct oral or written inguiry to Leng or
confirmed
via interrogatories directed to the defendants as permitted under
available discovery rules -- the policy limit of Medeiros’ s
Viability insurance. Rather, Gould assumed Long’s
representations, made during hie negotiations with her, meant
that the $35,000 offer was, in fact, the policy limit. see
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Restatement § 154, cmt. a (indicating that a party “may be barred
from avoidance [of the contract] if the mistake was the result of
his failure to act in good faith and in accordance with
reasonable etandarde of fair dealing"). Nevertheless, the
parties, on May 15, 2002, stipulated that the plaintiffs did not
have limited knowledge as to Medeiros’s policy limit when they
signed the 1991 release and, thus, did not bear the risk of
mistake. Consequently, for purposes of our analys:
we accept
the parties’ stipulation and focus our attention on the
application of Restatement § 153, i.e., whether a mistake of one
party, at the time of the contract, as to a basic assumption on
which the party made the contract has a material adverse effect
such that enforcement of the contract would be unconscionable.
2. Unconscionability
As previously stated, the parties agreed in the 1995
settlenent agreenent that the value of the plaintiffs’ clains was
$135,000. They alec stipulated, on May 15, 2002, that the
plaintiffs did not have limited knowledge as to Medeiros’s policy
Limit at the time they entered into the 1991 release. Based upon
the foregoing stipulations, the circuit court concluded that the
effect of enforcing a $35,000 release, executed by the parties on
June 26, 1991, would be unconscionable in light of the stipulated
value of $135,000. We cannot agree, however, with the circuit
court's reliance upon the $135,000 stipulated value for two
reasons: (2) the requirements of section 153 of the Restatement;
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and (2) the stipulated value appears to assess the combined value
of the claims arising out of the personal injury and the
rescission actions.
As previously quoted, Restatenent § 153 expressly
authorizes a party to void a contract where that party’s mistake
“at the time a contract was mde... h
the agreed exchange of performances that is advert
a material effect on
to him,"
(emphasis added), such that, inter alia, the enforcement of the
contract would be unconscionable. By its plain language, the
proper determination is whether, at the time the contract was
2
made -- in this case, 1991 -- and in light of the unilate:
mistake, the enforcement of the contract, i.e., the release,
would be unconscionable. The dispositive question, then, is
whether the $125,000 stipulated value represents the value of
plaintiffs’ personal injury claim in 1991.
In the instant case, the parties agreed in the 1995,
settlement agreement that “the total value of [the plaintiffs’)
claims for general damages ae set forth in their First Anended
Complaint is $135,000[.]" (Buphasis added.) The aforenentioned
sentence is preceded by a paragraph describing the plaintiffs’
complaint as seeking damages against the defendants, the former
attorneys, and Medeiros for
intentional infliction of enotional distress; negligent
infliction of enotional distress; unfair and deceptive act
of practices in violation of ARS Sections 420-2 through 430-
3h; negligent misrepresentation; fraud) unfair practices;
breach of fiduciary duties and exemplary and punitive
damages [(collectively, the rescission clains)] of danaccs
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axiging out of [wre. . se
Accident with Josephine Medeiros and/or the settlement
2 ‘ith [ene dete: r
‘aubasguent thereto.
(Emphases added.) The above-quoted paragraph is then followed by
a sentence indicating the parties’ “desire to terminate, settle
and compromise all claims and controversies, except as set forth
herein, still existing between them as set forth more fully below
[(ise., the appeal regarding the grant of plaintiffs’ motion to
rescind and for sunmary judgment) .]* (Emphasis added.)
Based upon the plain language of the 1995 settlement
agreement, “all claims and controversies” include not only the
rescission claims but also the personal injury claim. It follows
then that the $135,000 value represents “the total value of [the
plaintiffs’) claim for general damages as set forth in the First
Amended Complaint” (emphasis added), i.e., the rescission action,
and seemingly the “damages arising out of [the personal injury
action] and/or the settlement negotiatione with [the defendants
regarding the personal injury action]. (Emphasie added.) Thus,
in our view, there is @ genuine issue of material fact as to
whether the stipulated value represents only the value of
plaintiffs’ personal injury claim or includes the value of both
the personal injury claim and the rescission claims. Moreover,
even if we were to assume that it represents only the personal
injury claim, there is also a genuine issue of material fact
whether the $135,000 assessment represents the value at the time
entered into the 1991 rele:
the parti ) a8 required by section
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153 of the Restatement. Accordingly, we hold that the circuit
court erred in relying upon the 1995-etipulated value to conclude
that the 1991 release was unconscionable and in granting summary
Judgnent in favor of the plaintiffs.
IV. coNcuuszoN
Based on the foregoing, we vacate the circuit court's
August 2, 2005 amended final judgment and remand this case for
further proceedings consistent with this opinion.
on the brief
Roy F. Bpstein and
Carios De Perez Mesa
(of Epstein € Peres Mesa), .
for detendante/councer= Biaxaliornron
Ciainante cross-clain
plaintiffe/crose-claim Dusete, OS merely ar &
Setendance-appeliance
Rig Hawail ine. Con znc.
tnd American International
Aajusteent co.) ine.
Yom €. Busy br
Woodruff K. Soldner (of
Leavitt, Yanane © Soldner) ,
for plaintifts/counterclain
defencante-appellees Terrie
L. Thompson and Dwight
Thompson
-30-
|
2e41f51a-5b7a-4438-9257-9972f6eae72e | Courbat v. Dahana Ranch, Inc. | hawaii | Hawaii Supreme Court | IN THE SUPREME COURT OF THE STATE OF HAWAI'I
=-~ 000
LISA COURBAT and STEVEN COURBAT, Plaintiffs-Appellants,
vs.
DAHANA RANCH, Defendant-Appellee,
and
JOHN DOES 1-10, JANE DOES 1-10, DOE ASSOCIATIONS 1-10, DOE
PARTNERSHIPS 1-10, DOE CORPORATIONS 1-10, DOE ENTITIES 1710, and
DOE GOVERNMENTAL UNITS 1-5, Defendants.
NO. 25151 a 3
APPEAL FROM THE THIRD CIRCUIT COURT
(Civ. No. 01-1-0049)
AUGUST 3, 2006
"Yuva 1 YOON
MOTION FOR RECONSIDERATION
LE: WY C- 90
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA AND DUFFY, J.
upon consideration of the motion for reconsideration
filed by the plaintiffs-appellants Lisa and Steven Courbat on
July 20, 2006, requesting that this court review its published
opinion filed on July 10, 2006,
IT IS HEREBY ORDERED that the motion is granted in part
and thet the opinion filed July 10, 2006 be amended as follows
(deleted material is bracketed and new material is in bold):
(1) The last sentence on page 11: The Courbats
maintain, Anter alia, that the practice of withholding the waiver
had “the capacity or tendency to mislead” customers, thereby
satisfying this court’s test for a deceptive trade practice as
articulated in State ex rel, Bronster v. United States Stee)
Corps, 82 Hawai'i 32, $0, 919 P.2d 294, 312 (1996).
RAR
aad
(2) The heading for section 122.B on page 1
8, 2 on
Of The Waiver Requivenent Was [Al An Unfair Or
Deceptive Trade Practice
(3) The heading for section 127
2 on page 20:
2. Ifthe Trier Of Fact Determines That The
Nondisclosure OF The Waiver Was Not [Al An Unfair
Validly Waived Their Negligence Claims.
(4) The last sentence of section III.B.2.a on page 25:
Accordingly, we hold that, if the trier of fact determines that
the nondisclosure of the waiver was not (a) an unfair or
deceptive trade practice, the Courbats’ wavier was valid.
‘The motion for reconsideration is otherwise denied,
without prejudice to filing a request for fees and costs pursuant
to HRAP Rule 39 (2006).
‘The Clerk of the Court is directed to provide a copy of
this order to the parties and notify the publishing agencies of
the changes. The Clerk of the Court is further instructed to
distribute copies of this order of amendment to those who
received the previously filed opinion.
on the motior
Andrew 5. Iwashita
for the plaintiffs-appellants Apri
Lisa and Steven Courbat
Basse Oud re
‘STATEMENT OF NO POSITION
For the reasons stated in our dissenting opinion, we
take no position on the motion for reconsideration of the
published opinion filed on July 10, 2006.
Pr
Come Duddy he
|
6b1579c3-38e0-4ac1-a203-1b0ca58903ef | Taylor v. Nakamura | hawaii | Hawaii Supreme Court | No, 26180
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
JANES MARIE TAYLOR, Plaintiff 2
PETER NAKAMURA, County Clerk for =
the County of Kaua'i, Defendant =
——
ORIGINAL PROCEEDING a
EINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
ga.)
(By: Moon, C.J., Levinson, Nakayama, Acoba and Duffy,
os
ie have considered Plaintiff Janee Marie’ Taylor’ s
Election Complaint, Defendant Peter Nakamura’s motion to dismiss
land the affidavit and exhibits appended to each. Having heard
this matter without oral argument and in accordance with HRS
§ 11-173.5(b) (Supp. 2005) (requiring the supreme court to “give
judgment fully stating all findings of fact and of law"), we set
forth the following findings of fact and conclusions of law and
enter the following judgment.
EINDINGS OF FACT
1, Plaintiff Janee Taylor was one of five candidates
for the office of mayor of the County of Kaua'i in the
Septenber 23, 2006 Kauai county primary election.
2. The primary election results for the office of
(2) Bryan J. Baptiste: 6,173
mayor of County of Kauai were
votes: (2) Jesse Fukushima: 4,725 votes; (3) John R. Hoff: 1,984
votes: (4) Bruce J. Pleas: 1,083 votes; and (5) Janee M. Taylor:
377 votes.
nat
3. On Septenber 26, 2006, defendant county clerk Peter
Nakamura determined that candidate Bryan J. Baptiste received
majority of the votes cast for the office of mayor.
4. On September 26, 2006, defendant Nakamura declared
that candidate Baptiste was elected mayor in the Septenber 23,
2006 primary election in accordance with Section 1.03.B.1 of the
charter of the County of Kaua'i.
5. On September 29, 2006, plaintiff Taylor filed a
complaint contesting the September 23, 2006 Kaua'i county primary
election for mayor.
6. ‘The complaint contests the election results, for
mayor based on plaintiff Taylor‘s allegations of discrepancies in
the primary election printouts, the possibility of Kaua'i
County's noncompliance with federal and state election laws and
the failure to properly educate and advise voters.
7. Plaintiff Taylor seeks a judgment from the suprene
court directing an investigation of election procedures and
practices concerning the September 23, 2006 county primary
election.
8. Defendant Nakamura filed a motion to dismiss the
complaint for failure to state claims upon which relief can be
granted.
CONCLUSIONS OF LAW
1, When reviewing a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted, the
court must accept plaintiff's allegations as true and view them
2
in the light most favorable to the plaintiff; dismissal is proper
only if it appears beyond doubt that the plaintiff can prove no
set of facts in support of his or her claim that would entitle
him or her to relief. AEL Hotel 6 Restaurant Workers Health &
Welfare Trust Fund v, Bosque, 110 Hawai'i 318, 321, 132 P.3d
1229, 1232 (2006).
2. ‘The court's consideration of matters outside the
pleadings converte a motion to dismiss into one for summary
judgment. Fovtik v, Chandler, 88 Hawai'i 307, 313, 966 P.2d 619,
625 (1998). Summary judgment is appropriate where there is no
genuine issue as to any material fact and the moving party is
entitled to a judgment as a matter of law. Estate of Doe v. Pau.
Revere Ins. Group, 86 Hawai'l 262, 269-270, 948 P.2d 1103, 1110-
quai (1997).
3. Discrepancies in the September 23, 2006 Kaua'i
county primary election printouts and the possibility of Kaua'i
County's noncompliance with federal and state election laws do
not anount to actual information of mistakes or errors sufficient
to the change the election results for mayor.
4. The failure to properly educate and advise voters
in Kaua'i County does not denonstrate that the results of the
Septenber 23, 2006 Kaua'i county primary election for mayor would
have been changed.
5. In a prinary election challenge, HRS § 11-173.5(b)
(Supp. 2005) authorizes the suprene court to “decide what
candidate was nominated or elected.”
3
‘The remedy provided by HRS § 11-173.5(b) (Supp.
2005) of having the court decide which candidate was nominated or
elected is the only remedy that can be given for primary election
irregularities. Funakoshi v, King, 65 Haw, 312, 316, 651 P.2d
912, 914 (1982).
7. An investigation into election procedures and
practices is not a remedy authorized by HRS § 11-173.5(b) (Supp.
2005).
8. There is no genuine issue of material fact related
to plaintiff Taylor's primary election contest.
aUDGMENT
Based upon the foregoing findings of fact and
conclusions of law, judgment is entered in favor of defendant
Peter Nakamura, County Clerk for the County of Kaua'i.
The clerk of the supreme court shall forthwith serve a
certified copy of this judgment on the county clerk of the County
of Kaua'i in accordance with HRS § 11-173.5(b) (Supp. 2005).
DATED: Honolulu, Hawai'i, October 10, 2006.
Janee Narie Taylor,
plaintiff pro se
on the complaint
Christiane L. Nakea-Tresler a
and Rosa Flores
for defendant Peter Nakamura
on the motion to dismiss Pease C17 susetey Ore
—— ~o
G me
Rome. Qe fh.
|
1676ec9e-b19b-4f00-820d-bac3af399ce1 | Office of Disciplinary Counsel v. Baker | hawaii | Hawaii Supreme Court | Wo. 26392
IN THE SUPREME COURT OF THE STATE OF HAMAT’ 8
OFFICE OF DISCIPLINARY COUNSEL, Petitioner,
EDWIN L. BAKER, Respondent.
(ove 02-248-7446, 03-160-7760, 03-280-7880, 04-126-£106)
‘ORDER OF SUSPENSION
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
upon consideration of the Disciplinary Board’s Report
and Reconmendation for the Suspension of Edwin L. Baker from the
Practice of Law for a Period of 18 Months, the exhibits thereto,
and the record, it appears that Respondent Edwin L. Baker failed
to provide competent representation; failed to act with
reasonable diligence and promptness in representing his clients,
failed to promptly deliver to the client, as requested by the
client, properties in his possession which the client was
entitled to receive; failed to take steps to the extent
reasonably practicable to protect a client's interests upon
termination of representation: failed to make reasonable efforts
to expedite litigation consistent with the legitimate interests
of the client; knowingly discbeyed an obligation under the rules
of a tribunal; failed to make reasonable efforts to ensure that a
nonlawyer’s conduct was compatible with the professional
obligations of the lawyer; knowingly failed to respond to a
lawful demand for information from a disciplinary authority: and
failed to cooperate during the course of ethics investigations in
violation of Rules 1.1, 1.3, 1.19(f) (4), 1.26, 3.2, 3-4(e),
5.3(b), 8.1(b), 8.4(a}, and 6.4(d) of the Hawai'l Rules of
qa
Proféssional Conduct. It further appears, in aggravation, there
were multiple acts of unethical behavior and Respondent Baker has
substantial experience in the practice of law. In mitigation,
there is an absence of a selfish motive, and the presence of
personal and emotional problems and remorse. It finally appears
that Respondent Baker has been suspended, pursuant to Rule 2.12A
of the Rules of the Supreme Court of the State of Hawai'i
(ORSCH”), since April 19, 2004, Therefore,
IT IS HEREBY ORDERED that Respondent Baker is suspended
from the practice of law in this jurisdiction for a period of
eighteen (18) months, effective upon entry of this order.
IT IS FURTHER ORDERED that Respondent Baker shall, as a
condition of his reinstatement, take and complete the Practicisig
Attorneys Liability Management Society's practice management/law
office audit program at his own expense, and reimburse the
Disciplinary Board for the costs associated with this proceeding,
ag determined by this court after timely submission of a bill of
costs.
IT IS FINALLY ORDERED that Respondent Baker shall,
within ten (10) days after the effective date of the suspension
order, file with this court an affidavit in full compliance with
RSCH 2.16(d)
DATED: Honolulu, Hawai'i, July 24, 2006.
To
SOR arses
Gorm: Padin
|
394af557-33f9-452a-8682-0bf5c164e4ec | Hunt v. State | hawaii | Hawaii Supreme Court | No. 27014
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
wane 2. no, a8
Potitioner-Appellant, gk og
= .
ve. 33 Fs
EP oS OF
STATE OF HAWAI'I, EI OR &
»
Respondent-Appellee.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(S.P.P. NO. 04-1-0067, CR. NO. 95-1794)
(By: Levinson, J., for the court)
upon consideration of the application for a writ of
certiorari filed on June 29, 2006, by the petitioner-appellant
Wayne E. Hunt, the application is hereby denied.
DATED: Honolulu, Hawai'i, July 10, 2006.
Wayne E. Hunt,
petitioner-appellant pro se
on the application
| Levineon, Nakayama, Acoba, and Duffy, 33
\ Considered by: Moon, C.
|
cc3cf131-f65a-48cf-80f8-2476b388b64e | Gomes v. State | hawaii | Hawaii Supreme Court | No, 26663
IN THE SUPRENE COURT OF THE STATE OF HAWAI‘T,
‘us|
RONALD GOMES, Petitioner-Appellant,
4
Mi
any
‘GRY
Ne
ZK ony
aa
STATE OF HAWAI'I, Respondent-Appellee. =;
CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS
(S.P.P. NO, 031-0023)
(By: Nakayama, J-, for the court’)
It appearing that the judgment on appeal in the above-
referenced matter has not been entered by the Intermediate Court
of Appeals, gee Hawai'i Revised Statutes § 602-59(a), as amended
by Act 149 of the 2006 Hawai'i Session Laws; see also Hawai'i
Rules of Appellate Procedure (HRAP) Rule 36(b) (1) (2006),
IT IS HEREBY ORDERED that petitioner-appellant Ronald
Gomes’ “notice of certiorari”, filed August 14, 2006, ss
dismissed without prejudice to re-filing the application pursuant
to HRAP Rule 40.1(a) ("No later than 90 days after the filing of
the intermediate court of appeals’ judgment on appeal or
dismissal order, any party may apply in writing to the supreme
court for a writ of certiorari”).
DATED: Honolulu, Hawai'i, August 14, 2006.
FOR THE COURT:
Basan 0. ramaeyer (© SE,
Associate Justice \g, =
§
court: Moon, C.J+, Levinson, Nakayama, Acoba, and Duffy, J.
|
7f9019f2-12d0-4580-befb-c01a6cd87517 | State v. Yokotsuji | hawaii | Hawaii Supreme Court | LAW UBhARY
** NOT FOR PUBLICATION IN WEST'S HAWAIT REPORTS AND PACIFIC REPORTER **
No. 25469
IN THE SUPREME COURT OF THE STATE OF HAWAT’
STATE OF HAWAI'I, Plaintiff-Appellee
aqaw4
yuvA
Vez Wa Sp WAT 9002
STANLEY TOSHIO YOKOTSUJI, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(HPD Traffic Nos. 002174116; 002174118
(By: Moon, ¢.J., Levimons Hokayonas Reobe, and Duffy, 39.)
Defendant-Appeliant Stanley Toshio Yokotsusi
(Yokotsuji") appeals from the judgment of the OLstrict Court of
the First Circuit! ("district court”) entered October 8, 2002, a8
well as from the denial of his motion to suppress evidence filed
July 19, 2002, At trial, Yokotauji was found guilty of
operating a venicle under the influence of an intoxicant
("ovur1") in violation of Havai's Revised statutes ("HRS") §
2918-61 (Supp. 2001),? and of failure to wear seat belt in
‘The Honorable Leslie Hayashi presiced
HRS § 291E-61 (Supp. 2001), the version in effect at the tine of
Yokotsuji'e arrest, provided in pertinent part
(a) A person commits the offense of operating 2 vehicle under the
Intiuence of an dntoxicant if the person operates or assumes
factual physical control of 2 vehicle:
(2) nile under the influence of alcohol in an amount
sotficient to impair the person's normal mental faculties or
lity to cere er the person and gusrd against casualty
(b) A person committing the offense of operating a vehicle onder
the influence ef an intoxicant shall be sentenced as follows
wuthout possibility of probation or evspensicn of sentence:
(continued...)
‘== NOT FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER **
violation of HRS § 291-11.6 (Supp. 2000).”
fon appeal, Yokoteuji essentially argues that: (1) the
district court erred in denying his July 19, 2002 motion to
suppress evidence discovered immediately following a May 9%, 2002
traffic stop, as the police officer who stopped and arrested him
(Officer Rudolph Mitchell IIT of the Honolulu Police Department)
did not have the reasonable suspicion required to initiate the
traffic stop; (2) the district court clearly erred by finding
continued)
(2) For an offense that occurs within five years of @ pribr
Sonvietson for an offense under this section oF section,
2o1e-dial?
(&) Frompt suspension of License and privilege to
operate a vehicle for 2 period of one year with an
SEsolute prohibition from operating « vehicle during
the suspension period:
(8) Esther one of the following:
(4) Not less than tuo hundred forty hours of
Community service work: oF
(ii) Not less than five days but not sore than
fourteen days of inprisonment of which at least
ESrtyceight noure shall be served consecutivell
and
(Ci_A fine of not le:
31,500.
‘than $500 but not more than
> Rs § 291-11.6 (Supp. 2000), the version in effect at the tine of
Yokotsuji"s arrest, provided in pertinent part?
(0) Except ae otherwise provided by lax, no person:
(2) shail operste 6 motor vehicle upon any public highway
Unless the person is restrained by 8 seat belt assembly and
any passengers in the front or back seat of the mot
Wehicle are restrained by a seat belt assembly if between
the ages of four and fourteen, or are restrained pursuant to
section 291-11.5 if under the age of four(.)
2
** NOT FOR PUBLICATION IN WEST'S HAWAIT REPORTS AND PACIFIC REPORTER **
that Officer Mitchell was more credible than Yokotsuji for
purposes of both Yokotsuji’s motion to suppress and its ultimate
finding of guilt; and (3) no substantial evidence existed to
support his convictions.
Upon carefully reviewing the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we hold as follows:
(2) Officer Mitchell had the reasonable suspicion
necessary to perform a valid traffic stop of Yokotsuji. There is
substantial evidence ‘in the record that Mitchell pointed to
specific and articulable facts (his observation of Yokotsuji
croseing the intersection of Dillingham Boulevard and Kohou
Street at night in a well-lit area while Yokotsuji was not
wearing his seat belt) showing that Yokotsuji was violating
Hawaii's seat belt law, such that the traffic stop was warranted.
See State v. Bolosan, 78 Hawai'i 86, 92, 890 P.2d 673, 679
(1995). thus, the district court properly denied Yokotsujis
motion to suppress.
(2) Yokotsuji’s argument that “the trial court erred in
+ entering a finding of fact that Officer Mitchell was more
credible than [he was)” must fail because “it is well-settled
‘that an appellate court wil] not pass upon issues dependent upon
the credibility of witnesses and the weight of the evidence; this
is the province of the trier of fact.” State v, Martinez, 101
Hawai'i 332, 340, 68 P.3d 606, 614 (2003) (emphasis added)
(citations omitted) (internal quotation marks omitted) (brackets
omitted) (also stating that “[iJt is well-settled . . . . that
++ NOT FOR PUBLICATION IN WEST'S HAWAIT REPORTS AND PACIFIC REPORTER **
the trier of fact may accept or reject any witness's testimony in
whole or in part(,1" see id. (citations omitted) (internal
quotation marks omitted) (brackets omitted). Because’ we vill
not re-evaluate the credibility of witnesses upon appeal, we
therefore decline to hold that the district court clearly erred
in finding Mitchell to be the more credible witness.
(3) Substantial evidence existed to support Yokotsuii’s
convictions. With respect to the HRS § 2918-61 OVUIT conviction,
given (2) that Yokotsuji had just returned from @ bar on the
night of the traffic stop, (b) Yokotsuji had been drinking at
that bar, (c) Mitchell's observation of a strong odor of an
“alcoholic type beverage” about Yokoteusi, (d) Mitchell's
observation that Yokotsuii had red, glassy, watery and bloodshot
eyes, (e) Mitchell's observation that Yokotsuji's speech was
“heavily slurred and munbled[,]” (£) Mitchell's observations of
Yokotsuji’'s fumbling for his insurance and registration papers,
and (g) Mitchell's testimony that Yokotsuji displayed multiple
“clues” of possible impairment in all phases of the administered
field sobriety test, we hold that, when viewing the evidence in
the strongest ight for the prosecution, a reasonable fact-finder
could rationally infer from the evidence that Yokoteuii operated
his vehicle “while under the influence of alcohol in an amount
sufficient to impair the person’s normal mental facilities or
ability to care for the person and guard against casualty.” See
State v. Eastman, €1 Hawas'i 131, 135, 913 P.2d 57, 61 (1996),
and HRS § 2916-61(2) (1) (Supp. 2001). As such, Yokotsuji’s ovurt
conviction is affirmed.
** NOT FOR PUBLICATION IN WEST'S HAWAIT REPORTS AND PACIFIC REPORTER **
Finally, as to Yokotsuji’s HRS $ 291-11.6 no seat belt
conviction, we hold that, when viewing the evidence in the
strongest Light for the prosecution, Mitcheli’s observations (of
Yokotsuji crossing the Dillingham/Kohou intersection while not
wearing @ seat belt) constituted credible evidence of sufficient
quality and probative value to enable a person of reasonable
caution to find Yokotsuji guilty of failure to wear a seat belt
in violation of HRS § 291-11.6. See State v. Maldonado, 108
Hawaii 436, 442, 121 P.3d 901, 907 (2005); State v. Pulse, 83
Hawas's 229, 244, 925 P.24 797, 813 (2996) ("The testimony of one
percipient witness can provide sufficient evidence to support a
conviction.”). Thus, the district court’s no seat belt .
conviction is affirmed.
‘Therefore,
IT IS HEREBY ORDERED that (1) the district court’s
denial of Yokotsuji‘s motion to suppress is affirmed, and (2)
Yokotsuji’s HRS § 2916-61 OVUIT and HRS § 291-11.6 no seat belt
convictions are affirmed
DATED: Honolulu, Hawat'l, July 25, 2006.
Chenin
on the briefs:
Keith M. Kiuchi Slain
(of Kiuchi € Nakamoto)
for Defendant-Appellant d a
Stanley Toshio Yokotsuji
Daniel #. Shimizu,
deputy prosecuting attorney,
for Plaintiff-Appellee
State of Hawai'i Yarn €: Oneligs the
|
64b8ad88-6b59-40e8-b60d-7587ff9074a1 | Batangan v. First Hawaiian Bank | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION ***
No. 24990
IN THE SUPREME COURT OF THE STATE OF HAWAT
2:6 WY 1 Tn son
PETER A. BATANGAN and HELEN B. BATANGAN,
Plaintiffs-Counter-Claim Defendants-Appellants,
FIRST HAWAIIAN BANK, Defendant-Counter-Claim Plaintiff-Appellee.
FIRST HAWAIIAN BANK, Third-Party Plaintiff,
vs.
DEL NORTE REFI LLC, successor in interest to LIFE SAVINGS BANK,
F.8-B.; HOUSEHOLD FINANCE CORPORATION OF HAWAII; JOHN DOES 1-50;
JANE DOES 1-50; DOE PARTNERSHIPS 1-50; DOE CORPORATIONS 1-507 DOE
ENTITIES 1-50 and DOE GOVERNMENTAL UNITS 1-5
Third-Party Defendants.
APPEAL FROM THE FIFTH CIRCUIT COURT
(CIV. NO. 00-01-0178)
‘SUMMARY DISPOSITION ORDER
Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Plaintif£s-Counterclaim Defendants-Appellants Peter A.
Batengan and Helen 8. Batangan [hereinafter “the Batangans”],
appeal from the fifth circuit court's! (1) December 3, 2001
“Revised Judgment Re: Findings Of Fact, Conclusions Of Law And
order Granting Defendant And Third-Party Plaintiff First Hawaiian
Bank’s Motion For Sunmary Judgnent And Interlocutory Decree of
Foreclosure Against Plaintiffs And Third-Party Defendants Del
Norte Refi LLC, Successor In Interest To Life Savings Bank,
‘me lionorable George M. Maeuoks presided.
aad
*** NOT FOR PUBLICATION
F.S.B.; Household Finance Corporation of Hawaii; Etc.”s? (2)
December 3, 2001 “Order Granting First Hawaiian Bank’s Motion For
order Approving Report Of Conmissioner, Confirming Sale At Public
Auction, Directing Distribution Of Proceeds, For Deficiency
Judgment And For Writ Of Possession Filed July 18; 2001"; and (3)
February 25, 2002 “Order Denying Plaintiffs’ Motion For
Reconsideration Of The Order Granting Defendant First Hawaiian
Bank's Motion For Sunmary Judgment And Interlocutory Decree of
Foreclosure Against Plaintiffs Filed December 3, 2001 Btc.”?
On appeal, the Batangans argue that the circuit court
erroneously granted sunmary judgment insofar as: (1) their sworn
affidavits and declarations stating that they were provided with
Inadequate disclosure docunents, as required by the federal Truth
In Lending Act [hereinafter “TILA"), were sufficient to rebut
FHB’s written acknowledgment of receipt that delivery was made
thereof; (2) FHB failed to support its motion for summary
+ bel Norte Refi LLC and Household Finance Corporation of Hawall
were named as thire-party litigants by virtue of their status as junior
Ufsnore with respect to the subject foreclosure property.
® _nathough the Batangans’ notice of appeal purports to appeal from
(2) the December 3, 2001 order granting First Hawaiian Bank's (hereinafter
-tbip’) swetion for’ Order Approving Report Of Commissioner, Confirming Sale At
Public Auction, Directing bietrinution OF Proceeds, For Deficiency Judgrent
And For Mrit Of Posseseion,” and (2) the February 25, 2002 order denying the
Batangans’ motion for reconsideration of the December 3, 2001 revised
Jwcgnent, the Betangane neither challenge the orders in their points on appeal
or present any argunent identifying prejudicial error. Accordingly, we ne
ot Consider those orders on appeal. See Hawai'i Rules of Appellate Procedure
hereinafter “HRAP") Rule 28 (b) (4) (2002) ("Points not presented... will be
Gleregarded! 1")? HRAP Able 28(b)(7) (2002) ("Points not argued may be dened
waived."); Wiitey's Boat Cruises, Inc. v. Napali-Kauai Goat Charters, Inca,
110 Wowas's 302, 3169.26, 132 F.3d 1273, 1229 0.26 (2006) Appellants aid
hot assign ae error the circuit court's dismissal of Appellants’ claim for
TRjunceive relief nor did Appellants present an argunent with respect to their
Claim for injunctive relief. As such, Appellants’ contention with respect to
injunctive relief is dened walved.”)
*** NOT FOR PUBLICATION ***
judgment with any admissible evidence that the Batangans
defaulted on their loan payments; (3) they had a continuing right
to rescind their October 18, 1995 and March 13, 1996 loan
transactions based on FHB’s alleged violations of TILA; and (4)
the security interests on their property became void upon their
notifying FHB of their rescission by way of recoupment.‘ The
Batangans also assert that final judgment was inappropriate
inasmuch as numerous disputed factual issues remain unresolved.
upon carefully reviewing the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we hold that:
(1) The Batangans’ right to rescind the March 13, 1996
loan transaction is not properly before this court insofar as the
record on appeal indicates that the Batangans did not request
rescission of that transaction before the circuit court.*
(2) Any rights the Batangans may have had to rescind
the October 18, 1995 loan transaction expired after three years.
See 15 U.S.C. § 1635(£) (2000) (“An obligor’s right of rescission
shall expire three years after the date of consummation of the
transaction or upon the sale of property, whichever comes first,
«points of error nunb
and disposed of By this court's
2 (1); (3), and (4) have been consolidated
cond holding, discussed infra.
+ the record indicates that the Batangane’ “Demand For Truth In
Lending Act Rescission,” filed in the circuit court, only requested rescission
Of the October 18, 1998 loan transaction. The Batangans did not argue before
the elzesit court that their rights to rescind extended to the March 13, 1996
Joan transaction. Accordingly, that argument 1s not properly before this
‘court on appeal. See Honda v. Bd, of 11 a
‘Staie, 108 Hawai 212, 261 n.14, 118 P-3 1155, 1184 n.34 (2008)
(this court will not consider o question which was not raised and ‘properly
served in the lower court.’ ") “(citations omitted.)
3
*** NOT FOR PUBLICATION ***
notwithstanding the fact that the information and forms required
under this section or any other disclosures required under this
part have not been delivered to the obligor(.]")7 12 C.F.R. §
226.15(a) (3) (“IE the required notice and material disclosures
are not delivered, the right to rescind shall expire 3 years
after the occurrence giving rise to the right of rescission, or
upon transfer of all of the consumer's interest in the property,
or upon sale of the property, whichever occurs first.”); Beach v.
Ocuen Fed, Bank, 523 U.S. 410, 419 (1998) ("We respect Congress's
manifest intent by concluding that [TILA] permits no federal
right to rescind, defensively or otherwise, after the 3-year
period of § 1635(f) has run."); Hawai'i Cmtv. Fed, Credit Union
wa Keka, 94 Hawai'l 213, 224, 11 P.3d 1, 12 (2000) (concluding
that “[the Kekas’] right to rescission expired, at the latest,
three years after they entered into the transaction, . . . and
their attempt to assert that right as a defense in the Credit
Union's action to foreclose on the mortgage on their residence
was as ineffective as their original attempt to rescind the
transaction by sending the cancellation notice”). Although 15
U.S.C. § 1635 (i) (3) provides that “[nJothing . . . affects a
consumer’s right of rescission in recoupment under State law(,]”"
the Batangans have failed to identify any statute vesting a state
right of rescission. See HRAP Rule 28(b) (7) ("Points not argued
may be deemed waived.”). Furthermore, although the Batangans
assert that the common law provides for rescission by recoupment,
*** NOT FOR PUBLICATION ***
‘they do not assert a common law basis for rescission.‘ See HRAP
Rule 28(b) (7) ("Points not argued may be deemed waived.”).
(3) The account ledger attached to the January 16,
2001 affidavit of FHB’s assistant vice-president, Gary Y.
Kawamoto [hereinafter “Kawamoto”], was hearsay inasmuch as it (a)
was not prepared by Kawamoto, (b) was offered to prove the truth
of the matter asserted -~ i.e., that the Batangans were in
default on the loan, and (c) Kawamoto’s affidavit failed to
allege facts based upon personal knowledge establishing that the
documents would have been admissible at trial. Nevertheless,
sunmary judgment was supported by admissible evidence, insofar as
Kawamoto’ s amended affidavit, filed on November 6, 2001, alleged
facts aufficiently demonstrating that the appended documents fell
within the scope of the business records exception to the hearsay
rule.” See Hawai'i Rules of Civil Procedure Rule 56(e) (2001)
‘Easy fraudulent inducement, undue influence, misrepresentation,
ak cetera. See 13 Saran H. Jenkins, Corbin on Contracts § 67.8, at_¢7 (Joseph
Mr Periiic, eas, rev. ed. 2008) (stating that “unilateral rescission .
arises bectuse of incapacity, such as infancy, or the inducement of assent
through isrepresentation, or undue influence”) (quotation marks omitted)
(footnote omitted); Restatement (Second) ef Contracts § 7 cmt. b (1961)
(typical instances of voidable contracts are those where one party waa an
Infant, or unere the contract was induced by fraud, mistake, of duress, oF
‘here breach of 2 warranty or other promise justifies the aggrieved party in
putting an end to the conteact.”)
+ We prudentially note that the Lesue is somewhat complicated by the
procedural posture of the case. The record indicates that, on February 14,
200i, the circuit court rendered its findings of fact, conclusions of law, and
Seder, a8 well as a judgnent thereon, based only upon’ the defective January
16, 2001 affidavit. “Accordingly, the findings of fact, conclusions of lax,
fd order and the jushmene were” erroneoug “Rawevery that Juagnent 18 not
Felevane in the present case insofar as it was not the on (ed from: The
Fecord indicates thet the Batangans’ attempt to appeal from the Febrosry 1,
2002 Judgnont was dismissed by this court for lack ef jurisdiction. During
‘the interim, on Novenber 6, 2001, FHB filed Kavanote’ s amended affidavit. The
circuit court thereafter filed | revised Judgment from which the present
(Gontinved. ..)
*** NOT FOR PUBLICATION ***
(“supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is
competent to testify to the matter stated therein,”); Nakato v.
Macharg, 89 Hawai'i 79, 87, 969 P.2d 824, 833 (App. 1998) (*{Rule
56(e)] requires that facts set forth in the affidavits be
admissible in evidence.") (brackets in original) (citation
omitted) -
(4) There was no genuine issue of material fact with
respect to whether the Eatangans’ attempted to rescind their loan
transaction beyond the deadline imposed by statute, and therefore
FHB was entitled to summary judgment as a matter of law. Here,
1. continues)
‘appeal wae taken
‘hea porely technical matter, the revised judgnent shares the same
defect as the February 14, 2001 judgnent to the extent that it references the
Seriier findings of fact, ‘concluelons of law, and order, which relied upon the
Esuley’ veruazy 36, 2001 agfigavit "However, that Binor” defect, does not
Recesditace reversal inssmvch aa it 1s axiomatic that ve nay offirm summary
Joepeene ‘oh any ground in the record. See i
ongiulae 38 faw. 40, 13, $14 P20 861, 864
AGSTH a appellate court may affirm summary Judgment on any ground which
in the record, regardiess of whether the circuit coure relied on
aabinstesn 433 F.2d 1021, 1023 (Sth Cir. 1970)
(SPiret it ie proper for this court £6 affirms » summary judgment on any ground
{hat appears from the record, whether of not the trial court relied on it.").
Here, the record indicates, via Kewanoto's anended affidavit, that
tthe attached docinents were adnicsible through the business records exception
fo the hearsay rule. The anended affidavit and appended docunents denonstrate
that (1) the Batsngane executed two loan transactions, secured by mortgage
Agreements, with FHB on Osteber 18,1995 and March 13, 1996; (2) the Batangens
Gefaulved on their loan obligations; end (3) FHB was thus entitled to
foreclose upon the real property that was the subject of the mortgage
agreenente and served as collateral for the loan transactions. The record
further indicates that the Batangane attempted to rescind their October I
1998 loan transection by letter dated September 5, 2000 =~ beyond the thre
yeer deadline inposed by 15 U.S.C. § 1635(£)
‘Thus, the record contains a sufficient basis upon which to affirm
the circuit court’s revised Juaguent, in relevant part, granting FHB"s motion
for suimary Jodgnent and interlocutory decree of foreclosure and dismissing
the Batangans” “Cenand For ‘Trath In Lending Act Rescission.”
6
*** NOT FOR PUBLICATION ***
even if we assume that the alleged TILA violations occurred, thus
obviating the need to adjudicate the issue, the Batangans’ right
to rescind has nevertheless expired pursuant to 15 U.S.C. §
1635(£).
‘Therefore,
IT 1S HEREBY ORDERED that the, judgment from which the
appeal is taken is affirmed.
DATED: Honolulu, Hawai'i, July 13, 2006.
on the briefs:
Peter A. Batangan and Li
Helen B. Batangan,
plaintiffs-counterclaim Bir Doeenae~
Gefendants-appellants,
pro se .
Nae Oo era
Louis L.c. Chang of
Kaniyuki & Chang for
Sefendant-counterclain A
plaintiff-sppel lee
First Hawaiian Bank Wenn Beka
|
edfbc1ef-5d09-476d-9158-d973f8a13f63 | Wright v. Home Depot U.S.A., Inc. | hawaii | Hawaii Supreme Court | LAWL
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IN THE SUPREME COURT OP THE STATE OF HAWAI'I
+ 000
JON S. LOGAN WRIGHT, Plaintiff-Appellant,
HOME DEPOT U.S.A., INC., a foreign corporation
authorized to’ do business in the State
of Hawai'i, Defendant -Appellee,
and
JOHN DOBS 1-50, Defendants.
No. 27190
APPEAL FROM THE SECOND CIRCUIT couRT 2 - ©
(CIV. NO. 04-1-0178(2))
3
AUGUST 30, 2006
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY MOON, C.J.
‘This appeal concerns the sole question whether an
employer -- in this case, defendant-appellee Home Depot U.S.A.,
Inc. (hereinafter, Home Depot] -- can legally terminate an
employee -- here, plaintiff-appellant Jon s. Logan Wright --
because of his prior criminal record, pursuant to Hawai'i Revised
Statutes (HRS) § 378-2.5 (Supp. 2002), relating to employers’
inquiries into criminal conviction records, quoted infra.
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Briefly stated, Wright was terminated from his employment with
jociate sales clerk in ite lumber department
Home Depot as an
at Kahului, Maui because of his prior conviction for use of a
controlled substance by the Mashoe Second Judicial Dietrict
court, Reno, Nevada. Wright brought @ wrongful discharge and
discrimination action against Home Depot, alleging primarily that
Home Depot's conduct violated HRS § 378-2 (Supp. 2005), quoted
infra. The Circuit court of the Second Circuit, the Honorable
Shackley F. Raffetto presiding, disagreed with Wright and granted
Home Depot's motion to dismiss, entering final judgment, pursuant
to Hawai'i Rules of Civil Procedure (HRCP) Rule 54(b) (2004), on
February 28, 2005.
on appeal, Wright raises the following points of error.
First, Wright contends that the circuit court erred in applying
HRS § 378-3(23) (Supp. 1998) (authorizing employer to consider
individual's criminal record with regard to employment), quoted
Anfra, because subsection 3(13) was repealed and, thus, not in
* uncp mule 54 provides in relevant part:
(®) Judqsent upon miltiple claine or involving
multiple parties. When nore than one claim for relief Se
presented in an action... or when multiple parties are
Envolved, the court may direct the entry of a final judgment
fo ene or more but fewer than all of the claima of
‘ies only upon an express determination that there ie no
jon for delay and upon an express direction for the
5us
entry of judgnent. In the absence of such determination and
Girection, any form of decision». . which
Sdjudicates fewer ‘than all the clains or the righte and
Tiabilities of fewer than all the parts
terminate the action as to any of the c
(comps
in original.)
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effect at the time of hie employment or at the time of his
termination. Second, ERS § 378-2.5, concerning employers’
inquiries into conviction records, was likewise erroneously
velied upon by the court because the statute applies only to a
prospective employee or to one who was convicted of a criminal
charge during employment. In other words, Wright maintains that
HRS § 378-2.5 does not apply to an employee who had an existing
criminal record prior to employment. And, third, to the extent
that HRS § 378-2.5 ie applicable, Wright contends that his prior
conviction does not bear a “rational relationship" to his
employment as required by the subject statute, thereby rendering
the dismissal of his complaint inappropriate.?
For the reasons discussed herein, we vacate the circuit
court's February 28, 2005 final judgment and remand this case for
further proceedings consistent with this opinion.
1. BACKGROUND
A. Factual Backeround
Tt is undisputed that, prior to his employment with
Home Depot, Wright was convicted of using a controlled substance,
due., methamphetamine. On April 30, 1996, Wright pled guilty to
+ tm addition to his claim of violation of HRS § 378-2, Kright also
alleged that Hone Depot violated the fundamental public policies underlyi
fine # 376-2 and section 5 of the Hawai'i Constitution, entitled "Due Proc
ind Byusl Protection." right, however, does not raise any point of error
Fegarding the circuit court's diamiseal of hie violation of public policy
Elling, “therefore, thie court need not address then. see Hawai'i Rules of
Kppeliate Procedure Rule (WRAP) Rule 26(b) (4) (200s) (*Pointe not presented
Swill be disregarded (1°).
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the drug charge before the Washoe Second Judicial District court
in Reno, Nevada (Case No. CR96-0577) and was sentenced to a term
of imprisonment of twelve to thirty-six monthe (hereinafter, the
1996 drug conviction]. The sentence was suepended, and he was
placed on probation not to exceed two years. On November 5,
1997, Wright was discharged from probation.
Approximately three and a half years later, Home Depot
hired Wright on or about April 21, 2001 as an associate sales
clerk in ite lumber department at Kahului, Maui. At the tine of
his hiring, Wright was tested for drugs; the results were
negative. The record does not indicate (nor do the parties
explain) whether the drug testing is part of Hone Depot's
standard employment process, i.e., whether hiring of a
prospective employee is conditioned upon a negative drug screen.
Moreover, neither the parties nor the record indicate whether
Home Depot conducted a criminal history record check prior to
employing Wright. Based on the facts of this case, it appears it
id not, and it also appears that Wright did not disclose the
existence of his 1996 drug conviction at the time he was hired.
In Septenber 2002, Wright applied for a promotion as
department supervisor. During the promotion review period,
Wright was tested twice for drugs; the results were negative.’
> Ae indicated gupra, the record does not indicate (nor do the partiet
explain) Whether this particular drug screening is part of Home Depot's
Standard practice when screening employees for promotion. Moreover, there is
Indication as to wiy Wright was tested evice
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Home Depot also initiated a background investigation on Wright in
connection with his application for the promotion. On November
22, 2002, Home Depot informed Wright, via a letter by its Human
Resources manager, that it had obtained a "Consumer Report” in
connection with Wright’s application for the supervisory
position. The letter indicated that,
(biased in part upon information contained in the Consumer
Report, (iue., Wright's prior drug conviction, Home Depot
twas] considering taking adverse action. Depending on the
Cizcunstances, adverse action could involve not offering you
The position, ‘termination of your employment, or sone other
action.
Bventually, Wright was terminated from his employment with Home
Depot, effective December 17, 2002, because of his “felony
conviction disposition 04-30-96, use of [a] controlled substance,
in violation of company policy.”
B. Brocedural History
on April 27, 2004, Wright filed a complaint for
wrongful discharge and discrimination against Home Depot.‘ Three
days later, on April 30, 2004, Wright filed an amended complaint,
alleging, inter alia, that Hone Depot’s conduct in terminating
his employment was discriminatory and in violation of HRS
§ 378-2. HRS § 378-2(1) provides in relevant part:
+ wright brought suit againgt Hone Depot subsequent to receiving a
sright-to-tue* notice trom the tavai'l Civil Rights Comission (HEH), welch,
purguast te HRS § 378-4 (Supp. 2008), “ahall have juriediction over the
Bubject of discriminatory practices made Uniawtsl by this part. Any
Snsividual claiaing to be Sggrieved by an alleged ullawfal” diacriinatory
practice nay file with the (HCRC] a complaint in accordance vith the procedure
Betablished under chapter 368." HRs f 568-12 (1993) provides in relevant part
Choc, {within ninety daye after receipe of a notice of right to sue, the
Slaplaiaant may Bring’ a civil action unser thie chapter-*
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(a) Begauge of race, sex, sexual orientation, age,
religion, color, ancestry, disability, marital
Statue, Or srsest and cout record:
(a) Bor any employer to refuse to hire or
HORAr of discharse trom
employ oF
smblomment. 9x otherise to discriminate
againat_amy_individual in compensation or
‘inlthe Terns “conditions. or privileses of
‘snplovmens (-1
(Bmphases added.) An “arrest and court record," in turn,
includes
anv_information about an individual having been questioned,
Spprehended, taken into custody oF detention, ‘held for
Envestigstion, tense, served 2 sumone,
arrested with of without a warrant, tried,
Dursuant to any law entorcenent or military ausnoriey
1 (1993) (emphases added). Wright also alleged that:
BRS § 378-
16. The said conviction . . . in 1996 for the use of
a controlled substance does not bear a xational xelationshio
othe duties and responeibéiities of the position he head
‘© Defendant Home DEPOT.
(amphasis added.)
on May 24, 2004, Home Depot moved to dismiss the
amended complaint, pursuant to ERCP Rule 12(b) (6), for failure to
state a claim upon which relief can be granted. Home Depot
essentially argued that its consideration of Wright's criminal
record was appropriate, under HRS §§ 378-2.5 and -3(13), because
it bore a rational relationship to his employment and that,
therefore, Wright’s termination was lawful. Section 378-2.5
provides:
meployer inguizes into conviction record. (a) Subject
to subsection (b), an employer may inguire about and
consider an individual's criminal conviction recor
Soncerning hiring, termination, or the terms, conditions, or
privileges of exployment; provided that the conviction
fesponsipilities of the position
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(b)_Inguiry into and consideration of conviction
records for prospective enployees shall take place only
after the prospective exployee has received a conditional
offer of employment which may be withdrawn if the
Prospective employee has 2 conviction record that bears a
Fational relationship to the duties and responsibilities of
the position,
c) Por purposes of thie section, “conviction” meane
fan adjudication by a court of competent jurisdiction that
the defendant committed « crime, not including fi
Sudsnente requirea to be confidential pursuant £0 section
Brives; provided that the period for waich the enployer may
examine the employee's conviction record shall not exceed
cen years,
(Bold emphasis in original.) (Underscored emphasis added.) HRS
§ 378-3 (13) provided that
Nothing in this part shall be dened to:
a3)" Prohibit or preclude an employer from
a othe aut os
brosbective or continued employment.
(Emphasis added.)*
Home Depot specifically argued that,
[elven ££ every fact in (Wright's) complaint is
aesuned'to be true, it is clear that [Wright's] drog
Conviction has a moderate, fair, or reasonable relation to
Geployment at a hone inprovenent retailer with substantial
Soncern for the safety of ice customers and employees, for
{te enployee culture, for its goodwill and reputation, and
for ite interest in maintaining an honest environment «
Home Depot urged the circuit court to apply by analogy the
minimum rationality teat of the fourteenth amendnent’s equal
protection clause, which “requires the widest discretion to the
judgment of the employer, to the facts of this case.
on July 13, 2004, Wright filed a memorandum in
opposition to Home Depot’s motion to dismiss, arguing that he
+ ne more fully dincussed infra, subsection 3(13) was repealed,
effective June 30, 1998,
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wat tested for droge on three (2) separate occasions and
Found to be negative snd clean. it would appear, therefore,
that in the epirit of che non-diacriminatory law that
(wright) has been vehabilicated and deserves @ chance to
work. All of this will be proven at the tine of trial
‘The allegation that{,| effective December 17, 2002,
(wright] ‘vas terminated because of his conviction for vs
a controlled substance “in violation of company policy
“nich is not supportes by affidavit, is disputed, and the
Company policy is ctherwiee, voich will be shown at the tine
of the trial, only after discovery.
of
Wright further asserted that:
‘mere 18 no ambiguity to § 278-2.5(a), which provides
that [,] “subject to subsection (b), ah employer may inguire
‘about and consider an individual's criminal conviction
Fecord concerning hiring, termination or the terms,
Conditions or privileges of employment, provided that the
conviction record bears a rational relationship to the
Geties and responsibilities of the position." A resort to
Jegisiative history Je not relevant and should not be
considered. It only adds to the confusion
Weight maintained that, “[i]f the [c]ourt should grant the
ImJotion, it would lead to an absurd result. Section 378-2 . .
would be meaningless, and not enforceable.”
on July 16, 2004, Home Depot filed its reply to
Weight’s opposition, pointing out, inter alia, that Wright has
“completely ignore{d] the legal issue," i,e,, whether his 1996
drug conviction is rationally related to the duties and
responsibilities of his employment. Home Depot further reminded
the circuit court
As construed under the Equal Protection Clause, the
Srational relationship standard results in a strong
preaunpelon in favor of constitutionality, On a Rule
TPB) (6) potion to dismiss a claim under the Equal
Ehat presumption will resulr in diemi
‘the [p)iaintiff alleges facts sufficient to overcome
the’ presumption
(citation omitted.) At the hearing on the motion on July 21,
2004, Hone Depot reasserted its position that Wright’s prior
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in West’s Hawai'i Reports and the Pacific Reporter
conviction wae rationally related to the duties and
responsibilities of his employment. In response, Wright's
counsel argued that:
Silegetion in the complaint. And all it has todo is give
Rotice to the defendant, Ia thie c%
Teceived notice thet they're being charged or complaine:
Sgeinet because of the conviction record and the discharge
on account of it.
ie feel that there’s evidence thet should be adduced
at the trial to» for thea to substantiate. 1 think ve
Would be able to show that che policy of Hose Depot is not
What they purport ie to Be.
At the conclusion of the hearing, the circuit court stated that,
wafter reviewing the menorand[a], I’m persuaded by [Home Depot's]
argument that there is a rationale [sic] relationship between the
offense that [Wright] was convicted of [and his employment]
20 I'm going to grant the motion." On July 28, 2004, the circuit
court issued its written order granting Home Depot’s motion to
dismiss, Final judgment was entered on August 2, 2004.
on September 1, 2004, Wright filed his notice of
appeal. However, this court dismissed the appeal for lack of
jurisdiction on February 4, 2005, inasmuch as the August 2, 2004
final judgment “d[id] not state that judgment is entered as to
[all) causes of action[.]* Consequently, on February 28, 2005,
the circuit court entered a second final judgment in favor of
Home Depot as to all counts in the amended complaint. On March
23, 2005, Wright timely appealed.
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I. STANDARDS OF REVIEW
A rion nis
A circuit court's ruling on a motion to dismiss is
reviewed de novo. Bremner v, City & County of Honolulu, 96
Hawai'i 134, 138, 28 P.3d 350, 354, reconsideration denied,
(app.), cart, denied, 96 Hawai'i 346, 31 P.3d 203 (2001).
A complaint should not be dismissed for failure to state a
"s beyond doubt that the plaintit® cen
prove no set of faces in support of his or her claim that
Would entitle him or her to relief. we mist therefore view
Soplaineitf’s complaint in a light most favorable to him or
her in order to determine whether the allegations conteined
cirevit court
Gismissing [al complaint . . - out consideration is strictly
Ginited tothe allegations of ‘che complaint. and we must
a ‘aliegations to be true
cats xs, 103 Hawai'i 275, 280-61, 61 F.3d 1190,
1195-96 (2003) (citations omitted) (brackets and ellipsis in
original) (emphases added); gee also Aames Funding Com. v.
Mores, 107 Hawai'i 95, 98, 110 P.3d 1042, 1045, reconsideration
granted in part and denied in part, 107 Hawai'i 348, 113 P.3d 799
(2005) (*[Rleview of a motion to dismiss is based on the contents
of the complaint, the allegations of which we accept as true and
construe in the light most favorable to the plaintifé.”
(internal quotation marke, citation, and ellipsis omitted.)).
‘Statutory Interpretation
“The standard of review for statutory construction is
well-established, The interpretation of a statute is a question
of law which this court reviews de nove." Liberty Mut. Fire Ins.
co. vs Dennison, 108 Hawai'i 380, 384, 120 P.34 1115, 1119 (2005)
-10-
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(quoting Labrador v, Liberty Mut, Group, 103 Hawai'i 206, 211, 81
P.3d 386, 391 (2003)) (internal quotation marks omitted). In 80
doing, this court mist adhere to the well-established rule of
statutory construction that the “foremost obligation is to
ascertain and give effect to the intention of the legislature,
which is to be obtained primarily from the language contained in
the statute itself.” Grav v. Admin. Dir, of Court, 84 Hawai'i
136, 148, 931 P.2d $80, $90 (1997) (citations omitted) .
IIT. DISCUSSION
As previously indicated, Wright essentially raises
three arguments on appeal, to wit, that: (1) HRS § 378-3(13)
does not apply because it was no longer in effect at the time of
his employment or at the time of his termination, which he raises
for the first time on appeal; (2) HRS § 378-2.5 does not apply to
convictions that occurred prior to an individual's employment;
and, (3) assuming that HRS § 378-2.5 does apply, his prior drug
conviction is not rationally related to the duties and
responsibilities of his employment. Each of Wright’s contentions
are addressed in turn below.
A, HRS § 378-3(23)
‘The Promulgation and Repeal of HRS § 378-3(13)
In 198, the legislature e:
ntially declared that an
employer's refusal to hire, bar, or discharge an employee based
upon race, sex, sexual orientation, age, religion, color,
ancestry, disability, marital status, or arrest and court record
-1n-
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constituted an unlawful discriminatory practice. See HRS
2. At the same time, the legislature provided certain
$37
exceptions to the foregoing declaration that were codified in ERS
§§ 378-3(1) through -3(10). 1981 Haw. Sess. L. Act 94, pt. of
7; see also Ross v, Stouffer Hotel Co. (Hawai:
Ltd., 76 Hawai'i 454, 458, 69 P.2d 1037, 1043 (1994) (holding
§ 2 at 185:
that termination of employment based upon any of the reasons set
forth in section 378-2 is violation of the statute, unless the
termination falls within one of exceptions set forth in HRS
§ 378-3)
Since 1981, three new exceptions have been added to ERS
§ 378-3, one of which is subsection 378-3(13) at issue in this
case. See 1994 Haw. Sess. L. Act 88, § 2 at 199-200 (adding ERS
§ 378-3(21)); 1997 Haw. Sess. L. Act 365, § 2 at 1147-48 (adding
HRS § 378-3(12)); and 1998 Haw. Sees. L. Act 175, § 2 at 651-52
(adding HRS § 378-3(13)). Tt is important to note that the
legislature established a sunset date of June 30, 1999 in Act
365, stating specifically that:
act 365] shall take effect upon ite
provided that.
1997 Haw. Sess. L. Act 365, § 4 at 1149 (emphases added).
In 1998, Representative Joseph M. Souki introduced
House Bill No. 3526 to abolish the prohibition againet employment
discrimination based on an arrest and court record. See Hee.
Stand. Conm. Rep. No. 276-98, in 1998 House Journal, at 95, 1140;
-12-
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ee
Hee. stand. Comm, Rep. No. 673-98, in 1998 House Journal, at
3300-01. Ultimately, however, the bill modified HRS § 278-2 by
enacting a new section, HRS § 378-2.5, quoted gupra. See 1998
Haw. Sess. L. Act 175, § 1 at 651. In addition, Act 175 amended
HRS § 376-3 to include subsection -3(13), quoted supra. In light
of the sunset provision contained in section 4 of Act 365, HRS
§ 378-3 resorted to its pre-Act 365 version (i.e, eleven versus
thirteen exceptions) on June 30, 1998, and, thus, both HRS
g§ 376-3(12) and -3(13) were effectively repealed as of that
date. See 1997 Haw. Sess. L. Act 365, § 4 at 1149. HRS § 378-
2.5, nonetheless, remains in full force and effect.‘
Whether Weight’s Contention Should be Noticed as
Plain Error
As previously indicated, Wright contends for the first
parently relied on [HRS
time on appeal that the circuit court
§ 378-3(23),] which ie wrong" because subsection (13) was not in
existence at the time of his employment or at the time of his
termination inasmuch as said subsection was repealed after June
«tq 2003 and 2004 (after Wright had been terminated), HRS § 378-2-5
was anended to: (i) clarify that the conviction record “shall not exceed the
fuss cacent ten years, excluding periods of incarceration" (emphasis added)
ToS SORE an euployee with “an opportunity to present documentary evidence”
{2 biSneerate thet the period of incarceration wae less than what is shown on
the conviction record, and (3) preclude its application to those employers
Wtho“sre expressly permitted to inquire into an individual's er:
for eoployment, purposes pursuant to any federal or state lav{,)
Sihel"Er May ce ite political branches and agencies, the departeent of
fGacation, the judiciary, and armed security services. 2003 Hay. Set
Sev pa2 at 1ee787; 2004 Maw. Seas. L. Act 79, § 5 at 331-32.
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30, 1999.” Wright, therefore, urges this court to “notice a
nted, pertaining to [the] interpretation of
plain error not pre
the statute which is of great import.”
HRAP Rule 28(b) (4) mandates opening briefe to contain,
inter alia:
A concise statement of the points of error set forth
in separately numeres paragraphe. Each point ahail state:
(A) "the alleged error committed by the court or agency; (1d)
here in'che record the alleges error occurred, ane (1ii)
manner in Teaede Eo the
‘Sttention of the curr or ageney
io) not presen: ce wi
Soure. notice =
‘presetied:
(Emphases added.) It follows that “failure to raise or properly
reserve: issues at the trial level would be deened waived.” Enoka
Mu. AIG Hawai‘i Ins, Co., 109 Hawai'i 537, $46, 128 P.3d 650, 859
(2006) (citation and internal quotation marks omitted); see alec
in_xe_Tax Anpeal_of Subway Real Estate Corp, v. Dir, of Taxation,
State of Hawai‘, 110 Hawai'i 25, 30, 129 P.3d 528, 533 (2006)
(vas a general rule, if a party does not raise an argument at
trial, that argument will be deemed to have been waived on
appeal") (brackets, citation, and internal quotation marks
omitted). Thus, “an appellate court should only reverse a
judgment of a trial court on the legal theory presented by the
appellant in the trial court." Honda v, Bd. of Tre, of the
Employees’ Ret, Sys., 108 Hawai'i 212, 232, 118 P.3d 1155, 1175
* ae stated earlier, wright wae exployed from April 23, 2001 to
December ‘17, 2002.
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Se
(citation and internal quotation marks omitted), reconsideration
denied, 108 Hawai'i 338, 120 P.3d 237 (2005).
However, notwithstanding the foregoing, we have also
stated that “the rule is not inflexible and that an appellate
court may deviate and hear new legal arguments when justice so
requires’ and when a question of “great public import” is
involved. Id. (quoting Fujioka v. Kam, 55 Haw. 7, 9, 514 P.2d
568, 570 (1973)) (other citations omitted). Here, Wright
proffers no reason -- other than his conclusory statement that
the interpretation of HRS § 378-3(13) is of “great public import
<+ for this court to exercise its discretion in examining the
issue. Wright's failure to provide any rationale for this court
to review his contention is sufficient basis for this court to
decline to do so. See 1 of a1 ,
110 Hawai'i at 30, 129 P.3d at 533 (declining to consider the new
legal issue inasmuch as the cross-appellant did not provide any
reason for this court to address it). However, even assuming
that Weight had provided sufficient grounds to warrant a review
by this court, his argunent would nevertheless fail. Although
Home Depot’s moving papers did, in fact, make reference to both
HRS § 378-2.5(a) and 378-3(13), ite entire argument was focused
on the principle that Wright's criminal record bore a rational
relationship to hie employment, which principle is stated in both
statutory provisions. The circuit court did not specifically
state the statutory number upon which its ruling was based, but
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found that “there is a rational() relationship between the
offense that [Wright] was convicted of [and his employment.]*
‘Thus, inasmuch as HRS § 378-2.5(a) is still a valid statute and
even if the circuit court had relied upon both etatutory
provisions, its reliance on the repealed subsection was harmless.
Accordingly, for the reasons discussed above, we decline to
invoke plain error under these circumstances.
B. HRS § 378-2.5
With respect to HRS § 378-2.5, Wright argues that:
(1) the subject statute does not apply to him because it applies
solely to prospective employees; and (2) his conduct involving
Grugs did not occur on the property of Home Depot or during his
employment with Home Depot. Lastly, Wright contends that hie
prior conviction bears no rational relaticnship to the duties and
responsibilities of his employment. To the contrary, Home Depot
maintains that: (1) the express terms of the statute do not
prohibit consideration of a current employee's conviction that
occurred prior to his employment with the employer; and
(2) Wright's prior conviction was rationally related to his
duties and responsibilities at Home Depot. Consequently, Home
ed the
Depot submits that the circuit court correctly dismi
amended complaint in light of the fact that Wright did not plead
facts showing that there was no rational relationship between hie
1996 drug conviction and hie employment.
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ee
1. Whether HRS § 376-2.5 Applies to Both Prospective
and Current Employees
Wright appears to argue that, because HRS § 378-2.5(a)
contains the phrase “subject to subsection (b)* and subsection
(b) concerns prospective enployees, the subject statute applies
only to prospective employees. Wright, therefore, maintains that
the eubject statute prohibits an employer from considering a
current employee's criminal conviction that occurred prior to his
‘employment with the employer. Home Depot, on the other hand,
insists that the express terms of HRS § 378-2.5 do not preclude
ite consideration of @ current employee's prior criminal record.
preliminarily, we acknowledge the well-established
principle that
legislative enactments are presumptively valid a
fnterpretea in such a manner as to give then effect.
the wtarting point in statutory construction is to determine
Ehe legislative intent from the language of the statute
{teelf. Indeed, absent any constitutional obstacles in
applying the law,
this court's chief duty is to ascertain and give
‘to the legislature's intention to the
fullest degree, which ie obtained primarily from
nguage contained in the statute itself.
een a lav ie enacted, a presi
the words in the statute expre
the legistature,
Construction vould produce an absurd ©
soneerYe clearly inconsistent with the purposes
And policies of the act, this court may not
fejece generally unambiguous language if
Construction can be legitimately found which
SEIT Give force to and preserve all the words of
the seatute.
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Morgan v. Elanning Dep't, County of Kauai, 104 Hawai" 173, 185,
86 P.3d 982, 994 (2004) (citations, internal quotation marke, and
brackets omitted) (ellipsis in original).
‘As previously quoted, HRS § 378-2.5 provides:
Oo
Subiect to subsection (bl._an emplover may
Anquixe_about_and consider an andividual’s erisinal
femme, cet ‘oF privil agree
fhe duties and responsibilities of the position
(b) | inguixy into and consideration of conviction
he prost ee had receiv ional
which may be withdrawn if the
Prospective employee has 2 conviction record that bears a
Fational relationship co the duties and responsibilities of
the position.
(c) For purposes of this section, *conviction” neane
fan adjudication by a court of competent Jurisdiction that
the 'defensant comittes 4 crime, not including fine!
judgnente required to be confidential pursuant to eection
Solves; provides that the period for which the coplover nay
sxanine the emplovee’s conviction record shall not excead
enveare
(emphases added.) By its plain terms, subsection (a) permits an
employer to “inquire about and consider an individual's criminal
conviction record” in the context of “hiring, termination, or the
terms, conditions, or privileges of employment,” as long as “the
conviction record bears a rational relationship to the duties and
responsibilities of the position.” By limiting the
aforementioned provision to only prospective employees, as Wright
suggests, the phrase “termination, or the terms, conditions, or
privileges of employment” would be rendered superfluous. See in
ze City & County of Honolulu Corp. Counsel, 54 Haw. 356, 373, 507
P.2d 169, 178 (1973) (applying the “cardinal rule of statutory
construction that a statute ought upon the whole be so
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SSS
constructed that, if it can be prevented, no clause, sentence or
word shail be superfluous, void, or insignificant’ (emphases
added)). 1 other words, termination or other privileges of
employment are triggered only after an employee begins
employment. Thus, based on a plain reading of the statute, it is
clear that subsection (a) applies to both prospective and current
employees
With reepect to the prefatory phrase contained in
subsection (a), ise., *[s]ubject to subsection (b),* it is well-
established that the term ‘subject tof may mean “Limited by,"
subordinate to,” or ‘regulated by." State Sav. & loan Ass‘n wv.
Kauaian Dev. Co., 62 Haw. 188, 198, 613 P.24 1315, 1321 (1980)
(citation omitted). In the context of HRS § 378-2.5, the term
seubject to" modifies consideration of conviction records for
vhiring" inasmuch as the “hiring” phrase undoubtedly applies to
only prospective employees. Stated differently, HRS § 278-2.5(a)
permits an employer to “inguire about and consider an
individual's conviction record concerning hiring," provided that
such inguiry and consideration “shall take place only after the
prospective employee has received a conditional offer of
2.5(b). However, in either situation --
employment.” HRS § 37
that is, current or prospective employees,-- the employer may
only examine conviction records for a period that “shall not
exceed ten years." HRS § 378-2.5(c). Thus, contrary to Wright’s
assertion, consideration of a “conviction record" is not
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restricted to an employee's conviction that occurs during hie
employment with the employer.
‘The foregoing conclusion is further supported by
legislative history, in which the legislature expressly indicated
that it intended HRS § 378-2.5 to apply to both current and
prospective employees. See Sen. Stand. Comm. Rep. No. 3282, in
1998 Senate Journal, at 1331; Sen. Stand. Comm. Rep. No. 2959, in
1998 Senate Journal, at 1206 (“The purpose of this bill . . . is
to allow employers to consider a criminal conviction record of
prospective or current employees without violating Hawaii's
employment practices laws.” (Bnphasie added.)); Sen. Conf. Com.
Rep. No. 79, in 1998 Senate Journal, at 776 (“The purpose of this
bill . . . is to provide employers with qualified immunity for
Aisclosure and consequences of such disclosure for truthful,
fair, and unbiased information about a current or former
employee's job performance." (Emphasis added.)); Hse. stand.
Comm. Rep. No. 673-98, in 1998 House Journal, at 1300-01 (*the
purpose of this bill is to repeal the prohibition against
employment discrimination based upon arrest and court record[,]*
by, amongst other things, adding a new definition of “arrest
record" that “providles] an exception to the prohibition against
unlawful discriminatory practices in employment on the basic of
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oo
an applicant's or current employee's record of criminal
conviction[.]" (Emphasis added.) .*
+ wright argues that a review of the legislative history indicates that
the legisleture die not intend to expand the reach of the statute £0 both
hicens and prospective employees. In support, wright relies on the floor
SUEReus by senator Brien Kanno in the 1998 legislative session, with regards
Eovthe enactment of HRS § 376-2.5:
ke. President, agreement on this measure was reached
approxinutely one hour before the deadline. Because of the
{Etencss of the hour, the language in the measure is,
[nscvertently, inconsistent. We wanted to state for the
Record that the intent of the Legislature ie to allow
Eeployers to have access to conviction records where there
{era rational relationship between the duties and the
deouStion wise be had soreed tg, isch ie not-expllcit in
he =a zr cn
is forse
$hieo wanted to clarity that ve nave had discussions
with poth the Senate Judiciary chairs and with the Senate
ses: Ee fog. and tt was aso
PSEEca chat the Houre_dusiciary chair also agrees with us
on this provision, and che intent is not to allow for
ry oo eh es
comment by Senator Kanno in 1998 Senate Journal, at 647-48 (emphases added) .
fouever, ‘we are not persuaded chat Senator Kanno’s remarks embodied the
Gatene, The United states Supreme Court has held that:
Im surveying legislative history[,) we have repeatedly
stated that the authoritative source for finding the
Iegislature’s intent Lies in the Comittee neports on the
Bill, which represent the conaidered and collective
Understanding of those Congressmen involved in drafting and
eudying prop fon
one. a east nen
. 46.0.8. 70, 76 (1964) (brackets, internal quotation
GarclavUlsrione ositted) (enphaais added); see also Reanett v. Yoshina,
Se P supp. 22 1139, 1250 (D. Haw. 2000) (vTo the extent that legislative
Blatory may be considered, it is the official connittee reports that provide
the suchoritative expression of legislative intent. ‘Stray coments by
{RE Glaual legislators, not otherwise supported by statutory language oF
SGeniecee reperte, cannot be attributed to the full body that voted on the
Soi (cisbing incre Helly, e841 F.26 908, 912 9.3 (stm Cir. 1968)), aff'd.
Bisipoa‘fos7 (ath Cir, 2001). Aw diecuased supra, the committee reports
(continued.
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Accordingly, we believe that HRS § 378-2.5 ie not
Limited in application solely to prospective employees; rather,
the statute applies to both current and prospective employees
Nevertheless, the issue remains whether Wright has sufficiently
alleged that his drug conviction was not rationally related to
his duties and responsibilities as an associate sales clerk in
Home Depot's lunber department, as required under HRS
§ 378-2.5(a), to survive a motion to dismiss for failure to state
a clain.
2. Whether Wright Has Sufficiently Alleged that his
Conviction Record Does Not Bear a Rational Relationship
to his Employment
As previously mentioned, HRS § 378-2.5(a) establishes
as a matter of law that an employer, inter alia, need not hire,
or may terminate, an employee with a conviction (that is less
than ten years old), “provided that the conviction record bears a
ational relationship to the duties and responsibilities of the
is added). Although
position.” HRS § 378-2.5(a) (emphs
“rational relationship" ie not defined in the statute, the plain
is found in the words
and obvious meaning of the phr
"(continued
specifically indleate that HRS § 378-2.5 applied to both current and
Prospective employees, which Senator Kanno's renarks, in fact, acknowledge.
Kichoogh the senator's remarks indicate that "there is a commitment to go back
dni fis this meaeure next session,” the legislature dié not revisit HRS
S'a76-2.5 in the 1999 legislative session. The legislature, however, aid
Sevieit ps $.378-2-5 in the 2003 and 2004 sessions, gee supra note 6, and,
Aithough the legislature anended the statute each session, those amendments
Gis'noe include “fixings the statute as indicated in Senator Kanno's remarks
Recordingly, the express terme of the statute continue to permit consideration
Bf'a curfent employee's conviction that occurred prior to his employment with
the exployer.
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themselves, i.€., under HRS § 378-2.5(a), the relationship
between the conviction and the employment mist be rational.
In this case and as previously indicated, Wright
asserted two counts against Home Depot: (1) a violation of HRS
§ 378-2; and (2) violations of public policies, which are not
before this court on appeal, see supa note 2. With respect to
his section 378-2 claim, Wright specifically alleged in his
complaint that:
7. on or about April 23, 2002, (Home Depot) hires
tweigne! te work in. [ose Depot] as an associate sales clerk
inthe lunber Gepartment. [wright] vas tested for drugs at
the beginning of his enpioysent by (Mone Depot], and the
Eesults were negative.
8.""on or about Septesber 2002, [Wright] was up for
prosotion as department supervisor, at viich tine (he) was
Rested twice for druge; the resulta were negative, clean.
9c On April. 30, 2996, Wright] was convicted for the
use of controlled substance, upen pleading guilty, in the
Washoe Second Judicial District court, Reno, Nevada, .
[ie sentenced to prison 12-36 nosths, ‘which was suspended,
nd placed on probation not to exceed two (2) years.
Special conaitione were chat he pay an administrative fee of
$85.00 and chemical fee of $60-00; chat on Novenber 5, 1997,
{weight] was honorably discharged. from probation.
0. ""the work performance of (Wright) at [Howe Depot)
wae goodi.)
iz! “on Decenber 27, 2002, [Wright’s] employment with
Ione Bepot] wes terminated because of (hie) conviction for
use of controlled substance in 1396.
ie! “tirright's) conviction... in 1996 for the use
of controlled eubstance does not bear a rational
Seiseicaship te bie duties and responsibilities of the
position he held at (Hove Depot].
Taking the allegations as true and viewing the complaint in the
Light most favorable to Wright, as the nonnoving party, Aames
Funding Corp. 107 Hawai'i at 98, 110 P.3d at 1045, we conclude
that, at this stage in the litigation, Wright has sufficiently
alleged a claim against Home Depot for violation of HRS § 378-2
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However, whether, on an ongoing basis, Wright will be able to
demonstrate that his prior conviction does not bear a rational
relationship to his employment is an issue within the province of
the trier of fact and not a proper issue to be determined by this
court as a matter of law on 2 motion to dismiss. Me, therefore,
hold that the circuit court erred in dismissing Wright's
complaint.”
IV. concuus
Based on the foregoing, we vacate the circuit court's
February 28, 2005 final judoment and remand thie case for further
proceedings consistent with this opinion.
on the briefs: 4 b
Meyer M. Ueoka (of
Ueoke,& ueoka) for ii Ph Lorinacor
plaineiff-appellant
Jeffrey S. Harris and Peat Cauda On
Jan Muranaka Boivin (of
Torkildson, Katz, Fonseca, Oooo
Moore & Hetherington),
for defendant-appel lant Gere ~
* at the circuit court and on appeal, Howe Depot erroneously equa!
the phrase "rational relationship’ in MRS 378-2.5 with the rational
relationship or rational basis test as applied in the context of
constitutional equal protection analysis. Such standard 1s not applicable
here where the Claim e based upon a violation of a statute, jer, HRS ¢ 376
2. "As discussed gupra, the statute at ieaue in this case does nok define che
Phrase "rational relationship’; accordingly, we resort to "the ordinary
Reaning of .. . terms not statutorily defined."
Gollection Agency, 96 Hawaii 408, 424, 32 P-ad $2, 68 (2000) (elation and
therefore,” reject Hone Depot’
ih the context of equal
Internal quotation marke omitted) . We
arguments grounded upon the rational basin te
protection.
-24-
|
fae3758e-5b4b-42f2-b4ad-bfed4dd3d2ae | State v. Kahapea. Concurring Opinion by J. Acoba with whom J. Duffy, joins [pdf]. S.Ct. Order Denying Motion for Reconsideration, filed 08/30/2006 [pdf], 111 Haw. 316. | hawaii | Hawaii Supreme Court | LAW LIBRARY
‘FOR PUBLICATION IN WEST’ S HAWAI'I REPORTS AND PACIFIC REPORTER*
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
00 =.
STATE OF HAWAI'I,
Plaintiff-Appellee,
gE 2 2
ve. Eb rc
cae z
MICHAEL KANAFEA, Defendant-Appeliant, Bag = ©
and
an
NORMAN TAM, RUSSELL WILLTAMS, also known as R.J. Williams and
Russell Williams, doing business as R.J., Hauling, CLAUDE HEBARU,
‘also known as Claude Hebaru doing business as Titan Moving and
Hauling, DONALD HALL, SR., also known as Donald Hall, Sr., doing
business ae A-1 Hawaii Trucking and Equipment, DONNA HASHIMOTO
ABELAYE, also known as Denna Abelaye, doing business as Specialty
Pacific Builders, Inc., DAVID BRIAN KAAHAAINA, also known as
David Brian Keahaaina
Going business as American Hauling, and
STEPHEN SWIFT, Defendants.
No. 27278
APPEAL FROM THE FIRST CIRCUIT COURT
(cR. NO. 98-2135)
AUGUST 9, 2006
MOON, C.J., LEVINSON AND NAKAYAMA, JJ.; AND ACOBA, J., CONCURRING
SEPARATELY, WITH WHOM DUFFY, J., JOINS
OPINION OF THE COURT BY LEVINSON, J.
‘The defendant-appellant Michael Kahapea appeals from
the April 7, 2005 order of the circuit court of the first
circuit, the Honorable Reynaldo D. Graulty presiding, denying
Kahapea’s February 7, 2005 motion pursuant to Hawa
“i, Rules of
Penal Procedure (HRPP) Rule 35, for correction and/or reduction
POR PUBLICATION IN WEST’ S HAWAT'T REPORTS AND PACIFIC REPORTER *
of the sentence imposed by the circuit court's October 19, 2000
Judgment!
on appeal, Kahapea contends: (1) that the circuit
court abused its discretion in sentencing him to five consecutive
ten-year terms of imprisonment on October 19, 2000 and failing to
correct or reduce that sentence in its April 7, 2005 orders (2)
that the circuit court's imposition of five consecutive ten-year
terms of imprisonment constituted “cruel and unusual punishment”
contravening the eighth amendment to the United states
Constitution and article I, section 12 of the Hawai'i
Constitutions and (3) that the circuit court, by ordering his
sentences to run consecutively, deprived him of his right to a
trial by jury as interpreted by the United States Suprene Court
in Apprendi v. New Jersey, $30 U.S. 466 (2000).
For the reasons discussed infra in part III, this court
affims the circuit court's April 7, 2005 order.
REP Fale 35,
provides in relevant par
entitled “Correction or Reduction of Sentence,”
(a) Correction of I1legal Sentence. The court may correct
‘an Lilagal sentence at sny tine and nay correct « sentence inposed
Bh an Luiege! manner within the time provides herein for the
Feduction ef sentence A motion sade by a defendant to correct an
{lvegal sentence more than'90 days after the sentence is imposed
Shell be mace porauant to [HRPP] Rule ¢0 [(concerning post
Conviction proceedings)]..... « A-motion to correct # sentence
hat is mede within the 30 day time period shall empower the court
tevact on such motion even though the time period has expired.
(©) Reduction of Sentence. The court may reduces sentence
«within 90 days after receipt by the court of a mandate
[stued"upon af fiemance of the judgment... - A motion to reduce
Avsentence that is mage within the time prior shell empower the
fours tevact on such motion even though the time period has
expired.
‘FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER *
1. BACKGROUND
A. Factual Backaround
The Ewa Villages Revitalization Project evolved from
the vision of the City and County of Honolulu (hereinafter, “the
City”) to revitalize the ‘Ewa area and “provide home ownership
opportunities for the pecple that lived in. . . Ewa Villages.”
To implement this vision, extensive relocation of residential and
commercial tenants on a temporary or permanent basis was
necessary, and the City earmarked six million dollars for that
purpose
‘The City’s Department of Housing and Community
Development (DHCD), Housing Division, Property Management Branch
(PNB), headed by Kahapea, handled all commercial relocations in
Ewa Villages. Commercial relocations could be accomplished in
one of three ways: (1) @ business could move and take a limited
fixed payment based on its average net income, for expenses of up
to $8000.00; (2) the City could hire a moving company through a
Procurement process that was controlled by the Purchasing
Division of the Department of Budget and Fiscal Services; or (3)
the tenant could move itself or hire a mover, and the City would
reimburse the tenant for all “actual and reasonable” costs
related to the relocation. Kahapea was responsible for verifying
that relocations in the third category were completed and that
the costs incurred were indeed “actual and reasonable.” When the
“claims expense form(s)” that Kahapea completed, together with
supporting documents, were submitted to the DHCD, the City would
issue checks to the respective moving companies.
‘FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER *
Between 1993 and 1997, the City paid approximately six
million dollars to the defendants Titan Moving and Hauling
(Titan), R.J. Hauling (R.J.), A-l Hawaii Trucking and Equipment
(-1), Specialty Pacific Builders, Inc. (SPB), and American
Hauling (AH) for work ostensibly performed to relocate commercial
tenants.? These reimbursements were based on false and forged
+ the following chart details the relocation reinbursenents paid by
the City to various moving conpanses for the purported relocations of
Commercial tenants in ewe Viluages:
wuuEceo | TOTAL RELOCATION TALLEGED MOVING COMEANY
ahs Suge $3,300,000" [a-i (9339, 000°)
company BH. ($160, 000")
Rg. (5880, 000*)
5e8 ($663, 000")
Titan’ (51,200, 000")
Benton Fost $30, 200 Benton Post (rselfvmove™) (830,200)
Richa State $163,050 | Titen (#163,850)
fours
mr $576,304 [Ara (self-nover) ($523,374)
RJ. (523, 560)
Advance Electric ($33,370)
ome $239,810 Rig. (6272, 430)
titan Moving § Hauling ($68,320)
. . — ‘Titan ($62,000)
Transcend, Ine, (“eel f-move)_(£27,000")
PAFCO 330, Titan (614,250)
Aavance Electric ($15,984)
independent $253,080 [R.d. (8176, 750)
Sondblasting Hetan (576, 330)
oy 823, Titan (823, 390)
Welosng
Bea Beauty 386,800 | see (see,800)
3 (cont inved. -]
Barbershop
¥FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *
documents submitted by Kahapea. Specifically, Kahapea presented
blank “Agreement For Direct Payment To Mover” and “Claim For
Payment Moving Expense” forms to tenants’ representatives for
their signatures. Later, Kahapea would complete the forms with
false information and prepare false bids and invoices. In many
instances, the relocations never took place.
Kahapea converted the reimbursement checks into
cashiex’s checks and cash for his personal use. For example,
Robert Eugene Oriskovich testified that Kahapea paid Oriskovich’s
travel expenses to Hawai‘l. During Oriskovich’s visits, Kahapea
spent between $500 and $1500 per night at bars.
Oriskovich
testified that, on one occasion, Kahapea split a $10,000 tab with
another person.
Kahapea’s nephew, Michael John Barnett, testified that,
between 1993 and 1997, he received approximately twelve cashier’ s
checks from Kahapes, payable to him and totaling approximately
$250,000.00. Barnett explained that Kehapea instructed him to
“go to the bank and cash them and bring him back the money.”
21. scontinved)
mH $293,689 [AN (#159, 478)
Reg. ($9,200)
Titan (824, 980)
Aaerican $593,054 [aN (3245, 980)
Welding Reg. (895,685)
SPE (540,287)
Titan’ (8197, 490)
American Weising (514, 462)
SapproRInate snout
‘*FOR PUBLICATION IN WEST’ S HAWAI'I REPORTS AND PACIFIC REPORTER *
Barnett testified that he did not do any commercial relocation
work in Ewa Villages.
The defendant Claude Hebaru testified that he formed
Titan at Kahapea’s urging. Between 1993 and 1997, Hebaru, doing
business as Titan, received approximately two million dollars
from the City for purported relocation work in Ewa Villages in
which he did not participate. He testified that he gave Kehapea
blank Titan letterheads, which Kahapea used to submit bid
proposals. Kahapea would “write out the bids(,) . . . pull out
everything, . . . and tell [Hebaru] afterwards that [they] got
the job and all that.” ‘Thereafter, Kahapea would notify Hebaru
that Kahapea had a City check for the purported relocation job
and they would arrange to meet at the bank. At the bank, Hebaru
exchanged the City’s drafts for cashier's checks payable to
individuals specified in Kehapea’s written list. Approximately
three thousand dollars would remain after every exchange
Hebaru testified that, between 1993 and 1997, he split
approximately $400,000 “{a]imost 50/50” with Kahapea.
In 1993, Benton K. Post, former maintenance manager for
Aloha State Tours, met with Kahapea after the City notified Aloha
State Tours that it would have to move. Post testified that
Kahapea told hin, “[Ylou work hard and you should be entitled to
some relocation money also.” When Post informed Kahapea that he
was not 2 tenant in Eva Villages, Kahapea replied, “[N]o worry.
[1]/11 take care of it.” Thereafter, Kahapea provided Post with
blank relocation forms and instructed him “(just to sign” then.
Kehapea also instructed Fost to prepare invoices. Post testified
‘FOR PUBLICATION IN WEST’S HAWAT'E REPORTS AND PACIFIC REPORTER *
that he received City checks, personally delivered by Kahapea,
for relocation work that he did not do. When Kahapea gave Post a
check, Kahapea would tell him that they needed to cash the check
“right away.” Post testified that Kahapea always instructed him
to “get me about half.”
‘The defendant David Brian Kaahaaina testified that he
had previously worked for American Welding, which his parents
owned. He first met Kahapea when Kahapea approached him about
the cost to relocate American Welding. Kaahaaina submitted a
$20,000 bid to relocate American Welding and received a city
check for that amount. Thereafter, Kahapea contacted Keahaaina
regarding other relocation jobs and instructed him to submit bids
that included “a little cushion on top.” Kahapea further
instructed Kaahaaina as to the particular language that he should
include in his paperwork and requested blank letterhead with
Keahaaina’s signature on the bottom. Kaahaaina testified that
payments for purported relocation work were delivered by Kahapea.
upon delivery, Kaahaaina “would go and deposit the check into
[his] account and take out that extra cushion and give that to
[Kahapea]” in cash. Kaahaaina testified that he received
altogether twenty to thirty City checks, totaling “between
$700[,000} to $800,000,” of which he gave “roughly $300[,000] to
$400,000" to Kahapea.
In 1993, Shirley Hell, former vice president of A-1,
met with Kahapea after the City notified A-1 that A-1 would have
to relocate. Shirley testified that Kahapea gave A~1 jobs that
involved “cleaning up" the residential and commercial areas of
‘*FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *
Ewa Villages. Although such jobs only required “cleaning up,”
Kahapea instructed Shirley to use the word “nove” in all
proposals she typed and directed her to use phrases like
“[plropose to dismantle, crate, load, haul supplies and equipment
from Ewa Villages to designated storage site.”
‘The City paid A-1 for the purported relocations and
Kahapea delivered the checks to Shirley. Shirley testified that
her husband, the defendant Donald Hall, Sr., instructed her to go
to the bank, deposit the checks, and withdraw cash, sometimes
totaling $60,000. After Shirley gave the cash to Donald, he
would meet with Kahapea and then return with “between 20 and 50
percent” less cash. Between 1993 to 1997, A-I received
approximately $700,000 to $800,000 in City checks, of which a
little over $600,000 was taken in cash. Shirley testified that
Kahapea took “at least half” of the $600,000.
The City’s chief accountant, Michael Hansen, testified
that, on June 28, 1997, he audited the Ewa Villages
Revitalization Project after he received an inquiry about the
fairness of the bid proc
s. He reviewed all paperwork submitted
and all checks issued for purported relocations in Ewa Villag
He testified that, between 1993 and 1997, there were
approximately one hundred seventy relocation claims submitted in
connection with the Eva Villages Relocation Project totaling
$6,186,000.
After reviewing the City’s checks and supporting
documents, Honolulu Police Captain Daniel Hanagami, then in
charge of the white collar crime unit, noticed that “(t]here were
+voR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *
basically five companies being consistently avarded relocation
services” -- R.J., A-1, SPB, Titan, and AH. Captain Hanagani
testified that, based on his review, he suspected “bid rigging.”
Captain Hanagams further testified that the information provided
in the relocation claims revealed moving companies that shared
telephone numbers and addresses. when Captain Hanagami attempted
to locate the moving companies in the telephone book, only SPB
was listed. Mozeover, Captain Hanagami discovered that, after
the City issued relocation checks, they were innediately cashed
and converted into cashier's checks. When Captain Hanagami went
to Eva Villages to verify the relocation claims, he discovered
that many of the named commercial tenants had not moved.
‘The Honolulu Police Department apparently arrested
Kahapea in October 1997.
B, Procedure Backaround
1 wiction, sentenc rect a
on May 26, 1998, an O'ahu grand jury returned an
indictment against Kahapea and his codefendants. The indictment
charged Kahapea with: (1)
wenteen counts of theft in the first
degree in violation of Hawai'i Revised Statutes (HRS) § 708-
€30.5(1) (a) (1993) (counts 1-8, 11-17, 19, and 21-25); (2) five
counts of theft in the second degree in violation of HRS § 708-
#31(1) (b) (1993) (counts 9-10, 18, 20, and 26); (3) eleven counts
of forgery in the second degree in violation of HRS § 708-852
(2993) (counts 27-37); (4) five counts of unlawful ownership or
operation of business in violation of HRS $§ #42-2(3) (2993) and
£42-3 (1993) (counts 38-42); ($) one count of money laundering in
‘FOR PUBLICATION IN WEST’S HAWAT'T REPORTS AND PACIFIC REPORTER *
violation of HRS § 708-8120(1) (a) (1993) (count 43
+ (6) one
count of money laundering in violation of HRS §§ 708A~3(a) (1) (A)
(supp. 1995) and (4) (2) (Supp. 1995) (count 44); (7) one count of
bribery in violation of HRS § 710-1040(1) (b) (1993) (count 46);
and (8) two counts of failure to report income in violation of
HRS § 842-11 (1993) (counts 47-48).? Count 45 did not involve
2 gs § 708-820.5 provides in relevant part: {2} A person commits
the offense of theft in the first degree if the person commits theft: (a) Of
property...» the value of which exceeds $20,000 s+ (2) Theft in the
Hirst degree ic’ a clase B felony.”
HRE 5 708-831 provides in relevant part: “(2) A person commits the
offence of theft in the second degree if the person commits theft a)
Of property. - the velue of which exceeds £300... (2) Theft in the
Second degree isa clase C felony.” Effective July 20, i998 and duly 1, 2005,
Exe Jegisioture nended this section in respects not germane to the present
the circuit court's oral sumary of Eviota is unclear but, in its
ii 7, 2008 order denying Kahapes’s motion, the court noted that “Evicta
Ceenitted theft ef vs substantially less... public funds than «
Kenapea
19
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everything that he had done: the fact that he wae the
mastermind, the fact that ne had come up with this universal
Schene of theft and bribery and seduction in order to
isfy his own personal needs.
‘There vere no nstigating factors in thie case. This.
back. thie who 2503
=
bie tantiv! ab wermment to
Hah eninge TW}nether oF not it serves a
Getervence, im sure there will alvaye be property crine
geing inte’ the future, bot this cage was rensrtable with
Fegard to the extent, ‘the involvenent of #0 many peopli
leading to one person, and that le... Kehspes
(Bmphases added and formatting altered.) On April 7, 2005, the
circuit court entered the following FOFs and conclusions of law
(cous) :
3 apie)zendi, does not apply... since .
itanapea das net sentenced to an extended term Gr enhanced
4c. . (he [circuit court exercised it []2 discretion
‘thin’ the range prescribed by statute after taking into
Consideration various factore relating to seth the offense
and’ [rahapeal
Bo... Kahapes had £01] knowledge of the possibie
sentences that could have been imposed by this [elourt.
7. 11. nebaru cooperated with law enforcement... and
Agteed to testify against other defencenes.
6. 1 Thun did not commit theft of public fund
5: 1! vices comuitte theft of... substantially less
public fonds than... Rahapea
301 PP
b. 1 1. crane case snvoived the largest thett of public
fonds in'ene (Gityi"e Ristory
+: ; Rahapea was in position of trust at the tine of
the criminal’ eftense
* Kahapea took public funds from 2 financially
strapped City... (,] which could not have afforded lose
in the magnitude of finde involved.
wv Skahepea"s criminal conduct was not only = theft
fiom'the city: . . , but was a theft from toxpayers,
gs - + (T]he City’... had to expend additional funds
fo’ uncover the éxtent’ and magnitude of the
Enea OTP
be. | | Rahapea wae the “mastermind” who. . . devised the
Haudvient schene to take public funds from’ the city .
Ao. xahapea used co-workers, family, friends, people
20
‘FOR PUBLICATION IN WEST’ S HAWAT'T REPORTS AND PACIFIC REPORTER *
leno had financial weeknetses, and others who had trusted him
to carrying out his fraudulent scheme.
i... «1 Rahapea used the public funds to support his
lividn’aieestya ibited in an incident there he - . -
spent £10, 900/00 one night at a Korean (njostess bar.
* «Kahapea went a0 far as to involve his
{atepldaughter’ tn the fFautulent. senene{s] which resulted in
an abuse of her financial situation,
31.0") V'kahapea took public funds for personal gain,
breached the trust of family, friends and co-workers, and[,]
unlike. . + Chun, lacked the fungs to repay the City
Accordingly, the circuit court concluded that its October 19,
2000 sentence “was and still is the appropriate sentence in this
matter” and denied Kahapea’s motion. On May 5, 2005, Kahapea
filed a timely notice of appeal to this court.
IT. STANDARDS OF REVIEW
A. Sentencing
[A] sentencing judge generally has broad
discretion in inposing a sentence. Th
Standard of review for sentencing or
Batters is whether the court committed
Ranifest abuse of discretion in ite decision,
“[F]actors which indicate s plain and manifest abuse of
discretion are arbitrary of capricious action by the judge
and a rigid refusel to consider the defendant's
Contentions." Ang, “(glenerally, to constitute an abuse it
‘appeer that the court clearly exceeded the bounds of
Feason of disregarded rules of principles of law or practice
tothe substantial detriment of a party litigant.”
State v. Rauch, 94 Hawai'i 315, 322, 13 P.3d 324, 331 (2000)
(brackets in original) (internal citations omitted) (quoting
Keawe v. State, 79 Hawai'i 281, 284, 901 P.2d 481, 484 (1995);
State v. Fry, 61 Haw. 226, 231, 602 P.2d 13, 17 (1979), quoted
in State v, Gonsalves, 108 Hawai'i 289, 293, 119 P.3d 597, 601
(2005); State v. De Guaix, 108 Hawai'i 179, 186, 118 P.3d 662,
669 (2005); State v. Maugzotega, 107 Hawai'i 399, 406, 114 P.3¢
905, 912 (2005); State v. Koch, 107 Hawai'i 215, 219-20, 112 P.3d
a
*POR PUBLICATION IN WEST'S HAWAT' REPORTS AND PACIFIC REPORTER *
69, 73-74 (2005); State v. Solomon, 107 Hawai'i 117, 126, 111
P.3d 12, 22 (2005); State v, Vellina, 106 Hawai'i 441, 446, 106
P.3d 364, 369 (2005); Rivera, 106 Hawai'i at 154-55, 102 P.3d at
1052-53; State v. Kamanao, 103 Hawai'i 315, 319, 82 P.3d 402, 405
(2003); State v. Hauge, 103 Hawai'i 38, 48, 79 P.3d 131, 141
(2003); sti ua, 102 Hawai'i 1, 7, 72 P.3d 473, 479
(2003).
B. Que: const a
“(this court} answer{s] questions of constitutional law
sby exercising [its] own independent . . . Judgment based on the
facts of the case.’ Thus, [this court] review{s] questions of
constitutional law [‘Junder the []right/wrong{] standard.‘
State v. Arceo, @4 Hawai'i 1, 11, 928 P.2d 643, 653 (1996)
(quoting State v. Lee, 82 Hawai'i 267, 273, 925 P.2d 1091, 1097
(1996); State v, Trainor, 83 Hawai'i 250, 255, 925 P.2d 618, 623
(2996); State v. Tovomura, 60 Hawai'i 8, 15, 904 P.2d 893, 900
(1995); State v. Baranco, 77 Hawai‘ 351, 355, 884 P.2d 729, 733
(1994)), quoted in State v, Bani, 97 Hawai" 285, 289, 36 P.3d
1255, 1259 (2001).
IIT. DISCUSSION
A rendi*s tnapolical onsect os
Inprisonment
on appeal, Kahapea argues that the circuit court’s
imposition of consecutive terms of imprisonment contravenes the
United States Supreme Court's decision in Apprendi on the basis
that consecutive sentences are “analogous to the enhancement of
sentencing” and, therefore, cannot be legally imposed in the
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‘*FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER *
absence of aggravating facts expressly alleged in the charging
instrument and found by the jury to be proved beyond a reasonable
doubt.
In its answering brief, the prosecution counters that
“(jludicial factfinding does not, on its own, violate the [s]ixth
[almendnent. . . . Apprendi applies to situations where the
sentence is alleged to have exceeded the statutory maximum .
for a particular offense[,] not the aggregate effect that results
when sentences for convictions on multiple counts are ordered to
be served consecutively.” (Emphases omitted.) (Citing HRS $5
706-668.5 and 708-830.5(1) (a), see supra notes 3 and 6.)
In Apprendi, the United States Supreme Court held that,
“[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” 530 U.S. at 490; see also 3 Charles Alan
Wright et al., Federal Practice and Procedure § 526 6 n.S8 (3d
ed. 2004 & Supp. 2005).
Admittedly, stacking Kahapea’s multiple sentences
together has the effect of enhancing the length of his
incarceration beyond ten years, the statutory maximum for one
first-degree theft, see HRS § 706-660, supra note 8.
Nevertheless, none of Kahapea’s five individual terms of
imprisonment exceeded the statutory maximum. This court
Suggested in Rivera that the logic of the Apprendi rule did not
apply to consecutive term sentencing:
In the present matter, the circuit court nad the:
Giscretion under HRS § 70E-E6E.5 to sentence Rivera to serve
23
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bee consecutive five-year Indeterminate maximum terms of
Imprisonment for his convictions of clase ¢ felonies in
Counts I and IT because “multiple terns of impriscnnent
[were] inposed on (hin) at the sane tine.” Again, the
circuit court would have been requires to consider the
factors set forth in HRS $ 106-606(, gee gupra note 9) ~
Enclusing the need to "protect the public” contained in HRS
§ 706-606 (2) (c) == when devernining whether to inpose
Consecutive of concurrent terns of imprisonment
IBly the plain language of HRS § 706-668.5(2) ~
although Subject, pursuant to HRS § 706-E65.5(1), to
Presumptively concurrent sentencing in connection with
multiple prison terss “imposed st the sane time” ~-[)
The sentencing court [is] ebligsted to "consider the
Factors set forth in [HRS §) 706-606" when determining
Whether multiple ingeterainate prion terme were to
Fun concurrently or consecutively.
1 inine fact that HRS § 706-606 is
incorparatéd by reference into HRS § 706-668.5 has
profouna significance, Searing sn mind chat li)
Theeterninate (including consecutive) prison terms are
inherently incapacitative, the legislative sentencing
philosophy permeating RS’ ch. 706 in general ang HRS
§ Tos-e06 in particular dictates that discretionary
Consecutive prison sentences, pursuant to HRS
§ J0s-6e8.5, may properly be imposed only if the penal
Sbjectives sought to be achieves include retribution
(diss, “Just des(slerts") and deterrence.
[Skate v JGavlord, 78 Mawai't (127, 149-150, 890 F.2d
(ier tes-]50 Tri9es)) =. Had the efrcust court
Sentenced Rivera to consecutive terme of ssprisonment in
Counts I and it, the effect would have been a ten-year
indeterminate méxinun ters of imprisonment, a term qual. to
tthe two concurrent ten-year extended terns of imprisonment
that the circuit court actually imposed in this case. Tt
Gefies logic that the circuit court could, consistent with
Elekely, legitimately inpose the same ten-year sentence,
Comprised of two consecutive five-year indeterminate maximon
ferms, under ordinary sentencing princsples, but run afoul
of Blakely by imposing concurrent ten-year extended terns of
Gnprisonnent based on the finding of prior or saltiple
concurrent convictions.
Rivera, 106 Hawai'i at 163-64, 102 P.3d at 1061-62 (some
citations omitted) (some emphases and ellips
added and some in
original) (some brackets added, some omitted, and some in
original).
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‘*FOR PUBLICATION IN WEST’S HAWAT'E REPORTS AND PACIFIC REPORTER *
Confronting analogous situations, other jurisdictions,
including several federal circuits, have aphoristically dismissed
the proposition that either Blakely or Apprendi proscribes
consecutive term sentencing, and this court does likewise. See,
Sad, United States v. Pressley, 345 F.3d 1205, 1213 (11th cir.
2003); United States v. Harrison, 340 F.3d 497, 500 (8th Cir.
2003); United States v. Davis, 329 F.3d 1250, 1254 (11th Cir.
2003); United states v. Chorin, 322 F.3d 274, 279 (34 Cir. 2003);
inited States v. Lott, 310 F.3d 1231, 1242-43 (10th Cir. 2002);
United States v. Sua, 307 F.3d 1150, 1154 (9th Cir. 2002); United
States v. Diaz, 296 F.3d 690, 684 (8th Cir. 2002) (en banc};
nited States v. McHaine, 290 F.3d 269, 276 (Sth Cir. 2002);
United States v, Buckland, 289 F.3d 558, 570-71 (9th Cir. 2002)
(en banc); United States v, Campbell, 279 F.3d 392, 401-02 (6th
cir. 2002); United States v. Feola, 275 F.3d 216, 220 & n.1 (24
Cir. 2001); United States v. Parolin, 239 F.3d 922, 929-30 (7th
Cir. 2001}; United states ex rel, Thomas v. Hinsley, 379 F. Supp.
2d 924, 925 (N.D. I11. 2005); Weight v. State, 46 P.3d 395, 398
(Alaska Ct. App. 2002); Hall v, State, 823 So. 2d 757, 764 (Fla.
2002); People v. Wagener, 752 N.E.2d 430, 441-42 (111, 2001)
[s]entences which run consecutively to each other are not
transmuted thereby into a single sentence. Because consecutive
sentences remain discrete, a determination that sentences are to
be served consecutively cannot run afoul of Apprendi, which only
addresses sentences for individual crimes.”); State v. Rapnow,
703 N.W.2d $75, 581 (Minn. Ct. App. 2005) (citing State ve
Senske, 692 N.W.2d 743, 747-48 (Minn. Ct. App. 2005)); State v
25
“FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER *
Higaing, €21 A.2d 964, 975-76 (N.H. 2003); State v. Abdullah, @5€
A.2d 19, 39 (N.J. Super. Ct. App. Div. 2004), aff'd, rev'd on
other grounds, 878 A.2d 746, 756 & n.6, 757 (N.J. 2005); People
‘we Murray, 785 N.¥.S.2d 675, 677 (N.Y. Sup. Ct. 2004); State we
Lowery, 826 N.E.2d 340, 355 (Ohio Ct. App. 2005); State v
Cubias, 120 P.34 929, 932 (Wash. 2005), followed by State ve
Louis, 120 P.3d 936, 940 (Wash. 2005).
In the present matter, Kahapea was convicted by the
jury of five first-degree thefts, for each of which he was
sentenced to ten years’ incarceration. Pursuant to HRS
$5 706-660 and 706-668.5, five ten-year terms running
consecutively ig the statutory maximum; hence, Kahapea’s sentence
did not deprive him of his right to a jury trial as interpreted
by the United States Supreme Court in Apprendi and Blakely.
B. The Circuit Court's Denial of Kahapea's HRPP Sule 38
ESE
1. The parties’ araunents
Kahapea essentially contends that the circuit court
abused its discretion by not granting Kahapea’s February 7, 2005
motion such that one or more of his five terms of imprisonnent
would run concurrently, which would effectively shorten his
maximum prison sentence by some multiple of ten years.
Kahapea argues that “the circuit court made specific
IFOF]s as obvious aggravating factors to justify its imposition
of consecutive sentences of . . . Kahapea that . . . were clearly
without basis and not supported by competent evidence,” to wit,
that “the case involved the largest theft of public funds in the
26
‘FOR PUBLICATION IN WEST’ S HAMAI'T REPORTS AND PACIFIC REPORTER *
[city]'s history” and that “Kahapea tock public funds from a
financially strapped City . . . which could not have afforded a
loss in the magnitude of funds involved.” Kahapea further urges
that $1.7 million, the lesser and more recent of the two amounts
of stolen funds that the circuit court acknowledged, “although
substantial, was far less than . . . 5.8 million dollars
- ()] upon which the circuit court had based its [FOFs) in
imposing the five consecutive ten-year sentences of imprisonment
on October 19, 2000."
Next, Kahapea objects to the circuit court’s comparing
him to Chun, who, unlike Kahapea, apparently had “‘the funds to
repay the City.’ The circuit court could not, Kahapea asserts,
“impose total confinement . . . in response to nonpayment
resulting from (present) inability to pay (restitution].’"
(Quoting Gavlord, 78 Hawai'i at 154, 890 P.2d at 1194 (brackets
in original) .)
Kahapea further implies that the circuit court
misapplied HRS § 706-606(4), see supra note @: “(T]he only other
defendant . . . who served any jail time at all was. . . Hebaru,
who was @ major player in the. . . case, . . ." (Citations
omitted.) According to Kahapea, the circuit court noted,
contrary to fact, that “Hebaru cooperated with law enforcement
authorities and had agreed to testify against other defendants.”
citing State v. Ta , 96 Hawai'i 195, 199-200, 29
P.3d 914, 918-19 (2001), and State v. Sinacoga, 1 Hawai'i 421,
427, 918 P.2d 228, 234 (App. 1996), in its answering brief, the
prosecution argues that, “[a]bsent clear evidence to the
20
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contrary, it is presumed that a sentencing court will have
considered all” of the criteria listed in HRS § 706-606.
Furthermore, the prosecution contends that the circuit
court's order did not turn on an FOF precisely quantifying the
amount of stolen money. In any case, the prosecution implies,
the October 19, 2000 sentence could not have been illegal at the
time because the circuit court’s FOF that Kahapea had stolen only
$1.7 million occurred after sentencing, at its September 26, 2001
restitution hearing.
With respect to the comparative magnitude of Kahapea's
crime
) the prosecution indicates that Kahapea
as convicted of conmitting considerably more offenses than
the ether individvele to wom
Urahspes
unlike.
the mnind,”" who Stlagraneiy, without co
tithout shame, took advantage of h9 position
manipslate. [the] states relocation ews and orchestrate the
theft of $5.8 million.”
Bdgitienally, end unlike [Kshapes], his co-defendants
seemed to have taken responsibility, in varying degrees, for
their roles in his "fraudulent and deceitful bid=rigging
Schene.” The (COL) is supported by [Kehapea)’=
Scknowiedgnent in his Resentencing Motion thatl] *. .
Bebaro and. - - Kaghaaina testified at trial for the
(prosecution) plrsuant to ples agreements... - Donald
ane. Hashinoto-Abelaye dig not testify at trial
2" they changed their pleas apparently without any agreement
to testify, snd they Mere awaiting sentencing at the tine of
trial.” Finelly, a12 covdefendants are repaying noney
they illegally received; and in no case is the amount 25
great as she “51-7 million in public funds” the [circuit]
Sourt found chat (Kahapes) had personally received.
[kahapea|"s reference to the sentences of other
defendants merely Illustrates a different sentencing court's
Glecretion and does not demonstrate that the court thet
jentences him abused ite siscretion in imposing consecutive
ferme of imprisonsent.
(Some brackets in original and some added.)
28
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2. Analysis
This court has not circumscribed the particular weight
to be given the particular factors upon which Kahapea relies, but
the circuit court’s sentence is entitled to deferential appellate
review. “The [circuit] court ha[d] discretion to make the
punishment fit the crime(s], as well as the needs of the
individual defendant and the community.” State v. Teves, 4 Haw.
App. 566, 573, 670 P.2d 834, 838 (1983); State v. Pantoia, 89
Hawai'i 492, 497, 974 P,2d 1082, 1087 (1999) ("In ordinary
sentencing situations, the sentencing court is given a great deal
of discretion to fashion an ‘individualized’ sentence, ‘fitted to
the personal characteristics of the defendant,’ and ‘the
particular circumstances of the defendant's case.’) (footnote
omitted) (quoting Keawe v. State, 79 Hawai'i 281, 285, 901 P.2d
481, 485 (1995); State v. Huelsman, 60 Haw. 71, 85, 588 P.2d 394,
403 (1978)). Neither medical circumstances nor improvenents in
Kahapea’s attitude are compulsory mitigators. As the
Intermediate Court of Appeals stated in Teves, even “a disparity
among (defendants'] sentences does not establish that any
particular defendant's sentence is excessive.” 4 Haw. App. at
572-73, 670 P.2d at 638.
‘The circuit court acknowledged that the amount of money
that Kahapes stole could be as “little” as $1.3 million but
implied that the precise amount was immaterial to the sentence it
ultimately mandated; the circuit court reasonably placed greater
significance on the number of victims and their “innocent
bystander” status: “Even assuming the number to have been 1.3
28
‘FOR PUBLICATION IN WEST
HAWAI'T REPORTS AND PACIFIC REPORTER *
million dollars, this was 1.3 million dollars that a financially
strapped city administration could {11 afford to lose at the
time, It was a theft of funds not just from a particular entity
such as an insurance company. It was a theft of funds from ali
of us as taxpayers. The victims were numerous.”
With respect to Kapahea’s argument that he should not
be imprisoned “tin response to nonpayment resulting from
(present) inability to pay [restitution],‘" (brackets in
original) (quoting Gavlord, 78 Hawai'i at 14, 890 P.2d at 1194),
Kahapea mischaracterizes this court’s holding in Gavlord. In
that case, the circuit court had sentenced the defendant to
consecutive terms not because it “inten{ded) . . . that [he] be
imprisoned for an extended or enhanced period of time,” but
rather to prolong the HPA’s “jurisdiction and control over [hin]
- . . to see to it that [he] makes full restitution.” 78 Hawai'i
at 134, 154, 890 P.2d at 1174, 1194 (emphasis omitted). In Light
of the goals of incarceration enshrined in HRS ch. 706 and its
commentary, this court stated in Gaylord that, “at the very
least, (1) the sentencing court must expressly intend that the
defendant's period of incarceration be prolonged by virtue of the
consecutive character of the prison terms (the retributive goal),
and (2) the sentence must enbody the forward-looking aim of
future crime reduction or prevention (the deterrent goal).” 78
Hawai'i at 154, 890 P.2d at 1194 (emphases omitted). It was
because the trial court manifestly disregarded the foregoing
propositions that this court vacated Gaylord’s sentence. 78
Hawas'l at 185, 890 P.2d at 1195.
30
*POR PUBLICATION IN WEST’ S HAWAI'I REPORTS AND PACIFIC REPORTER *
Gaylord is therefore distinguishable from the present
matter. While sentencing Kahapea to consecutive terms, the
circuit court evinced no such impermissible goal as securing
restitution. At most, the circuit court implied that the fact
that Kahapes squandered the ill-gotten gains that he otherwise
could have returned as restitution was an aggravating
consideration: “this is a case . . . of @ person who says at the
end after all that is said and done, I have nothing to show for
it.” Cf. State vy, Mikasa, 111 Hawai'i 1, 8, 135 P.3¢ 1044, 1052
(2006). Kahapea’s implication that the circuit court punished
him for being poor is pure chutzpa.
on balance, the record on appeal reflects that Kehapea
effected a complicated schene through the manipulation of others
and at the profound and unrecoverable expense of taxpayers. Sse
supra part I.A.. While stern, the circuit court's sentence
furthers the statutory penological goals of retribution,
incapacitation, and deterrence and does not reflect “arbitrary or
capricious action” or “a rigid refusal to consider the
defendant's contentions.” See Rauch, 94 Hawai'i at 322, 13 P.3d
at 331.
c. Kehabea‘s Sentence Did Not Constitute Cruel and Unusual
‘Punishment
In his remaining point of error, Kahapea alleges that
his sentence constitutes cruel and unusual punishment. Citing
Solem vs Helm, 463 U.S. 277, 292-93 (1983), he asserts that “the
harshness of the penalty” in comparison to “the sentences imposed
on others in this jurisdiction” renders it unconstitutional,
particularly in light of: (1) his age at the time of sentencing
3
‘POR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER *
(fifty-seven); (2) his “hav[ing] lived a law-abiding life for a
substantial period of time before . . . the present offenses";
(3) his crimes being “unlikely to recur"; and (4) the circuit
court’s decision not to impose extended terms of imprisonment.
‘The standard by which punishment is to be judged under
the ‘cruel and unusual” punishnent provisions of both the
Unites Stetes and uawai(')i Constitutions 1e(} whether (,) in
the Light of developing concepts of decency and fairness,
the prescribed punishment te 20 disproportionate to the
conduct proscribed and is of such duration ss to shock the
Conscience of reasonable persons or to outrage the moral
Sense of the community.
State v. Freitas, 61 Haw. 262, 267-68, 602 P.2d $14, 920 (1979)
(citing State v. Iaukea, 56 Haw. 343, $37 P.24 724 (1975)),
quoted in State v, Jenkins, 93 Hawai"! 87, 114, 997 P.2d 13, 40
(2000); State vs Davia, 87 Hawai'i 249, 258, 953 P.24 1347, 1356
(1998); State vs Loa, 83 Hawai'i 335, 357, 926 P.2d 1279, 1258,
1280 (1996).
In part III.B.2, supra, we hold that, given (1) the
destructive, deceitful, and wasteful, albeit nonviolent,
character of Kahapea’s offenses and (2) the primacy of the
five
retributive, incapacitative, and deterrent objective:
consecutive ten-year terms of imprisonment does not reflect a
plain and manifest abuse of discretion on the part of the circuit
court. & fortiori, such a sentence is not so disproportionate to
Kahapea’s crimes nor of such duration as to shock the conscience
of reasonable persons or to outrage the moral sense of the
community, in light of developing concepts of decency and
fairness.
32
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IV. CONCLUSION
Accordingly, this court affirms the circuit court's
April 7, 2005 order.
on the briefs: y)
Richard Naiwieha Wurdenan
for defendant-appellant
Michael Kahapea Shear Ppvrimer—
Donn Fudo, deputy S
prosecuting attorney, ein eadeet re
for plaintiff-appellee
State of Hawai't
|
ad7b3cf1-75cd-4f42-88e0-ee9f3941defb | Jacks Tours, Inc. v. Kilauea Military Camp. | hawaii | Hawaii Supreme Court | LAW LIBRARY
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in West’s Hawai'i Reports and the Pacific Reporter
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
‘000--~
JACK’S TOURS, INC., Complainant-Appellant
9002
3
KILAUEA MILITARY CAMP, Respondent -Appell
gawd
SULHY 624.
No. 27442
APPEAL FROM THE PUBLIC UTILITIES COMMISSION
(PUC DOCKET No, 01-1-0141)
SEPTEMBER 29, 2006
MOON, C.J., LEVINSON, NAKAYAMA, AND DUFFY, J.; CIRCUIT
SUDGE NISHIMURA, "IN PLACE OF ACOBA, J”, RECUSED
OPINION OF THE COURT BY MOON, C.J.
Complainant -appellant Jack's Tours, Ine. (Jack's Tours)
appeals from the June 17, 2005 decieion and order of the state of
Hawai'i Public Utilities Commission (PUC) in favor of respondent-
appellee Kilauea Military Camp (HC). The PUC dismissed Jack's
Tours’ complaint for lack of subject matter jurisdiction,
concluding, inter alia, that the Supremacy Clause of the United
States Constitution, quoted infra, preempts any etate regulation
over HMC.
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On appeal, Jack’s Tours claims that the PUC erred in
Gismissing ite complaint for lack of subject matter jurisdiction.
For the reasons discussed below, we affirm the PUC’s June 17,
2005 decision and order.
A. Factual Backsround
WMC is a *Joint Services Recreation Center* located in
Hawai'i Volcanoes National Park on the island of Hawai'i, state of
Hawai'i (the Big Island) and ie owned and operated ’by the federal
government. MC offera acconmodations, anenities, and tour
packages over the public highways on the Big Island.
Specifically, it advertises on its website that it ‘is a resort
with a surprising array of amenities and activities" and that its
tours “cover the many wonders of the Big Island.* HMC “is open
to all active and retired military, Reserve and National Guard
members, current and retired Department of Defense civilian
employees, dependents, and sponsored guests."
Jack's Tours is a privately owned and operated tour
company that operates tours for the general public over the
public highways on the Big Island. According to Jack's Tours,
because it is @ “common carrier by motor vehicle** (hereinafter,
common carrier], it is required to, and does, have a “Certificate
2 Hawai's Revieed Statutes (HRS) § 271-4(21) (Supp. 2005) defines
sconnon carrier by motor vehicle" as "any pereon which holds iteel! out to the
genera: public to engage in the transportation by motor vehicle of passengers
Or property of any class or Classes thereof for compensation."
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of Public Convenience and Necessity" (CPCN) issued by the PuC,
pureuant to HRS § 271-6 (1993).7 In addition, Jack's Tours
claina that several of its tours “closely resemble" tours offered
by KMC, Jack's Toure alleges that KNC’s website not only states
that KC offers tours to ‘all active and retired military,
Reserve and National Guard members, current and retired
Department of Defense civilian employees, dependents, and
sponsored questa,” but that XC also offers tours to “others.”
vack’s Toure further alleges that information pertaining to the
tours offered by KMC is available on its website and that KMC
‘will provide such information by mail to menbers of the general
public.*
Jack's Toure claims that, on January 29, 2004, “HMC
buses were sighted transporting a group of ‘Kina Haina School
students and their chaperones.” In its view, such “cour
appear[s] to involve the traneportation of menbers of the general
public and their property for compensation/hire over the public
highways on the (Big Island] by KMC[.]" According to Jack's
+ HRS § 271-8 provides that, *[e)xcept as provided in section 271-5, a0
person shall engage in the transportation of persons or property, for
Compensation or hire, by motor vehicle, over any public highway of this state
unless there ie in force with respect to the person a certificate or permit
Gteued by the {PUC] authorising the transportation.” (Emphasis added.)
Section 271-5 (Supp. 2005) sete forth numerous exewptions from complying with
chapter 271, which are not at issue in the instant case. HRS § 271-4 (4)
(Supp. 2005) defines “certificate” as a CPCN.
we also note that HRS § 271-22 (1993) specifically provides in relevant
part that “no person shall engage in the business of a cotmon carrier by motor
Vekicle on any public highway in this state, unless there is in foree with
Yespect to such carrier a (CPCH) issued by the (PUC] authorizing sucn
operation,
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Tours, the students and their chaperones had earlier spent two
nights at KMC and were transported throughout the day by xc
buses to several destinations on the Big Ieland. Consequently,
Jack's Tours clains that, because KMC allegedly “holds itself out
an entity engaged in the
to the general public*
transportation by motor vehicle of passengers and property for
compensation[,]* KMC is a common carrier and, therefore, subject
to regulation by the PUC. The record does not indicate whether
a cPCN,
1010 posses!
B. Procedural History
fon Sune 4, 2008, Jack’s Tours filed a complaint against
WoC with che PUC, alleging that KMC is a common carrier and,
thus, subject to the PUC’s regulation. Jack's Toure alleged that
HMC was transporting members of the general public over the
State's highways in exchange for compensation without a CPCN, as
required by HRS § 271-8. Moreover, Jack's Tours claimed that the
Supremacy Clause,’ the preemption doctrine,‘ and the “federal
> Article Vz, 61. 2 of the United States Constitution provides:
This Constitution, and the Laws of the United states which
shall be nade in Pursuance thereof; and all Treaties nade,
or which shall be nade, under the Authority of the United
States, shall be the suprene Law of the Land; and the Judges
in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State co the Contrary,
notwithstanding.
+ According to the preemption doctrine,
(tlhe Supremacy Clause invalidates atate laws that
interfere with, or are contrary to, federal law. congress
nay preempt state law in several different ways. Congress
preemption). iven in the
(continued, .
tay do so expressly (expre:
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enclave exception"? do not provide KMC with inmunity from the
State moter carrier law, as codified in HRS chapter 271.
Specifically, Jack's Tours alleged that “{nlon-military tours
that transport members of the general public over the public
highways on the (Big Island] do not constitute an essential
governmental function.*
According to Jack’ KMC's violation of HRS
§ 271-8 “injure(e] PUC regulated motor carriers, such as Jack's
Tours, by promoting unfair or destructive competition and
providing HMC with an undue preference and advantage."
Specifically, Jack’s Toure asserted that, although it ‘and all
other motor carriers{] mist abide by rates regulated by the
Imlotor [clarrier DJawl, i.e, HRS chapter 272] and the [PUC),
KC is able to provide attractive and substantially discounted
“Cs contsnues)
‘abeence of express preemptive text, Congress’ intent to
preempt sn entire field of state law may De inferred where
the schene Of federal regulation is sufficiently
Comprehensive to make reasonable the inference that Congress
Tete no room for supplesentary state regulacion (field
Preemption). State law alo is preempted when compliance
With both stave and federal law ia imposaible, or if the
operation of state law stands as an obstacle to the
‘secomplishment and execution of the full purposes and
Objectives of Congress (conflict preemption)
Ite Cybernetic Serve., Ine., 252 7.34 1039, 1085-46 (9th cir. 2003)
(Snternal quotation narks and’ citations omitted) «
+ gack's Tours descrined a federal enclave as “an area of land owed by
the United States, ownership of which had been (2) consented to by the state
In'wnicn the land’ is locates». - snd (2) sf after 1940, formally accepted by
the United states." (Citations omitted.) "Under the federal enclave
Goctrine, a state loses the right to leglelate with respect to activities
occurring in the enclave unless it reserved ite right to do so when it
Consented to the purchase of the property by the United st, ‘Sundaram v.
Brookhaven Nat"l Labs., 424 7. Supp. 24545, 569 (B.D.N.Y. 2006) (esting Paul
Youuited dcates, 371 U.8, 245, 268 (2963)
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rates to menbers of the general public who would otherwise be
customers of PUC regulated motor carriers.” Thus, Jack's Tours
requested the PUC to find KNC in violation of HRS § 273-8 and
issue Yan order to show cause as to why KMC should not
and desist from transporting members of the
inmediately ce:
general public on tours that travel over the public highways on
the (Big Ieland], unless KNC applies for and obtains a CPCw.*
on June 8, 2004, the Division of Consumer Advocacy of
the Department of Commerce and Consumer Affaire (consumer
advocate) advised the PUC that it would not participate in the
instant proceeding, pursuant to Hawai'i Administrative Rules
(HAR) § 6-61-62." On July 30, 2004, KMC filed its answer to the
complaint. NC asserted that, as a “non-appropriated fund
instrumentality" (NAFT),” it is entitled to immunity from
regulation by the PUC unless Congress expressly consented to such
«wR § 6-63-62 provides in relevant part
(a) The consumer advocate 1a, ex officio, a party to
any proceeding before the [2UC). The consumer advocate
Shall, except as noted herein, subait a statement of
position to the [Pic], with sérvice to the parties of
Fecord, stating:
ia} "Whether it intends co participate in the
proceeding[.]
* AUMAFI "is one which does not receive its sonies by congressional
appropriation." Unites States v. Hopking, 427 U.8. 123, 125 n.2 (1976),
(eltations omitted); se@ alse ates, 365 F.3d 1353, 1957
(Fed. cir. 200¢) ("The sine qua poh of all WAPIs is apparent in their names
they do not receive appropriated funds. Ae a result, all NAFIe are government
“ingtromentalities’ that are at least essentially eelf-supporting.*); The
United Staten Suprene Court vhas repeatedly recognised that WAPIs are ‘arm of
the governsent’ decnad “essential for the performance of governments:
functions." Lion Raising, inc, v, United states, «16.3 1386, 1363 (Ped.
Cir. 2005) (quoting standard Oil co. v. Johnson, 336 U.s. 462, 425 (1942))
(other citations omitted)
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regulation. According to KMC, because “Congress has not enacted
any statute granting the . . . PUC jurisdiction to regulate any
aspect of KC bus tour operations{,]" ERS chapter 271 does not
apply to NAFIs such as KMC. Moreover, KMC claimed that it “does
not hold iteelf out to the general public as a conmon carrier
rather, it ‘offers ite services only to the authorized patronage
group provided for in federal regulations.” MC further alleged
that the "PUC lacke juriediction and is not the correct tribunal
to make a finding that actions of a federal (NAPI]. ie [sic] not
engaged in a federal governmental function.” Thus, KNC requested
that the PUC dismies the complaint.
on September 10, 2004, the PUC entered an order
stating that, “[ulpon review of the pleadings, the (PUC]
concludes that {,] prior to scheduling an evidentiary hearing in
this docket, it must determine whether it has subject matter
jurisdiction to hear and decide upon the {clomplaint.
Consequently, the PUC ordered the parties to file supplemental
briefing solely on the issue ‘whether the [PUC] has subject
matter jurisdiction to hear and decide upon this complaint
on September 27, 2004, KMC filed its supplemental brief
with the PUC. EMC contended that, “[albsent specific
Iclongressional waiver of immunity[,] State regulations would not
apply to federal governmental (morale, welfare, and recreation
(wR)] operations, such as KC." Generally, the MWR program is a
quality-of-life program that is intended to support readiness “by
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providing a variety of community, soldier, and family eupport
activities and services.” Army Regulation (AR) 215-1 § 1-7(a);
Latchum v, United States, 183 F. Supp. 24 1220, 1223 (D.
2001). The MAR program is designed to meet the needs of those
involved with a military installation, including not only the
soldiers, but also retirees and civilian employees, aa well as
their families. AR 215-1 § 1.8(a); Latchum, 163 P. supp. 2d at
ciated with military
1223. According to KMC, “all NAFI [8]
and naval operations are (part of the MUR program] governed by
Department of Defense (DOD) Directive 1015.2." See, e.g.,
Lakchum, 163 F. Supp. 24 at 2223-24 (stating that the Waianae
Army Recreational Center (WARC) “ie an Army [NAPI] of the United
States" and that “NAFIs like WARC are considered integral and
essential to the conduct of the military mission") (citations and
internal quotation marks omitted). “The (DOD) recognizes that
MWR programs are vital to mission accomplishnent and form an
integral part of the non-pay compensation system." id. at 1224
(internal quotation marke and citation omitted). Jack's Tours
does not appear to dispute that WIC is operated as part of the
Aray's MR program.
In its supplenental brief, KMC specifically claimed
that “Congress has made morale and welfare of the nenbers of the
armed services a governmental function and [the] responsibility
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of the Secretary of the Arny[.]" (Citing 10 United states Code
(V.8.C.) § 3013(b) (3).*) Moreover, KMC argued that
Af{,] mypothetically|,) MHC were found offering services to
the’ *generai public,” that would be an infraction of the
Eeceral regulation governing KMC. Such an infraction of
feceral regulations would be a matter for the eppropria
federal authorities to resolve, got the (RUC). That factor
pppears £0 go to the heart of the issue of subject matter
juviediction in this proceeding
(Emphases in original.) In response to Jack’s Tours’ allegation
that WC was offering tours to the general public by transporting
‘Aina Haina students and their chaperones, HMC asserted that
“{e]he [clomplaint does not plead facts that would assure the
[Puc] that passengers outside the eligible patronage group. were
involved in the tours in question." KNC maintained that,
*{u)ndex applicable federal regulations, KMC bus tours may
include the students and/or chaperones of ‘Sina Haina School if
they are dependents and/or sponsored guests, i.e., persons within
the KNC federally authorized patronage group." Thus, KMC urged
the PUC to dismiss the complaint for lack of subject matter
jurisdiction.
+ 20 v.8.c. § 3013(b) (9) provides:
() Subject to the authority, direction, and control of the
Secratary of Defense and subject to the provisions of
chapter 6 of this title, the Secretary of the Aray is
Fesponsible for, and hag the authority necessary to conduct,
allvatfaize of the Deparenent of the Army, including the
following functions:
is) Administering (including the morale and welfare of
personnel)
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On September 30, 2004, Jack's Tours filed ite
supplemental brief with the PUC. Jack’s Tours contended that
TKMC ie not exempt from [the PUC]’e jurisdiction as a NAFI for
services that it offers to the general public." (Capitalization
altered.) specifically, KMC argued that, “just because KNC is a
NAFI establishment does not ipso facto cloak KNC with
." In addition, Jack’ s
governmental inmunity for all ite busin
Tours claimed, “assuming arguendo that XNC is a NAFI, Jack's
regulation of KMCis activities
Tours is not seeking thle Puc)’
provided to authorized patrons, such as active duty military
personnel, menbers of the reserves or national guard, retired or
civilian (DOD] employees, their families, and their authorized
guests.” Instead, Jack’s Tours asserted that it sought the PUC's
‘regulation only of Wic’s activities that are directed at and
provided for menbers of the general public, which would be in
direct competition with Jack’s Tours and other PUC regulated
motor carriers on the (Big Island].* (Emphasis in original.)
Moreover, in response to KMC’s allegation that Jack’s Tours did
not plead facts that would assure the PUC that the ‘Aina Haina
students and their chaperones were outside the “federally
authorized patronage group,” Jack's Tours argued that
only investigation by che FuC or discovery in this cage will
yield the requisite information and evidence relating to
foic's claim it does not offer tour services to sembere of
the general public over the public highways of the state or
that'ail of its customers are within the *eligible patronage
group" or “sponsored queste" and therefore not subject to
Poe jurisaietion, (The Puc], at the very least, has
jurisdiction to determine whether iC is offering and
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providing toure to the general public over the highways of
Riis State and to regulate those activities
Purthernore, FMC appear® to be alleging that al]
nenbers of the general public may be “sponsored queste” of
nc, ag long as they can find someone who will sponsor chem,
Fegardiese of relation. Thia fs an extremely broad
[sterpretation. This surely ig not the intent of (AR)
ais 1, which specifically contemplates use of IC faciliti
prinatily by active duty personnel, with "incidental" guest
(Emphases omitted.)
Jack's Tours also contended that the PUC “is not
preempted from exercising jurisdiction over KNC for services
provided to the general public under the Supremacy Clause.”
(capitalization altered.) specifically, Jack’s Tours argued that
the PUC's regulation of KC would not constitute impermissible
direct or indirect regulation of the federal government.
Finally, Jack’s Toure submitted that *KMC is not exempt from [the
PUC]'s jurisdiction under the federal enclave exception.”
(capital letters altered.) Thus, Jack's Tours urged that the PUC
has jurisdiction to hear and decide the allegations asserted in
ite complaint.
on dune 17, 2005, the PUC entered its decision and
order, dismissing Jack's Tours’ complaint for lack of subject
matter jurisdiction. Specifically, the PUC stated:
WC 1 under the control of the Secretary of the Arey,
he auth scm
‘Eecrotary of Defense. 10 (U.8.C.1 $0215) (3). “mere the
federal aovernsent bas not aranted a state authority to
Kequlata «federal aovernnent function, the supremacy Clause
Thus cunvent in jenacy Clause. the (PUL
rat
one
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Neither can the [pUC] assune jurisdiction over « NAPZ,
such a8 WHC, az Jack's [Toure] argues the [PUC) should do
ie are not duthorized to sake a determination on Jeck's
(fours’] allegation that JIC 1a not a WAPI because it
provides ite transportation eervices to renbers of the
General public beyond ite authorized patronage group. iret
of all, Jack's (Tours’) aeseztion thst the group from Aine
Raina Bleventary is not authorized by #HC'e rules and
Fegulations is speculative. Even assuming!) arguendot) thet
this assertion is true, the [PUC] is unable to determine
that WMC in in violation of ita rules and Fegulations, and
therefore not a NAPI ag alleged by Jack's [Tours], because
Ae would require « consideration and analysis of the
relevant DOD directives and Aray regulations, which ie not
within our jurisdiction onder HRS (elhapter 271,
‘the same can be sald for Jack's {foura’] assertion
that the federal enclave exception does not provide HNC with
‘exemption fron (pUC) jurisdiction. Againi,) assuming]
arauendo() that Jack's (Tours) is correct in ita assereion
That the State has reserved Jurisdiction over violations
committed on public highways, outside of tre federal
enclave, ‘the {PUC} would stiil have to establien that a
breach Of either the DOD directives or Army regulations by
HNC has occurred, which ales is not within’ (POC!
Jurisdiction purouant to Keo (elhapter 271.
(Emphasis added.) Consequently, the PUC concluded that it was
the allegation in the
vnot the appropriate forum to addres!
(ours! complaint
(clomplaint” and that, *to the extent Jack’
pertains to the allegation that (KMC] is in violation of any
federal regulation, under the facts and circumstances of this
ease, the appropriate forum for such a dispute is with federal
authorities. Accordingly, the PUC dismissed the complaint
without prejudice.
On dune 29, 2005, Jack's Tours filed a motion for
reconsideration of the PUC's decision and order, pursuant to HAR
n12-
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§ 661-137," Jack’s Tours requested the PUC to reconsider and
reverse the June 17, 2005 decision and order, contending that:
Nothing in the plain language of ERS {cJhapter 271
Linite [the PUC]'# jurisdiction to privately omed motor
carriers. The plain language of Hrs. [cJhapter 271 simply
Fequires an allegation that an entity has been holding
itself out to the general public as a sctor carrier. .
‘Jack's Tours did not allege or ask (the PUC), ab a
threshold natter, to review any federal rules and
Fegulations in determining that KMC was acting as a ‘motor
carrier.” Tal1i Jack's Tours requested (ehe PUC) Co
do ae a threshold water wae to review State statutory
Provisions and PUC Tules to determine a violation of HRS
Fave... Thle Puc) has been specifically directed by
the Stace iegisiature to administer HRS [clhapter 271, a8
ums} 6271-3 (3983) (], and accordingly to determine
hether an entity has been holding itself out to the general
Public. “If not the [PUC], who has authority to determine
Sihether an entity is acting as = "motor carrier" pursuant to
HRS. (elnapter 274? re surely cannot be the federal
judiciary, a this threshold question is purely a matter of
Seate lew
* YAR § 6-62-137 provides in relevant part that the motion for
reconsideration "shall Be filed within ten daye after the decision or order i
Served upon the party, setting forth specifically the grounds on which the
movant considers the deciaion oF order unreasonable, unlawful, or erroneous."
RS § 272-1, entitied “Declaration of policy,” provide
the legislature of thie State recognizes and declares
that the transportation of persons and of property, for
comercial purposes, over the public highways of this state
Constitutes a business affected with the public interest.
Te is intended by this chapter to provide for fair and
impartial regulation of such trangportation in the interest
of preserving for the public the full benefit and use of the
highways consistent with the public safety and the needs of
Comerce; to promote safe, adequate, economical, and
efficient service and foster sound economic conditions in
Exansportation and among the several carriers, co encourage
the establishment and maintenance of reasonable rates ara
Charges for transportation and related accessorial servic
Without unjust discrimination, undue preference or
Advantage, oF unfair or destructive competitive practices
‘This chapter shall be adzinistered and enforced with a view
fo carrying out the above declaration oF policy.
HRS § 271-2 (2993) provides that *[:)his chapter(, ive., chapter 273,] shall
be administered by the [7UC.]"
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once thle PUC) determines that MHC ie indeed holding
itweit out to the general public as a vmotor carrier chat
would ordinarily be subject to PUC regulation, the {PUC]
Must then determine whether WHC is nonetheless protected
fron PUC reguiation by virtue of ite statue as a MAPT. or
1¢ Supremacy Clause or Federal Enciave xcept ion.
on duly 12, 2008, the PUC entered an order denying
Jack’s Tours’ motion for reconsideration. Jack's Tours tinely
appealed on August 10, 2005.
31, STANDARD OF REVIEW
“The existence of subject matter jurisdiction is a
question of law that is reviewable de nove under the right/wrong
standard.” ames Funding Corp, v, Mores, 107 Hawai'i 95, 98, 110
P.3d 1042, 1045 (2005) (internal quotation marke, brackets, and
citations omitted).
TIT. piscussion
Jack’s Tours contends that the PUC “ie not preempted
from exercising jurisdiction over KMC for services provided to
the general public under the Supremacy Clause.” (Capital letters
altered.) Specifically, Jack's Tours argues that, although "it
is true that KMC, as a NAPI, may be an ‘instrumentality’ of the
federal government for some purposes, that status as a NAFI does
not automatically exempt KMC from atate regulation in certain
situations." Jack's Tours relies on Armed Forces Cooperative
Insuring Ass’n v. Department of Ineurance, 622 P.2d 1318 (Wyo.
wns § 271-33 (1993) provided in relevant part that, *{f]rom the
order sade on an application for reconsideration or rehearing by the [POC]
Under this chapter: shall Tie & ‘eaurt subject to
chapter 602 in the sanner and within the tine proviced by chapter €02, and by
the rules of court, provided the order is final{.)* (Bmphaeis sided.)
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in West’s Hawai'i Reports and the Pacific Reporter
1980), overruled on other arounds by Torres v. State ex rel.
wyoming Workers’ Safety & Com, Div., 95 P.3d 794 (Wyo. 2004),
and Paul v. United States, 371 U.S. 245 (1963), in support of ite
foregoing contention. In addition, Jack’s Tours asserts that,
yuming arquendo that KMC is able to prove that it is #0
“felven
to render it
closely connected with the federal government
indistinguishable from the federal government itself, this would
not entitle WC to immunity for services it provides to the
ie omitted.)
general public.” (Bmph
KNC, however, contends that ‘it is unquestionable that
[it] {9 @ federal instrumentality entitled to immunity from state
vegulation under the Supremacy Clause.” Specifically, HMC argues
that:
im conformity with (AR] 215-1, KC has been established as a
[APT]. HC exists to promote governnent purposes —~
including military morale, recruitment, and retention ~~ and
is ‘legally const itueed a an ‘instrumentality of the United
States." NC's funds are considered government funds; its
Property Je governnent property, and it operates under’ the
Authority of the United states and subject to
Telongreseional review. I's finances and property are
algo subject to oversight, inventory, control, and audle by
Officials in the Defense Department, and ite Operations are
overseen by a council that includes active auty wilseary
Personnel appointed by the local garrison comnander or hi
delegates
WHC ie thus a creature of federal statute and
regulation, whose operations are overseen (and, in some
Sizcunscances, strictly controlled) by federal officials,
and whose profits and services exist for the benefit of
federal military personnel. Indeed, Because of the close
Link between NAFI® such ag KMC and the United Sates, and
the attendant responsibilities and duties that accompany
that link, the Secretary of the Aray has explicitly stated
Chat ic *- ‘and all similar MAPIs ~~ are “entitied vo the
Sane sovereign privileges and ismuniti
Iglovernnenc." “The operations of THC are thus fede
functions which "mist be left free of regulation’ absent “a
clear congressional mandate to the contrary.
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in West's Hawai'i Reports and the Pacific Reporter
(Citations omitted.) Accordingly, KMC concludes -- and we agree
- that *[cllaims that a federal instrumentality hae failed to
comply with its own regulations do not alter the analyeie, such
jertions raise issues of federal law to be resolved by an
F such clains.”
agency or court with jurisdiction to hi
Generally, ‘where Congress does not affirmatively
declare its instrunentalities or property subject to regulation,
the federal function mist be left free of regulation." Hancock
vs Train, 426 U.S. 167, 179 (1976) (internal quotation marks and
footnote omitted), gubstantive holding superseded by statute as
stated in United States v. Penn. Envtl. Hearing Bd., Sea F.2d
1273, 1280 n.22 (34 Cir. 1978). In other words, *[blecause of
the fundamental importance of the principles shielding federal
installations and activities from regulation by the States, an
authorization of state regulation is found only when and to the
extent there is a ‘clear congressional mandate(]’ [or] ‘specific
congressional action’ that makes th[e] authorization of state
regulation ‘clear and unambiguous.’" Id. (footnotes omitted) ;
see Goodvear Atomic Corp. v. Miller, 486 U.S. 174, 180 (1988)
(stating “[i]t is well-settled that the activities of federal
installations are shielded by the Supremacy Clause from direct
state regulation unless Congress provides ‘clear and unarbiguous’
authorization for such regulation") (citations omitted); Albrecht
¥. Comm, on Employee Benefits of the Fed, Reserve Gmplovee
Benefits Svs., 357 F.3d 62, 67 (D.C. Cir. 2004) (concluding that
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in West’s Hawai'i Reports and the Pacific Reporter
*{f]ederal agencies or instrunentalities performing federal
functions always fall on the ‘sovereign’ side of [the] fault
Line; that is why they possess immunity that requires waiver*)
(internal quotation marks and citation omitted) (emphasis and
brackets in original).
In the seminal case of Standard Oil Co, of Cal. v
Supreme Court
dohngon, 316 U.S. 481 (1942), the United stat;
determined that Army post exchanges" are “arms of the government
deemed by it essential for the performance of governmental
functions. They are integral parte of the War Department, ["]
share in fulfilling the duties entrusted to it, and partake of
whatever immunities it may have under the constitution and
federal statutes.” Id, at 485. The Supreme Court relied on
several factors in reaching its conclusion that post exchanges
operate as “arms of the government”: (1) "post exchanges operate
under regulations (promulgated by] the Secretary of War [*]
4 sme object of (post) exchanges is to provide convenient and
reliable sources where eoldiere can obtain thelr ordinary needs at the lowest
possible pric their families, and civilians esployed on military
posts here and abroad can buy at exchanges.” Standard Oil, 316 U.S. at 484-
as
1) wme Kar Departnent was the predecessor agency to the Department of
the Aray.* Boman vs United States, 846 P. Supp. 979, 983 (M.D. Fla. 1994)
In turn, the "DoD comprises Gunefous components including the various military
agencies, such as the Army, Navy, and Air Force.” Mat] Res, Def, Council v_
United states Dep't of Def., 368 F. Supp. 2 1086, 1093.7 (C.D. Cal. 2005)
the Secretary of War is now known as the Secretary of the Army.
mnvtL. Defense Bund v. Marah, 651°F-24 963, 1002 0,24 (Sth Cir, 198i)
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pursuant to federal authority”; (2) Congress had recognized these
activities as "governnental,” with the profits “used to improve
creation, and
the soldiers’ mess, to provide various types of
in general to add to the pleasure and comfort of the troops”; and
(3) “the conmanding officer[,] subject to the regulations and the
commands of his own superior officers, has complete authority to
establish and maintain an exchange." Id, at 483-85.
Likewise, in Department of Employment v. United states,
385 U.S. 355 (1966), the Supreme Court concluded that the
American National Red Cross (Red Cross) is an instrunentality of
the federal governnent “for purposes of immunity from state
taxation levied on its operations{.]* Id. at 358. Although the
Supreme Court stated that “there is no simple test for
ascertaining whether an institution is 0 closely r[e) lated to
governmental activity as to becone a tax-inmune instrumentality,”
Ad. at 358-59, the Court relied on the following factors in
determining that the Red cross is "clearly* an instrunentality of
the United States: (1) the Red Cross was chartered by Congress;
(2) it is subject to supervision and audit by the federal
government; (3) its principal officers and several of its
governors are appointed by the President of the United states;
(4) it performs a variety of important federal functions
“indispensable to the workings of our Armed Forces around the
globe"; and (5) it “receives substantial material assistance from
the [fJederal [glovernment." Id, at 359-60. Cf, Fla. Dep't of
o1e-
FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
Revenue v. Naval Aviation Museum Found., Inc, 907 So. 24 586,
589-90 (Fla. Dist. Ct. App. 2005) (determining that a nonprofit
aviation foundation that operated a gift shop within the federal
government's naval museum was not an instrumentality entitled to
immunity on the bases that it was a charitable corporation
establiehed under the laws of Florida for “the specific purpose
of being ‘unfettered’ by government control,” it was not operated
by federal employees, the federal government does not regulate,
superviee, or appoint members of the governing board of the
not fulfill an essential
foundation, and the foundation “do
function of governnent*) .
Here, Jack's Tours does not provide any authority to
the contrary that EMC is an instrumentality of the federal
government or that KMC is operated as part of the Aray’s MMR
program. Jack's Tours stated in ite complaint, and KMC agreed in
its answer, that KMC is “owned and operated by the federal
government." As previously stated, 10 U.S.C. § 3013(b) (3)
provides that, *[s]ubject to the authority, direction, and
control of the Secretary of Defense . . . , the Secretary of the
Army is responsible for, and has the authority necessary to
conduct, all affairs of the Department of the Army, including(,
inter alia, aJdministering” “the morale and welfare of
personnel []." See supra note 8, In addition, 10 U.8.c.
§ 3023(g) (2) provides that the Secretary of the Army may
‘prescribe regulations to carry out his functions, powers, and
n19-
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duties under this titlel, ise, Title 10, relating to the Armed
Forces]." The Secretary of the Army has promulgated AR 215-1,
which “implements [DoD] and congressional policies{)* and
‘contains administration, operation, and management policies
[Mme] activities [] and [NAFIs).“ as
governing the Army’
previously mentioned, Jack’s Tours does not dispute that KMC
“exists to promote government purposes -- including military
morale, recruitment, and retention[.]" AR 215-1 § 1-9, entitled
*(mR] program objectives," provides that the MWR program:
‘A. Supports conbat readiness and effectivenes
3. Supports reeruitnent and retention of quslity
personne!
fo "Provides leisure time activities which support
quality of Life comensurate with senerally accepted
Keerican values
2. “Promotes and maintains the mental and physical well-
being of authorized personne?
fe. Fosters community pride, soldier sorale, and family
welinesa; promotes unit eeprit de compe.
£. Eages the impact of unique aspects of military lite,
such as frequent relocations and deployment.
% on appeal, Jack's Tours appears to attack MIC's reliance on AR 215-1
by merely stating that it i¢ "questionable" whether AR 215": ie sthe type of
Fegulation{) contemplated @ {a} *federal regulationj.'# However,
Sesthorised War Deparesent(, Ale", Separtment of tie Army, 20 supea note 23,)
regulations have the force of iav.r Rtandard Ol, 316 018."s8 484 (footnote
Guitted). See also Levy v. Dillon, 286 F.Supp. $93, 596 (D. Han. 1568)
(eating that Aimy cegclations, unless inconslavent with exieting sratuto
gnactnents, have the force of law) (citations omitted); Brame v. Garner, 102
S:B.24 252, 293 (5.C. 1957) (stating that “(a)uly authorized and promulgated
Aimy Reguit one have the foree of faye) cleatlon/enitted ut Ras Hamed &
Child, Inc.-v. shearer, 290 S-¥.24 790, 794, a8 modifi oth
(hy. ©. App. 7956) (atating that a Nay Depavenant regulation tis, ef coor
not binding on ehie court, But ts entitled to be given weight")
Nevertheless, vack's Tours Staeif feller on the valsaity of AR 215-1. For
Sxanple, Jack's Toure contends that *Kic’s brosd interpretation” of “spessored
Guests" does not conport with "the intent of (aR) 715-1, which specifically
Gontenpiaces use of KMC facilities prinarity by active duty personnel, with
SGneigestal’ guest use." Jack's Tours algo alleges that (ak) 225-1 Confirms
that NAFIa are limited to serving certain patrons."
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AR 215-1 § 6-2 further provides in relevant part that "MWR
prograns are established primarily for active duty (AD) military
personnel (and such] personnel receive first priority for
participation or use if space is limited.” As previously stated,
KNC's website provides that HNC, as a joint services recreation
center, offers accommodations, amenities[,] and tour packages”
and “is open to all active and retired military, Reserve and
National Guard members, current and retired [DoD] civilian
employees, dependenta[,] and sponsored guests." As such, it
jonably can be said that the services provided by KMC are
“integral and essential to the conduct of the military mii sion.”
See, 2.92, Latchum, 163 P. Supp. 2d at 2223-26 (recognizing that
the Waianae Army Recreational Center, which is operated aa part
of the Army's MWR program and provides vacation cabine for rent
for an authorized patronage group, primarily, menbers of the
military and their families, are “considered integral and
essential to the conduct of the silitary mission") (internal
quotation marke and citations omitted). Furthermore, as KNC
points out, “garrison conmanders* “plan, manage, fund, and
operate MiR/Lodging prograns and services[.]* AR 215-1 § 2-sb.
Specifically, KIC stated that *[e]he relevant chain of command
from the [KMC] tour bus operations to [sic] begins with Me. Bruce
P, Taylor, Base Operations and Services Manager for HNC, who
reports to Mr. Randy Hart, Director of HMC, who reporta to Mr
‘Ted Otaguro, Director of Commander Activities, U.S. Army
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Garrison-Hawai"i, who reports to Colonel Howard J. Killian,
Commander, U.8. Army Garrison-Hawai‘i, located at Schofield
Barracks, HI."
Thus, in light of the foregoing, it can be said that
KMC is an ‘arm[] of the [federal] government dened by it
essential for the performance of governmental functions” and
‘ohare [o] in fulfilling [the] duties entrusted to it,” thereby
*partak[ing] of whatever immunities it may have under the
[federal cJonstitution and federal statutes.” Staridard O11, 316
U.S. at 485 (citations omitted). See, e.a., Maynard & child, 290
S.W.2d at 794 (concluding that an officer's club organized under
Army regulations, providing van officers’ mess and various other
recreational services for the members” and “subject to the
control of the commanding officer of an Army post and managed by
Army officers’ was an inetrunentality of the United states,
vunless{, inter alia.) the proof shows that the [officer's club]
was not in fact an officer’s club under the War Department
regulations”); Brame, 101 $.£.2d at 293-94 (determining that an
amy officers’ sess organized under provisions of ary
regulations was innune from suit under federal law by which the
State of South Carolina and its courts are bound). stated
Gitterently, HNC is an “instrunentalit y] of the United states
and@[,] thus[,] enjoy[s] governmental immunity." United States v.
New Mexico, 455 U.S. 720, 736-37 (1982) (stating that the Suprene
court's “other cases describing the nature of = federal
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instrumentality have used [such] language [as]: ‘virtually an
arm of the Government,’ Dep't of Employmes
‘integral parte of a governmental department,’ and ‘arms of the
385 U.S. at 259-60,
Government deemed by it essential for the performance of
governmental functions,’ Standard Oil, 316 U.S. at 485")
(ellipsie and brackets in original omitted) .
Moreover, Jack's Tours’ reliance on Armed Forces
Cooperative Insuring Asa’n v, Department of Insurance
(hereinafter, AFCIA] is misplaced. In that case, the appellant,
AFCIA, wi
fan unincorporated "Non-Profit Military Association*
Stganised in 2877, vith its headquarters continously
Yoeated on the United states Military Reservation at Fort
Leavenworth, Haneas, where, it contends, it has its only
Offices, agente(,] and employees. [AFCIA] comprises some
36.000 active and retired members of the arsed services. On
the many military reservations around the world, APCIA is
Organised, authorized and deaignated by both the Departeent
ofthe Arty ang Departrent of ene Navy (including the Marine
Gorpe) as an official "Non-Profit Military Association. It
{e'aleo recognized by the (DOD] as a "Non-Profit Military
Association.”
622 P.2d at 1323 (footnotes omitted). AFCIA contended, inter
‘a federal instrumentality and as such is
alia, that it ws
immune from state taxation and regulation.
Id. at 1335. In
support, AFCIA asserted that “its mission is to provide low-cost
insurance to military personnel and thereby contribute in a small
way toward making military service financially attractive[.]" Id.
tn addition, AFCIA “argue[d] that it is a federal instrumentality
because it receivee an effective subsidy from the military base
at Fort Leavenworth in the form of token rent for its
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headquarters." Id, The yoning Suprene Court, however,
concluded that AFCIA was not a federal inetrunentality inasmuch
ae it “point [ed] to no regulations or statutes authorizing ite
activity[.]* Id, at 1337. Here, on the other hand, KNC points
to AR 215-1 as authorizing its activity and Jack's Tours does not
seriously dispute such authorization. See supra note 15.
Consequently, AECIA is distinguishable from the instant case.”
Nonetheless, Jack's Tours further claima on appeal that
“etate regulation is permitted for NAFI activities that are not
exclusive to authorized and limited patronage groupe, and the
purposes ordinarily served by providing NAFIs with government
immunity are not present when NAPIe begin competing with
:* None of the cases relied on by Jack's
‘outeide’ business:
% vack’s Tours’ reliance on Paul v. United States is likewise
nisplaced. In Baul, the "main question facing the supreme Court was “whether
California (could) enforce her minimum wholesale price regulations a2 respects
milk sold co the United states at three military installations ocates
Within california and used for strictly military consumption, for’ resale at
federal comissaries and for consumption or resale at various military clube
and post exchanges." "371 U.8. at 247 {footnote omitted). However, the
Supreme Court noted at the cuteet that
(t]he United states ha[é] abandoned 2... claim that
California cannot constitutionally enforce her price
regulations against producers with respect to milk sold to
distributors for processing and ultimately resold to the
United States. The abandonment of this claim is not a
confession of error but only
Immunity fren that price control as 2 mitter of precurenent
policy,
1d. at 248 2.2 (emphasis added). inasmuch as WNC ig asserting iomunity from
the inetant state regulation, Baul is not germane to this case.
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in West’s Hawai'i Reports and the Pacific Reporter
eee
Tours, however, support what appears to be its unstated central
contention, is¢., that NAFIe are stripped of their inmunity if
they are determined to be violating their governing regulations.
See Champaisn-Urbana News Agency, Inc, v. d.l. Cummins News Co.,
632 F.2d 680, 692 (7th Cir. 1980) (concluding that the Army and
Air Force Exchange Services (AAFES) is a governmental
Anetrunentality entitled to immunity from the Robinson-Patman
Amendmente to the Clayton Act); United States v, forfari, 268
F.2d 29, 35 (Sth Cir, 1959) (holding that a civilian employee of
a NAFI was barred from bringing an action under the Federal Tort
Claime Act (FICA)); Latchum, 193 F. Supp. 24 at 1223, 1225
(merely noting that *[t]he general public cannot rent cabins at
[the Waianae Army Recreational Center)"; resolution of case
turned on application of the Eeres doctrine, wherein the federal
government is not liable under the FTCA “for injuries to
servicemen where the injuries arise out of or are in the course
of activity incident to service”) (internal quotation marke and
citation omitted); Falls City Brewing Co, v. Reeves, 40 F. Supp.
35, 40 (wD. Ky. 1941) (concluding that a post exchange is a
federal instrumentality within the purview of the Buck Act, which
preserves immunity from state taxation for instrunentalities of
the federal government; the exchange was not required to purchase
a License from the Commonwealth of Kentucky authorizing it to
Coca.
engage in the business of selling malt beverages!
Sola Bottling Co. v. Revenue Cabinet, 80 $.W.3d 787, 794 (Ky. Ct.
-25-
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in West's Hawai'i Reports and the Pacific Reporter
App. 2001) (determining that a post exchange was an
instrumentality of the United States within the purview of the
Buck Act, and, thus, beverage sales to it by a bottling company
pursuant to the company's contract with the post exchange were
exempt from state sales tax).
Jack's Tours also reli
on Maynard & Child in support
of its foregoing proposition that NAFIs are atripped of their
immunity if they are determined to be violating their governing
regulations. Such reliance, however, is again misplaced. As
previously stated, the court in Maynard & Child concluded that an
officer’s club organized under Army regulations, providing “an
vices for the
officers’ mess and various other recreational
menbers,* and "subject to the control of the conmanding officer
of an Army post and managed by Army officers” was an
instrumentality of the United states “unlesa(, inter alia] the
proof shows that the [officer's club] was not in fact an
officer's club under the Mar Department regulations." 290 $.W.2d
at 794 (emphasis added). In other words, if the officer's club
was proven not to have been organized under the War Department
regulations, then it would not be an instrumentality of the
United States. In this case, Jack's Tours is not arguing that
KMC was not organized under relevant federal regulations; rather,
Jack's Tours essentially asserts that, because KNC violated its
own regulations by allegedly conducting tours for those cuteide
of ite authorized patronage group as prescribed by AR 215-1, it
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in West's Hawai'i Reports and the Pacific Reporter
—_— eee
ie operating as a common carrier that should be subject to the
PUC’s regulation. However, in order for KNC to be subject to the
PuC’s regulation, it mist be established that: (2) KMC is not an
instrumentality of the United States and, therefore, not entitled
to invoke immunity; or (2) KMC ig an instrumentality of the
united states, but there is a “clear and unambiguous!
congressional authorization waiving KMC’s immunity from direct
state regulation. Other than its conclusory assertion that KMC
should be oubject to regulation by the PUC because it allegedly
conducted tours for those outside the patronage group, Jack's
Tours does not provide any argument as to how KMC ‘would
|. cease to be a federal instrumentality and become subject to
state law requirements" by violating its governing regulation.
Moreover, Jack's Tours does not point to any “clear and
unanbiguous" congressional authorization waiving KNC's inmunity
from direct state regulation. Consequently, Jack's Tours’
contention is without merit. We, therefore, conclude that the
puC correctly determined that it could not “assume jurisdiction
over ¥MC in the instant [clomplaint.*!” Accordingly, we hold
that the PUC did not err in dismissing Jack's Tours’ complaint
for lack of subject matter jurisdiction.
© tn light of this court's holding, this court need not the
remainder of Jack's Tours’ contentions,
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in West’s Hawai‘i Reports and the Pacific Reporter
CONCLUSION
Based on the foregoing, we affirm the PUC's June 17,
2005 decision and order.
on the beiets: gr
s hw
Wray #. Kondo, ni L.
Kaimuloa, Chriatopher
Bennett. (of watansbe Ing
& Koneiji), for complainant- Deets 1 aay anen
appellant Jack's Tours
nt
R. Michael Burke, & “tte
Aasistant U.S. Attorney, .
for respondent appellee Pine
Kilauea Military Camp
-28-
|
af5a3147-6303-4510-ba19-16fbd9f09c18 | State v. Gordon | hawaii | Hawaii Supreme Court | No. 27340
IN THE SUPREME COURT OF THE STATE OF HAWAT'L
ee
STATE OF HAWAI'I, Plaintiff-Appellee py
vs.
EUGENE P, GORDON, Defendant-Appellant
qa
‘WH SZ TOF S02
APPEAL FROM THE FIRST CIRCUIT COURT
(CR. No. 98-2082)
u
ORDER
(By: Nakayama, J.)
upon consideration of appellant's "Motion for
correction or Modification of the Record and for
Reconsideration," the papers in support and the record, it
appears that the motion seeks reconsideration of the November 8,
2005 order dismissing this appeal for lack of jurisdiction. The
motion for reconsideration was filed on May 25, 2006, but the
time for seeking reconsideration of the Novenber 6, 2005 order
expired on November 18, 2005. See HRAP 40(a) ("A motion for
reconsideration may be filed by a party only within 10 days after
the filing of the opinion, dispositional order, or ruling unless
by special leave additional time is granted during such period by
a judge or justice of the appellate court."). Therefore,
IT IS HEREBY ORDERED that the motion for
reconsideration is dismissed.
DATED: Honolulu, Hawai'i, July 25, 2006.
Associate Justice
|
909982f8-22e6-4dd1-9879-cc6586badf71 | In re Lee | hawaii | Hawaii Supreme Court | no. 28008
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
IN RE ROBERT LEE, Petitioner.
ORIGINAL PROCEEDING
BL Ony] nz
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
upon consideration of Petitioner Robert Lee’s Petition to
Resign and Surrender License, the attached affidavits, and the lack
of objections by the Office of Disciplinary Counsel, it appears
that the petition complies with the requirements of Rule 1.10 of
the Rules of the Supreme Court of the State of Hawai'i (RSCH).
Therefore,
IT 15 HEREBY ORDERED that the petition is granted.
IT IS FURTHER ORDERED that Petitioner Lee shall return
his original license to practice law to the Clerk of this court
forthwith. The Clerk shall retain the original license as part of
this record. Petitioner Lee shall comply with the notice,
affidavit, and record requirements of subsections (a), (b), (d)
and (g) of RSCH 2.16.
27 1 FINALLY ORDERED that the Clerk shall remove the
name of Robert Lee, attorney number 3527, from the roll of
attorneys of the State of Hawai'i, effective with the filing of
this order.
DATED: Honolulu, Hawai'i, July 24, 2006.
Gyr -
Hera P onsen
Peed, Cael) Or se
Cen NT
aa
|
084f253b-0110-4ed9-86cc-a5cd59dc29ad | Barnedo v. Domimguez | hawaii | Hawaii Supreme Court | LAW LIBRARY
wo. 26396 5
IN THE SUPREME COURT OF THE STATE OF HAWAT'
aad
JUNIE BARNEDO and JUAN BARNEDO, Plaintiffs-Apped
L2 OMY 62 43S 3002
vs.
ERLINDA DOMINGUEZ, dba THE LAW OFFICES OF ERLINOA DOMINGUEZ,
Defendant-Appellant,
and
RON R. ASHLOCK; THOMAS KASTER; WILLIAM COPULOS; DAVID KUWAHARA
THOMAS WALSH; JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS.
1-10; DOE PARTNERSHIPS 1-10; ROE “NON-PROFIT” CORPORATIONS
1°10; and ROE GOVERNMENTAL ENTITIES 1-10, Defendants.
(NO. 26394; CIV. NO. 99-2847)
JUNIE BARNEDO and JUAN BARNEDO,
Plaintiffs-Appellees,
ERLINDA DOMINGUEZ, dba THE LAW OFFICES OF ERLINDA DOMINGUEZ,
Defendant~Appellant,
and
RON R, ASHLOCK; THOMAS KASTER; WILLIAM COPULOS;
THOMAS WALSH; JOHN DOES 1-10; JANE DOES 1-10;
1-10;
iu
DAVID_KUWAHARA:
DOE CORPORATIONS
DOE PARTNERSHIPS 1-10; ROE “NON-PROFIT” CORPORATIONS
‘and ROE GOVERNMENTAL ENTITIES 1-10, Defendants.
(NO. 26695; CIV. NO. 99-2847)
JUNIE BARNEDO and JUAN BARNEDO, Plaintiffs-Appellees,
vs.
ERLINDA DOMINGUEZ, dba THE LAW OFFICES OF ERLINDA DOMINGUEZ,
Defendant-Appellant,
and
NOT FOR PUBLICATION IN WEST'S HAWAIT REPORTS AND PACIFIC REPORTER
RON R. ASHLOCK; THOMAS KASTER; WILLTAM COPULOS; DAVID KUWAHARA;
THOMAS WALSH; JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS
1-10; DOE PARTNERSHIPS 1-10; ROE “NON-PROFIT” CORPORATIONS
1°10; and ROE GOVERNMENTAL ENTITIES 1-10, Defendants.
(NO. 27035; CIV. NO. 99-2847)
APPEALS FROM THE FIRST CIRCUIT COURT
(CIV. NO. 99-2847)
‘SUMMARY DISPOSITION ORDER
(By: Moon, C.J., Levinson, Nakayama, and Duffy, JJ., and
Circuit Judge Lee in place of Acoba, J., recused)
In this legal malpractice action arising out of an
underlying product liability suit and default judgment obtained
in federal court, attorney and defendant-appellant Erlinda
Dominguez appeals pro se from the Circuit Court of the First
Circuit's February 9, 2004 amended final judgment in favor of
her former clients, plaintiffs-eppellees Junie and Juan Barnedo
(hereinafter, the Barnedos], awarding the Barnedos: (1)
$483,875.09 in damages; (2) $479,637.16 in prejudoment interest
(as of October 7, 2003); (3) $112,468.77 in attorneys’ fees: and
(4) $6,426.73 in costs. On appeal, Dominguez appears to contend
that the circuit court: (1) erred when it denied her May 3, 2004
and Novenber 8, 2004 postjudgment motions for relief from the
> The Honorable Cexter Del Rosario presided over the first motion for
ssnsry Juagnent. The Honorable Victoria S. Marks presides over all other
pretrial matters, including the second motion for summary judgnent, and the
trial.” the Honorable ¥aren Blondin served as Arbitration Judge. the
Henordble cary W.B. Cheng presided over the postjuconent meticns.
2
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER #
judgment because the judgment was void for lack of subject matte:
jurisdiction due to defects in the Barnedos’ Hawai'i Arbitration
Rules (HAR) Rule 22? notice of appeal from the Court Annexed
Arbitration Program (CRAP) award in Dominguez’s favor; (2) erred
in concluding that the Barnedos’ complaint was not barred by th
statute of limitations; (3) erred in denying her April 2, 2003
motion for judgment as a matter of law due to the Barnedos’
failure to prove duty, causation, or damages; (4) erred or abused
its discretion when it admitted the records from the federal
action, including the Barnedos’ trial exhibits 2, 30, 31, 35, 36,
37, and 50 over her objections because they lacked foundation,
were irrelevant and unfairly prejudicial, and constituted
hearsay? (5) erred when it issued repetitious, misleading, and
incorrect jury instructions over her objections; (6) erred when
At issued a misleading special verdict form to the jury over her
objections; (7) abused its discretion in awarding attorneys’ fees
under Hawai'i Revised Statutes (HRS) § 607-14 (1993) because the
instant action was not in the nature of assumpsit; (8) abused its
discretion when it awarded prejudgment interest under HRS
§ 636-16 (1993) because the start date was arbitrary and
+ HAR Rule 22 provides in pertinent part:
(A) Within twenty (20) days after the award is served upon
the parties, any perty may file with the clerk cf the court and
serve on the other parties and the Arbitration Administrator a
eitten Notice of Appeal ang Request for Trial De Nove ef the
action:
NOT FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER ***
unwarranted; and (9) abused its discretion when it denied
Dominguez’s October 15, 2004 motion for relief from the judgment
due to the Barnedos’ fraudulent declarations regarding the lack
of an English translation of the pleadings in the Japan
declaratory judgment action.’ The Barnedos, in addition to
countering that the circuit court did not commit reversible error
fon any of the points raised by Dominguez, also argue that
Dominguez’s briefs violate Hawai'i Rules of Appellate Procedure
(HRAP) Rule 28(b) and Section 5 of the Guidelines cf Professional
Courtesy and Civility for Hawai'i Lawyers (GPCCHL) and ask this
court to disregard certain arguments raised by Dominguez or
impose sanctions as appropriate.
Upon carefully reviewing the record and the briefs
submitted by the parties, and having given due consideration to
the argunents advocated and the issues raised, we hold as
follows:
(2) In SC No. 26695, the circuit court erred when it
concluded that it lacked jurisdiction to consider Dominguez’s
Hawai'i Rules of Civil Procedure (HRCP) Rule 60(b) post judgment
motion for relief from the judgment on the merits. See Amantiad
Ys Odum, 90 Hawai'i 152, 158, 977 P.2d 160, 166 (1999) ("The
> ks set forth herein, one of the problens presented by this appeal is
that it ds dittscvit to discern precteely wnat Dominguer’s points of error
are, As such, the foregoing 1s this court's interpretation ef her points of
+ NOT FOR PUBLICATION IN WEST'S HAWAT' REPORTS AND PACIFIC REPORTER
existence of jurisdiction is a question of law that we review
de nove under the right/wrong standard.” (Citations omitted.)
fe of the Land v, Arivoshi, 57 Haw. 249, 252, 983 P.2d 464, 466
(1976) (stating that if an HRCP Rule 60(b) motion is filed while
an appeal is pending, the trial court has jurisdiction to deny
the motion on the merits without remand from the appellate court,
but lacks jurisdiction to grant the motion). However, the error
was harmless because the motion would have been properly denied
on the merits in that the requirenents of HAR Rule 22 are not
jurisdictional, see HAR Rule 7 ("Cases filed in, or removed to,
the Circuit Court shall remain under the jurisdiction of that
court for all phases of the proceedings, including arbitration.”
(Eephasis added.)), and thus even if the Barnedos’ notice of
appeal failed to comply with the rule, Dominguez waived that
error by failing to timely raise it. See HACP Rule 61 (stating
that no error is grounds for disturbing a judgment unless
inconsistent with substantial justice); Hilo Fin. & Thrift Co.
td. ve De Costa, 34 Haw. 47, 48 (1936) (stating that procedural,
as opposed to jurisdictional errors, are deened waived if not
tinely asserted);
(2) The circuit court properly denied Dominguez’ s
motions for summary judgment based on the statute of limitations.
See Kauv, City & County of Honolulu, 104 Hawai'i 468, 473, 92
(OT FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER ***
—TRQTEOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER **¢__
P.3d 477, 462 (2004) ("We review the circuit court’s grant or
denial of summary judgment de nova.” (Citations omitted.)).
First, there were genuine issues of material fact regarding when
the Barnedos should have discovered the existence of their
claims. See Higa v. Mirikitani, $5 Haw. 167, 172-73, $17 P.2d 1,
5-6 (1973) (stating that al1 legal malpractice actions, wheth
characterized as tort or contract actions, are governed by the
six-year statute of limitations found in HRS § 657-1(1)), cited
with approval in Blair v. Ing, 95 Hawai'i 247, 263 n.12, 21 P.3d
452, 468 n.12 (2001); Nore. Six £) ene inc., 102
Hawai’ 203, 206, 74 P.3d 26, 29 (2003) (*(T}he monent at which
statute of limitations is triggered is ordinarily a question of
fact." (Citation omitted.)); Blair, 95 Hawas's at 267; 21 P.3d
at 472 ("[T]he trier of fact must determine the date by which
(the plaintiffs) knew or should have known of their malpractice
claim.”); Buck v, Miles, 89 Hawai'i 244, 251, 971 P.24 717, 724
(1999) ("{U]nder the discovery rule, the statute of limitations
begins to run the moment the plaintiff discovers or should have
Giscovered the negligent act, the damage, and the causal
connection between the former and the latter.” (Citations,
internal quotation marks, and brackets omitted.)).
Second, Dominguez effectively abandoned the statute of
limitations as a defense at trial in that she requested no
{++ NOT FOR PUBLICATION IN WEST'S HAWAI' REPORTS AND PACIFIC REPORTER **
questions relating to the statute of limitations in the special
verdict form, no jury instructions on the statute of limitations,
and made no argunent based on the statute of Limitations during
the trial.‘ Therefore, she should not be he 1 on such
rd to app.
grounds now. See HRCP Rule B(c) (stating that the statute of
Limitations is an affirmative defense); Mauian Hotel, Inc. vi
Maui Pineapple Co., Ltd., 52 Haw. 563, $69, 481 P.2d 310, 314-15,
(1971) ("It is general law that the statute of limitations is a
personal defense and a person may waive the benefits of such
statute." (Citations omitted.)); GECC Fin, Corp. v. Jaffarian,
79 Hawai'i 516, 526, 904 P.2d 530, 540 (App. 1995) (Acoba, “J.,
concurring) (explaining that affirmative defenses not supported
+ the one exception to Dominguez’s abandonnent of the statute of
Limitations defense 1s her motion for judgnent ss ¢ matter of lew arguing that
the Barnedos’ theory based on Dominguez’s failure to defend the Japane:
action should not 90 to the Jury because, under the discovery rule, it sccrued
in February 1981 in that (1) the Baznedes’ own testimony denonstrated that
they knew a8 of that Cine that Oominguez would “ignore” the Japan
and (2) the Barnedos should have known, based on the Japanese docunents, thst
they would be deemed £0 have adaitted the allegations in the Japanese
complaint if they did not answer. However, even assuming that, despite their
Eertimeny that no English translation ef the Japanese docunents was attached,
they shoula have known what those documents aid about the consequences of
failure to appear in the Japanese action, there was still a genuine issue of
material fact, as to which Dominguez hed the burden of proof, regarding when
the Earnedos showle nave known of 8 caveal connection between a defaule
judgment against then in Jopan and an inability to collect on their U.S.
jusgment (Lae, when the Barnedos should have been charged with the knowledge
that a Japanese court might refuse to enforce a foreign judgment that was in
direct conflict with a valid final Japanese judgment). Because Dominguez
cited ng evidence on this point, much less evidence such thet no reasonable
Juror Cculd find against her, the cizcuit court did not err in denying
judgment as a natter of law cn this issue.
>
+** NOT FOR PUBLICATION IN WEST'S HAWAT REPORTS AND PACIFIC REPORTER
ST NOTFOR PUBLICATION IN WEST'S HAWATI REPORTS AND PACIFIC REPORTER ***__
by evidence may be abandoned), aff'd, 80 Hawai'i 118, 905 P.2d
624 (1995);
(3) Dominguez fails to comply with HRAP Rule 26(b)?
inasmuch as (a) some of Dominguez’s points of error do not have a
corresponding “Argument” section and/or do not state where in the
* MRAP Rule 28(b) provides in relevant part
(4) A concise statenent of the points of error set
forth in separately numbered paragraphs. Each point shall
state: (J) the ellegea error conuitted by the court oF
agency: (4i) where in the record the elleged exror occurred;
and (Lid) where in the record the alleged error was cbjected
fo o the manner in which the slleged error was Drought te
the attention of the court or agency. “Where applicable,
each point shall elso include the #2ilowin
(A) when the point involves the adnission or rejection
Of evidence, § quotation of the grounds urged fer the
‘objection ahd the full’ substance of the evidence
adnitted or zejecteds
(8) when the point involves 2 jury instruction, a quotation
of the instruction, given, refused, or modified, together
With the objection urged at the trials
(C) when the point involves # finding or conclusion of the
court or agency, quotation of the finding er conclusion
Srged se error!
Eoints not presented in accordance with this section will be
Gisrenardes, except that the appellete court, at ite option: may
notice 2 plain error not presented. Lengthy parts of the
transcripts that are material to the points presented may be
included in the appendix instesd of being quoted in the poiet.
(7) The argunent, containing the contentions of the
appeliant on the points presented and the reasons therefor,
With citations to the authorities, statue
Fecord relied on. the
Summary.
(Emphases edded.)
‘++ NOT FOR PUBLICATION IN WEST'S HAWAIT REPORTS AND PACIFIC REPORTER.
record she raised or objected to the error, (b) Dominguez’ s
argument section raises a multitude of issues that she does not
coherently argue and/or does not raise as separate points of
error in her “Points of Error” section, and (c) throughout her
opening briefs, Dominguez often fails to cite the appropriate
standards of review or the relevant statutes. Therefore, we
disregard her third, fourth, fifth, sixth, seventh, and eighth
points of error. See HRAP Rule 28(b) (4) ("Points not presented
; MRAP
state
ysMoore, 82 Hawai'i 202, 206 n.1, 921 P.2d 122, 126 n.1 (1996)
in accordance with this section will be disregarded{.)”
Rule 28(b) (7) ("Points not argued may be deemed waived.")
(disregarding a claim where @ proponent fails to make any
discernible argument in support thereof); Bitney v. Hono:
Police Dep't, 96 Hawai'i 243, 251, 30 P.3d 257, 265 (2001)
(stating that generally “[i]ssues not properly raised on appeal,
will be deemed to be waived”) (alteration in original) (quoting
Hill_v. Inouye, 90 Hawai'i 76, 62, 976 P.2d 390, 396 (1998));*
© If this court were to sift the wheat from the chaff and construe
Doningue:'s scattershot arguments a2 raising meritorious points, such effort
would cross the boundary between juscing and advocating. See Alford vv City &
wig, 108 Nawes's 24, 26, 122 P.34 609, 621 (2008) (stating thet
“the appellate court cannot serve 22 both advecate and judge")
gootation marks ond citation emitted)
8
NOT FOR PUBLICATION IN WES’
HAWATT REPORTS AND PACIFIC REPORTER
(4) Throughout her briefs, Dominguez vents superfluous
and inappropriate invective,” which clearly violates Section 5,
eccuts*
(5) The circuit court did not abuse its discretion in
denying Dominguez's HRCP Rule 60(b) postjudgment motion for
relief from the judgment for fraud on the court because the
alleged fraud was discovered before the February 9, 2004 judgment
was entered; Dominguez thus had the time and the means, both
prior to entry of judgment in the trial court and prior to entry
Tor example, the following pai
No. 263947
jage {8 from her opening brief in sc
THERE 15 EVIL THAT LURKS UNDERNEATH APPELLEES' CLAIMS.
COVERED WITH FALSE GRANDEUR, APPELLEES’ CASE HAS NO-AGOTS-1t
REVEALEO 178 TAUE INSIOES WHEN 17 SPOUTED HORE VENH.
APPELLEES" CASE IS INMERENTLY VICIOUS BUT WITHOUT LIFE, A
DEAD WEIGHT. APPELLEES" CASE MOLDED 17S ROLE IW LEGAL’
HISTORY- FICTITIOUS AND TYRANNICAL, HOLLOW BUT OPPRESSIVE.
APPELLEES MOST SAVE BELIEVED THEIR DERD ROOTS WILL, REHATN
HIDDEN AND ONDISCOVERED, CAUSING HAVOC, BUT TWAT SPECIAL DAY
OF RECKONING OF “JUSTICE BEYOND APPARENT QUSTICE” 18 AT
max
(Formatting and emphases as in origina!
) (Footnote omitted.)
* section of the GECCHL states in pertinent part:
Written materials submitted to the court should always be factual
and concise ené shale accurately state the corrent law and fairly
Fepresent the parties’ position wiehout unfairly attacking the
‘opposing party or opposing counsel
Specifically, @ lawer who manifests professional courtesy and
eiviliy:
B) Does not cegrade the intelligence, ethics, morals,
integrity, or personal behavior of the opposing party,
counsel or withess unless such matters are at issve to the
proceedings.
10
‘++ NOT FOR PUBLICATION IN WEST'S HAWAT REPORTS AND PACIFIC REPORTER **
of judgment on appeal in SC No. 26394, to verify whether the
Barnedos had “lied” in their testimony, and to seek a remedy
prior to entry of final judgment. See Beneficial Hawaii, Inc, v,
Casey, 98 Hawal' 159, 164, 45 P.3d 359, 364 (2002) (“The circuit
court’s disposition of an HRCP Rule 60(b) motion is reviewed for
abuse of discretion.” (Citations omitted.)); Kawamata Farms,
Inc. v. United Aari Prods., 86 Hawai'i 214, 259, 948 P.2d 1055,
1100 (1997) ("Under the circumstances of this case, based on the
egregious nature of DuPont’s fraud, we construe the HRCP so as
not to disallow a remedy under HRCP Rule 60(b) (3) when there is a
post=iudement discovery of fraud supported by clear and
convincing evidence.” (Emphasis added.)); Standard Momt., Inc.
ve Kekona, 98 Hawai'i 95, 100, 43 P.3d 232, 237 (App. 2001)
(stating that where the HRCP Rule 60(b) movant “had ample
opportunity to reveal [the alleged perjury] as such," he cannot
maintain an independent action for litigation fraud); Havashi v.
Hayashi, 4 Haw. App. 286, 292, 666 P.2d 171, 175 (1983) (stating
that an action for litigation fraud will not lie unless the
plaintiff can show the absence of any other adequate remedy)
(citing Hinfield Assocs., Inc, v. Stonecipher, 429 F.2d 1087
(10th Cir, 1970)). Therefore,
IT IS HEREBY ORDERED that the circuit court's: (1)
February 9, 2004 amended final judgment, appealed as SC No.
n
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
26394, is affirmed; (2) July 12, 2004 postjudgment order denying
Dominguez’ s postjudgnent motion to dismiss, appealed as sc
No. 26695, is affirmed, but for the reasons stated herein; and
(3) December 17, 2004 postjudgment orders (a) denying Dominguez’ s
HRCP Rule 60(b) motion for relief from the February 9, 2004
judgnent as void for lack of subject matter jurisdiction, and
(b) denying Dominguez’s motion for relief from the February 9,
2004 judgment for fraud on the court, appealed as SC No. 27038,
are affizned.
DATED: Honclulu, Hawat'i, September 29, 2006.
on the briefs:
Erlinda Dominguez, Gp om
defendant-appellant,
pro se a
Francis T. 0’ Brien
and Collin M. (Marty) Pues ann
Price for plaintitis- Senate
appellees dunie Barnedo
ano Juan Barnedo Qin £. Oss
om t.0. RO
12
|
15c5e82d-6a85-434f-98a2-f41c0ad4949f | Courbat v. Dahana Ranch, Inc. Dissenting Opinion by J. Duffy, with whom J. Acoba, joins [pdf]. S.Ct. Order Granting Motion for Reconsideration, filed 08/03/2006 [pdf]. Statement of No Position, by J. Acoba and J. Duffy. | hawaii | Hawaii Supreme Court | ‘FOR PUBLICATION IN WEST’ S HAWAT'T REPORTS AND PACIFIC REPORTER*
eee
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
00
eee
LISA COURBAT and STEVEN COURBAT, Plaintiffs-Appellants,
vs.
DAHANA RANCH, INC., Defendant-Appellee,
and
JOHN DOES 1-10, JANE DOES 1-10, DOE ASSOCIATIONS 1-10, DOE
PARTNERSHIPS 1-10, DOE CORPORATIONS 1-10, DOE ENTITIES 1-10, and
OE GOVERNMENTAL UNITS 1-5, Defendants.
No. 25151 | ;
APPEAL FROM THE THIRD CIRCUIT COURT
(CIV. NO. 01-1-0049)
&h-O1KY OF Tne:
JOLY 10, 2006
MOON, C.dJ., LEVINSON AND NAKAYAMA, JJ., AND DUFFY, J.,/
DISSENTING, WITH WHOM ACOBA, J. JOINS
OPINION OF THE COURT BY LEVINSON, J.
The plaintiffs-appellants Lisa Courbat and Steven
Courbat [hereinafter, collectively, “the Courbats”) appeal from
the May 13, 2002 judgment of the circuit court of the third
circuit, the Honorable Riki May Amano presiding, entered pursuant
to the circuit court’s April 26, 2002 grant of summary judgment
in favor of the defendant-appellee Dahana Ranch, Inc. (the
Ranch) «
on appeal, the Courbats contend that the circuit court
(1) in concluding that Hawai'i Revised Statutes (HRS)
ast
*POR PUBLICATION IN WEST'S HAWAT' REPORTS AND PACIFIC REPORTER*
$ 480-2 et sea. (Supp. 1998)! do not apply to the Ranch’s
business practices of booking prepaid tours and subsequently
requiring liability waivers upon check-ins (2) by applying the
rebuttable presunption set forth in HRS § 6638-2(a) (Supp. 1994)?
1 wR ch, 480 provided in relevant part:
$ 480-2... . (a) Unfair methods of competition and unfair of
deceptive acts of practices in the conduct of any trade or commerce are
Snlawesl
(bj In construing this section, the courts and the office of
consumer protection shail give due coisiderstion to the rule:
Fegulations, and decisions of the Federal Trade Commission snd the
federal courts interpreting section 5(a) (1) of the Federal Trade
Conaisaion Act (15 Ur5.c. 4S(al (1)}y aa from tine to tine amended.
§ 490-3 . . . . This chapter shall be construed in accordance with
judicial interpretations of similar federal antitrust statutes =.
§ iwd-i2 . . . . any contract or agreement in violation of this
chapter ie void and 2 not enforceable at law or in equity.
Ԥ 480-13... (b) Any consumer who 1 injured by any unfair or
deceptive act of practice forbidden of declared unlawiul By section
Wonks
(2) May ue for damages sustained by the consumer, and, if the
Judgment is for the plaintiff, the plainciff shall be
awarded a sun not less than 31,000 or threefold damages by
the plaintif® sustained, whichever sum is the greater, and
Feusonable attorneys” fees together with the costs of auity
Oana
(2) May being proceedings to enjoin the unlawful practices, and
ifthe decree is for the plaintiff, the plaintif! shall be
‘avarded reasonable attorneys’ fees together with the cost of
suit
Effective June 26, 2002, HRS § 480-2 was amended in respects inmaterial to the
present matter. See 2002 Haw. Sess. L. Act 229, §§ 2 and 6 at 916-18.
Effective ay 2, 2001, June 28, 2002, and June >, 2008, HRS $ 480-13 was
amended in respects immaterial to the present matter. See 2005 Haw. Sess. L.
Ret 108, $6.3 snd 5 at 265-66, 267; 2002 Haw. Sess. ib. Act 229, $6 3 and 6 at
917-18;'2001 Haw. Sess. L. Act 78, §§ 1 and § at 127-28
2 HRS ch. 6638, entitled “Equine activities” and enacted in 1994,
sag 1994 Haw, Sess. L. Act 225, §§ 1 and 2 at 591-82, provides in relevant,
part:
§ 6630-1... . As used in this [chapter], unless the context
otherwise requizes:
(cont ined...)
+FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*
(continued)
Engages in an equine activity” means riding . | . or being a
passenger upon an equine...
Spguine activity" means:
is) ‘Aides, trips, hunts, or other equine activities of any type
however informal or impronptu that are sponsored by an
equine activity sponsor and
ipguine activity sponsor” means an individual, group, clubs
partnership, of corporation. . - which sponsors, organizes, oF provides
the facilities for, an equine activity. -. «
‘Equine professions!” means a person engaged for compensation in
instructing 2 participant or renting toa participant an equine for the
purpose of riding, driving, of being a passenger upon the equine, or in
Ponting equipment’ or tack toa participant.
Srinerent risks of equine activities” means those dangers, oF
conditions which are an integral part of equine activities, including,
but not Limized to:
ia} ™ dhe propensity of an equine to behave in ways that may
Tori in injury, hem, or death to persons on or around
(2) The unpredictability of an equine’s reaction to such things
Zn sounds, sudden movenent, and unfaniliar objects, persons,
of other animals;
(3) Certain harerds such as surface and subsurface conditions:
[a) Gellisions with other equines or objects; and
(S) She potential of a participant to act in a negligent manner
That may contribute to snjury to the participant or others,
Such a9 failing to maintain contra! over the animal oF not.
Acting within the porticipant’s ability.
“participant” means any person, whether amateur or professional,
who engages invan equine activity, whether or not a fee is paid to
Participate in the equine activity.
$ 6638-2...» (a) In any elvil action for injury, toss,
danage, of death Of'a participant, there shall be a presumption that the
$Ryaky, lows, damages or death was not caused by the negligence of an
Sqeing activity sponsor, equine professional, or their employees or
Sdents, if the invury, loss, damage, or death was caused solely by the
[gkerene risk and unpredictable nature of the equine. An injured person
Sr'theis legel representative may reout the presumption of no negligence
By a preponderance of the evidence.
ve] Nothing in this section shall prevent or limit the Liability
of an equine activity sponsor, an equine professional, or their
eenbyees Se Sgents ie Ene equine activity sponsor, equine professional,
oF person:
Provided the equine and . . . failed to reasonably supervise
ii
(continued...)
*FOR PUBLICATION IN WEST’ S HAWAI'I REPORTS AND PACIFIC REPORTER*
in finding that Lisa’s injuries were not due to the negligence of
the tour operator; (3) in finding that the Courbats sufficiently
read over the waiver before signing its and (4) in concluding
that the waiver was valid as to their negligence claims.
For the reasons discussed infra in section TII.A, we
vacate the circuit court's May 13, 2002 judgment and remand for
further proceedings consistent with this opinion.
1. BACKGROUND
The present matter arises out of personal injuries
sustained by Lisa on February 1, 1999, while she and Steven were
on a horseback riding tour on the Dahana Ranch on the Big Island
of Hawai'i. The Courbats had booked the tour and prepaid the fee
several months earlier through Island Incentives, Inc., an
internet-based tour organizer. When they checked in at the
Ranch, the Courbats were presented with a document to review and
to sign which laid out the rules for the horseback tour and
included a waiver “releas{ing] and hold{ing) harmless . . . [the
Ranch . . . from. . . injury to myself . . . resulting from my
«+ being a spectator or participant or while engaged in any
such activity in the event(-]related facilities” and stating that
the undersigned “acknowledge[s] that there are significant
elements of risk in any adventure, sport, or activity associated
84. continued)
‘the equine activities and such failure is a proxinate cause
of the injury. =
(Sone brackets in original end some omitted.)
4
+FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER*
with horses." According to admissions by the Courbats in
subsequent depositions, Lisa read over the waiver and, having no
questions regarding the rules and regulations it contained, *
signed it before passing it to her husband to sign. Steven
evidently did not read it, but recognized that it was “some kind
of release of some sort” and signed it. In fact, no guest of the
Ranch had ever refused to sign a waiver. Steven was familiar
with the concept of such waivers, having participated with his
wife in a snorkeling activity earlier during the vacation, at
>The roles and waiver stated in pertinent par
tn order for us to keep our Fide from being 2 "Nose To Tail Trail
Ride(,"] there are certain rales which mist be followed for your safety
Ghd’ che norses! mental well Being. FAILURE 70 FOLLOW THESE RULES WILL
Resvzt IN FORFEITURE OF YOUR RIDE WITH NO REFUND.
Ri pk Ss
+ FOLLOW RIDING INSTRUCTIONS 4 DIRECTIONS THROUGHOUT THE RIDE
+ PLEASE’ po NoT RIDE AHEAD OF YOUR GUIDE UNLESS TOLD TO DO $0
+ Bo'NGr FOLLOW ONE ANOTHER
warver
I/We, the undersigned, hereby release and hold harmless the Land
owners; managers, operators’ (Willian ®. Kalawai‘anui, Daniel 8, Nakoa,
Gunso’ Rench snd Nekos Ranch), [tine State of Hawes [']4 and the
peneEinest of Hawaiian Howe Zande and sli cther persons directly related
PePihone Listed sbove for the event listed herein(,] their successor:
Slesigns and affiliates from loss or damage to property or injury to
setts oz any person +. . resulting from my... + being a spectator or
wetLapine ae unite engaged in any such activity in the event (-)
Pelsted' facilities. i/Me acknowledge that there are significant
eects of risk in any adventure, sport or activity associated with
I/KE HAVE READ AND UNDERSTOOD THE FOREGOING RULES, REGULATIONS AND
waiver.
(empha:
6 in original.)
*POR PUBLICATION IN WEST’ S HAWAI'I REPORTS AND PACIFIC REPORTER*
which time they both signed similar forms.
The Ranch’s guide, Daniel Nakoa, briefed the Courbats
on how to handle a horse and general rules of the trail,
including the importance of not riding single-file or allowing
the horses to bunch up end to end. Out on the ride, Lisa was
injured when she rode up behind Nakoa’s horse while Nakoa was
speaking with another guest who had approached Nakoa with a |
question. According to later statements by both Nakoa and Lisa,
Lisa approached Nakoa’s horse from the rear while the three
neared Nakoa’s hor:
horses were in motion, and, when her hor:
Nakoa’s horse struck out at her horse, hitting Lisa in the left
shin. Lisa described the incident in a deposition taken on
November 3, 2001:
At what point did you believe that you
needed to pull the reins back an_you were
Bppreaching the guide - .
Ween tele that che horoei} was’ getting
too close to the horses above me-
Sov appeared to you that the nose, end of
sEting £00 clos:
horse in front’
(ties): To the horse in general. We ve:
in. 'T wae just teying to keep
space between
Tr]hose. two her
the guest's horse, they were to the Lert
Of your horae, 18 that correct, to the
front Left ef you?
(isal: Yes.
ao Yoo "recall which hind leg of the horse kicked you?
Was it the right or the lest?
(isa): Te would be the right one
° And that was a horse which was ridden by the guide or
the quest?
[iisa): The guide.
° Dust before the horse in front of you kicked you, were
a1] of the horses still in motion?” When Z say "all
the horses," yours, the guide's, and the quest that
as riding parallel to the guide?
(iiea): Just before?
(eee):
‘FOR PUBLICATION IN WEST'S HAMAT'T REPORTS AND PACIFIC REPORTER*
Yes.
iitsal: Yes.
@ iss’ there any conversation between you and the guide
Srehe guest just before this Kicking incident
eccurred?
No.
Re the time this kicking incident occurred, wlere) the
Guide and the guest still talking te each other?
Iuieal: Yee.
(uisal
Nakoa described the same incident in a January 9, 2002
deposition:
[ekoal: . . . Everybody was facing the gate, the
decond gate. ss + And T'was in the back.
Ans bechuse I'1ote of times don’t want to
be a part of the ride, I started riding to
the right. And then @ aan came to talk to
fe and ask me about the horse
a On'which side of your horse was he at the
tine?
fe 'was on the left side of ne.
And were you still moving or were you
stopped?
We were walking.
1 lpilad you passed Lisa elong the way?
Belausé of the angle, she was off to my
left.
Btili sn front of you?
No. About the sane.
@ And then 4 the next time you noticel]
Elsa's horse before the injury takes
place?
[Wakos}: She as still on the left side of ne.
° she "8Talbout how far sway do you estimate she was
Exon’ your horse?
(Wekoal: You kos, 30 feet maybe...
3 Knd from that point ony... were you able to
Continually observe Lise riding her horse until the
tine the injury occurred?
Naxos): Yee. The nan wae on my left and I was talking to him.
e LLL iwynite (ene quest 4s) asking you this question
and jou can see [Liga], what is her horse doing as
{traYapproaching your horse?
[Nakos]: toy Tsian't 2ee Her epprosching my horse. That's
Woot I'm trying to tell you. she was on the left side
7
*FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER*
of this man and me and we're 11 going in that
Saiking’with this men,” ARI stu hers dnd’ Chen this
Ean acted ne Something. “And the next thing 1 knew
she was right in back of ny horse telling se that ay
ores kickga her
Nakoa later acknowledged in the deposition that, if he or his .
horse had been aware that Lisa’s horse was approaching from
behind, his horse would not have been surprised and would not
have struck out at her horse. As a result of the inpact, Lisa
suffered severe pain and swelling, but no broken bones, and since
the incident has complained of ongoing pain and injury to her
deg.
The Courbats filed suit on January 31, 2001, asserting
claims of negligence and gross negligence that resulted in
physical injury to Lisa and loss of consortium injuries to
Steven, On Novenber 21, 2001, they filed a first amended
complaint, adding a claim of unfair and deceptive trade practices
regarding the waiver they had signed the day of the ride.
On January 16, 2002, the Ranch filed a motion for
summary judgment on the grounds: (1) that the Courbats had
assuned the risk of the activity: (2) that the Courbats had
waived their rights to sue the Ranch for negligence; and (3) that
the Ranch had not committed any acts that brought it under the
purview of HRS $$ 480-2 and 480-13, see supra note 1.
‘The Courbats filed a memorandum in opposition to the
Ranch’ s motion and a motion for partial summary judgment, urging
the circuit court to rule, inter alia: (1) that the Ranch owed
Lisa a duty to protect her from injury by Nakoa’s horse; and (2)
*FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER*
that the rebuttable presumption of no negligence on a defendant's
part set forth in HRS § 6638-2, gee supra note 2, was
inapplicable.
The circuit court conducted a hearing on both motions
on February 13, 2002 and, on April 26, 2002, entered an order
granting the Ranch’s motion and denying the Courbats’ motion. On
May 13, 2002, the cizcuit court entered a final judgment in favor
of the Ranch and against the Courbats. On August 8, 2002, the
Courbats filed a timely notice of appeal.‘
TI, STANDARDS OF REVIEW
Summary Judament
We review the cixcuit court’s grant or denial of
sunnary judgnent de ou. ss
(s}ummary judgment is appropriate if
tthe pleadings, depositions, answers to
[nterrogatories, and eduissions on file,
together with the affidavits, if any, show
that there ie no genuine issue as to any
futerial fact and that the oving party 1s
entitled to judgment as a natter of lew.
Refact 1s material if proof of that fact
ould have the effect of establishing oF
Tefuting one of the essential elenents of
s’cause of action or defense asserted by
fhe parties. Zhe evidence must be viewsd
[nthe Light most favorable to the
honemeving pasty, in sther words, we must
View all of the evidence and the
Inferences drawn theretron in th
«on way 20, 2002, the Ranch filed a notice of taxation of costs
hich, pursuant to Hawai'i Roles of appellate Procedure (HRAP) Rule 412) (3),
Uolied Ene time for filing an eppeal: An order as to taxation of costs was
hover entered, and so, pursuant co #8AP Rule (a) (3), the request was deened
Genied 90 days later, on August 8, 2002. The Courbats' appeal, filed
Prematurely on dine 7, 2002, was therefore timely filed as of August 8, 2002,
Porevant to WRAP Rule’ 4(a)(2) and (3).
FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER*
most favorable to the party opposing the
(Wawas's Cety, Fed. Credit Union v Keke, 94 Hawai'i 213, 221, 1
Pod 2,9 (2000)] Testations and internal quotation marks
onitted).
Quervbin v. Thronas, 107 Hawai'i 48, 56, 109 P.3d 689, 697 (2005)
(quoting Durette v, Aloha Plastic Recycling, Inc., 105 Hawai'i
490, $01, 100 P.3d 60, 72 (2004)) (internal citation omitted)
(some brackets in original)
8. Interpretation of Statutes
‘The interpretation of a statute is a question of law
reviewable de nove. State v. Arceo, 84 Hawai'i 1, 10, 928 P.2d
843, 852 (1996).
Furthermore, cur statutory construction 1s guided by
established rules
hen construing a statute, cur foremost
Sbiigation is to ascertain and give effect
fo the intention of the legislature, which
is to be obtained primarily from the
Language contained in the statute itself.
And we must read statutory language in the
Context of the entire statute and construe
Se°sn'S sanner consistent with ies
purposi
‘iben there is doubt, doubleness of
meaning, or indistinctiveness or
Oneertainey of an expression used in
statute, an ambiguity exists.
Th construing an ambiguous statute,
[tine meaning of the ambiguous words may
bo. sought by exanining the context, with
which the eabiguous words, phrases, and
Tentences may be conpared, in order to
aScertasn their true nesning.” RS
$ 1-15(2) [11993]. Moreover, the courts
Ray resort to extrinsic aids in
Setermining legislative intent. One
Gvenue is the use of legislative history
a5 an interpretive tool.
je, Ba ne Court], 84 Hawai'i (136,]
Sst F.2d {580-1 890 [11997)] (footnote omitted) .
20
*FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER*
State v. Koch, 107 Hawai'i 215, 220, 112 P.3d 69, 74 (2008)
(quoting State v. Kaua, 102 Hawai'i 1, 7-8, 72 P.34 473, 479-480
(2003)). Absent an absurd or unjust result, see State v. Haugen,
104 Hawai'i 71, 77, 05 P.3d 178, 184 (2004), this court is bound
to give effect to the plain meaning of unambiguous statutory
languages we may only resort to the use of legislative history
when interpreting an ambiguous statute. State v, Valdivia, 95
Hawai'i 465, 472, 24 P.3d 661, 668 (2001).
III. DISCUSSION
Inasmuch As The Presence Or Absence Of An Unfair Or
ade?) Tri
Determine, the Cireu{t Court Erroneusly Granted
Jug 7 ne Bi fm
Courbate,
‘The Courbats do not dispute that they both signed the
Ranch’s waiver form, see supra note 3, prior to their ride. Nor
do they dispute that waivers are an accepted method by which
businesses may limit their liability. Rather, they assert that
the Ranch's practice of booking ride reservations through an
activity company, receiving payment prior to the arrival of the
guest, and then, upon the guest’s arrival at the Ranch, requiring
the guest to sign 2 liability waiver as a precondition to
horseback riding is an unfair and deceptive business practice to
which the remedies of HRS ch. 480 apply. The Courbats maintain
that the practice of withholding the waiver had “the capacity or
tendency to mislead” customers, thereby satisfying this court’s
test for a deceptive trade practice as articulated in State ex
an
*POR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER*
rel. Bronster v. United States Steel Corp, 82 Hawai'i 32, 50,
919 P.2d 294, 312 (1996).
The Intermediate Court of Appeals held in Berman va
Toro, 1 Haw. App. 111, 118, 615 P.26 749, 754-55 (1980), that the
remedies afforded by HRS ch. 480 are not available for personal
injury clains. See also Blowers v, E1i Lilly 6 Co., 100 F. Supp.
2d.1265, 1269-70 (D. Haw. 2000). The Courbats, however, assert
that they aze not invoking HRS ch. 480 for the purpose of
establishing personal injury damages, but rather because the lack
of notice as to the waiver requirement injured them economically,
by way of the $116 cost of the tour, giving rise to a valid claim
under HRS § 480-13, see supra note 1. As a deceptive trade
practice, the Courbats maintain, the waiver is void under HRS
§ 480-12, see supra note 1.
Log ve trade practice cla
for recision of a contract
To render the waiver void, the Courbats must establish
that it ia an unseverable part of a “contract or agreement in
violation of [HRS ch. 480].” See HRS § 480-12, supra note 1.
Furthermore, any “unfair or deceptive act(] or practice[] in the
conduct of any trade or commerce” violates HRS § 480-2.
“Deceptive” acts or practices violate HRS § 480-2, but
HRS ch. 480 contains no statutozy definition of “deceptive.”
‘This court has described a deceptive practice as having “the
capacity or tendency to mislead or deceive,” United States steel
Corps, 62 Hawai't at 50, 919 P.2d at 312, 313, but, beyond noting
a2
+FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*
that federal cases have also defined deception “as an act
causing, as a natural and probable result, a person to do that
Which he (or she] would not do otherwise,” Keka, 94 Hawai'i at
228, 11 P.3d at 16 (brackets in original) (quoting United States
Steel Corp., 82 Hawai'i at 51, 919 P.2d at 313 (citing
Rockenstette v, Federal Trade Comm'n, 134 F.2d 369 (10th Cir.
1943))), we have not articulated a more refined test.
HRS § 480-3, see supra note 1, provides that HRS ch.
480 “shall be construed in accordance’ with judicial
interpretations of similar federal antitrust statutes,” and HRS.
§ 480-2(b) provides that “[iJn construing this section, the
courts . . . shall give due consideration to the . . . decisions
of . . . the federal courts interpreting . . . 15 U.S.C. [5]
45(a) (1) { (2000)],"* in recognition of the fact that HRS § 480-2
is “a virtual counterpart.” Keka, 94 Hawai'i at 228, 11 P.3d at
16. The Federal Trade Commission (FTC), in In re Cliffdale
Assocs., Inc., 103 F.T.C. 110 (1984), developed a three-part
+ 15 v.8.c, § 45(a) (2) provides that *[ulnfair methods of
competition in of affecting comerce, and unfair or deceptive ects or
practices in or affecting connerce, are hereby declared unlawful.”
< awai's courts nave Long recognized, therefore, that federal
Anterpretations of 15 U.8.C. § (5 (a) (2) guide us in construing HRS $ 460-2 “in
Light" of conditions in Hawai'i. Alv, Frank Huff Agency, 61 Hew. 607, 613
ell, 607 P.24 1308, 1309 n.11 (1980); gee also Island Tobacco Co, v. RJ.
, €2 Han, 208, 293, 627'P.2d 260, 768 (1961) guerzuled on
a3
*FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*
analytical test for “deception,” which the federal courts have
thereafter extensively adopted, see ETC v, Verity Int'l, Ltd.,
443 F.34 48, 63 (2d. Cir. 2006) EIC vs Tashman, 318 F.3d 1273,
1277 (11th Cir. 2003); ETC v. Pantron I Corp,, 33 F.3d 1088,’ 1095
(9th Cir. 1994); FIC v, World Travel Vacation Brokers. ‘Inc., 861
F.2d 1020, 1029 (7th Cir. 1988). Under the Cliffdale Assocs,
test, a deceptive act or practice is “(1) a representation,
omission, or practice[] that (2) is likely to mislead consumers
acting reasonably under the circumstances [where] (3) {] the
representation, omission, or practice is material.” Verity
Int/1, 443 F.3d at 63. A representation, omission, or practice
is considered “material” if it involves “'information that is
important to consumers and, hence, likely to affect their choice
of, or conduct regarding, a product.” Novartis Corp. v. FTC,
223 F.3d 783, 786 (D.C. Cir. 2000) (quoting Cliffdale Assocs.,
103 F.T.C. at 165); see also Kraft, Inc, v. FIC, 970 F.2d 311,
322 (7th Cir. 1992); ETC v. Crescent Publ’a Group, Inc., 129 F.
Supp. 24 311, 321 (8.0.N.¥. 2001); ETC v, Five-Star Auto Club,
Ince, 97 F. Supp. 2d $02, 529 (S.D.N.¥. 2000); ETC vs Sabal, 32
F. Supp. 2d 1004, 1007 (N.D, T11. 1998). Moreover, the Cliffdale
Assocs, test is an objective one, turning on whether the act or
omission “is likely to mislead consumers,” Verity Int'l, 443 F.3d
at 63, as to information “important to consumers,” Novartis
> See Cligtasle accocs., 103 F.7.C. at 164-65 (characterizing the
new standard as a refsnenent of the "tendency or capacity to deceive” test,
sed by the FIC to that point and pronouncing the eld test “circular and
therefore inadequate to provide guidance”)
4
‘FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER*
Corp, 223 F.3d at 786, in making a decision regarding the
product or service."
Given our obligation under HRS §§ 480-3 and 480-2(b) ‘to
apply federal authority as a guide in interpreting HRS ch. 480,
we hereby adopt the three-prong Cliffdale Assocs. test in
determining when a trade practice is deceptive.”
2. he Clift cs. Obie e
eat,
Th Fact, ni
s amet
‘The Courbats do not allege that the waiver itself is
deceptive; rather, they urge that the deceptive practice at issue
was the booking agent's failure to inform them of the waiver
requirement during the negotiation and execution of the
+ nse federal courts have not expressly categorized the test as
objective, the Fic, in CLiftdale Assocs, commented that “(t]he requirenent
that gn act or practice be considered fron che perspective of = consuner
acting ressonably in the circumstances is not new... ~ (The FIC] has long
Tecognized that the Lew should not be epplied in such’a way as to find that
honest representations are deceptive simply because they are misunderstood by
afew, es {alm advertisenent would not Be considered deceptive merely
Because it could be unreasonably misunderstood by an insignificant and
Unrepresentative segment of the class of persons. (to) whom the representation
[Saccressed,” 102 F-7.C, at 165 (footnotes and internal quotation signals
omitted)
+ other, states have already adopted the CLiftdale Assocs, test.
See, sau, Lustints, Ine, "#. Consuner Prot Div, 726 Regd 702, 713 (NG.
$955); Gater2. Gualiussi, 7i¢ A.2d 17, 23 (Vt. 1998). Our adoption of the
Gliftisie Rescsg, test does not change the existing rule that, in order to
Gstablish violation of HRS § 480-2, the plaintiff need not establish an
Gneent to deceive on the part of the defendant, World Travel Vacation Brokers,
bel F.2d at 1029; Fiverster Auto Club, 87 F. Sopp. at S26, nor any actual
deceit, United States Steel Corp,, 82 Mawai'i at Si, 919 P.2d at 213.
a5
‘*FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER*
underlying contract." Nevertheless, if any deceptive omission
occurred with respect to the negotiation and execution of the
original contract, the operation of HRS § 480-12, see supra note
1, would render both the original contract and the waiver, signed
afterward, void." Thus, the waiver’s survival depends on the
trier of fact’s determination as to whether the omission of the
waiver requirenent during Island Incentives, Inc.'s booking
process was deceptive and therefore in violation of HRS § 480-2.
The application of an objective “reasonable person”
standard, of which the Cliffdale Assoce, test is an example, is
ordinarily for the trier of fact, rendering summary judgment
“often inappropriate.” anfac, Inc. v, Waikiki Beachcomber nw
Sou, 74 Haw. 85, 107, 839 P.2d 10, 24 (1992), cited in Casumpana
Ya IMU Local 142, 108 Hawai'i 411, 425, 121 P.3d 391, 405
(2005); Arquero v. Hilton Hawaiian Village LLC, 104 Hawai'i 423,
“Ie ie undisputed thet Island Incentives, Inc. was acting as the
Ranch's agent in this matter, and ‘we note that an owner is responsible for
the representations of his agent made within the scope of hig agent's selling
authority.” uv. Ay, 63 Haw. 210, 215, €26 P.2d 173, 176 (1981) (citing
Neqvessy o, strong, 300 /A.2d 383, 385 (Ve, 1978) ).
Xf the waiver were severable from the underlying contract, it
could survive despite 2 determination that the original contract was void.
See 61 Haw. “607, 619, 607 Pr2d 1304, 1312, (1980)
(The wording on HRS § 460-12 might... | Spear to suggest that any contract
containing an illegal provision . . ‘ should be held unenforceable in its
entirety... . (U]nder ordinary contract law, however, . «2 partially
legal contfact may be upheld if the illegal portion is severable from the part
hich Is legal.)- However, “the general rule ia that severance of an illegal
Provision is warrentea ang the lawful portion... . enforceable when the
Ellegal provision is not central to the parties" agreenent.”
Bauall, Ene, 3. ica, 96 Hawai'i 283, 11, 30 F-36695, 917 (2001): The
Underiying coneract at iseve ig the sum of the parties’ agreement) the waiver
Would Ge considered an addendus to it. Therefore, the waiver is not severssie
and must stand or fall with the underiying contract.
36
FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER*
433, 91 P.3d 505, $15 (2004). “Inasmuch as the term
treasonableness’ is subject to differing
interpretations... , it is inherently ambiguous. where = +
ambiguity exists, summary judgment is usually inappropriate
because “the determination of soneone’s state of mind usually
entails the craving of factual inferences as to which reasonable
[minds) might differ.'” fmfac, Inc., 74 Hew. at 107, 639 P.2d at
24 (quoting Bishop Trust Co. v. Cent. Union Church, 3 Haw. APP.
624, 628-29, 656 P.2d 1353, 1356 (1983). Reasonebleness can
only constitute a question of law suitable for summary judgment
wYwhen the facts are undisputed and not fairly susceptible of
divergent inferences’ because *[wJhere, upon all the evidence,
but one inference may reasonably be drawn, there is no issue for
the jury.’” Id. at 108, €39 P.2d at 24 (quoting Broad & Branford
lace Comp, v. Jud Hockenios Co., 39 A.2d 80, 82 (N.J. 1944)
(brackets in original). **{A] question of interpretation is not
left to the trier of fact where evidence is so clear that no
reasonable person would determine the issue in any way but on
‘Id. (quoting Restatement (Second) of Contracts § 212 cmt. @
(1981) (brackets in original). See also Restatenent (Second) of
Contracts § 212(2) (1981 and Supp. 2005) ("A question of
interpretation of an integrated agreement is to be determined by
the trier of fact if it depends on the credibility of extrinsic
evidence or ona choice anong reasonable inferences @
extrinsic evidence.”) (Emphasis added). There is no genuine
issue of material fact regarding the failure to disclose the
a7
‘*FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER*
waiver requirement during negotiation of the original tour
contract, but we cannot say that, applying the Cliffdale Assocs,
test, reasonable minds could draw only one inference as to the
materiality of that omission to reasonable consumers
contemplating the transaction. Therefore, the question whether a
waiver requirement would be materially important in booking a
horseback tour renains one for the trier of fact.
Because a genuine issue of material fact, resolvable
only by the trier of fact, remains in dispute, the grant of
summary judgment on the HRS ch. 480 claim was erroneous. We
therefore vacate the circuit court's May 13, 2002 judgment and
remand for further proceedings consistent with this opinion.
B. The Consequences, On Remand, Of The Determination By
The Trier Of Fact As To Whether Nondisclosure Of The
Waiver Requirenent Was A Deceptive Trade Practice
If, on remand, the trier of fact determines that the
nondisclosure of the waiver was a deceptive trade practice,
rendering the waiver void, then the Courbats’ negligence clains
proceed free of the waiver defense. Nevertheless, for the
reasons set forth below and for purposes of any subsequent trial
fon the Courbats’ negligence claims, we hold that HRS ch. 6638,
entitled “Equine activities,” see supra note 2, setting forth a
rebuttable presumption of non-negligence on the part of the tour
operator, does not apply to the present matter.
Conversely, if, on remand, the trier of fact determines
that the nondisclosure of the waiver was not deceptive, then the
Courbats validly waived their negligence claims.
18
| #POR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*
1. The Statutory Pr ion Of Non-Neali. Fol
2 2
Does Not Apply To The Courbats’ Claims.
If the trier of fact determines that the failure to
inform the Courbats of the waiver requirement was a deceptive
trade practice, then the negligence waiver, along with the
underlying contract, will be rendered void, and the Courbats’
negligence claims will be revived. In order to provide guidance
on remand, therefore, we hold that it was error for the circuit
court in the present matter to apply HRS § 6638-2(a), see supra
note 2, which establishes a rebuttable presumption in favor of
horseback tour operators that any injury “caused solely by the
inherent risk and unpredictable nature of the equine” is not due
to the negligence of the tour operator.
HRS § 663B-2(b) provides in relevant part that
s{nJothing in this section shall prevent or limit the liability
of an equine activity sponsor . - . if the equine activity
sponsor, equine professional, or person: . . - (2) (plrovided
the equine and . . . failed to reasonably supervise the equine
activities and such failure is a proximate cause of the injury.”
‘the substance of Lisa’s claim revolves around her assertion that
Nakoa failed to monitor her approach toward his horse while he
was engaged in conversation with ancther guest; in other words,
Lisa claims that Nakoa “failed to reasonably supervise the equine
activities” that were the “proximate cause of (her) injury.”
therefore, we hold that, if Lisa is correct, the presunption of
non-negligence set forth in HRS § 6638-2(a) would not apply to
as
*FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*
the Courbats’ claims.
2 if
ifthe Trier Of fact Determines That The
sclosure OF The Waiv :
‘Trade Practice, Then The Courbate Validly Waived
Their Negligence Claims.
a. i i ut
Citing Krohnert v. Yacht Svs. of Hawaii, 4 Haw. App.
190, 201, 664 P.2d 738, 745 (1983), the Courbats assert that,
because they manifested no clear and unequivocal acceptance of
the terns of the waiver, the waiver cannot be enforced against
them. However, pursuant to the following analysis, we hold that,
if the trier of fact finds that the failure to inform the
Courbats of the waiver requirement was not a deceptive trade
practice, then the waiver, in all other respects, was valid.
“The general rule of contract law is that one who
assents to a contract is bound by it and cannot complain that he
has not read it or did not know what it contained.” Leong vi
Kaiser Found, Hosps., 71 Haw. 240, 245, 788 P.2d 164, 168 (1990);
ace also Joaquin v. Joaquin, 5 Haw. App. 435, 443, 698 P.2d 298,
304 (1985); In ve Chung, 43 B.R. 368, 369 (Bankr. D. Haw. 1984);
Ince Kealoha, 2 B.R. 201, 209 (Bankr, D. Haw. 1980).
Furthermore, “*(pjarties are permitted to make exculpatory
contracts so long as they are knowingly and willingly made and
free from fraud. No public policy exists to prevent such
contracts.'" Fujimoto v. Au, 95 Hawai'i 116, 156, 19 P.3d 699,
739 (2001) (some brackets omitted) (quoting Gen. Bargain Ctr, ve
Am. Alarm Co., Inc., 430 N.E.2d 407, 411-12 (Ind. Ct. App.
20
+FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER*
1982)). “[SJuch bargains are not favored, however, and, if
possible, bargains are construed not to confer this immunity.”
Eulimote, 95 Hawai'i at 155, 19 P.3d at 738. Therefore, as a
general rule, “*{e]xculpatory clauses will be held void if the
agreement is (1) violative of a statute, (2) contrary to a
substantial public interest, or (3) gained through inequality of
bargaining power.'” 95 Hawai'i at 156, 19 P.3d at 739 (quoting
Andrews v. Fitzgerald, 823 F. Supp. 356, 378 (M.D.N.C. 1993).
‘The Courbats have not alleged that any of the terms of
the waiver, or the use of a waiver by the Ranch, violates a
statutes on the contrary, the Courbats concede that waivers are
an acceptable method by which tour operators may seek to limit
their liability in response to rising insurance and litigation
costs.
In Krohnert, the ICA defined the public interest
a5 involving sone of all of the following
Characteristics
[1] it concerns a business of a type
jeneraily thought suitable for public
gelation.
(2) the party seeking excvlpation is
Engaged in performing 9 service of great
[npertance to the public, which is often a
Batter of practical necessity for some
Renbere of the public.
{3} the party holds Bimeelf out as willing
£2) pergerm this service far any nenber of
the public who seeks it, or at least for
any member coming within certain
Getablished stancarcs.
[a] Ase result of the essential nature of
the fervice, in the economic setting of
the transaction, the party invoking
Gnculpation possesses a decisive advantage
SF fergaining strength against any menber
SE the public who seeks his service
[5] In exercising 2 superior bargai
2
*FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER*
ower the party confronts the public with
B standardized adhesion contract of
Sxcuipation snd makes no provision whereby
a purchaser nay pay additional reasonable :
Fees and obtain protection against
negligence.
16) Finally, a
result of the
son of property of the
purchaser is placed under the control of
Ene selier of the service, subject to the
Fisk of carelessness by the seller or his
agents.
4 Haw. App at 199, 664 P.2d at 744 (finding under this test that
the exculpatory clause contained in a contract for marine
surveying was permissible) (brackets omitted) (quoting Lynch v.
Santa Fe Nat'] Bank, 627 P.2d 1247, 1251-52 (N.M. Ct. App. 1961)
(holding that services of escrow agents in New Mexico were not in
the nature of a public service so as to render an exculpatory
clause unenforceable) (quoting Tunkl v. Regents of Univ, of Cali,
383 P.2d 441, 445-46 (Cal. Ct. App. 1963) (declaring invalid as
against the public interest an exculpatory clause for future
negligence required for admission to a public research
hospital))); see also 15 Corbin on Contracts $ 85.18 (2003 &
Supp. 2005) (sunmarizing a similar test commonly used by courts
and noting that courts tend to enforce exculpatory clauses for
recreational activities under the test).! Entities that have
courts have upheld exculpatory cleuses relating to car racing, see
Gadek v. creat Lakes Dracsway, Inca, 43 F. Sopp. 420 (M.D. 111. 1994)
Eigharsav. int'l Wotor Sports Ass'n, $30 9.6.04 059 (Ga. ct. App. 2000), snow
skiing, Eee Chauvlier v. Scot creck Ski Holdings, Inc,, 35 P.3d 383 (Wash.
Ce. App. 200i], skydiving, ace Scrivener v. Sky's The Cinie, ine, 68 F. Supp.
2a 279" (s..N.¥, 1999), and horseback riding, see Sereet v-Darein Sanch,
inc, 15 F. Supp. 24 1296, 1299 ID. Wyo. 1999)” (Finding That “recreational
trafi rides are neither of great inportance to the public, nor a practical
necessity to any menber of the public”)
2
‘FOR PUBLICATION IN WEST’S HAWAT'T REPORTS AND PACIFIC REPORTER*
been found to fall under the public interest doctrine, rendering
exculpatory clauses void, include common carriers, see Adams
Express Co, v. Croninaer, 226 U.S. 491, $09 (1913); Shippers
Nat'l Freight Claim Council, Inc. v. Interstate Commerce Com'n,
712 F.2d 740, 746 (2d Cir. 1983); Clairol, inc. v. Moore=
McCormack Lines, Inc., 79 A.D.2d 297, 309-10 (N.Y. App. Div.
1981), and hospitals, see Iunkl, 383 P.2d at 447; Smith v. Hosp.
Auth, of Walker, Dade & Catoosa Counties, 287 S.£.2d 99, 101 (Ga.
Ct. App. 1981); Belshaw v. Feinstein, 65 Cal. Rptr. 788, 798
(cal. ct. App. 1968).
Applying these factors to the present matter, we
determine that the public interest here is not at sta
recreational activity tours are not generally suitable to public
regulation, in the manner of common carriers, nor of great
importance to the public, nor of an essential nature, in the
manner of medical care, such that the provider's bargaining power
is greatly enhanced over any member of the public seeking their
services
Finally, as the United States District Court for the
District of Hawai'i noted, in considering negligence waivers in
the context of recreational activity, while such waivers may be
contracts of adhesion, in that they are presented on a “take-it-
or-leave-it” basis, they are not unconscionable, but “are of a
sort commonly used in recreational settings” and “are generally
held to be valid.” Wheelock v. Snort Kites, Inc., 839 F. Supp.
730, 736 (D. Haw. 1993). “[Clontracts [of adhesion] are
23
‘*FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER‘
‘unenforceable if two conditions are present: (1) the contract
is the result of coercive bargaining between parties of unequal
bargaining strengths and (2) the contract unfairly limits the
obligations and liabilities of, or otherwise unfairly advantages,
the stronger party.’” Fudimoto, 95 Hawaii at 156, 19 P.3d at
739 (quoting Brown v. KFC Nat’) Momt. Co., 82 Hawai'i 226, 247, .
921 P.2d 146, 167 (1996)); see also Wheelock, 839 F. Supp. at 735
("(Aldhesion contracts are fully enforceable provided that they
fare not unconscionable and do not fall outside the reasonable
expectations of the weaker or adhering party.”). Unequal
bargaining strength “involves the absence of alternatives;
to use or not to
specifically whether the plaintiffs were ‘frei
use’ [the] defendant's . . . services.” Krohnert, 4 Haw. App at
199, 664 P.2d at 744 (quoting Lunch, 627 P.2d at 1250). These
conditions are generally not germane in the recreational waiver
context. In the context of a recreational sport or adventure
activity, freely undertaken for pleasure, “coercive bargaining”
and “an absence of alternatives” are terms that hold Little
meaning.
In the present matter, Lisa read through and responded
to queries contained in the waiver form and had no further
questions or concerns regarding the contents before she signed
it. Steven conceded that he routinely relied on his wife to
review documents before signing them and that he knew he was
waiving rights when he signed the form. The record demenstrates
given adequate time and opportunity to
that the Courbats ve
24
‘FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER*
fully review the waiver presented to them before they signed it
and that both knew that by signing it they were waiving legal
rights in return for being allowed to participate in the ride.
In short, there is no evidence of coercion. By signing the
waiver form, they demonstrated that they agreed to its terms, and
by reading it, or, in Steven's case, in relying on the advice of
his wite, demonstrated knowledge of its contents. Moreover, they
had signed similar waivers that week for another activity and
were familiar with what they epresented. Accordingly, we hold
that, if the trier of fact determines that the nondisclosure of
the waiver was not a deceptive trade practice, the Courbats’
waiver was valid.
b. .
‘extend ea] ier -
The language of the waiver, see supra note 3, releases
the Ranch and its agents and holds it harmless “from loss or
damage to property or injury to [the undersigned) . . . resulting
from [the undersigned) . . . being a spectator or participant or
while engaged in any such activity in the event(-]related
facilities.” However, because “‘{e]xculpatory provisions are not
favored by the law and are strictly construed against parties
relying on them,’” the effect of the broad exculpatory language
contained in the Ranch’s waiver should be construed to limit the
waiver’s scope to simple negligence claims; it does not protect
the Ranch against its own gross negligence or willful misconduct.
Fulimeto, 95 Hawai'i at 156, 19 P.3d at 739 (quoting Andrews, 023
2s
‘*FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*
F. Supp. at 378); see also Wheelock, 639 F. Supp. at 736
(interpreting the reasoning in Krohnert to conclude that to allow
an exculpatory clause to extend to gross negligence would violate
the public interest, rendering the clause void) .
IV. CONCLUSION
In light of the foregoing analysis, we vacate the
circuit court’s May 13, 2002 judgment in favor of the Ranch and
against the Courbats and remand for further proceedings
consistent with this opinion.
On the briefs:
for the plaintiffs-appellants
Lisa Courbat and Steven Courbat
Zale T. Okazaki,
of Ayabe, Chong, Nishimoto,
Sie and Nakamura, Neue Cinaveny are
for the defendant-appeliee
Dahana Ranch, Inc.
26
|
779e4162-c12f-44be-802b-d6b66aefb753 | Dominguez v. Hifo | hawaii | Hawaii Supreme Court | No. 27968
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
S zm
vs. s =
2 m
‘THE HONORABLE JUDGE EDEN E. HIFO, Respon: 2 °
ORIGINAL PROCEEDING
(By: Moon, C.J., Levinson, Nakayama, and Duffy, JJ.
and Intermediate Court of Appeals Associate Judge Lim,
in place of Acoba, J., recused)
upon consideration of the petition for a writ of
oner Erlinda Dominguez, the papers in
prohibition filed by pet!
support and the record, it appears that a writ of prohibition is
not issuable under the authority of Peters v. Jamieson, 48 Haw.
247, 397 P.2d S75 (1964) inasmuch as petitioner is not prohibited
from appealing from the final judgment entered in Civil
No. 03+1-2372. The actions of the respondent judge are
reviewable on appeal from the final judgment entered in Civil
No, 03-1-2372, petitioner will have a remedy by way of appeal
from the final judgment and a writ of prohibition is not intended
to take the place of an appeal. Therefore,
17 15 HERESY ORDERED that the petition for a urit of
prohibition is denied without prejudice to any remedy petitioner
may have by way of appeal.
DATED: Honolulu, Hawas'i, July 12, 2006.
Erlinda dominguez,
petitioner, pro =
bn the petition Z
Rater Cbrcseeus oer
Lane Owen,
ao a
|
a28a572b-f6c8-4b2e-85be-9f733d3bdecd | Page v. Gangnes | hawaii | Hawaii Supreme Court | No. 28035
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
RICHARD C. PAGE and BEVERLY A. PAGE, Petitioners,
HONORABLE HILARY BENSON GANGNES; JUDGE OF THE DISTRICT COURT
OF THE FIRST CIRCUIT, STATE OF HAWAI'I, Respondent,
and
MELVYN YEW KEONG CHOY,
ORIGINAL PROCEEDING
(CIV. NO, 1RCO6~1-2144)
upon consideration of the petition for a writ of
chard Page and Beverly Page and
mandamus filed by petitioners
the papers in support, it appears that the decision of the
respondent judge denying petitioners’ motion to dismiss Civil No.
1RCO6-1-2144 for lack of district court jurisdiction is
reviewable on appeal from a final judgnent entered in Civil No.
1RCO6-1-2144, Petitioners will have a renedy by way of appeal
from a final judgment and a writ of mandamus is not intended to
take the place of an appeal. Therefore,
aang
IT IS HEREBY ORDERED that the petition for a writ of
mandamus is denied without prejudice to any remedy petitioners
may have by way of appeal.
DATED: Honolulu, Hawai'i, July 31, 2006.
Scot 5. Brower,
for petitioners Ziphn—
Se Rilecwesen
Piste Orsay
Cnon.e, Dviiy ths
|
cda60991-d0c1-48b5-8c18-ab0b886bec69 | D.R. Partners v. Clerk of the Circuit Court of the Third Circuit, State of Hawaii | hawaii | Hawaii Supreme Court | No, 28055
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
D.R. PARTNERS, dba The Hawaii Tribune-Herald and West Hawaii
‘Today, a Nevada general partnership, Petitioner,
CLERK OF THE CIRCUIT COURT OF THE THIRD CIRCUIT, STATE OF
HAWAI'I; the Honorable GEORGE N. MASUOKA, Judge of the Circuit
Court of the Fifth Circuit, State of Hawai'i, Respondents.
ORzGINAL, PROCEEDING ee
(Civil. No. 04-1-0211) Sor
XIE oo
ORDER Be. 2
(By: Moon, C.J., Levinson, Nakayama and Acobag|JI., @
and Intermediate Court of Appeals Judge Fujdpe, 4
in place of Duffy, J., recused)
upon consideration of the petition for 2 writ of
mandamus and/or prohibition filed by petitioner D.R. Partners,
dba The Hawaii Tribune Herald and West Hawaii Today, the papers
in support and the answers of the respondents, it appears that
the presumption of openness of judicial proceedings and records
requires respondents to demonstrate that strong countervailing
reasons weigh against the public's presumptive right of general
access to the record of Civil No. 04-1-0211. In re Estate of
Campbell, 106 Hawai‘i 453, 465, 106 F.3d 1096, 1208 (2005).
Respondents fail to demonstrate that such strong countervailing
reasons exist. Therefore,
IT IS HEREBY ORDERED that the petition for a writ of
mandamus and/or prohibition is granted as te issuance of a writ
aatg
of prohibition. Effective the date of this order, the respondent
judge and the clerk of the third circuit court are prohibited
from further enforcing the April 11, 2006 stipulation temporarily
sealing the record of Civil No. 04-1-0211.
DATED: Honolulu, Hawai'i, September 6, 2006.
Jettrey S. Portnoy, Esq. fpr
Elijah vip, Esq.
Christian k. Adame, Esq. .
Cades Schutte LLP (BZ Hlrisen
Attorney for petitioner
Brian J. be Lins, Esq. Praaie Oo rua.
Crudele 6 De Lina
Attorney for respondent
Stanley Roehrig
Keith K. Hiraoka, Esq. Qeaer, de yx
Roeca Louie & Hiraoka
Attorney for respondents
Roehrig Roehrig, Wilson &
Hara, and Glenn Hara
Diana L. Van De Car, Esq.
Attorney for respondent
‘Title Guaranty Co.
Eugene J. Albertini, Esq.
Albertini & Gill
Attorney for respondent
George Miyashiro
Shelby Anne Floyd, Esq.
Danielle DeGele-Mathews, Esq.
Alston Hunt Floyd & Ing
Attorneys for respondet
Jack's Tours
|
fe472059-25cd-4e11-a7a1-3611b708ada7 | 808 Development, LLC v. Murakami. S.Ct. Order of Amendment, filed 09/07/2006 [pdf]. | hawaii | Hawaii Supreme Court | LAW LIBRARY.
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
---000.
808 DEVELOPMENT, LLC, Lienor-Appellant /Cross-Appellee,
ud 9002
GLENN NOBUKI MURAKAMI and ANN SUE ISOBE,
‘Respondent s-Appellees/Cross-Appellants,
and
JOSEPH E. SPADARO aka JOSEPH ELIO SPADARO, =| 9 S
individually and as Trustee under that certain
Declaration of Trust dated October 3, 2000,
JOHN NELSON SPADARO; JIM HOGG; LISA HOGG; and
AMERICAN SAVINGS BANK, F.S.B., Respondents-Appellees,
and
JOHN DOES 1-10; JANE DOES 1-10; DOB PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; DOE ENTITIES 1-10; and
DOE GOVERNMENTAL UNITS 1-10, Respondents.
No. 26610
APPEAL FROM THE PIRST CIRCUIT COURT
(4.1, NO. 04-1-0002))
AUGUST 14, 2006
MOON, C.J., LEVINSON, ACOBA, AND DUFFY, JJ.; AND
INTERMEDIATE COURT OF APPEALS ASSOCIATE JUDGE WATANABE,
IN PLACE OF NAKAYAMA, J., RECUSED
OPINION OF THE COURT BY MOON, C.J.
Lienor-appellant 808 Development, LLC [hereinafter, 808
Development] appeals from the Circuit Court of the First
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
SSS
ing 808
Circuit's! (1) July 20, 2006 final judgment disms
Development's mechanic's lien application (hereinafter, lien
application] made against property owned by respondents-appellees
Glenn Nobuki Murakami and Ann Sue Isobe {hereinafter
collectively, Owners] and (2) October 28, 2004 amended final
Judgment granting costs to Owners in the amount of $2,399.21.
owners cross-appeal from the circuit court’s October 28, 2004
amended final judgment denying their request for attorneys’ fees.
‘The instant action also named, inter alia,’ respondent-appellee
American Savings Bank (ASB), which allegedly held @ security
interest in the property as one of Owners’ lenders. The circuit
court dismissed the lien application on the sole basis that 608
Development had not complied with the statutory notice
requirenents for contractors regarding lien and bond issues under
Hawai'i Revised Statutes (HRS) § 444-25.5 (Supp. 2000), quoted
intra.
On appeal, 808 Development asserts that the circuit
court erred in dismissing its lien application because: (1) it
disregarded the legislature's intent in enacting Hawaii's
mechanic’s lien statute, HRS § 507-42 (1993), quoted infra, and
HRS § 444-25.5; (2) ite ruling is inconsistent with Hiraga v.
\ the Honorable Victoria S. Marks presided over the proceedings
2 me action was also brought againet respondents-appellees Jim ané
Lisa ogg, as well ae John and Joseph Spadaro, ail of whom were only minimally
Thvoivedsin the cireuit court proceedings and did not submit answering Briefs
on appeal
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
Baldonado, 96 Hawai'i 365, 31 P.3d 222 (App. 2001); and (3) the
dismissal of ite lien application was “absurd and unjust." 808
Development also asserts that the circuit court erred in denying
its request for a continuance of the probable cause hearing on
the lien application pursuant to HRS § 507-43(a) (1993)° and
Hawai'i Rules of Civil Procedure Rule (ERCP) Rule 56(£) (2004) .*
In their cross-appeal, Owners assert that the circuit
court erred in denying their request for attorneys’ fees pursuant
to (2) BRCP Rule 11, which was based on their allegation that 808
Development's filing of its lien application was “frivolous,
wholly lacking in any factual or legal support” and (2) HRS
§§ 607-14 (Supp. 2004), quoted infra, and -14.5 (Supp. 2004),
quoted infra, as the prevailing parties and as against frivolous
claims, respectively. Based on the discui
ion below, we affirm
the circuit court's July 20, 2004 final judgment dismissing 608
Development's lien application and October 28, 2004 amended final
judgment denying Owners’ request for attorneys’ f
) was § $07-43(a) provides in pertinent part that:
‘The Application [for a mechanic's lies) and Notice
shall be veturnable not less than three nor more than ten
Gaye after service. Gn the return day. a hearing shall be
held by the court to detersine whether probable cause existe
fo persit the lien to attach... The return day hearing
may be continued at the order of the court so chat the
entire controversy need not be determined on the originally
Scheduled return day
+ wacp Rule 56(f) provides in pertinent part that the circuit court may
sorder a continuance to permit affidavits to be obtained or depositions to be
taken of discovery to be haa[.]"
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
1. BACKGROUND
A. Eactual History
the following salient facte are undisputed. Michael
Sakatani is the sole menber of 808 Developnent. Sakatani and
Murakami were menbers of Kiwi Kahala, LLC (Kiwi), @ limited
Liability company that was formed to purchase, develop, and ell
high-end real estate, Other Kiwi enbers included Kenneth Vu and
Nacto Lathrop. In late 1999, Kiwi purchased real property
Jocated at 4902 Kahala Avenue (hereinafter, the subject property)
in vu'e name, which Kiwi planned to develop. on April 6, 2000,
Kiwi hired 808 Development to construct @ high-end residence on
the subject property. Construction began on July 31, 2000. on
october &, 2000, Owners acquired title to the subject property
from Vu. Pursuant to a construction agreement, dated January 1,
2002, Oxners hired 808 Development to construct improvenents on
the subject property for $1,630,500; construction purauant to
January 1, 2002 agreement began at sone point thereafter, the
January 1, 2001 construction agreement did not include written
notices and disclosures regarding lien and bond issues
required under HRS § 444-25.5."
+ an ite memorandum in opposition to Omers’ motion to dismiss the lien
application, #08 Development stated that the original construction contract
between 608 Development and Kivi was signed in 2000; however, the first page
Of the contract, slong with the architect specifications, vere later replaced
Sith pages dared in 2001 co satisty potential lenders. According to £08
Development, the original pages that were renoved froz the 2000 contract were
Giscerded. £06 Development concedes that “the (2000) contract dia not contain
fhe lien and boné disclosures required under HRS § 444-255." Thus, che
Existence of the original 2000 contract between Kivi and 08 Development ia of
(continued --)
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in West’s Hawai'i Reports and the Pacific Reporter
808 Development alleges that, on August 30, 2001, 808
Development and Owners entered into an amended construction
agreement that addressed the lien and bond issues. However,
Owners denied entering into an amended agreement, and 608
Development was unable to produce a signed amended contract.
According to 808 Development, it stopped work on the project
after Owners allegedly failed to pay as required by the
construction agreement. 808 Development alleges that Owners owe
$1,830,500.00 “less payments made" for materials, equipment, and
labor costs incurred through April 30, 2003. Owners allege that,
because the “payments made” total more than two million dollars,
they do not presently owe any money to 808 Development. It ie
unclear from the record the actual amount presently owed by
owners, if any, to 808 Development.
B. Procedural History
On January 16, 2004, 808 Development initiated the
instant mechanic’s lien action by filing its lien application
with the circuit court. Owners and ASB were served with a notice
of the lien application that indicated a return date of January
22, 2004. On January 26, 2004, 808 Development filed a notice
that a probable cause hearing was set for March 2, 2004. On
February 4, 2004, 808 Development moved to continue the probable
*(. continued)
no consequence £0 the instant sppesl. Thus, hereinafter, any reference to the
Construction agreement oF contract neans the January 1, 200) contract between
Owners and 202 Developnent’
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in West's Hawai'i Reports and the Pacific Reporter
cause hearing, pursuant to HRS § 507-43 (a) and HRCP Rule 56(f),
see supra notes 3 and 4, arguing that it required additional time
to complete discovery and prepare for the hearing. The
continuance was denied, and the hearing proceeded as scheduled on
March 2, 2004.
Meanwhile, on February 10, 2004, Owners moved to
Gismiss the action for lack of subject matter jurisdiction,
purouant to, inter alia, ERCP Rule 12(h) (3) (2008),* for failure
to comply with HRS § 444-25.5, and requested attomeye’ fees and
costs against 608 Development. On the sane day, Owners filed a
certificate of service, indicating that they had served a notice
on 608 Development of their intent to file a motion for HRCP Rule
21 sanctions against 808 Development and ite attorney.
At the probable cause hearing on March 2, 2004, the
circuit court also heard argument on Owners’ motion to dismiss
the lien application. During the hearing, ASB informed the court
of a companion case involving 608 Development and Owners in which
the equitable interest of 808 Development was at issue. ASB
expressed its concern that, if the lien were permitted to attach
and relate back to the July 2000 construction date, ASB would
lose ite lien priority as holder of the first mortgage on the
property because it recorded the mortgage in October 2000. The
© MRCP Rule 12(h) (3) states that, “(w]henever it appears by suggestion
of the parties of otherwise that the court lacks Suriediction of the wubject
matter, the court shall dismiss the action.”
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
court was also informed that a foreclosure action had been filed
and that Owners had obtained a $3.6 million dollar loan to “take
out all the liens to stop the foreclosure." ASB requested that
the court dismiss the lien application so as not to affect its
lien priority, noting that 608 Development could refile its lien
application at a later date if it found the signed amended
contract. The circuit court orally ruled in favor of Owners and
dismissed the lien application, but informed 808 Development that
“[i]t doesn’t affect your rights under quantum meruit. If you
can find a signed contract providing . . . lien and bonding
rights, you're free to refile." On May §, 2004, the order
granting Owners’ motion to dismiss the lien application was
entered, stating that 608 Development had “failed to present
evidence that it had complied with the written disclosure
requirement of [HRS § 444-25.5] as interpreted by the
Intermediate Court of Appeals [(ICA)] in Hixaga v. Baldonado, 96
Hawai'i 365, 31 P.3d 222 ({Alpp. 2001) [.]" In a separate order
entered on the same day, the circuit court denied Owners’ motion
for Rule 11 sanctions, stating that ‘it appears to the court that
[808 Development] . . . argued for a good faith extension of the
law eet forth in (Hixagal.”
on duly 20, 2004, the circuit court entered a final
judgment, dismissing 808 Development’s lien application, pursuant
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
to HRCP Rule 58 (2004).” Thereafter, on July 30, 2004, Ownere
moved for an award of costs and fees in the anount of $38,183.25,
pursuant to HRCP Rules 7(b) and $4 (4) (2004)," and HRS § 607-14."
In addition, Owners separately moved for partial reconsideration
and/or clarification and/or to set aside and amend the July 20,
2004 final judgment with regard to an award of coats and
attorneys’ fees against 808 Development, purauant to the same
7 MRCP Rule 58 provides in pertinent part that *(elvery judgment shall
be tet forth on a separate document”
+ uncp Rule 7(b), entitled “Motions and other pape:
relevant part:
» provides in
(2) As application to the court for an order shall be
by motion which, une ring or trial,
shall be nade ih writing, shall state with parcicularity the
rounds therefor, and shall set forth the relief oF order
Soughe:
ia} “aia motions shall be signed in accordance with
ule 22
ERCP Rule 54(4) provides in pertinent part:
(2)_costs OTHER THAN ATTORNEYS" FEES. Except when
express provision therefor is nade either in a statute or in
Ehese rules, costs shall be allowed as of course to the
prevailing party unless the Court otherwise directs(.)
(capital letters in original.)
% uns § 607-14 provides in pertinent part:
Attorneys’ fees in actions in the nature of assumpeit,
ete. In ali the courts, in all actions in the nature of
jumpsit and in all actions on a promissory note or other
Contract in writing that provides for an attorney's fee,
there shall be taxed as attorneys’ fees, to be paid by che
losing party and co be included in the gum for which
execution nay issue, 2 fee that the court determines to be
yeasonable[-]
(emphasis in original.)
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
authorities." On August 24, 2004, ASB submitted a memorandum
regarding Own
motion for attorneys’ fees, notifying Owners of
ite intent to demand that Owners reimburse ASB $2,000.00 for its
attorneys’ fees and costs incurred if Ownere prevailed on their
notion
on October 26, 2004, the circuit court granted in part
and denied in part Owners’ notion for reconsideration of the July
20, 2004 final judgment, awarding costs in the amount of
$2,399.31 and denying the request for attorneye’ fees. An
amended final judgment was also entered on the same day,
reflecting the award of costs and dismissal of all other clains.
on November 26, 2004, Ovners timely filed a notice of
appeal from the October 28, 2004 amended final judgment,
challenging the denial of its request for attorneys’ fees, which
was docketed
appeal No. 26972. 808 Developsent’s premature
notice of appeal, see supra note 10, is considered filed on July
% re should be noted that, on June 4, 2004, 608 Development appealed
the dioniasel of ite len application, which was docketed aa appeal Ros 26610,
price to the entry of the final Judgeent in this case. Moreover, the tine for
Fiifag the notice cf appeal wae extended as t result of the omers’ post”
judguent sotions. Havel Rules of appellate Procedure. (AD) Rule 40a) (2)
igese) "rf, not later than 10 daye after entry of final judgeent. any party
ties ‘notion that seeks to reconsider, vacate, or alter ehe jusguent, or
seeks attorney's fees or costa, the tine for filing the notice of appeal is
Extended unt! 0 days after entry of an Order disposing of the motient-]")
See also infra note 22.
Homers’ appeal is actually = cross-appeal to 908 Development's
sppesl in No. 26610. Gee HRAP 4.x(a) and (b) (2004). On Deceaber 34, 2004,
£08 Deveiopnent filed a notice of cross-appeal in appeal No. 2692, abpealing
the same octoner 28, 2004 order that it challenges in appeal Ho. 26620, which
ie eupertiucus.
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ee
20, 2004, when the judgment dismissing the lien application was
entered. RAP Rules 4(a) (2) and 4(a) (3).
IT, STANDARDS OF REVIEW
A. Motion for Sumary Judament’
A circuit court's grant or denial of summary judgment
is reviewed de nove, under the same standard applied by the
circuit court. Hawai'i Cmty. Fed. Credit Union v. Keka, 94
Hawai'i 223, 221, 11 P.34 2, 9 (2000) (citing Amfac, Inc. v.
Haikiki Beachcor Ww. Co., 74 Haw. 85, 104, 639 P.2d 10, 22,
reconsideration denied, 74 Haw. 650, 843 P.2d 144 (2992).
‘Ag we have often articulated[.1
[elummary judgnent ia appropriate if the pleadings,
Gepoeitions, anewers to interrogatories, ane
SSiseione co file, together with the affidavite, if
Sny. show that thefe ig no genuine issue as to any
material fact and that the soving party is entitied to
Jisguent as a secter of law
fact Le material if proof of chat fact would
have the effect of establishing or refuting one of the
feof action or defense
‘the evidence mst be
22 the non-neving
in pertinent part that, “{iJn any case in
ia filed prematurely, such sotice shall be
or Terediately after the time the judsnent becones final for
Borpakpene ce appeal.” Consequently, 008 Development's "anended notice of
Gpresl.? filed om August 10, 2008, is superfluous.
‘08 Development also filed a notice of pendency of action with this
court on october 26, 2004. On December 1, 2004, Owners eubsequently moved to
SWButoe ‘he notice Of pendency of action, which’ appellee John Spadaro joined
GPotienber 3.2004, this court granted the notin to expunge the notice of
Sonoesey of action via order entered on Pebruary 18, 2008 and amended on
Febraary 22, 2008. Thereafter, on March 4, 2005, this court, gua sponte,
ESheolideted appeal Noe. 26610 and 26972 under No. 26630.
1 anasmach as the probable cause hearing regarding #08 Developsent's
Lien application wae consolidated with the hearing on Owners’ notion to
Ustiaee the circuit coure considered evicence outside the pleadings
Sebting ite dieniscal nore akin to a grant of sumary judgment. Thus, the
Stupanrd of review for summery Judgment appears appropriate under the
Circumstances of this cas
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party. in other words, ve must view all of the
Rvidence ang the infercnces draws therefrom in the
SNoht moet favorable to [the party opposing the
notion}
Daixy Read Partners v. Island Ins, Co,, 92 Hawai‘; 398, 411, 992
P.2d 93, 106 (2000) (citations and internal quotation marks
omitted)
B. a 7
the interpretation of a statute is a question of law
reviewable de nove.” Gray v. Admin, Dix, of the court, 84
Hawai" 238, 144, 931 P.24 $80, $86 (1997) (internal quotation
marke and citations omitted).
ken construing # statute, our foremost obligation is
ko ascertain and give effect to the intention of the
Yegielature, which is to be obtained primarily from the
Jenguage contained in the statute itself. ard ve sust read
statutory language in the context of the entire statute and
Construe it in a manner consistent with ite purpose
‘When there s¢ doubt, doublenecs of meaning, oF
indiatinetiveness or uncertainty of an expression used in
statute, an ambiguity exieta[-)
Th Gonseruing an ambiguous statute, “(t]he weaning of
the ambiguous words may De sought Sy examining the context,
With which the ambiguous words, phrases, and sentences may’
be compared, in order to ascertain true seaning.* HRS
Sasi (2) 1(3993)]. Moreover, the courte say resort to
Extrineie aide in determining the legislative intent. One
fvenue ie the use of legislative history as an interpretive
tool
Aluminum Shake Roofing, Inc, v. Hirayasu, 210 Hawai'i 24)
251-52
131 P.3d 1230, 1233-34 (2006) (citation omitted) (format
altered) .
ia 8
A [circuit] coure’s decision to deny a request for a
continuance pursusnt to HRCP Rule Sé(f) will not be reversed
brent an abuse of discretion. Additionally, the request
must denonstrate how postponement of a ruling on the motion
will enable hin or her, by discovery or other neans, to
Tebut the movants’ showing of absence of a genuine issue of
fact. An abuse of discretion occurs where the (circuit)
are
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court hat clearly exceeded the bounds of reason or
Gieregarced rules or principles of law or practice to the
Substantial detriment of = party litigant.
Josue v. Isuzu Motors Am, Inc., 87 Hawai'i 413, 416, 958 P.2d
535, 536 (1998) (citations, internal quotations marks, and
brackets omitted)
D. Attorneye’ Fees
‘This court reviews a circuit court’s grant or denial of
fees under the abuse of discretion standard, Price vw.
attorney’
AIG Hawai'i Ine, Co,, 107 Hawai'i 106, 110, 111 P.34 2, 5 (2008),
requested pursuant to HRS §§ 607-14 and -14.5.
including fe
Piedvache v. Knabusch, 88 Hawai'i 115, 118, 962 P.2d 374, 377
(1998).
E. Rule 11 Motion
“ALL aepecte of a HRCP Rule 11 determination should be
reviewed under the abuse of discretion standard." Lapere v.
Inited Pub, Workers, Local 646, 77 Hawai'i 472, 473, 867 P.2d
1029, 1031 (1995) (citation omitted) .
XII, DISCUSSION
Mechanic's liens are purely statutory, and a lien will
not attach automatically. ack Endo Elec.
Inc., 59 Haw. 612, 615, 585 P.2d 1265, 1268-69 (1978). Hawaii
mechanic's lien statute, HRS § 507-42, provides in pertinent
part:
When allowed; lessees, ete. Any person or association
of persone furnishing labor of material in the improvenent
of Feal property shall have a lien upon the inprovenent at
Well as upon the Snterest of the omer of the improvenent in
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tthe real property upon which the eave is situated, or for
Eke benefit of which the same wae constructed, for the price
(it the price does not exceed the value of
RME'IGESE Shateateriais), or if the price exceeds the value
Uhereo! or if no price 18 agreed upon by the contracting
parties nd
Paterisle covered by thely contract, express Or implied.
(Gold emphasie in original.) (Underscored emphases added.)
However, under BRS § 444-25.5:
(a) Prior to enterina into a contract with =
honeomer shvelving hose construction of improvenente and
pricy to the application for building permit, licensed
Contractors shail:
a verbal homeowner a:
‘of ali parties performing under the
Gontract including the homeowner, the
Contractor, any subcontractor or any materisiman
Gupplying connedities or labor on the project,
(2) Euplain verbally sp detail the oseowner'e
gbtion te denand bonding on the project, how the
Bond would protect the Homeowner and. the
approximate expense of the bond; and
(3) Disclose ali information pertaining te the
ie ‘and any other
Felevant infornation that the (contractors
License] board may require by rule
@)
construction or -inprovenents shall provides written
‘he written contvact snail:
TST Contain the information provided in subsection
(a) and any other relevant information that the
board may require by rule;
(2) Be sioned by the contractor and the homeowners
and
o) Be ae mance of ams
(c) For the purpose of this section, “homeowner”
reane the omner or lessee of resigential real property,
Taeluaing owners or lessees of condominium or cooperative
“a
unfair or decestive practice and shall be subject £9
provisions of chapsar 480, a0 vel as the provisions of this
chapter.
(Emphases added.) The consequences of HRS § 444-25.5(d) fall
under (1) HRS § 480-2(a) (1993), which declares “unfair or
deceptive acts or practices in the conduct of any trade or
conmerce* unlawful and (2) BRS § 480-12 (1993), under which any
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contracts involving such unlawful practices are “void
and . . . not enforceable at law or in equity.” Therefore, based
upon the plain language of the above statutes, a contractor who
fails to provide written and verbal notice and disclosure of lien
vighte and bonding options to homeowners prior to entering into a
construction contract may not enforce the contract against the
owner and, consequently, is not entitled to a mechanic's lien
upon the property. Hiraca v. Baldonado, 96 Hawai'i 365, 371, 32
P.3d 222, 228 (App. 2001) (holding that a contractor who complied
with the requirements of HRS §§ 444-25.5 (a), but failed to comply
with the requirements of HRS § 444-25.5(b) was not entitled to a
lien on the property because “[t]he combination of BRS
§§ 444-25.5(d) and 460-12 caused the [construction] contract to
be void and . . . not enforceable at law or in equity" (internal
quotation marks omitted)). Keeping the aforementioned statutes
and principles in mind, we now turn to address the parties’
contentions.
A. 808 Development's Appeal
a. Whether the Circuit Court Erred in Diemissing
808 Development's Lien Application for Failure
to Comply with HRS § 444-25.5
808 Development contends that, despite its admitted
failure to comply with HRS § 444-25.5, the circuit court erred in
@ismissing ite lien application because: (1) it disregarded the
Hawai‘ legislature's intent in enacting Hawaii’s mechanic’s lien
statute and HRS § 444-25.5, as well as erroneously concluded that
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a
ies terms are mandatory; (2) its ruling was inconsistent with
Hixaga; and (3) the dismissal of the lien application was
sabsurd,* “unjust,” and inconsistent with legislative intent.
owners and ASB counter that the circuit court correctly disnissed
208 Development's lien application by strictly construing and
enforcing HRS § 444-25.5, consistent with the holding in Hiraga.
In the instant case, 608 Development furnished labor
and/or materials for the improvements on the subject property and
applied for a lien, pursuant to HRS § 507-42. Under HRS
§ 444-25.5(c), Owners owned the subject property and, therefore,
quality as “honeownere* entitled to the protections of the
statute. However, it is undisputed that 608 Development did not
provide to Owners the lien disclosure notices before or upon
signing of the contract or prior to the conmencenent of work as
required by HRS § 444-25.5(a). 808 Development's conduct was,
therefore, an “unfair or deceptive practice” that renders its
contract “void and. . . [unjenforceable at law or in equity”
under HRS § 480-12. See HRS § 444-25.5(a). Accordingly, based
on the plain language of the relevant statutes, 808 Development
is not entitled to a lien upon Owners’ property, and the circuit
court did not err in dismissing its lien application.
Nevertheless, 808 Development maintains that this court
should look to the legislative intent in enacting HRS § 444-25.5
because it believes, essentially, that the statutory requirements
are directory rather than mandatory. We, therefore, address
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i
whether the circuit court's dismissal vas contrary to the
legislative intent of the statute.
2. Whether the Dismissal of 808 Development's Lien
Application was Contrary to the Legislative Intent of
the Statute
a. wheth 4 a recto:
808 Developnent asserts that the circuit court erred in
strictly applying the statutory requirements to ite construction
agreenent. Relying on Jack Eno Elec., Inc. v. Lear Siesler,
inc., 59 Haw. 612, 585 P.2d 1265 (1976), 808 Development urges
thie court to examine the statute's legislative history to
determine whether the statute at issue is ‘mandatory or
directory."
ASB and Owners maintain that the circuit court's ruling
was wholly consistent with the plain language of HRS § 444-25.5
and that this court's decision in Jack Ende is consistent with
the circuit court‘s determination that 808 Development was
required to comply with the statute.
cHistorically this court has atrictly construed the
procedural requirements of the mechanic’s and materialman’s liens
law, while Liberally construing the remedial portions thereof.”
Moore v. Tablada, 62 Haw. 228, 229, 708 P.2d 140, 141 (1985)
(citing Hawai'i Carpenters’ Trust Funds v. Aloe Dev, Corp., 63
Haw. 566, 572-73, 633 P.2d 1106, 1110 (1981); Lewers & Cooke,
itd. vy. Wong Wong, 22 Haw. 765, 768 (1915)). As previously
indicated, HRS § 444-25.5 states that licensed contractors
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‘ghall” provide verbal notice and disclosure of lien rights and
bonding options and “shall” cbtain a signed writing that includes
the information explained verbally. Generally, the word ‘shall*
as used in statutes is construed as imperative or mandatory. see
eslie v. Bd. of Appeals of County of Hawai'i, 109 Hawai'i 384,
393-94, 126 P.3d 1071, 1080-81 (2006); Coon v. City & County of
Honolulu, 9¢ Hawai"! 233, 256, 47 P.3d 348, 372 (2002). In
certain situations, however, the word “shall” may be construed as
directory. See Jack Endo, 59 Haw. at 617, 885 P.2d at 1270.
(IE the provision ie mandatory, the failure to follow it
Will Fender the processing to which it relates illegal and
Void, “If the provision is directory, however, the
Sbeervance of the provision will not be necessary to the
Vallaity of the proceeding.
CYS" Tn determining whether a statute is mandatory or
Airectory{,] the intention of the legislature must be
ascertained. “The te
‘She_was-or the other. in general, a statute is directory
Father then Mandatory if the provisions of the statute do
not relate to the essence of the thing to be done or where
no_aubstantial ciahte depend on compliance with the
particular provisions and-no injury can reeult fros ienorine
hen.
Id, at 616-17, 585 P.2d at 1269 (citations, internal quotation
marks, and ellipsis omitted). In other words,
pose a
‘Sonsequences of noncompliance. A failure to follow the
former ta unattended by serious legal consequences
heglect of the latter say invalidate a transaction oF
‘here there
[Binge spon precise adherence to the law... . . And the word
“ehala® may be held to be nerely directory, when no
dndividual, by giving it that construction.
our
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Perry v, planning Comm'n of the County of Hawai'i, 62 Haw. 666,
676-77, 619 P.24 95, 103 (1980) (emphases added) (citations and
some internal quotation marks onitted).
tn Jack Endo, this court determined that a provision in
HRS § 507-43 (Supp. 1973) was directory. 58 Haw. at 618-19, 585
P.2d at 1270. HRS § 507-43 required any person claiming a lien
to provide a copy of the lien application and notice of lien
supon the ower of the property and any person with an interest
therein and upon the party or parties who contracted for the
improvenents[.]" The contractor had provided notice of the lien
application to the lessee of the property and the developer who
had contracted for supplies, but failed to provide notice to the
fee owner. This court held that:
(the contractor's) failure to name and serve notice of
the iien on the fee omer of the subject property resulted
[nexenpting the interest of the fee cwner fron the lien.
Consequently, the fee owner was not cubstantially prejudiced
by net rece(ving notice of the lies.” Thus, the notice
provision of BRS § 507-43 (Supp. 1973) calling for the
Faming and service of notice upon "the omer of fee title to
the property and upon the party or parties who contracted
for the improvenente sf other than the fee owner" ie
Elrectory rather chan mandatory. Further, the failure to
Strictly conpiy with the directory provisions of the statute
not invalidate the lien as to [the developer] and (the
© Tthe developer and the lessee] were properly naned
and served with notice of the lien. The lien is only
Etective as to their respective interests in the subject
property
(emphasis in original). In sum, the determination of whether
ERS § 444-25.5's requirements are mandatory or directory involves
a consideration of: (1) the nature and object of the statute;
(2) whether the provisions relate to the essence of the statute’s
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a
purpose; (3) the consequences of noncompliance; and (4) whether
the substantial rights of the parties depend on compliance with
the statute.
First, the provisions of HRS § 444-25.5(a) are
procedural and not renedial inasmuch as they relate to the
specific actions a contractor mst take to preserve its right to
alien. See Moore, 68 Haw. at 229, 708 P.2d at 141. Second, the
express purpose of HRS § 444-25.5 is to ‘have an inforned
homeowner who can and will avoid the double pay situations caused
when the homeowner pays the prime contractor, the prime
contractor does not pay the sub-contractors and/or materialmen,
and the latter assert their lien rights against the homeowner.”
flixaga, 96 Hawai'i at 369, 31 P.3d at 226 (citation omitted); see
sen, Stand. Con. Rep. No. 727, in 1975 Senate Journal, at 1104
thus, the statute's notice and disclosure requirements under HRS
§ 444-25.5(a) relate to the “essence” of the statute, i.e, the
education of homeowners. Third, the consequences to the
contractor for failure to comply with such requirenente are
unenforceability of the contract and exposure to the penalties
under HRS § 480-13 (Supp. 2000), which provides
suite by persons injured; amount of recovery,
Anjunctions.
‘bi Any consumer who ie injured by any unfair or
deceptive act or practice forbidden or declares unlawful by
section 480-2:
a) May eue for damages sustained by the consuner
tase, if the judgnest ss for the plaintiff, she
pls Shall be suarded a sun not less chap
peated be om
‘and
Euatained, whichever sun is the create
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reasonable attorneye’ fees together with the
coats of suet)
(Bold emphasis in original.) (Underscored emphasis added.) And,
finally, the substantial rights of the parties are affected
because a contractor's ability to attach a lien to the
homeowner’s property “depend[s] on compliance with the particular
provisions" of HRS § 444-25.5. Moreover, an injury that can
result from ignoring the statutory provisions is that 2 honeowner
wno has not been provided the requisite notice and disclosure may
have his or her property subject to a mechanic's lien that could
result in the homeowner being placed in precisely the kind of
double pay situation that the legislature intended to protect
against. Given the above factors, the express statutory
provisions of HRS § 444-25.5 should be construed as mandatory
rather than directory. The ICA reached the sane conclusion in
jlixaga. In that case, a contractor sought to impose a mechanic's
Lien against the homeowner's property. Although the contractor
admittedly failed to obtain a signed disclosure notice under HRS
§ 444-25.5, he argued that, because he had discussed lien and
bonding rights with the owner, the owner did not need the
protections of that statute, and, therefore, he was entitied to
mechanic's lien. The ICA acknowledged that the verbal disclosure
arguably met HRS § 444-25.5'e purpose of ensuring that honeowners
are educated to avoid facing double pay situations. Hirasa, 96
Hawai'i at 369, 31 P.3d at 226. However, the ICA concluded that:
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honeowner's signature on # written form containing specified
Information printed in specified size type. The oral and
written information pertain to the “lien righte of all
parties performing under the contract” and “the homeowner's
Bption co demand bonding on the project, how the bond would
protect the homeowner] and the approximate expense of the
Bonds" (ihe contractor] contents that the reuiresente of
bis is ely bet and
fhe contractor. However, even assuming no sub-contractors
Bie involved, there in no indication that no materialmen are
[ivolved. Moreover, HRS £ 444-25.5 does not exempt fron its
Jd, at 371, 31 P.3d at 228 (emphases added). The ICA further
noted that, even though the contractor was not entitled to a lien
against the property, it wae not completely without remedy
inasmuch as it was still free to pursue its clains in quantum
merit. Id. at 372, 31 F.3d at 229.
Here, as in Hixaga, the circuit court disnissed 208
Development's lien application, but acknowledged that it is
entitled to pursue ite quantum mexuit claims. 08 Development
contends that the circuit court's ruling is inconsistent with
Hixaga because it
xplicitly found that the construction
contract was not void.” Such contention lacks merit because the
circuit court did not so find, Rather, the court simply stated
that it was “not saying there's an unenforceable or void
contract” but that it was “saying @ lien doesn’t attach.” Thus
the circuit court limited ite ruling to a determination that the
Lien did not attach to the property but that 808 Development wai
entitled to pursue its claims in quantum neruit, which is
consistent with the holding in Hixaga. Accordingly, we hold that
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the circuit court properly dismissed 608 Development's lien
application purauant to the mandatory language found in HRS
§ 444-25.5.
b. whether the 3 +9 lien
ven the of ‘ding 1.
and_bonding issues
808 Development maintains that “the purpose [of HRS
§ 444-25.5] . . . is to educate homeowners about potential
‘double-pay’ situations and to reduce the number of claims
against the Contractor's Recovery Fund," and not to protect
cnon-paying homeowners" such as Murakami and Iscbe. 908
Development further asserts that Owners are not the type of
chomeownere’ the legislature meant for the statute to protect
because they are “sophisticated developer(s], fully educated
about lien and bond rights, who gave the contractor legal advice
for the contract at issue, to avoid payments [for] improvements
to [their] property." In support of its aforementioned
contentions, 808 Development relies upon Qverbers Decorating
center, Inc. v. Selbah Properties, 741 8.W.24 879 (Mo. Ct. App.
1987), for the proposition that strict compliance with HRS
§ 444-25.5 ie not necessary where the owner is sophisticated and
knowledgeable about lien and bonding issues.
Munger HRS § 444-26 (Supp. 2008), persons who have been injured by an
act, representation, transaction, of conduct of a licensed contractor which ie
{a'iilacion of Chapter 444, are allowed to recover damages fron the
Contractor's Recovery Fund in an ancunt not more than $12,500 per contract,
Gnd upon order by the elreuit court or district court.
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ASB asserts that, if this court were to permit the
attachment of 608 Development's mechanic’s lien, such holding
would create a vague case-by-case standard that is less practical
than the bright-line etandard eet forth by the ICA in Hiraga
because “homeowners do not divide neatly into two discrete
categories of ‘knowledgeable about lien and bonding rights’ and
snot knowledgeable about lien and bonding rights.’" ASB further
argues that HRS § 444-25.5 is a consumer protection statute and,
thus, it is designed to protect ‘all consumers, not just the
unsophisticated ones.” (Emphases in original.)
In its reply brief, 608 Developsent counters that, by
ruling in its favor, this court need not create a vague case-by-
case standard because the holding could be limited to the unusual
circumstances of the instant case.
The plain language of HRS § 444-25.5 does not provide
any exceptions to the statutory requirenents that would exempt
sophisticated homeowners or anyone else from its protections.
Moreover, 808 Development's reliance on Overberg does not support
its contention. In Qverberg, the Missouri Court of Appeals
allowed a mechanic's lien to attach despite the contractor's
failure to provide the omer with the required statutory notice.
Under the Revised Statutes of Missouri (RSMo) § 429.012, an
original contractor mist provide the owner with written notice
regarding lien rights prior to the first invoice as a condition
precedent to the validity of a mechanic's 1i
Overberg, 741
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§.W.2d at 680, In that case, the contractor agreed to deliver
certain labor and materials to the owher. The parties disputed
whether a contract provision discussing lien obligations
fulfilled the notice requirements. The Qverbera court concluded
that the contractor had “substantially complied" with the
statutory notice requirements and that it ‘went further by
providing the owner with protection from hidden liens.” Id. at
61. The court further noted that the owner was a sophisticated
corporation that the legislature did not intend to protect with
the notice requirements, but limited its holding to the
particular circumstances of that case. Id.
In White River Development Co, v. Meco Svstems, Inc.,
206 S.W.2d 735 (Mo. Ct. App. 1991) [hereinafter, White River],
the Missouri Court of Appeals addressed the effect of its prior
holding in Qverberg on a situation involving a contractor who had
not complied with the notice requirements and sought to assert a
lien against a knowledgeable developer. The white River court
noted that:
Meco [(the contractor)} admits that it did not give
the notice. Relying primarily upos. (Gerbera) , Meco
contends that a2 faite was a knowledgeable developer who
Understood the mechanic's lien 1 notice war sot
Eequired. Although Overberg contains language supporting
Neco’s position, there, notice
that required in the statute was given.
‘he Neco sugseate, the purpose of the statute is to
warn inexperienced property owners of the danger to then
Which lurks in the mechanics’ lien statute. Aowever, the
statute does not limit the necessity of this notice to thore
inexperienced with, or having lack of knoviedge about, the
mechanics’ lien lave.
ceptions. when statute se
without exceptions, courts should not create them. Allowing
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ease. the’ rig knowlease of the mechanic's Lien
Jag. it seems uniixely he legislature intended such
feault, as there are no limitations or exceptions to the
Giving of the notice, Meco is not entities toa mechanic's
Tien’
Id, at 730 (citations and internal quotation marks onitted)
(emphases added). In Gauey Excavating and Grading Co, v, Kersten
Homes, Inc., 924 §.W.24 303 (Mo. 1996) (en banc) [hereinafter,
Gauzyl, the Missouri supreme Court echoed the appeals court’s
holding in Mhite River. In Gauzy, a mechanic's lien was
invalidated over the contractor’s objection that its escrow
agreement with the developer provided “even greater protection
than that provided by the statutory notice." Id. at 305. In
requiring strict compliance with the statutory notice
requirements, the Missouri Supreme Court stated that:
Bven under Overberg, the original contractor mst provide
ti notice in writing and 2) notice that comports with ene
words used in the statute. Gauzy ((the contractor)] ‘failed
fo satiefy these conditions
‘As stated, the Court of Appeals enphasized chat ics
holding in Qverbera ehovld be Iimived to ies facts
We deciine to extend Overberg « ‘To do so would run
contrary to the longstanding precedent of requiring strict
Compliance with the statute. “that precedent is bared in
part on a concern that recognition of exceptions to the
ie ucehint cated in the areas of real sscare and
SStgtraction will Likely result ins plethora of case
Byrcase determinations. The bright-line rule mandated by
the statute gives the best guidance to owners and
contractors alike.
Id, at 305-06 (emphasis added) (citations omitted) .
In the instant case, as in White River and Gauzy, the
contractor, 808 Development, did not comply with or even
substantially comply with the statutory notice requirements for
mechanic's liens, In addition, like the Missouri statute, HRS
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§ 444-25.5 provides no limitations or exceptions to the notice
requirements. Therefore, we believe that the Missouri courts’
concerns that (1) “{a]llowing a lien when there was not
substantial compliance with [the notice requirements) would add
another issue to each mechanic's lien case,” White River, 606
$.W.2d at 738, and (2) the “recognition of exceptions to [HRS
§ 444-25.5) that excuse knowledgeable developers and others .
will likely result in a plethora of case-by-case
determinations |,]" Gauzv, 934 §.W.24 at 305-06, are applicable
here. Consequently, we decline to create an exception to the
clear statutory requirements of HRS § 444-25.5 and, instead,
adhere to a bright-line standard that provides clear guidance to
owners and contractors alike. Furthermore, as the circuit court
stated, 808 Development may still pursue its claims in quantum
neruit; therefore, 808 Development is not without a remedy.
Accordingly, we hold that the circuit court’s dismissal of 808
Developnent’s lien application was not “absurd and unjust.”
2. Whether the Circuit Court Erred in Denying 808
Development a Continuance Under HRCP Rule 56(f)
208 Development next contends that the circuit court
erred in denying ite motion for a continuance because “federal
courts, in dealing with the identical provision in Rule 56(f) of
the Federal Rules of Civil Procedure (FRCP), construe the rule
liberally.” 808 Development maintains that a continuance should
have been granted because Owners “had produced their discovery
-26-
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responses to 608 Development less than 24 hours before the
hearing on the motion to diemiss(, which, ae previously
indicated, was consolidated with the probable cause hearing on
the lien application) and that additional time was needed to
analyze the discover and present facte essential to 608
Developnent’s opposition* to the motion to dismiss (and,
presumably, in support of its lien application). 808 Development
alleges that it was prejudiced not only “by being denied adequate
Giscovery to oppose the motion to dismiss, but [alec] by losing
its own priority in the foreclosure action.”
Owners counter that 608 Developnent ‘was afforded much
more time than [HRS] § 507-43 actually prescribes.” Owners also
argue that the motion was inappropriately brought under HRCP Rule
56(f) when the dismissal was made pursuant to Rule 12(h) (3) and
was not a sunmary judgment motion under Rule 56(b). Ownere argue
that 808 Development's failure to investigate the facts prior to
filing ite lien application and requesting extensive discovery
after the fact wae a violation of ite lawyer’s professional
duties.
ASB agrees with Owners that the circuit court acted
within ite discretion in denying 808 Development's motion for a
continuance. specifically, ASB maintains that “608 Development
failed to identify information that it reasonably expects to
obtain through discovery that will assist in overcoming the
Motion to Dismiss." In addition, ASB contends that:
-27-
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in West's Hawai'i Reports and the Pacific Reporter
806 Development's only specific argument was that additional
Siscovery misht ellow it co cetain a signed copy of the
Gmendnent to the construction contract, waich amendment
Ellegediy adaresced tien and bonding sesues . .- (but)
Eh(st]anendeent is irrelevant because it was fot entered
fnto, if at all, until afeer #08 (Development) had started
Construction on’the [e)ubject (plroperty. HRS § 444-25.5(b)
Fequires the notices and disclosures to be included in the
Contract before work starte. Ae a result, potential
Sincovery regarding this amendnent ie irrelevant to the
Seeue at hand.
HRS § 507-43 (a) provides in relevant part:
me for 9 sechanict
Save af ‘Sather
ro permit che Lies tc attach to the property. Any person to
‘Shor notice ig required to be given cnall be permitted to
ue of
Stfer testimony and docunentary evidence on the 1
Ghether probeble cause existe to permit the lien to attack
ihe rises elaine z
Ifenor or if any person to whon notice is Fequired to be
given otherwise a
ine nd receive a)
Sffered and shall only permit the attachment of « lien in
fhe net snount whieh che court determines if the reasonable
probable outcome of any such dispute
E snusa'at m
‘Srlainally scheduled return day. The lien shall not attach
SSithe property until the court finds probable cause existe
and #0 brdere.” No ach order shall be entered before the
Application aid Notice have been served on the party’
Contracting for the improvement, the general contractor and
the owner of the property, and they were given an
‘opportunity to appear at the Rearing.
(Bmphases added.) As previously noted, see supra note 13, the
circuit court’s dismissal was more akin to summary judgment
inasmuch as the court considered evidence outside the pleadings
when it consolidated the probable cause hearing with the hearing
on the motion to dismiss. Consequently, the rules applicable to
sunmary judgment are appropriate under the circumstances here.
With respect to continuances, HRCP Rule 56(f) state
-26-
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when affidavite are unavailable, should tt appear
from the affidavite of a party opposing the motion that the
party cannot for reasons stated present by affidavit facte
Sesential to justify the party's opposition, the court may
Fefuse the application for judgnent oF
Sontinuance to permit affidavits to be obtained OF
Seporitions to be taken or discovery to be hag.)
(Italics in original.) (Underscored emphases added.) Generally,
a motion to continue a hearing on a motion for summary judgment
vmust demonstrate how postponement of a ruling on the motion will
enable him or her, by discovery or other means, to rebut the
movants’ showing of absence of 2 genuine issue of fact. Josue
ys Ieuzu Motors America, Inc., 67 Hawai'i 413, 416, 958 P.2d 535,
536 (1998) (internal quotation marks and brackets omitted) .
Here, 808 Development initiated the mechanic’ lien
action on January 16, 2004, with a returnable date of January 22,
2004." The circuit court, as permitted under HRS § 507-43(a),
continued the probable cause hearing until March 2, 2004, a
Little over month after the return date. On February 4, 2004,
08 Development moved to continue the March 2, 2004 hearing,
arguing that the hearing would require “significant formal
discovery.” 808 Development also argued that, there would be
insufficient time for it to review respon:
to interrogatories
& ie ghoulé be noted that the return and acknowledgeent of service,
f4led Janvary 20, 2004, indicated that Omnere were served cn January 17. 4004
‘and that ASB was served on January 20, 2004. Inasmuch a HRS § 507-43,
Provides that™*(nlotice shall be Feturnable not less than three nor more than
Een days after service," it appears that service upon ASB was late, lies,
given the return date of Januaty 22, 2004, service should have been perfected
on or before January 19, 2004. However, the defect in service was not
Challenged by ASB below nor oh appeal. Nevertheless, on January 22, 2008, the
circuit court continued the probable cause Hearing to Maren 2) 2004 at the
Fequest for 808 Development. Thus, any alleged procedural defect was
hsrmiess.
-29-
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and request for production of documents, take depositions, secure
transcripts, and otherwise prepare for the March 2, 2004 hearing.
Specifically, 808 Development asserted (via counsel's affidavit),
Anker alia, that:
8. on January 29, 2004, (Ommers] served my office
with heir tvo volume mensrandum in response co Plaintiff
Sim wogg's Notion for Summary Judgment in Civil No.
dara-a7i2-08 (a related foreclosure case)
9. In Volume Two of that pleading, Exhibit ¢ containe
2 Liseiag of checks [Owners] claim were paid co [608
Developnent] for the construction work{.] (Hlowever, in
Order to determine what the checks were Used for and what
Sther paynents [068 Development] nade to Respondents Joseph
Spadaro, John spadaro, and Jim Mogg on behalf of [Owners],
it'has become necessary to do discovery of these cther
respondents
jal ‘mien sf respondents all stipulate to provide full)
and complete responses by February 10, 2004, there will be
Sneuificient tine to review the rea
Geporitions of Respondents, schedule
obtain written deposition transcripts, review the
Eranscripee and prepare the direct testimony, and prepare
for the [plzcbable (elause {hlearing on warch 2, 2004"
808 Development, however, failed to explain or describe how
additional discovery would enable it to overcome the fact that it
had not complied with the express statutory requirements of HRS
§ 444-25.5 such that probable cause would exist for the court to
permit the attachnent of a mechanic's lien on the property. As
previously indicated, the verbal and written notice requirements
prescribed under ERS § 444-255 must be perfected “upon or before
signing the contract." Thus, even if the additional discovery
sought by 808 Developsent resulted in the production of a signed
copy of the purported August 2001 amended contract and confirmed
that written disclosure of the lien and bond issues were met, the
amended contract would not have saved its lien application
-30-
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in West's Hawai'i Reports and the Pacific Reporter
inasmich as construction had been ongoing since January 2002.
Accordingly, we hold that the circuit court did not err in
denying 808 Development's motion for a continuance and see no
reason to disturb its ruling.
B. Quners’ Cross-Appea,
Normally, pursuant to the "American Rule,” each party is
responsible for paying for his or her own litigation
expenses, This geseral rule, however, 18 ubject to a
funber of exceptions: attorney's fees are chargeable against
the opponing party when #0 authorised by statute, rule of
court, agreement, stipulation, or precedent.
Lee v. Aiu, @5 Hawai'i 19, 32, 936 P.26 655, 668 (1997)
(citations omitted). Owners assert that they are entitled to an
award of attorneys’ fees and costs pursuant to the following
three exceptions: (1) Rule 11 "as [808 Development] ’s filing of
its lien application was frivolous, wholly lacking in any factual
or legal support; (2) HRS § 607-14 as the prevailing party; and
(3) BRS § 607-14.5 as against frivolous clains.
MRS § 607-14.5 provides:
Attorneys’ fees and costs in civil actions. (a) In any
tArvaction in thie State where party seeks money darages
or injunctive relief, of both, ageinst another party, and
the case ie subsequently decided, the court my, as it deens
Suet, assess against either party, whether or not the party
ies a prevailing party, and enter ag part of ite order, for
eich execution may issue, a reasonable sus for attorneys"
fees and conte, in an amount to be determined by the court
pon a specific finding that all or a portion of the party's
Claim or defense was frivolous as provided in subsection
@.
(b) Im determining the avard of attorneys’ fees and
coste and the amounts to be auarded, the court must find in
Writing that all or a portion of the clains or defences mace
by the party are frivolous and are not reasonably supportea
by the facts and the law in che civil action. in
Getermining whether claine or defenses are frivolous, the
court may consider whether the party alleging that the
Claime oF defenses are frivolous bad submitted to the party
‘cont ited...)
-a1-
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a. Rule 11 Motion
HRCP Rule 11 provides in pertinent part:
(b) Representations to court. By presenting to the
court (whether by signing, filing, subsitting, or later
Savocating) a pleadings, written motion, or other paper, an
attorney or Unrepresented party is certifying that to che
Bett of the person's knowledge, information, and belief,
formed after’ an inquiry reasonable under ehe circumstances:
(2) Se Ie not being presented for any improper
purpose, such as to harase or to cause unnecessary delay or
Reedlest increase in the cost of litigations
2)
2 ave warranted by existing law or by a sonfrivelous
fileting lew of the establiaheent of new Lavy
(GY the allegations and other factual contentions have
evidentiary support or, if specifically go identified, are
Likely to have evidentiary support after = reasonable
opportunity for further investigation or discovery: and
(4) the denials of factual contentions are warranted
on the evidence or, if specifically so identified, are
Feasonably besed on a lack of information or belief
(c) Sanctions. If, after notice and a reasonable
opportunity to respond, the court determines that
Subdivision (b) has been violated, the court may, subject to
‘the_conditions atated below, impose an appropriate sanction
‘Spon the attorneve, law time, or parties that have violates
‘subdivision bor are resnoneible for the violation.
(Italics in original.) (Underscored emphases added.)
¥(,. continued)
serving the claine or defenses a request for their
withdrawal as provided in subsection (c). If the court
Geternines that only @ portion of the claina or defenses
made by the party are frivolous, the court shall deternine a
Feasonable sum for attorneys’ fees and costs in relation to
the frivolous clains or defenses.
(c) A party alleging that claims or defenses are
‘a request for withdrawal of the frivolous clais
inwriting, identifying those claims or defer
and the reasons they'are believed to be frivi
party withdraws the frivolous claims or defe
Feasonable length of tine, che coure shall not award
attorneys’ fees and costs based on those claine or defent
Under this section
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owners naintain that 808 Developnent’s lien application
‘was frivolous[,] wholly lacking in any factual or legal
support." Owners argue that 808 Development viclated HRCP Rule
11 for the following reasons: (2) 808 Development was ‘allowed
months of extra time to hunt for a signed written [bond and lien]
Gisclosure” and failed to provide it at the hearing; (2) when
confronted with the ICA’s holding in Hixaga, it failed to addrese
it in ite reply; (3) when confronted with the express statutory
requirenents of HRS § 444-25.5 at the March 2, 2004 hearing, #08
Development’ counsel “claimed that he knew where written bonding
and lien rights disclosures signed by [Owners] could be found,”
yet he failed to produce them; and (4) "608 Development LLC is no
longer operating and is merely a ehell{;] [t}hus, unlese Rule 22
nections are issued, 808 [Development] and its counsel will
escape any consequences for [their] Litigation abuse."
808 Development denies that its lien application was
frivolous and argues that it did not violate the specific
conditions upon which sanctions can be ordered pursuant to Rule
11(b). 608 Development argues that the unproduced amended
contract did not demonstrate its failure to conduct reasonable
investigation because (1) it had an unsigned copy of the
agreenent and (2) Sakatani (the owner of 808 Development) averred
under penalty of perjury that an executed copy of the anended
contract existed. Additionally, 608 Development contends that
33.
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in West's Hawai'i Reports and the Pacific Reporter
os
the absence of a signed amended contract does not render the
entire lien application frivolou:
In adopting the abuse of discretion standard for
appellate review of Rule 11 sanctions, this court noted that:
First, a8 the Supreme Court noted in a
pale 11 inquiry ie heavily fact-intensive, requiring careful
Consideration of the particular cicunstances of each case,
Sea involving questions of ressonableness, creaibility and
Often, moive. 496 U.S. at 01-02, 1108. Ct. at 2459.
Because the [cireuit) court is betéer positioned than an
appeliate court te marshall and weigh the pertinent facte
[Pe dererninations are due a substantial degree of
ference, Gf. Gell vw. McCarthy, 72 Haw. at 26, 604 F.2d at
fe (where the court”
fects and circunstances of each individual cese, the ©
erroneous standara of review spplies.")
Second, we think Rule 1ivs mandate that attorneys and
parties Sirigate responsibly end in good faith will be
Yorthered by # unitary abuse of discretion standard of
review, Deployed on the front lines ef litigation, the
[circuit] court "ie best acquainted with the local bar's
ifelgacion practices and thus best eituated to determine
sthenva sonction is warranted to serve Rule 11°s gosl of
Gpecitic and general deterrence.” Ida, 496 U.s. at 404, 130
sect. at 2460. Abuse of discretion review is better suited
than devnova review ae a neans of ensuring that [circuit]
Gourte’ Role ii determinations will have veal teeth, thereby
Senhancling] these courte’ ability to control the litigants
before then.” 1d.
Matter of Hawaiian Flour Mille, Inc., 76 Hawai'i i, 15-16, 668
P.ad 419, 433-34 (1994).
‘As previously mentioned, the probable cause hearing was
scheduled for a little over one month after service of the lien
application, i.e., forty days. Thus, Owners’ suggestion that 608
Development had “months of extra time” to search for the
purported amended contract is somewhat exaggerated. In addition,
the circuit court denied Owners’ motion for Rule 11 sanctions
based on its finding that 808 Development had argued for a “good
faith extension of the law set forth" in Hiraga. In addition,
-34-
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in West's Hawai'i Reports and the Pacific Reporter
808 Development's failure to discuss Hixaga renders its argunents
frivolous because Hiraga promotes strict adherence to the
requirements of the relevant statutes as they relate to a lien
application, whereas 808 Development's arguments centered on why
the court should exempt it from the strict statutory
requirements. Moreover, 608 Development took the position that
owners did not need the required notice and disclosures because
of their sophistication and knowledge of lien and bonding issues.
‘hus, 808 Development's failure to produce the amended contract
does not render its argunents frivolous as they were not premised
on the existence of the purported anended contract. Lastly,
there is nothing in the record to suggest that the circuit court
sclearly exceeded the bounds of reason” in refusing to sanction
208 Development. Accordingly, we hold that the circuit court did
not err in denying Owners’ Rule 11 notion.
2. HRS § 607-14
owners contend that HRS § 607-14 provides ‘another
statutory mechanism for reinbursing victims of frivolous lawsuits
as ‘prevailing parties’ where the underlying dispute is in the
nature of an agsumpsit claim." (Emphasis in original.) They
argue that the action ie an assumpsit claim because "808
Development filed a claim in an attempt to secure and to enforce
payment of an alleged contractual debt, by obtaining a secured
position, as the first step in its recovery of damages."
-35-
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in West's Hawai'i Reports and the Pacific Reporter
808 Development responds that “[a]n application for a
mechanic’ lien ie not an action in the nature of assumpsit, but
rather ia a creature of the mechanic’s lien statute which mst be
strictly construed." Tt argues that the circuit court properly
Genied an award of attorneys’ fees because Owners brought their
claim for attorneys’ fees under the assumpsit statute, HRS
§ 607-14, not the mechanic’e lien statute, HRS § 507-47 (1993).17
808 Development further asserted that Owners were not entitled to
bring their claims under HRS § 507-47 because that statute
provides for an award of attorneys’ fees only for actions for
“foreclosure of a mechanic's lien filed in circuit court* and not
for “mere application of a mechanic’s lien.* (Emphases in
original.)
As previously quoted, HRS § 607-14 provides in
pertinent part:
Attorney's fees in actions in the asture of assumpsit, ete.
Teall the courte, in all actions in the nature of assumpeic
© RS § 507-47 provides in pertinent part that:
‘The court having jurisdiction of the action to
foreclose the lien shall have all of the powers pertaining
to courte of equity, and in addition may Girect the lesuance
Of a writ of sttactnent oF execution upon the notion of any,
party against the property of any other party, in the same
manner ae 18 provided in chapter 651 provided that the writ
shall only issue where the claim upon which the motion
therefor is based ie upon a contract, express or implied,
between the parties. in addition to costs of the action’ the
court may allow any fee or fees for lesa] services rendered
Sith atcorneya for ani-of the parties, aod apporcion the
Coste for paynent by and between the parties or any
Of thes, all af to the court seems equitable in che Light of
fhe services performed and the benefits derives therefrom by
the parties respectively.
(emphasis added.)
-36-
+** FOR PUBLICATION *
in West's Hawai'i Reports and the Pacific Reporter
a
land in ali actione on a promissory note gr other combract in
Gricine thet provides for an ateormey's fea, there shell be
HERD Ss attoreye’ fees, to be pase by the losing party and
EO%be included 1h the eum for which execution my issue, a
fee that the court determines to be reascnable(.)
(emphasis in original.) "Assumpsit is 4 common law form of
action which allows for the recovery of damages for
non-performance of a contract, either express or implied, written
or verbal,
well as quasi contractual obligations.” Blair v
Ing, 96 Hawai'i 327, 332, 31 P.34 184, 169 (2001) (citation,
internal quotation marks, and brackets omitted) (emphasis added) .
i
le, the lien application was brought pursuant to the
mechanic's lien statute and, as such, is not a conmon law action.
Moreover, the action was for the attachment of a mechanic’s lien
to the subject property, not for damages based upon the
underlying contract. Therefore, the action was not in the nature
of assumpsit; consequently, the circuit court did not abuse its
discretion in denying Owners’ motion for attorneys’ fees pursuant
to HRS § 607-14.
3, HRS § 607-24.5
owners contend that HRS § 607-14.5 provides a third
basis for an award of attorneys’ fees where clains made by the
other party are frivolous and not reasonably supported by the
facts and the law. Owners disagree with the circuit court's
finding that 808 Development made a “good faith argument for an
extension, modification or reversal of existing law" and argues
37°
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in West's Hawai'i Reports and the Pacific Reporter
that the finding doee not inmunize 806 Development from the
application of HRS § 607-14.5 because
no auch argument as to [iizaga) was made by 808
[Development] until after the lower court announced ite
Anelinstion at the March 2, 2004) hearing, and even then
the lover court was merely told that (#08 Development’ e]
Counsel needed nore time to subpoena a signed copy of the
So-called amended construction contract («1
808 Development counters that Owners’ claim for an
award of attorneys’ fees and costs pursuant to HRS § 607-14.5
should be disregarded because it was not first challenged in the
circuit court. specifically, 608 Development contends that
in their July 30, 2004 Motion for Reconsideration,
fomere] contended they had a “statutory right to sssuspsit
teen and coute as the prevailing parties in this ct
Poreuant £0° [ERS § 607°14)-" [Omers] nade no request for
Ettorneye” fees and coste. In their Motion for Attorneys’
foee filed on the sane day, [Owners] moved for recovery of
attorneys” fees and cost sccording to "the aseunpsit
Statute, Section 07-4," with no request for attorneys!
fees and costs pursuant to HRS § 607-14.5,
208 Development argues in the alternative that its claims were
not frivolous but were made in good faith.
808 Development's contentions accurately describe the
nature of Owners’ claims for attorneys’ fees under HRS
§ 607-14.5. At no tine did Owners file a claim for attorneys’
fees under that section; they fail to indicate in their opening
brief where the argument was brought to the attention of the
circuit court. We, therefore, decline to consider Owners’
argument with respect to HRS § 607-14.5. See HRAP Rule 26(b) (4)
(2004).
-38-
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in West’s Hawai'i Reports and the Pacific Reporter
qv. LS:
Based on the foregoing, we affirm both the circuit
court's July 20, 2004 final judgment and October 28, 2004 amended
final judgment.
on the briefs: Gyr
Karin L. Holma and
Amara Harrell (of Bays, Bice nae —
ear aren
reo ee ee eeeisant/
for event ae
€ Dues:
cross-appellants Glenn AA. Watan
Nobuki Murakami and
Ann Sue Isobe
Michael C. Bird and
Brandon U. Davidson,
for respondent -appellee
American Savings Bank
-38-
|
1b0c7217-d2d7-40fc-8bf1-817ca97efe92 | Harrison v. Hilton Hawaiian Village, LLC | hawaii | Hawaii Supreme Court | No. 26239
IN THE SUPREME COURT OF THE STATE OF HAWAI‘T
Se
SANDY HARRISON and JERRY HARRISON, Respondents-
Plaintiffs-Appellants, 2)
HILTON HAWATIAN VILLAGE, LLC, Petitions
Defnedant Appellee,
oats
and
JOHN DOES 1-10; JANE DOES 1-10; DOB CORPORATIONS 1-107
DOB PARTNERSHIPS 1-10; DOE NON-PROFIT ENTITIES 1-10
and DOE GOVERNMENTAL ENTITIES 1-10, Defendants.
ee
CERTIORARI TO THE INTERMEDIATE COURT OP APPEALS
(CIV. NO. 02-1-0863-03 (EBH))
1 WRIT OF CERTIOE
(By: Moon, C.J., for the court’)
Petitioner-defendant-appellee Kilton Hawaiian Village, LLC's
application for writ of certiorari, filed June 22, 2006, is
hereby denied
DATED: Honolulu, Hawai'i, July 3, 2006.
Jennifer M. Yusi and FOR THE couRT:
Tracy G. Chinen (of Rush
Moore LLP), for petitioner-
defendant-appellee Hilton NE
Hawaiian Village “GLE Soot ic
EAL
Vor yw
* Considered by: Moon, C.J., Levinson, Nakayama, Accbs, and Duffy, 39.
|
4fc2a615-598e-4032-9abf-787989b41044 | State v. Rhoads | hawaii | Hawaii Supreme Court | “+ NOT FOR PUBLICATION IN WEST HAWAI REPORTS AND PACIFIC REPORTER **
ee
No. 27316
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAI'I, Plaintiff-Appellee,
NEIL A. RHOADS, Defendant-Appellant.
APPEAL FROM THE SECOND CIRCUIT COURT
(CR. NO. 04-1-0388)
y ots! NORD!
(py: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy JJ.)
In this tax fraud prosecution, defendant-appellant Neil
A. Rhoads appeals from the second circuit court’s May 12, 2005
judgment of conviction and concurrent sentences of five years’
probation’ for two counts each of false and fraudulent
statements, Hawai'i Revised Statutes (HRS) § 231-36(a) (2001),?
‘and attempted theft in the second degree, HRS $§ 708-€31(1) (b)
(Supp. 2002)? and 705-500 (1993). On appeal, Rhoads argues
othe Honorable Joseph £. Cardoza presided over this matter
2 as § 231-36(a), entitled “False and fraudulent statements; aiding and
abetting,” provides in relevant part
'hny person who wilfully makes and subscribes any return,
Deatenent, oF other docunent required to be made under {the
Hawai Tax Code], which contains o: is verified by a written
Geclaration that ‘it is true ond correct as to every materi
fatter, and which the person does not believe to be true
Correct as to every material matter shall be guilty of a cless C
felonyl.)
> nes § 708-8312) (b) provides in relevant part that “[a) person commits
the offense of theft in the ‘second degree if the Person commits theft... «
[elt property or services the value of which exceeds £3001.]”
+ yas § 705-500(2) provides in relevant part:
hen causing @ particular result is an element of the crime, a
(continved.
ary
** NOT FOR PUBLICATION IN WEST HAWAIT REPORTS AND PACIFIC REPORTER **
that: (1) the jury instructions were plainly erroneous in that
(a) the instruction defining “gross income” was prejudicially
incomplete, (b) the instruction defining “property of another”
was misleading, (c) there weze no instructions concerning
(4) Rhoads’ reasonable reliance on professional tax advice,
statements of the Internal Revenue Service, and United states
Supreme Court opinions, and (ii) Rhoads’ constitutional right to
due process of laws and (2) his trial counsel provided
ineffective assistance by (a) failing to propose proper jury
instructions or object to erroneous instructions, (b) failing to
subject plaintiff-appellee State of Hawaii's case to “stringent
adversarial testing” regarding ownership of the allegedly stolen
money and the computations of Rhoads’ tax liability, and
(c) failing to conduct an adequate investigation regarding
ownership of the money.
Upon carefully reviewing the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advocated and the issues raised, we hold as
follows:
“(continued
person is guilty of an attempt to comit the crime if, acting with
the state of ming required co establsan Liability with respect to
the attendant circunstances specified in the definition of the
crime, the person intentionally engages in conduct which is a
Substantial step in a course of conduct intended ex known to cause
Such a result.
+ NOT FOR PUBLICATION IN WEST HAWAI REPORTS AND PACIFIC REPORTER
(1) When read as a whole, the circuit court’s jury
instructions were not erroneous, misleading, or
prejudicially insufficient because the jury was
adequately instructed that the requisite state of mind
of both offenses was negatived by a good-faith belief
that the defendant was acting within the law. See
State v. Gonsalves, 108 Hawai'i 289, 292, 119 P.3d $97,
600 (2005) (“When jury instructions or the omission
thereof are at issue on appeal, the standard of review
4s whether, when read and considered as a whole, the
Anstructions given are prejudicially insufficient,
erroneous, inconsistent, or misleading.” (Internal
quotation marks and citations onitted.)); and
(2) Based upon the record, Rhoads’ trial counsel
did not commit errors or omissions reflecting lack of
skill, judgment, or diligence, See State v. Wakisaka,
102 Hawai'i 504, $14, 78 P.3d 317, 327 (2003) ("the
defendant has the burden of establishing ineffective
assistance of counsel and must meet the following two-
part test: 1) were specific
sions ref +s lack of skill, judamen
or dilicence; and 2) that such errors or omissions
resulted in either the withdrawal or substantial
impairment of a potentially meritorious defense.”
3
++ NOT FOR PUBLICATION IN WEST HAWAI REPORTS AND PACIFIC REPORTER **
(Internal quotation marks, citation, and footnote
omitted: emphasis added.)). ‘Therefore,
IT 15 HEREBY ORDERED that the Nay 12, 2005 final
judgment is affirmed.
DATED: Honolulu, Hawai'i, August 3, 2006.
on the briefs:
Gerald T. Johnson
for defendant-appellant Ginn
Dwight K. Nadanoto, .
Deputy Attorney General, BiomBihan'soo
for plaintiff-appellee
Nee Cr eoteneperne
(NS
Gann €. 20951
|
74cb35dd-bb60-4b29-884d-840f4c433ea3 | Haole v. State. | hawaii | Hawaii Supreme Court | *** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
000
WILLIAM HAOLE, IV, Plaintiff-Appellee,
STATE OF HAWAI'I, Defendant Appellee,
and
INC., Defendant -Appelli
aa
MATSON TERMINALS,
TE-OrWY L- ony sanz
and
JOHN DORS 1-20, Defendants.
STATE OF HAWAI'I, Third-Party Plaintiff-Appellee,
ERIC RAPOZA and MCCABE HAMILTON & RENNY CO.
‘Third-Party Defendants-Appellants.
No. 27010
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 03-1-0876)
AUGUST 7, 2006
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY MOON, C.J.
‘The dispute in the instant appeal centers around the
validity and enforceability of Hawai'i Administrative Rule (HAR)
§ 19-41-7 (2005), quoted infra, that imposes a duty upon, inter
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ee
alia, owners and operators conducting unloading activities on
state piers to defend and indemnify the state of Hawai'i (the
state) against any and all claims arising from such activities,
except where the State is proven to be solely and legally
negligent. In this case, plaintiff-appellee William Hacle, IV,
an employee of third-party defendant -appellant McCabe Hamilton
Renny & Co., Inc. (McCabe), was injured while riding as a
passenger in an autonobile being unloaded at the Honolulu Harbor.
the vehicle was being driven by third-party defendant -appellant
Eric Rapoza, who was also employed by McCabe. As a result of the
accident, Haole brought a personal injury action against
defendant -appellant Matson Terminals, Inc. (Matson), which had
subcontracted with McCabe to conduct cargo loading and unloading
activities, and defendant/third-party plaintiff-appellee
Department of Transportation of the State of Hawai'i
thereinafter, the DOT or the State], which owns and manages the
Honolulu Harbor, The State, in turn, cross-claimed against
Mateon and filed a third-party complaint against Rapoza and
McCabe, essentially seeking to enforce HAR § 19-41-7's alleged
duty to defend and indemnity provisions
on October 5, 2004, the Circuit Court of the First
circuit, the Honorable Karen §. Ahn presiding, entered its order
granting partial summary judgment in favor of the State. The
circuit court concluded that Rapoza and McCabe [hereinafter, the
McCabe parties], as well as Matson [hereinafter, Mateon and the
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McCabe parties are collectively r
ered to as the appellants],
owed a duty to defend the State in the action brought by Haole.
the order was certified and entered as a final judgment, pursuant
to Hawai'i Rules of Civil Procedure (HRCP) Rule 54(b) (2004)," on
December 16, 2004.
on appeal, the appellants essentially contend that the
circuit court erred in (1) concluding that the appellants are
required to defend the State pursuant to HAR § 19-41-7 because
(a) the DOT did not have authority to promulgate and enforce HAR
§ 19-41-7 and (b) the regulation violates public policy. Matson
additionally contends that the circuit court erred in (1) failing
to address whether, under HAR § 19-41-7, the State was “solely
and legally" negligent and (2) ruling that the State's claims are
not barred by the Longshore and Harbor Workers’ Compensation Act
(uHwca), 33 U.S.C. § 905(a) (1984).? For the reasons discussed
+ yacp Rule $4(b) provides in pertinent part:
Judgment upon mltiple cleins or involving mu
partis. "When more than one claim for relief is pr
Tranaction, whether as a claim, counterclain, crot
of thirdeparty claim, or when multiple parties are involved,
the court may direct the entry of a final judgnent as to one
Sr'nore but fewer than all of the elaine or parties only
Sponvan express determination that there is no just reason
Yor delay and upon an express direction for the entry of
judgrent (.1
in original.)
2 33 U.8.C. § 905, entitled *Exclusivenes
pertinent part:
of lability,” provides in
(a) Beployer Liability; failure of employer to secure
payment of compensation,
(continued.
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below, we conclude that the DOT did not have authority to
efore, the regulation is not valid
promulgate HAR § 19-41-7; th
nor enforceable. Accordingly, inasmuch as HAR § 19-41-7 does not
impose upon the appellants a duty to defend or indemnify the
State against Haole’s claims, we hold that the circuit court
erred in granting summary judguent in favor of the state.
Consequently, we vacate the December 16, 2004 final judgment and
remand this case to the circuit court for further proceedings.
1. BACKGROUND
A. Factual Backcround
Sometime prior to December 2002, Matson hired McCabe to
perform stevedoring work, including the loading and unloading of
barges at Honolulu Harbor. Matson was a paying “tenant” and was
assigned a storage epace near Piers 25 and 26 by Harold Watanabe,
a marine cargo specialist for the DOT’s Harbors Division. In
*(.scontinued)
Lisbility-of euch eablover to the enploves, nis legal
Feprecentative, husband of wife, parents, dependents,
of kin, and anyone otherwise entities to recover damages
from euch employer at law or in admiralty on account of such
injusy oF death, except that if an employer fails to secure
payment of compensation as required by this chapter, an
Tnjured employee. . my elect to claim compensation under
the chapter, or to saintain an action at law or in admiralty
for damages cn account of such injury or death. in euch
action the defendant may not plead ag a defense that the
injury was caused by the negligence of a fellow servant, or
that the enployee ascuned the risk of hie employment, of
that the injury wae due to the contributory negligence of
the employee. Por purposes of this subsection, « contractor
shall be dened the exployer of 2 subcontractor’s employees
caly if the subcontractor fails to secure the payzent of
Compensation aa required by section so of this title.
(Bnphasis added.)
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see
iigning the storage area, Watanabe was aware that Matson would
be using the area to load and off-load vehicles. Matson did not
sign a contract for the use of the storage area, nor did it enter
into any formal agreement with Watanabe at that time.
on December 16, 2002, Rapoza (Hacle’s supervisor) and
Haole were off-loading vehicles from the barge Waialeale, docke:
at Pier 29. While doing 20, Rapoza allegedly offered Haole a
ride in one of the vehicles, despite Matson’s safety policy
prohibiting passengers riding in vehicles being off-losded. on
the way to the storage/pick up area, the vehicle collided with a
steel pipe that was apparently protruding approximately ten
inches above the pier’s flooring. Hacle, who admittedly was not
wearing a seatbelt, sustained unspecified injuries as a result of
the collision.
The accident occurred near Piers 25 and 26 in the
vicinity of Mateon's storage/pickup area. At all relevant times
herein, Piers 25 and 26 were owned, managed, and maintained by
the state. Carter Luke, the maintenance engineer for the DOT’s
Harbors Division, testified at his deposition that the protruding
pipe was probably part of an old "vapor recovery systent that had
been used previously at the pier. According to Luke, the pipe
should have been removed pursuant to a State demolition plan,
which called for the removal of "everything above ground” along
the piers. luke stated that he had seen the protruding pipe
several months before the accident and that, although there was
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vegetation around it, the pipe was vieible during the day from at
least one hundred feet away.
B ura:
fon June 6, 2003, Haole filed an amended complaint
against both Mateon and the State, alleging that their negligence
in failing to renove the steel pipe caused his injuries.
Subsequent to the filing of responsive pleadings by the state and
the appellants, as well as the State's third-party complaint
against the McCabe parties, the State tendered its defense to the
appellants, pursuant to HAR § 19-41-7. The McCabe parties and
Matson each rejected the State's tender in August 2003 and March
2004, respectively.
on May 27, 2004, the State moved for partial sumary
judgment against the appellants based upon the appellants’
purported duty to defend the state against Heole’s clains,
pursuant to HAR § 19-41-7. The State maintained that the DoT’s
Harbors Division is statutorily authorized to promulgate HAR
§ 19-41-7 and that the rule was validly adopted. Relying on the
plain language of the DOT's statutory rule-making authority, the
commercial harbors are
State argued that all users of the state’
bound by ite terms, Because the State believed it was not likely
that it was "solely and legally negligent,” it requested the
circuit court to rule that the appellants were obligated, under
HAR § 19-41-7, to defend the State in the Hacle lawsuit.
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The McCabe parties countered that HAR § 19-41-7 is
(a) not authorized by the DOT's governing statutes; (2) void
against public policy; and (3) unconstitutional. Matson made
similar argunents and also contended that, even if HAR § 19-41-7
was enforceable, it did not apply because (1) the State was
solely and legally negligent" for the accident and (2) the State
was barred from bringing its claim against Matson by the LHWCA,
quoted supra at note 2. On July 13, 2004, Matson algo filed a
cross-motion for summary judgment against the State, asserting
that it was not required to defend and indemnify the State. on
the came day, Matson moved for sunmary judgment against Haole on
the ground that his clains are barred by the exclusivity
provision of the LHWCA. Thereafter, on August 5, 2004, the
parties stipulated to a voluntary dismissal of Haole’s clains
against Matson, but agreed that the dismissal would not affect
the existing crose-claime and cross-actions between the parties.’
on October 5, 2004, the circuit court ruled that the
promigation of HAR § 19-41-7 was a proper exercise of the DOT's
delegated authority and made the following relevant finding
1. The parti
Resolution of the £
law.
do not dispute the salient facts.
owing dssues involves questions of
2. In [awai's Revised statutes (HRS) § 266-2 (2993),
quoted infra], the state legislature delegates to (the DoT),
Tiivehe powere . . which may lawfully be exercised by oF
Under the state relative to the control and managesent of
Eomerciat harbors, - docks, ... piers,
+ tn anticipation of the Avgu
elaine againet Nateon, Matson withdrew ite motion for summary 3udgrent against
Baole on August 3, 2004
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in West’s Hawai'i Reports and the Pacific Reporter
= = belonging to or controlled by the state, and all the
Shipping using the sane.
3. [HRS § 266-2) further gives the DOT authority to
sregulate the use of comercial docks, piers, and landing
ro adopt rules pursuant to (HRS chapter Si]; and to have ali
powers necessary to fully carry out” (HRS chapter 266)
‘40° [ims § 266-3 (1993), quoted infra.) empowers the
Director of [the DOT] to adopt rules necessary for ‘the
proper regulation and control of all shipping in the
Somercisl harbore'. . , and for the regulation and control
of ail other matters and things connected with such
Shipping. These rules have the force and effect of law.
twas § 366-3)
5S. Under [HRS § 266-4 (1953), quoted intr:
Limitations upon the jurisdiction ahd powers. conferrs
the DoD are “as may be inposed by the statutes of the
. ‘Thus, the (legislature delegated broad authority
to [the] vor.
7, Purauant to these delegated powers, DOT's director
promulgated 1AR 29-43-71, quoted intra] and/HAR 29-43-51,
fee infra note 12] (hereinafter
TIRES the duty to defend to claine incident to or reeulting
from operations on DOT property and use of ite facilities a#
by be involved in loading or Unloading, and ia excepted
from circunstances in which the [statel ie proven to be
solely and legally negligent. There has been no contention
hat, proceduraiiy, ‘these ruies were improperly estebisehed.
¢ an administrative agency ie charged with the
Feaponaibility of carrying ost the mandate of a statute,
Shieh contains words of broad and indefinite meaning, courte
accord persuasive weight to administrative construction and
follow the sane, unless the construction is palpably
erroneous. Watt Corp. v. Monolulu Ligver comission, 69
Haw. 238, 738 P-2a 1208, 1208) (1987)
ion, the State [Iegislacure hae chosen to
speak directly te the deove of private entities holding
completely harmless the state of Havai'i as a condition of
Seer See’ (MRE SE 142-61 and 440G-8-2]. The parties have
not contended that guch statutory provisions represent an
Unlawful exercise of legislative discretion.
3. “This [eleure cannot find that, in promileating HAR
19-41-7 and HAR 19°42-5, [the] DOT exceeded the broad
statutory authority delegated by the state (legislature or
Entepreted the relevant statutes impermissibly or in
contravention to the Legislature's manifest purpose, or that
the DOT's construction of (HRS chapter 266], was paipsbly
erroneous. see [ivatt, supra
fae. 32 P-34 433 (Sem Cir. 1994) Inasmuch
Under (HRS'§§ 266-2 and -3], the state (Le
Parposefully delegates all lavful powers to (the] DOF fo
Fanage, control snd regulate shipping and the harbors, the
Yules appear to be reasonably related to carrying into
effect the purposes and provisions of the legislature.
6 Haw, App. 360, 267{, 725 P.2d 633, 819)
(see)
io. state of Alaska v. Alveska Pipeline service
Company, 725.20 76 ((Aleska] 1966), and State of Arizona
voce Natiomvide, Inc,, 676 P.24 1199 (Ariz. Ct. App-]
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a
194), are distinguishable because the delegations of power
ie 'tncee two cases were narrower than the broeé delegation
involved in thie ca
32, "under these circumstance
fa matter of public policy.
a "at che cine of the events at issue, under the
rules, imateon and the Necabe parties] each was an
core unloading cargo at a state wharf with
Gone" on DOr property and vaich was engaged in the
‘of Dor facilities and was @ “user” of such
facilities
2 the relevant pleadings and other, filings
establish «sufficient possibility of the applicability of
She"puies cov ithe appellante), and that the (State) will not
be’ aetermined to be solely legally negligent
Ten imme appeliante)’ duties to defend sre based upon
tne rules herein Giacussed, and not on account of
plaintiff's alleged injuries. Therefore, although
Plaintiff's “employer” for purposes of the (LHWCA], Matson
BUtninale le sot foreclosed by that act from providing a
Gefense for the [state]. See wz =a
fieamship Cou, 206 2.5.24 290 Gey. App. Div. 1998).
the rules are not void
Based on its findings, the circuit court granted the Stat!
motion for partial sunmary judgment and denied appellants’
motions.
on October 13, 2004, the McCabe parties moved for
certification of the judgnent as final and separate, pursuant to
uRcP Rule 54(b), and for a etay of proceedings pending appeal.
Matson filed a similar motion on October 15, 2004 and
subsequently joined in the McCabe parties’ motion on October 21
2004.
on Decenber 16, 2004, the circuit court entered its
order granting the motions for certification and for a stay of
proceedings. On the sane day, the circuit court entered its
judgment certifying its October 5, 2004 order granting partial
eunmary judgment in favor of the State, ruling that appellants
have a duty to defend the State against Haole’s claims.
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on December 20, 2004, the McCabe parties filed a timely
notice of appeal, amending it on December 29, 2004 and again on
January 11, 2005. On January 11, 2005, Matson also filed a
timely notice of appeal.
IT. STANDARDS OF REVIEW
A. Summary Judament
This court reviews a circuit court’s grant or denial of
summary judgment de nove under the same standard applied by the
circuit court. Hawai'i Cnty, Fed, Credit Union v. Keka, 94
Hawai'i 213, 221, 11 P.3d 1, 9 (2000) (citation omitted).
B. Stati 2
‘The interpretation of a statute is # question of lew
that 1 reviewed de nove
‘when construing a statute, our forenost
obligation ie co ascertain and give effect to the
Gneention of the legislature, waich is to be obtained
prinarily from the language contained in the statute
Teeclf. And we must read statutory language in the
context of the entire statute and construe it ina
manner consistent with ite purpos
‘when there is doubt, Goubleness of meaning, or
indiatinctiveness or uncertainty of an expression used
ina statute, an ambiguity exists(.]
Ta construing an ambiguous statute, the meaning
of the ambiguous words may Be scught by examining the
Context with which the ambiguous words, phrases, and
Sentences nay be compared, in order to ascertain their
tre meaning, Moreover, the courts may resort to
extrinsic aide in determining legislative intent. one
Svenue is the use of legislative history as an
interpretive tool.
‘Tale coure may also consider the reason and
spirit of the law, and the cause which induced the
[egilature to enact it [] to discover ite true
meaning. Lawe in pari materia, or upon the
mubject matter, shell be construed with re!
sp other. What is clear in one statute may be
‘ied upon in aid to explain what is doubtful in
another.
-10-
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a
y. Planning Dep't, Ci o! Si, 104 Hawai'i 173,
179-60, 86 P.34 962, 988-89 (2004) (citations and internal
quotation marks omitted).
(ilhere an administrative agency is charged with the
Meapensibitity of carrying out the mandate of a statute
sereereettaing worde cf broad and indefinite weaning, courte
Ph Certuasive weight to adsinistrative construction and
25ifo0 Phe same, unlese the construction is palpably
dd, at 180, 86 P.3d at 989 (citing Ka Pa‘akai O Ka “Aina v. Land
vee Comm'n, State of Hawai'i, 94 Hawai'i 31, 41, 7 P.3d 1068, 1078
(2000)). Stated differently:
mere an agency is statutorily responsible for
carrying out the sandate of @ statute which containe broad
E'Maigvous language, that agency's interpretation ang
Siplication of the statute 1a generally accorded judicial
GRerence on appellate review. Vail v. Buplovecs”
fiatizenent avarem, 75 Haw. 42, 59, 056 P.2d 1227, 2237
besseiittbowerer, an interpretation by ah agency’ of a
RSE it'sasinistere ie not entitled to deference if the
{Nlerpretacion te plainly erroneous and Inconsistent with
AEERERe'ieteer end incent of the statotory mandate, Kahane
o rege Hawas's 66, 72, 947 P.2d
Ste, 384 (2997)
iG Ins. Co. vs Keuhane, 101 Hawai'i 311, 322, 67 P.3d 610, 820
(app. 2003) (brackets and internal quotation marke omitted)
III. DISCUSSION
HAR § 19-41-7 provides:
Liability. Agencies, masters, omere, operators, of
charterers loading oF
wate havlleas he separtne!
Beguade and suite for damages att 1
SEluns, “see Teclucing cosce and attorneys’ fees, incident to
Tithe use of ite facilities except where the
GRLESTSRE hes been proven to be solely and legally
negligent
(anphases added.) The aforementioned rule not only imposes upon
private parties a duty to defend the State, but also shifts
--
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Liability fron the State to such private parties, except in
circumstances where the State is proven to be “solely and legally
negligent." Although Hawaii's appellate courte have not had
occasion to address the validity and enforceability of a
regulatory duty to defend, the Intermediate Court of Appeals’
(Ica) decision in Pancakes of Hawai'i v, Pomare Properties Com.
85 Hawai'i 286, 291, 944 P.2d 63, 88 (App. 1997), provides sone
preliminary guidance. In that case, which involved a contractual
duty to defend in @ non-ineurance context, the ICA stated:
Im our opinion, the procedure used to deternine the
duty to defend besed on indemnity contracts can follow the
fame procedure used in the insurance context. Ifa
hen according to the complaint
alleaation rie, che duty to defend beaing. This ie
Separate and diatinet fron the duty to indemnify. Once the
trier of fact makes a determination on the claine in che
Jaweutt, the duty to indemiify will either arise or lie
dormant. Claims falling within the indemnity provision will
trigger the duty to indemnify, while clains failing outside
the provielon will relieve the indemitor of his of her osty
to indemnify. “in our view, thie is the only equitable
Interpretation that gives iife to non-insurance indemnity
Clauses and prevente indemitore from beronbing the duty to
Sefend until after a case has been litigated.
Recordingly, we hold that the duty to defend
bated on'a’ contractual indemnity clause mst be detersined
at the onset of Litigation using the complaint allegation rule.
Id, at 291-92, 944 P.2d at 88-89 (emphases added). In other
words, under the “complaint allegation rule," if there is no
potential for indemnification, then no duty to defend will arise.
Accordingly, even though the State sought and obtained summary
judgment based upon only the appellants’ duty to defend, we focus
our analysis upon the duty to indemnify and whether a valid duty
to indemnify exists under HAR § 19-41-7.
-12-
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to Indemnity and the Validity of 243-74
pursuant to the State Tort Liability Act, the State,
generally, is liable for actual damages caused by the negligence
of ite employees “in the same manner and to the same extent as a
private individual under like circumstances." HRS § 662-2
(1993) 4 In addition, where a government entity is determined to
be a joint tortfeasor along with a private party, the government
entity ie “liable for no more than that percentage share of the
Ganages attributable to the government entity." HRS § 663-10.5
(supp. 2002)." ‘This court has consistently held that private
parties may contract to indemify the indemnitee for the
indemnitee’s own negligence but there mst be a “clear and
«RS § 662-2 provides in relevant part:
waiver end Liability of state. The State hereby
waives ite immunity for liability for the torte of ite
Welspecs"and shall be Liable inthe sane manner and to the
ithe extent ae a private individual under like
$ffeuSoeances, but euall not be liable for inter
Sadgnent or for punitive damages
st prior to
(noid emphasis in original.)
+ was § 663-10.5 provides in pertinent part:
Iz)n any case where a government entity Je determined to be
JPL Mkasor slong with one or more other tortfeasors, the
jent entity shall be Li am
ergencane- nage ok the Sanaa ——
en Sibotes of this section, “government entity”
meane any init of government in this State, including the
EERIE 223 any county or combination of counties,
Stéafenene or other establishment owned, Operated, or
Gthaged by Gr'on behalf of this State or any county:
For purpowes of this section, the Liability of =
goverment’ shell include ite vicarious Liability for the
Sete or eniseione of its officers and employ
(empnaeis added.)
-13-
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unequivocal’ assumption of liability by one party for the other
party's negligence. Kamali v. Hawaiian Elec. Co., 54 Haw. 153,
162, 504 P.24 861, 866 (1972); Keawe v. Hawaiian Elec. Co., Inc.,
65 Maw. 232, 237, 649 P.2d 1149, 1153 (1962); Bepaniola v.
Cawdrey Mars Joint Venture, 62 Haw. 171, 178, 707 P.2d 365, 369
cases).
Here, the parties agree that the DOT “could require by
contract what it does here by regulation." However, absent their
clear and unequivocal assumption of the State's liebility, the
appellants contend that the duty to indemnify cannot be imposed
pon them via the HAR. Specifically, the appellants argue that:
(2) the Dor’s governing statutes do not explicitly authorize the
DOT to issue administrative rules exonerating the State from the
negligence of its employees, nor do they explicitly allow the DOT
to require private entities to defend and indemnify the state for
(2) the regulation does not bear
the negligence of ite employee:
a reasonable relationship to the DOT’s statutory mandate; and
(3) the legielature’s imposition of a statutory duty to defend
and/or indemnify on other occasions demonstrates the
legislature's clear intent to reserve to itself the power to
impose upon others a duty to defend and indemify the state and
does not consider euch authority to be implicitly afforded to
State agencie:
The State, on the other hand, maintains that, although
the governing statutes do not explicitly authorize the DoT to
-14-
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impose a duty to defend or indemnify, the regulation wa
nevertheless within the DOT's powers to promulgate. The State
argues that: (1) no “magic words" are required to support the
regulation; (2) the existence of unrelated statutory duties to
indemnify does not limit the DOT's delegated authority: and
(3) other Hawai'i agencies have enacted rules requiring
indemnification or a defense, using similar statutory
delegations. In analyzing the parties’ contentions, we first
examine the DOT's rule-making authority.
1, por’e Rule-making Authority
We begin with the proposition that
[a) public administrative agency possesses
rele-naking authority ae is delegated to it by the
Jegiclature and may only exercise this pover within ©
fsanework of the statute under which itis conferred
Clive rule and regulations waich exceed the scope
factment they vere devised to inplenent
stop H-3 Ase‘n v. State Dept. of Tranep., 68 Haw. 154, 161, 706
P.2d 446, 451 (1985) (internal citations omitted); see also Puana
v. Sunn, 69 Haw. 167, 189, 737 P.24 867, 870 (1987) (an agency's
authority “is limited to enacting rules which carry out and
further the purposes of the legislation and do not enlarge,
alter, or restrict the provisions of the act being
administered"). In other words,
an administrative agency can only wield powers
iy oF implicitly granted to it by statute. However,
Yo °Ceeablished thet an adsinistrative agency's
authority includes those implied povers that are reasonably
on ou roe i nthe
Bigecn for inplied powere ie that, as a practical matter,
Eke legislature canner foresee ali the problens incidental
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to carrying out the duties and responsibilities of the
agency,
Morgan, 104 Hawai'i at 184, 86 P.3d at 993 (internal quotation
marks, brackets, citations, and ellipses omitted) (emphasis
added) .
The DOT's authority to regulate and control the State's
harbors is found in three statutes: (1) HRS § 26-19 (1993),
which states in pertinent part that “[t]he [DOT] shall establish.
maintain, and operate transportation facilities of the state,
including . . . harbore(] and such other transportation
facilities and activities as may be authorized by law" (emphasis
added); (2) HRS § 266-2 (1993), which describes the powers and
duties of the department;* and (3) HRS § 266-3 (1993), which
specifically defines the DOT's rule-making authority.”
© ane § 266-2 provides in relevant part:
(a) the department of trangportation shall:
() Have and exercise all the powrs and shal
perform all the duties which may lawfully be
suercised by or under the state relative to the
‘control and sanacement of comercial,
barbers, . - docks, wharves, piers, .. . and
Tandinge belonging to or controlled by the state
and the shipping using the same;
Have the authority to use and permit and
Keaulate the use of the comercial docks,
Shares, piers and landings belongina to
Se-contiolled by the state for... loading and
‘Ianding mexchandiee(a1
(6) " Adopt rules pursuant to [C]hapter 91 and not
Gnconeietent with laws and
(7) Generally have o11 powers necessary to fully
sarry out this chapter.
(emphases added.)
1) uRS § 266-3 provides in relevant part:
(continued,
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‘the authority to promulgate rules, however, is not without
restrictions. gee HRS § 266-4 (1993) (providing that “(t]he
jurisdiction and powers conferred on the [DOT] are subject to
such restrictions as may be imposed by the statutes of the State,
and shall be exercised in accordance with the provisions
thereof"). We, therefore, examine whether the DOT's governing
etatutes authorize the promulgation of HAR § 19-41-7.
2. Whether the DOT’s Governing Statutes
huthorize Promulgation of HAR § 19-41-7
the State acknowledges that the DOT's governing
statutes do not “specifically mention a duty to defend [or
indemnify)"; however, it argues that the absence of such
"(,.eomeinued)
“a, the aizector of transportation may adopt rules as
necessary to:
is)” Refining the duties and powers of carriers.
Biliters and conelanees respec oat
Eesishegonse—enees, tnd aetchan hia the
Wehereial harcore, ports, and roadsteads of the
acy of the docks Hs
(emphases added.)
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specificity “is not dispositive." In the State’s view, the
appellants “misunderstand the nature of statutory delegation" and
the fact that "(t]he statute's exact words are not controlling.”
(Bnphasis in original.) The State argues that “(t]he legislature
never intended to meticulously delineate each of the agency's
specific powers" and that, *[als long as the rule is consistent
with the grant of statutozy authority, it is valid.
‘The relevant governing statutes grant to the DOT “all
powers necessary" for it to regulate and control the state's
However, the grant of the Dot's
harbors. HRS § 266:
rule-making authority to carry out its function is specifically
Gefined. First, the power to "define the duties" of “carriers,
shippers, and consignees" under HRS § 266-3(a) (5) refers to
duties “xespecting passengers, freight, coods, wares, and
mexchandise in and upon the docke.* (Emphasis added.) Nowhere
in the governing statutes is there a specific delegation of power
to the DOT te define the duties owed by such “carriers, shippers
and consignees" to the State as the indemnitee. See Kamali, 54
Haw, at 159, 504 P.2d at 865 (*[a] third party claim for
indemnity ie . . . for reimbursement based upon contract or sone
other independent duty exieting between indemnitor and
Second, although the State argues that the power
indemnitee.
ry" and without which the
As that which is "reasonably nect
“por would not be able to fully manage the State harbors,” the
and, as previously mentioned, all the parties
State admits
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agree -- that the DOT “could require by contract what it does
here by regulation.” We note that there is no evidence in the
record to suggest that the DOT's state harbor operations would be
significantly hampered were it required to contract with harbor
veers for indemnification. Third, even though HRS § 266-3(a) (5)
also authorizes the DOT to enact regulations for the safety of
and the State does not even
the docks, there is no evidence
allege -- that imposing liability for the state
negligence upon
harbor users contributes to increased safety. Finally, under HRS
§ 266-3 (b) (2), the only other general rule-making provision in
that section, the DOT may enact rules necessary to regulate and
control “all shipping" and “all other matters and things
connected with such shipping.” Although broad in scope, the
above provision -- ike the remaining provisions of the relevant
governing statutes -- does not explicitly state that the DOT's
qule-making authority includes the power to impose a duty of
indemnification.
b. implied authority
the State maintains that the challenged-regulation is
reasonably necessary and reasonably related to carrying out the
pot’s statutory mandate. Specifically, the State argues that the
enactment of HAR § 19-41-7
was “reasonably necessary to carry out" [the) DOT's express
Gna Brose grant of autnority. Wit
‘seate.”
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(Brackets in original.) (El1ipses points and citation omitted.)
‘The Mccabe parties argue that, although HRS § 266-2 grants the
oT "tall the powere’ which may lawfully be exercised by or under
the State ‘relative to the control or management’ of commercial
harbore, . . . [t]he language ‘control and management’ does not
automatically confer the authority to require indemni fication*
and that, therefore, the authority to require indemnification
cannct be implied from the governing statutes. Matson agrees and
additionally argues that the regulation at issue is not
reasonably related to the “administration for which the rules and
regulations were authorized to accomplish.
Here, the circuit court concluded that, in promilgating
HAR § 19-41-7, the DOT did not exceed the “broad statutory
authority” delegated by the legislature, citing Hyatt Corporation
¥. Honolulu Liguor Commission, 69 Haw. 238, 738 P.2d 1205,
reconsideration denied, 69 Haw. 674, 738 P.2d 1205 (1987), and
Orca Bay Seafoods v, Northwest Trucking Sales, Inc., 32 F.3d 433
(sth Cir. 1994), In the former case, Hyatt sought to enjoin the
Honolulu Liquor Commission (Commission) from enforcing HAR
§ 7-21, which prohibited liguor licensees from engaging in
discriminatory practices. Hyatt Corp,. 69 Haw. at 239, 738 P.2d
at 1205. In determining the extent of the Commission's
authority, this court recognized that
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‘the problems associated with intoxicating liquor have
been a matter of concern for legislative bodies in this
peShery for over three centuries. See 45 Am. Jur. 26,
seoxieat s 136s).
THERicecor the nature of intoxicating liquor and the
Ghormcus probleme developed by the traffic in then,
ee in thi of 6
a fconsistentiy with any
sci tianpects of constitutional limitations, £0 Be
soveresanty
, 297 2.24
BOR Rech Nappeal disaiased. (for want of « substantial
federal question) 411 U.S. 926, 93 S. Ck. 952, 35 L. BA. 2d
2es (3978). See Crane v_ Campbell, 245 U.8. 304, 307, 38 6
Ce. 98, 99, 62 b. Ba. 24 304, 309 (2917)
Bghiusions . <7, H- wattel & P. Putnam,
fgucr Levs in'vavaii and the D eae dana (ueg. Ree
Bureau Rep. No. 2, 1969).
Id, at 241, 738 P.2d at 1207 (emphases added). HRS § 261-17
enabling statute, provided in pertinent
(1985), the Commission’
part:
Surisdiction ané powers. The Liguor comission,
within ite own coumty, shall have the sole iuriadiction
© es
‘shaper:
(2) Te grant, refuse, suspend, and revoke any
TSednses for the manufacture, importation, and
gale of liquors;
(2) Te control, supervise and regulate the
Ganufacture, importation, and sale of liquors by
Taventigation, enforcement, and
education ne
(3) From tine to time
ih rules, not inconsistent with €i
Sein the judgnent of the comission
appropriate for carzying out this chapter and
jetrat: 3
chapter,
PEeehtces, including every nacter or thing
HIGEIESG to be done or which may be done with te
Gpproval or consent or by order or under the
Gfeeccion or supervision of or as prescribed by
fhe comnieeion; which rules, when adopted
provided in chapter $2 shali have the force and
Retect of lawl.)
(underscored emphases added.)
(Bold emphasis in original
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im upholding the Commission’ prohibition on racial
discrimination, this court stated that
We are mindful that legislative grants of authority
jot be limited so ae to ensure that important choices of
focial policy are made by the legislature, the Branch of our
Government most responsive to the popular will,
‘The public policy of the State of Hawaii distavoring
racial digerininstion 1e embodies in our statutes and our’
Constitution. The strength of this expressed public policy
fageinet racial discrimination is beyond question,
Id, at 244, 738 P.2d at 1209 (citations, internal quotation
marks, and footnotes omitted). This court also noted that:
Hyatt examines specific instances where the
legislature expressly prohibited discrimination and argues
that where the legislature intends to prohibit
Giecriminstion, ie does so expressly. However, the issue is
fot whether ene legislature intended to prohibit
Giscrimination . .-, but whether the legislature, in
granting broad authority to the Comission, permitted the
Eonmisoion to prohibie Yaclal discrimination:
Id. at 244 n.7, 736 P.2d at 1209 n.7 (emphases in original). The
court concluded that the governing statute’s “extremely broad
grant of authority to the Commission,” coupled with "the great
weight to be accorded to the Commission’s construction of the
statute and the strong public policy of this State against racial
Giscrimination,” mandated the conclusion that the Comission did
not exceed its rule-making authority when it adopted HAR § 7-21.
Id, at 245, 738 P.2d at 1208.
In Orca Bay Seafoods, the United states court of
Appeals for the Ninth Circuit addressed the validity of a
regulation promulgated by the Secretary of Transportation that
exempted from the Vehicle Information and Cost Savings Act, Pub.
L. No, 92-513, 86 Stat. 961 (1972) (codified as amended at 15
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U.S.C. §§ 1981-91), transfers of trucks with gross vehicle weight
ratings of sore than 16,000 pounds. Qrca Bay Seafoods, 32 F.3d
at 424, ‘The act required that all vehicle transfers include true
cdoneter readings or @ disclosure that actual mileage is
unknown, ‘The Ninth Circuit struck down the regulation ae
invalid, concluding that, although the reasoning for such an
exemption was rational, Congress had not delegated the power te
create euch an exemption. ‘The court reasoned that deference to
the agency's interpretation of ite governing statutes was not
required because
[aleference to administrative agencies under Chevron U.S.Au.
{eletereRSture: Resourcer Oefense council, Inc., 467 0.5
S7e2-83, 61 L- Ba.2 694 (1904),
SEL aoe save the regulation. Chersan deference only
‘idates [there isvanbiguity or silence in the statute;
hea a court reviews an agency's construction of the
{ETS Coatronted wien two
the question whether Congress
precise question at issue. If
GRIESE Ue"Boncrese Se clesr, chat is the end of the
Edteers for the coure, as well ae the agency, must give
REESEE’ co°tne nanbiguously expressed intent’ of Congress
SEES cert ehe court determines Congress has not directly
Ugrteses the precise question at issue, the question for
i
Beiseible construction of the -atatuns. 2d, at 642-43, 104
BERAt lt a7ei-e2 (footnotes omitted)
ive effect to the
td, at 436-7 (emphases added) «
in sum, Hyatt Corp. and Orca Bay Seafoods represent two
ends of the spectrum. The Liquor Commission’s power to ‘regulate
considered
the conduct of business of all licensees” w
wextrenely broad” and permitted the Commission to prescribe rules
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prohibiting licensees, including Hyatt, from discriminating
against custoners. In contrast, Congress had directly spoken on
the subject of the regulation at issue in Orca Bay Seafoods.
‘The instant case, however, is distinguishable from the
above cases. In Hyatt Corp., the Liquor Commission was granted
vexcrenely* broad authority to regulate “the proper conduct of
business of all licensees." 69 Haw. at 245, 738 P.2d at 1209.
‘he regulation at iesue as well as the other statutes raised by
Hyatt were consistent with the legislature’s “strong public
policy* against racial discrimination. In reviewing the question
whether the Commission was permitted to enact its regulations
given its “broad grant of authority," this court locked to the
legislature's policy regarding discrimination and determined that
the regulation was permitted. In the instant case, the
legislature's express policy, under the state Tort Liability Act,
nee supra note 4, is that the State ie liable for its torte in
the sane manner as a private party in like circunstances. Thus,
a regulatory shift of responsibility for the State's ovn
negligence contravenes the State’s express policy regarding
Liability for ite torte. As previously noted, unlike Orca Bay
Seafoods, the legislature has not spoken directly to whether the
DOT may impose a regulatory duty to indemify the state.
Admittedly, the governing statutes grant “all powers necessary”
for the regulation and control of state harbors, but such powers
are not so “extrenely broad” as those of the Liquor Comission in
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hyatt Corp, Indeed, the Liquor Conmiasion’s rule-making powers
were generally described as permitting the regulation of, inter
alia, the “proper conduct of the business of all licensees” as,
in the commission's judgment, "seem{ed] appropriate”; whereas
here, as previously discussed, the DOT’s rule-making authority is
specifically defined. Accordingly, we do not believe that the
por is permitted to bypass the general requirement that parties
(in this case, the state) secking to shift lability to ancther
(ice, the appellants) must secure the clear and unequivocal
agreenent of that party to assune the liability of another, See
Kamali, $4 Haw. at 162, 504 P.2d at 666.
cS déressis fies
the McCabe parties point to two cases -- (1) State v.
ka Piel any, 723 P.2d 76 (Alaska 1986), and
(2) state v. C & H Nationwide, 676 P.24 1199 (Ariz. Ct. APP-
1994) -- in which courts have held regulatory indemnification
unenforceable because they were not authorized by their
aescciated-governing statutes. In Alyeska Pipeline, an employee
of Alyeska Pipeline Service Conpany (Alyeska) sued the state of
Alaska after she was injured on a state highway (hereinafter, the
palton Highway], alleging that the state negligently failed to
control dust on the highway. The state joined Alyeska as 2
third-party defendant based upon an express indemnification
provision set forth in its highway use permit. Alyeska argued
that the regulation requiring the indemnification provision
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exceeded the authority of the governing statutes. The Supreme
Court of Alaska agreed with Alyeska, noting that the state
enumerated powers to control the state highway system included
the rights to control access to highways and to collect tolls,
well as to
fees, and charges for the use of such highways,
vexercise any other power necessary to carry out the purpose” of
the governing statutes. 723 P.2d at 78. The court noted that
the state also had a statutory duty to maintain the highway and
keep it open for industrial and commercial traffic. the
regulations promlgated by the state prohibited travel on the
Dalton Highway without a permit, which contained the following
indemity provision:
agents, and employees from all
‘oF claine of aay character brought because
of any injuries or damages sustained by any person or
property in consequence of any act or omission, in any way
Felated, directly or indirectly, to the issuance or use of
the permit, of the permittee, ice repr
exployecs, or of the state ay
agents, or employees, or of any other person
Id, at 78 (citation omitted). The Alaska Supreme Court concluded
that the regulation was inconsistent with the governing statutes
onable relation to the state’s statutory
because it bore “no r
duty to maintain the highway." Id.
In C & Hi Nationwide, a C & H truck, transporting an
jued by the Arizona
oversize load pursuant to a permit i
Department of Transportation (ADOT), was involved in a collision
with a motorhome, resulting in the deathe of seven people, The
survivors of the decedente brought a negligence action against
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C & Hand the State of Arizona (the state). 676 P.2d at 1200.
the state settled the case, and, thereafter, sought
indemnification against C & H based upon an ADOT regulation
generally requiring permit applicants to indemnify the state
ds at 1201. the state argued that the regulation requiring
indemnification was an authorized exercise of the broad powers
granted to the ADOT regarding public safety and the issuance of
oversize load permite. The court disagreed, stating that:
under A.R.S. § 28-208(A), the director of ADOT has the power
roti)
& ‘nd iurisdiction over tl f
‘Mahan and, renies and preset e eaeh othe abues
in regard to oversize load permite, A.R.S. § 26-202
provides:
A. (t]he director with respect to highways under the
Jurisdiecion of the department . . = may upon
2eEifGacion in writing and good cause being shows
therefor issues special permit _in writing authorizing
Ene applicant to operate or move a vehicle or
Edmbipetion of vehicles of a size or weight of vehicle
Sfioad exceeding the maximum specified in this
article ‘upon any highway under the jurisdiction
of the party granting the permit and for the
Saintenance of waich the party is responsible.
6." (ihe director... may with he
ts af the permit is issued,
Biliizector .- . say establish seasonal or other
Elne linitarione within which the vehicles described
Eav’pe operated on the highways indicated of otherwise
TMuttor prescribe conditions of operation of the
Yenicle cf vehicles, when necessary to eagure against
Undue dams ‘road foundations, surfaces oF
WiRigearee and may require ouch undertaking or other
Scluriey as aay be deemed necessary to compensate for
iny injury to any roadway or road structure,
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19 added.) Finally, A.R.S. 6 21
imposes Liability on the drivers and owners of over
vehicles for danage to highways or highway structur
by the sovenent of these vehicles. Movhere in the
Aeaislation do xe tind anv authority, expressed or imlicd,
sonferted upon the ADOT to require general indemnification
bynermictees. fven broadly construing the above statutory
provisions. we can discern no leaislative intent to require
((ttalieized e] mph
Id. (emphases added). The court further reasoned that:
Given [the aD0Ts) overall responsibility for regulating and
aintaining the state's highwaye, it ie ADOT that hae
Superior knowledge of the general nature and conditions of
the “thousands of miles of roadway it maintains,” rather
than carriers of oversize loads, particularly those fron
Sithout the state asin this case. Moreover, ADOT hae the
Tuthority to restrict the movement of dangerous oversize
Joace to certain routes and times that may be saf
ich purposes or to impose other
Yequiring eacort vehicles and warning
Pirthernore, sbeent a clear statutory directive, we do
not believe that the determination whether to require
dndennification ina nutter for the agency fo decide, duet
au tie decision to immunise the state from liapeiiey ie
elon to shift the etate’s ii
Bartel]
{ "we agree with the trial court that (.] had the
ification for savehing other tl ss
etatutes]- in the absence of
indesnity clause is unentorceable-
Id. at 1202-03 (citations omitted) (emphases added).
In the instant case, the circuit court found Alyeska
Pipeline and C & H Nationwide “distinguishable because the
delegations of power in those two cases were narrower than the
broad delegation [to regulate and control the State harbors that
is] involved in this case.” Although we agree with respect to
the scope of the delegation of power, we believe that some of the
ion.
d therein are worthy of discus
principles discu
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Here, unlike the above cases, there is no permit
required of harbor users, i.e. a separate agreement.
Additionally, in ¢&H Nationwide, the court noted that the
permit itself éid not contain a separate indemnity provision, but
only cited to the regulation, stating that a permit applicant
sghall agree to hold [the state] harmless(.]" 676 P.2d at 1202
n.2. In that regard, the regulation at issue in C & Hi Nationwide
is more akin to the DOT's regulation at issue here. Although the
ADOT argued that, absent the regulation, ‘it would be required to
maintain constant surveillance over the thousands of miles of
roadway it maintains,” Id. at 1202, the Arizona Court of Appeals
reeponded that:
argument unpersuasive for several
9 indemnity obligation
ESsters safer highway operation by wide load carriers,
‘STthough eppeating on ite face, ie unsupported by any
Qidenge LEPike recora, and it avoide addressing potential
{Seuec concerning the state's own negligenc:
[tposing Hability on a permittee for the st
fay benefit the state's coffers, we cannot
Takreaves public safecy, and, ae C6 H urges, it may
Abusily diminish nighway safety by reducing’ the state's
Tpeentive to avoid negligence. Soe
L Sane bead 315, 318 (Alaska 1989)
inet oey indenaity provielon in state airport lease
AEORRRES Eke state's incentive to avoid negligence, not only
‘Seepect co FAL and other najor carriers with similar
‘cave provisions, but also with respect to the travelling
[eic) public"); cf. Salt Ri e
fea eis. 368, 362,
Puattenpte to avoid or Limit tort
stending to encourage
fee P20 198, 212 (1!
Liability disfavored
carelessness”)
jd. Similarly, we believe that the DoT’s argument that the power
to require indemnification is reasonably necessary is
unpersuasive. First, as previously stated, the DOT owns,
operates, and manages the State’s harbors, and, as such, it has
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superior knowledge of the nature and conditions of ite piers,
wharves, commercial docks, landings, and the like. Second, given
its responsibility to maintain the overall safety of the users of
its harbors and related facilities, the DOT also has the
authority to, inter alia, regulate the movement of freight from
cargo ships to storage areas, designate and assign appropriate
storage areas, and otherwise control loading and unloading
activities. Third, like the Arizona appellate court, we also
fail to see how imposing liability on harbor users for the
State’s negligence is reasonably necessary to maintain their
safety. As observed by the court in C & H Nationwide, the
regulatory indemnification at issue here "may actually diminish
. safety by reducing the state’s incentive to avoid
negligence.” Id. And, finally, had the legislature intended to
afford the DOT authority to require indemnification, except where
the State is proven to be solely and legally negligent, it could
have expressly done so as it has in other circumstances as
discussed below.
B. Hawai'i Indemnification statutes
Although we acknowledge the State's argument that “the
existence of unrelated statutory duties to indemify does not
limit [the] DoT’s delegated authority,* we also recognize that
the legislature has imposed a duty to indemnify the State on
private parties without requiring a separate agreement in very
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a
limited instances. For example, HRS § 142-61(g) (1993)* imposes
on “any person who constructs or maintains” an electric fence
along publicly owned lands to indennify the public entity owning
guch land from all claims “arising from the use" of such fences;
RS § 266-172 (Supp. 2005) requires “any person receiving
information’ from the statewide traffic records systems to ‘hold
harmless the state and any agency thereof from all claims tor
improper use or release of such information.”
All other indemification statutes contemplate a
separate agreenent to shift liability to the indennitor and
generally fall into three main groups. The first includes those
etatutes that require a written acknowledgment or agreement.
see, exda, HRS § 302A-1164" (Supp. 2005) (requiring parents’
+ une § 142-6119) provides:
Any person who constructs or maintaing an electrically
charged fence of fence with an electrically charged
SREEEienea atong the boundary of any governnent road or
Sithin"ehe exterier boundaries of any leased public land or
Joe"thall defend, indennify, and hold haraless, the Stat
Aone or sther public entity fron all claine, quite, oF
SSgueses arieing fom the use of an electrically charged
donde or tence with electrically charged attachments
302A-1264 provides in pertinent part
5 302A-1164 Seif-adninistration of medication by
student and cnergency administration permitted. (a) The
Gepartment shall permit:
Ti)” “the eelf-adminietration of medication by &
Student for asthma, anaphylaxis, or other
forentially life-threatening ilinesses; and
(2) Bepertnent employees and agents to volunteer to
BGkinister giucagen in an emergency situation to
Geudente with diabetes.
ici © Te department shail inform the student's parent
or quatdian in writing that the department and its employees
SE Bence shail not incur any liability as a result of any
(continued. .
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written acknowledgment that duty to hold harmless and indemnity
the Department of Health for any claims arising from the
department's granting permission to students to self-administer
certain medications and administering medication to students in
certain emergency situations); age also ERS § 103F-409 (supp.
2005) (requiring all contracts for purchases of health and hunan
services to expressly state that the recipient or provider shall
indemnify and hold harmless the State from all claims, danages,
and costs arising out of or in connection with the acts or
omissions of the recipient or provider).
‘The second group of statutes requires indemnification
to be included as a lease provision. See, e.d., HRS § 2068-184
(supp. 2005) (regarding special facility projects under the
Hawaii Community Development Authority); see also HRS § 261-54
(supp. 2005) (requiring any special facility lease for
aeronautical special facility projects entered into by the DOT to
indemnify the department for claims arising from ite use).
"1. seontimuea)
Gnjury arieing from compliance with this section.
(@) the etudent's parent or guardian enail eisn =
statement acknowledging thats
(2) “The deparement and ite employees or agents shall
pot incur any ability as a result of any
injury arising fron compliance with thie
section; and
(2) The parent or guardian shall indemnify and hold
harmless the departnent and ite employees or
agente ageinet any claims arising out of
compliance with this section.
(Bold enphasie in original.)
232-
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
oe
The thira group of statutes requires an indemnification
agreenent as a grant condition. See, e.d., HRS § 10-17 (Supp.
2005) (regarding grants provided by the Office of Hawaiian
Affairs); HRS § 201-123 (Supp. 2005) (regarding grants from the
Hawaii television and film development special fund). Thus, the
statutes regarding indemnification generally comport with the
policy found in the State Tort Liability Act, see supra note 4,
that the State is liable to the sane extent as a private
individual for its torts, ive. that parties are generally
responsible for their own percentage of fault except where agreed
upon by the parties.
‘The state maintains that:
Like Dot's enabling statutes, the delegations (to other
igenciee) are general and broad. These laws also govern the
Control and use of large, important -- Jand
Glabiiiey-prone (=~ ]Stace resources. For example, the
Stadium Authority wae given the statutory authority £0
Seaintain, operate, and manage the stadium and related
facllities(s]> sto exercise ail powers necessary... £0
irry out and effectuate” his chapter, and to adopt rules
Ge ie may dees necessary(.)" HRS § 109-2 (Supp. 2008)
The stadium Authority enacted an administrative rule akin to
WAR § 19-41-71
(u)icensee shall be required to indemnify and hold
farelese the State, the authority, and thelr officers
and employees, from any and ail claims for lose,
injury, damage oF Iiability sustained . . . by reason
of) she wse'oz crcupation of the stadium prenises By
the Iicensee!
WAR § 3-70-28(b).._ ‘The Convention Center Authority did the
fone, gee HRS §"206X~4(b) (4) & (b) (20) (2999) (*] (agency
Shali “adept rules with respect to its projects, operations,
properties, and facilities;” and edo any and all things
Recessary to carry cut ite purposes and exercise the powers
granted); HAR § 15-110-40() (requiring licens
Gndennity the State and agency)
we the state notes that Authority over the Convention Center was later
reassigned to the Hawai Tourism Authority.
-33-
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
(Brackets in original.) (Footnote omitted.) We note, however,
that such regulations are similar to existing indemity statutes
inasmuch as the regulations cited by the State require the
execution of @ separate license, permit, or lease agreement
See, e.g., HAR §§ 15-110-36 and -40 (regarding the Convention
center Authority, requiring a license, permit, or lease agreement
prepared by the authority); HAR §§ 3-70-7 and -15 (regarding the
Stadium Authority, requiring execution of a licensing agreement).
Based on the foregoing discussion, we conclude that:
(2) the Dot's governing statutes do not explicitly or implicitly
authorize the DOT to issue administrative rules exonerating the
state from the negligence of ite employees (i.e., they do not
allow the DOT to impose upon private parties a duty to defend or
indemnity the State); (2) HAR § 19-41-7 does not bear a
reasonable relationship to the DOT’s statutory mandate; and
(3) the legislature's imposition of a statutory duty to defend
and/or indemnify in other circumstances demonstrates the
legislature’a clear intent to reserve such power to itself."
2 gelying on HAR § 19-41-5, the State argues, in the alternative, that
‘even if consent (to aseune the State's liability] were required, the Mccabe
parties and Matson both gave it, by operating in the State's harbor." HAR
Pibcal-s provides for an "implied agreenent™ that all users of the state
harbors consent to abide by ll the rules. HAR § 19-42-5 states that "(tlhe
Gee of the commercial waterways and facilities under the juriediction of the
ber) shell constitute a consent to the terns and conditions” of ite rule
dn tities the rule ‘implied agreenent." The State argues further that the
duty here 1# sclear and unequivocal” and, thus, ie valid, The NeCabe partion
Sonvend that “there can be no valid consent to an unconatitutional oF
Stherwiee invalid regulation. In light of our conclusion that HAR § 19-41-7
{e'favalse and nenforceable, we need not address the State’s alternative
position.
o34-
+** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
a
IV. cONCL
pased on the foregoing, we hold that the circuit court
exred in granting sunmary judgment in favor of the State and in
ebligating appellants to defend and indemnify the State against
saole's clains. We, therefore, vacate the circuit court's
pecenber 16, 2004 final judgnent and remand this case to the
cireuit court for further proceedings consistent with this
Gre —
opinion.”
on the brief.
John R. Lacy and Secale neo
Randolé L. M. Baldenor
Tee Gooarin anderson Peau Crt 0/6
Cie td tor
gotta appekiane
John 8. Nishimoto, Goren « Dusty
sonnet Nags
Bees cnong tianinoto
Seg potty aeons
teh mar Yectereegete
gtuceabe fananece
Petey ee
Richard K. Griffith,
for plaintiff-appellee
Deirdre Marie-tha and
Dorothy D. Sellers,
Deputy Attorneys General,
for defendant -appellee
state of Hawai'i
1 Tnasmuch as we conclude that HAR § 19-41-7 is invalid, we do not
reach the parties’ renaining arguments regarding (1) @ determination of
reach the Paresce war solely Liable and (2) whether the State's claine against
SAS flea! perty defendants are barred by the LHWCA.
-35-
|
776d7dfd-5675-408a-a34e-fce771e22a6e | The Department of Taxation, State of Hawaii v. Town | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 27641
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
THE DEPARTMENT OF TAXATION, STATE OF HAWAI'I, Petitioner
vs. 3
THE HONORABLE MICHAEL A. TOWN, JUDGE OF THE CIRCUIT COURT OF THE
FIRST CIRCUIT, PETALA LAKATANI aka PETE LAKATANI, Respondents
ORIGINAL PROCEEDING
(CR. NO. 05-1-0294)
ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
upon consideration of the petition for a writ of
prohibition and mandamus and motion to stay order pending review
of petition for writ of prohibition and mandamus filed by
Petitioner Department of Taxation, State of Hawai'i, the papers
in support and opposition, and the records and files herein, it
appears that
(2) Petitioner is seeking review of an order
denying Petitioner's motion to quash a subpoena requiring the
production of tax returns in state v. Lakatani, Cr.
No. 05-1-0294, presently pending in the Circuit Court of the
First Circuit; (2) Petitioner has a pending appeal from the
disputed order: (3) petitions are not intended to take the place
of an appeal, see Kena v. Gaddis, 91 Hawai'i 200, 204, 982 P.2d
334, 338 (2999) (citation omitted) (such writs are not intended to
supersede the legal discretionary authority of the lower courts,
nor are they intended to serve as legal remedies in lieu of
normal appellate procedures); and (4) review of the circuit court
record shows that the defendant in the underlying criminal case
entered a guilty plea on dune 1, 2006 and is scheduled for
sentencing on August 15, 2006. Therefore,
I? IS HEREBY ORDERED that the petition for a writ of
prohibition and mandamus is denied.
I? IS FURTHER ORDERED that the motion to stay order
pending review of petition is denied.
DATED: Honolulu, Hawai'i, June 26, 2006.
Hugh R. Jones
and Kristie Cruz Chang,
Deputy Attorneys General, GY
for petitioner on the
weit’ and motion .
MawiiiZicenee—
Lane H. Tsuchiyana
and Holly T. Shikada, Nenu ts
Deputy Attorneys General,
for respondent The
Honorable Michael A.
Town Yo *
Gary ¥. Shigemura Yorce. Dadi tr
and Harrison K. Kawate
(Law Offices of Gary Y.
Shigemura) for respondent
Petala Lakatani in response
Marcus B. Sierra,
Deputy Attorney General,
for respondent Criminal
Justice Division,
Department of the
Attorney General, in
response
|
46c9bf7e-3c09-4666-9f16-a232a054c78b | State v. Mattes | hawaii | Hawaii Supreme Court | LAW LiBRAR
*** NOT FOR PUBLICATION ***
No. 27713
IN THE SUPREME COURT OF THE STATE OF HAWAI‘T
STATE OF HAWAI'I, Plaintiff-Appellee
PAUL MATTES, Defendant~Appellant
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCHET
(EC-CR. NO. 05~1-2321) a
‘ORDER DISMISSING APPEAL
(By: Nakayama, J., for the court?)
on May 17, 2006, this court ordered Appellant to either
cause the record in the above case to be docketed or file an
appropriate dismissal of the appeal within 30 days from the date
of the order. Appellant having failed to comply and it appearing
that the record on appeal is in default,
IT IS HEREBY ORDERED that the appeal is dismissed.
DATED: Honolulu, Hawai'i, June 28, 2006.
FOR THE COURT:
hue CMe orie $
Associate Justice
Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, J9.
|
7f38a21e-a6db-4ce4-a7b2-62666c77268c | Unity House, Inc. v. Heavenly Road Productions, Inc. | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION *#*
wo. 27811
ane
8 HY 91 NNT saa
IN THE SUPREME COURT OF THE STATE OF HAWAI'I,
UNITY HOUSE, INCORPORATED, Plaintiff-Appellee,
0,
HEAVENLY ROAD PRODUCTIONS, INC., and MICHAEL LUCAS,
Defendants-Appellants.
see
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 98-5043)
ie BPI
(py: Nakayama, J, for the court!)
upon review of the record, it appears that we lack
jurisdiction over Defendants-Appellants Heavenly Road
Productions, Inc. (Appellant Heavenly Road Productions), and
Michael Lucas's (Appellant Lucas) appeal in this case, because
the Honorable Bert I. Ayabe’s February 9, 2006 judgment does not
satisfy the requirements for an appealable final judgment under
RS § 641-1(a) (1993), Rule $8 of the Hawai's Rules of Civil
Procedure (HRCP), end our holding in Jenkins v. Cades Schutte
Fleming & Wright, 76 Hawai'i 115, 119, 869 P.2d 1334, 1338
(1994).
Under the HRCP Rule 58 separate document rule, “[a]n
appeal may be taken from circuit court orders resolving claims
against parties only after the orders have been reduced to a
judgment and the judgment has been entered in favor of and
against the appropriate parties pursuant to HRCP (Rule) 58.1”
Jenkins v. Cades e & Wright, 76 Hawai'i 115, 119,
Yeonsidered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 90.
*** NOT FOR PUBLICATION ***
869 P.2d 1334, 1338 (1994).
(I1f 2 judgment purports to be the final judgment
in a case involving multiple claims or multiple
Parties, the judgment (a) must specifically
identity the party or parties for and against whom
the judgment is entered, and (b) must (1) identify
the Glaims for which it is entered, and
(ii) dismiss any claims not specifically
identified(.)
Ade (emphases added) .
The February 9, 2006 does not expressly enter judgment
in favor of any party, and, furthermore, the February 9, 2006
Judgment enters judgment against, among other persons, a
“Defendant David Glasser,” even though no one by that name is a
party in this case. Therefore, the February 9, 2006 judgment
does not enter judgment in favor of and against the appropriate
parties. In addition, although Plaintiff-Aappellee Unity House,
Inc.'s (Appellee Unity House), complaint asserted two separate
counts for breach of contract against Appellant Heavenly Road
Productions and Appellant Lucas, the February 9, 2006 judgment
does not sufficiently identify the claim or claims for which it
is entered. “If the circuit court intends that claims other than
those listed in the judgment language should be disnissed,” then
the circuit court should include operative language within the
judgment that orders “all other claims, counterclaims, and cross-
clains are dismissed.” ve Cadi e Fu
Mrsoht, 76 Hawai'i at 120 n.4, 869 P.2d at 1339 n.4. (internal
quotation marks omitted) .
Therefore, the February 9, 2006 judgment does not
satisfy the appealability requirements of HRS § 641-1(a) (1993)
and the HRCP Rule 58 separate document rule under our holding in
2
*** NOT FOR PUBLICATION *** '
Jenkins v. Cades Schutte Fleming 4 Wright. Absent an appealable
final judgment, the appeal is premature. Accordingly,
IT I8 HEREBY ORDERED that the appeal is dismissed for
lack of appellate jurisdiction.
DATED: Honolulu, Hawai'i, June 16, 2006.
FOR THE COURT:
See Erase
Associate Justice
|
1baa0275-1acc-4f7f-b8b4-dc590b5dbd61 | Bacerra v. MacMillan | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 26377
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
NOLY BACERRA and NELY BACERRA, Individually, and
SEAN BACERRA, a minor, through NELY BACERRA,
his mother and next friend, Plaintiffs-Appellees,
JAMES B. MacMILLAN, IIT, M.D., THE QUEEN'S
MEDICAL CENTER, Defendants-Appellees,
and
Defendante.
DOE DEFENDANTS 1-100,
APL HOTEL & RESTAURANT WORKERS HEALTH & WELPAKE
‘TRUST FUND, by its Trustees, Lienor-Appellant.
STATE OF AWAT'I, DEPARTMENT OF HUMAN SERVICES,
Intervenor-Appel lee.
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 01-12-3563)
ORDER DENYING MOTION 70 CLARIFY. OB IN THE
(@y: Moon, etn, hevinsos, Nakayama, cops, and Duffy, 39.)
Upon consideration of Iienor-appellant AFL Hotel and
Restaurant Workers Health & Welfare Trust Fund's motion to
clarify, or in the alternative, for reconsideration, the papers
in support thereof, and the record herein,
V7 18 MBREBY ORDERED that che notion Se denied
PATED: Honolulu, Wawai‘i, July 18, 2006.
Derek 8. Kobayashi and
Regan M. Iwao’ (of Goodsi12 Spt
Andereon Quinn ‘¢ seifel),
for lienor-appellant, on’ SS litiorrcag-n.
the motion
Peder 2. when pire
Gam €, Duty sty .
No. 26377 Bacerra v. MacMillan -- Order Denying Motion for
Clarification, or in the Alternative,
for Reconsideration
|
6c9672ac-bbc6-44ef-9d03-621e6a068a11 | State v. Nichols. Concurring and Dissenting Opinion by J. Nakayama, with whom C.J. Moon, joins [pdf]. ICA Opinion, filed 12/29/2005 [pdf], 111 Haw. 436. S.Ct. Order Granting Application for Writ of Certiorari, filed 02/07/2006 [pdf], 109 Haw. 578. S.Ct. Order Denying Motion for Reconsideration, filed 08/25/2006 [pdf]. Dissent by J. Nakayama in which C.J. Moon, joins. | hawaii | Hawaii Supreme Court | * FOR PUBLICATION IN WEST HAWAII REPORTS AND PACIFIC REPORTER *
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
~o00---
STATE OF HAWAT'I, Respondent /Plaintiff-Appelled} 3
vs Ze os
ez
S
x
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 03-1-0493(2))
JOLY 12, 2006
Jey CONCURRING
LEVINSON, ACOBA, AND DUFFY, JJ. WITH NAKAYAMA,
SEPARATELY AND DISSENTING, WITH WHOM MOON, 'C.J., JOTNS
QPINION OF THE COURT BY DUFFY, J.
on January 30, 2006, petitioner/defendant-appellant
Tracy Nichols filed an application for a writ of certiorari,
requesting that this court review the published decision of the
Intermediate Court of Appeals (ICA) in State v. Nichols, No.
26870 (Haw. App. December 29, 2005) [hereinafter, ICA‘s Opinion],
affirming the September 7, 2004 judgment of conviction and
sentence of five years’ probation of the Circuit Court of the
Second Circuit? against Nichols for Terroristic Threatening in
| the Honorable Shackley F. Raffetto presided over the trial and the
Honorable Reinstte W. Cooper presided over sentencing.
* FOR PUBLICATION IN WEST HAWAI1 REPORTS AND PACIFIC REPORTER *
the First Degree in violation of Hawai'i Revised Statutes (HRS)
§ 707-716(1) (c) (1993) *
in his application, Nichols asserts that the ICA
gravely erred by: (1) concluding, based on a misinterpretation
of State v. Kuhia, 105 Hawai'i 261, 96 P.3d 590 (App. 2004), and
the record below, that conviction of terroristic threatening in
the first degree does not require a nexus between the alleged
threat and the complainant's official status or duties as @
public servant; (2) refusing to exercise its “remedial
discretion” to reverse the conviction where the ICA concluded
that failure to instruct the jury to consider the “relevant
attributes” of the parties in determining whether the defendant's
remarks constituted a “true threat,” as required under State v,
Valdivia, 95 Hawai'i 465, 24 P.3d 661 (2001), was plain error
that affected Nichols’ substantial rights: (3) improperly
diminishing the trial court’s responsibilities to be limited to,
# Rs § 707-716(1) (e) provides:
A person commits the offense of terroristic threatening in the
fiket degree if the perton commits Cerroristic threatening
(sigainst 6 public servant (<1
terroristic threatening in the first degree is a class C felony. RS § 707~
THEia) «ams § 107=715(2) (1993) in torn defines terrorictic threatening in
Felevant part as follows
A person conmite the offense of terroristic threatening if the
Person threatens, by wore or conduct, to cause bodily injury to
Shother person of serious damage to property of another or to
Sonat a felony... with the intent to terrorize, or in reckless
Gisregard of the risk of terrorizing, ancther person{.)
2
* FOR PUBLICATION IN WEST HAWAII REPORTS AND PACIFIC REPORTER *
in the absence of any objection, avoiding “only plain erfor
rather than all non-harmless error"; and (4) concluding that the
trial court’s failure to instruct the jury on the included
offense of Terroristic Threatening in the Second Degree, HRS
§ 107-717 (1993),? was not reversible error based on a
misapplication of State v. Heanio, 94 Hawai'i 405, 16 P.3d 246
(2001), and a misreading of the record below where the
instructions on the charged offense were incomplete and
deficient.
We granted certiorari primarily to address Nichols’
contention that the ICA misstated the standard of review for *
erroneous jury instructions in this jurisdiction. We agree with
Nichols that the standard of review as set forth by the ICA
misstates this jurisdiction's controlling precedents, and we
reject it. We hold that an appellate court will reverse for
plain error in jury instructions where the error cannot be said
to be harmless beyond a reasonable doubt (i.e., considering the
record as @ whole, there is a reasonable possibility that the
error contributed to the defendant’s conviction). Applying that
standard to the instant case, we hold that the circuit court's
failure to instruct the jury that “it could consider relevant
> RS § 107-717(1) provides that “{a] person comits the offense of
terroristic threatening in the second degree if the person comits terroristic
Ehestening other than az provided is section 207-116." Second degree
terroristie threatening is 8 missenesnor. HRS § 707=717(2),
3
* FOR PUBLICATION IN WEST HAWAII REPORTS AND PACIFIC REPORTER *
attributes of both the defendant and the subject of the allegedly
threatening utterance in determining whether the subject's f
of bodily injury, as allegedly induced by the defendant’ s
threatening utterance, was objectively reasonable under the
circumstances in which the threat was uttered,” Valdivia, 95
Hawai'i at 479, 24 P.3d at 675, was not harmless beyond a
reasonable doubt because there is a reasonable possibility that
the error contributed to Nichols’ conviction. Accordingly, we
reverse the ICA's Opinion, vacate the Septenber 7, 2004 judgment
of conviction, and remand this matter to the circuit court for a
new trial.
I. BACKGROUND
The facts of the instant case were recited by the ICA
as follows:
‘on September 26, 2003, in the County of Maul, state of
Hawai's, Nichols was indscted by a Maul Grand Jury charging him as
fellow
‘That on oF about the 16th day of September, 2003, in
the County of Mavi, State of Hewail, TRACY NICHOLS, with
Intent co terrorize, or in reckless disregard of the risk of
terrorizing Nicholas Krau, a public servant, did threaten,
by word of conduct, to cause bodily injury to Nicholas Kray,
thereby committing the offense of Terroristic Threatening in
the Fitst Degree in violation of Section 707-716(1) (e) of
the Hawait Revised Statutes.
Nichols! first trial in the Circuit Court of the Second
Circuit commenced on March 25, 2004 and ended in a mistrial on
March 33, 2004 because the Jury was unable to reach ® unanimous
verdict. The second Jury trial commenced on July 6, 2004.
‘At the second trisl, evidence was presented that, on
Septenber 1, 2003, at approximately 12:00 p.n., Officer Nicholas
Krau (officer Keau) of the County of Maui Police Department and 2
Team of other police officers conducted s felony investigation of
fatrieie Beker’ (aker) in the Kine! area of the County of Mout
Baker had rented @ vehicle from a car company, the rental period
‘
+ FOR PUBLICATION IN IVEST HAWAI REPORTS AND PACIFIC REPORTER *
hed expired, and the police were looking for the vehicle, Officer
Krav knew that Nichols and Saker previously hac been in a
Telationship together and were the parents of « child in the
Custody of Nichole. Acting upon this information, Officer Krav,
Se petice uniform, and the other members of the police team went
£6 Bichols’ residence to ask if Nichols knew of Baker’ s
Woeresbouts. they were unable to procure any information from
Nichols.
Departing from Nichols’ residence, Officer Krau saw and
recognized, by its looks and license plate nunber, the overdue
Tentsl vehicle. It was being driven by a fenale paned Sumer
Flank (Plunk). officer Krauwas familiar with Plunk from his
prior dealings with her, Officer Krau then conducted traffic
Stop approximately 80°20 yards from Nichols’ (mother’s)
fesldehee to ceternine if someone was concealed in the overdue
Fental vehicle and to atk Plunk if she knew of Baker's
thereaboote.
While Officer Krau was speaking to Plunk, who was being
cooperative, tichels arrived at the location of the traffic stop.
AeGbSSing to Officer Keau's testimony, Nichols was upset and began
Uoeerfering with ene police investigation by instructing Plunk not
AS'give eny Information to the police. In response, Officer Kxau
devised Nichola that they were conducting an investigation ang
{Satracted Nichols to "step back” and “stay away.” Despite these
{Ganinds, Wichols continued te approach Piunk’s location and to
SRatruct’ Plunk not to provide any further information to Officer
frau As a result of Nichols’ noncompliance and persistent
‘Steiserence, Officer Krav handcuffed Nichols and detained Nichols
[nthe beck seat of Officer Krau"s patrol vehicle.
ite Wichols was in the back of the patrol vehicle, it
appeared to Officer Krav that Nichols was having e seizure.
BEeicee nrau inmediately called for the paramedics. They arrived
Within five to ten mintes, treated Nichols, and released him back
Yelthe police ust az the police were completing their
[avertigetion. the police cited Plunk for driving without a
{lense end released both Michols and Plunk at the scene. The
police called the car rental company to send 2 representative to
Poke possession of the rental car and its keys.
Approximately to weeks later, on Septenber 16, 2003, at
about 10:40 poms, Officer Krav went to the Tesoro Gas Express in
Kine! to purchase beer and chewing gum. At the tine, Officer Krav
fas off-duty and not in uniform. While exiting the store, Officer
Heau noticed a white pickup truck parked by the entrance of the
Wore"and cbserved tichols walking towards hin at a fast pace
ith questions emitted, the following 1s Officer Krau's testimony
fs tovtne events and verbal exchanges with Nichols that
Enmesiately ensued:
A And he tells me where is your 1D, I want to see
your 1D for that beer.
* FOR PUBLICATION IN WEST HAWAII REPORTS AND PACIFIC REPORTER *
A Iwas Kind of in shock because this gentleman
was talking tome. So T'was like, so.” So T told him
Tam 21, 1 showed my ID to the cashier in the store,
just on'ny way hone to have a few beers:
A He then kept coming at me, he got into ay face,
geal close to me, and he is like, yéah, you punk
Biten, what you going te do.
A He is in my face, he is Like within 2 foot from
Be, his fists are clenched, just slightly raised above
RIS hips, he hae got his chest sticking out and he ie
Fight on’ [sic] my face, yeah, punk biteh, what are you
going to do. He was very angry, angry upset. Mis
Solce was raised,
A At that tine I felt threatened, 2 thought this
Guy ie going to hit me or something,
A So then I told him, you know, I'm off duty, it's
By day off, Just txying to enjoy ay day off, T Just
want to go heme and relax, Idon't want to deal with
you
A He then tells me, hey, you punk bitch, you're
fot shit without your gun and your badge and 211 your
Boys. He goes, I'am going to kick your a
A 1 thought he was going to kick ay ass. 1
thought, well, he was going to assault me.
A So then I have all this beer in ay hand
Snd my cell phone, my gum, ny wallet, so I'am trying
to get to my vehicle. 1 just wanted to leave. I
ented to get out of the ares. I didn't want co deal
with'hin. P'aign'e want to = it was my day off. Iwas
Just trying to enjoy my day off.
A So 1 am side-stepping. I don’t want to turn
around and walk away from Rin and give him an
opportunity to strike me from Behind. So T am kind of
Keeping ny eyes cn hin and I'am sidestepping to my
«
+ FOR PUBLICATION IN WEST HAWAIT REPORTS AND PACIFIC REPORTER *
vehicle, trying te get to ay vehicle so I can, you
know, Jost go.
A te is following, walking, mirroring as =~ he is
atking alongside ast am walking, staying right in my
Teco, "sane aggression, Just fists clenched, he is
ive, he is speaking loudly, aggressive
a = [leaky he continued calling me a punk
Bitch, ‘tenling me he is going to fuck me Ue ws
A 1 was totally convinced 1 was going to get
2esauited. This guy wae ~ he was going to attempt to
Kick my 968.
AT continue sidestepping to ay vehicle. am not
frying to provoke (Nichols) in any way, T am not
Saying anything, Iam just going to my vehicle.
finen officer Krau reached his vehicle, Nichols stopped
following Officer Krav and returned to and entered the white
fitkap Cluck. “officer Krav did not know who else was in the white
Pluck ang had the foliowing concerns: "There could have been
Other people sn the vehicle Just waiting for an opportunity to
Sump cut and acteck mer assault me. If they had weapons in there,
2 'Mherno idea what wos going to happen." As Nichols departed from
the Tesoro Gas Express, he continued to yell, “punk BeI-T-c-H" at
Officer Krau. Officer Krau was never touched by Nichols:
officer Krau departed in the opposite direction fron his
hone because he did not. know if Nichols was “waiting, trying to
Set me up, waiting for me to leave, - « follow ne to my house,
Gr unether [Nichols] wae going to Jump out oF, you know, arm me
SE ny family." officer Krau then placed a call to his residence,
Spoke to his father, informed his father of his encounter and
PEiot dealings with Nichols. Officer Keau also advised hia fathe
Eo watch cut for s white picksp truck. Officer Krau then called 2
few covnorkers, including his brother, to notify them of what had
SSlurred betneen Nichole and himself in order to establish Nichols
The prine sugpect should “something happen” to Officer Krav or
fls‘fanly mesbers, Officer Krau acknowledged that he should have
hotified central digpatch innediately to report the incident per
Proper pelice procedure, but, in fact, did not do s0 until
Ekeursing to work three days Laver on Septenber 19, 2003)
Nichols did not testify
fon July 7, 200¢, during the in-chanbers settlenent of jury
instructions: the following disevssion regarding the offense of
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Terroristic Threatening in the Second degree took place, in
yelevant part:
[PROSECUTOR]: Perhaps we could put something on the
Fecord, Your Honor, regarding the Court's finging
[sie] thet there 19 no lesser included offense of TT
[Terroristic threatening) 2 in this case. We did that
the last trial. the only difference between the TT 1
and the TT 249 whether ox not the [victin] was 8
police officer, public servant. And I don’t think
Enere has been eny evidence indicating thet [Officer
Kraul was ==
‘THE COURT: To the contrary.
IPROSECUTOR]: Yes.
(DEFENSE CONSEL}: T agr
THE COURT: So we will make ® finding [sic] that there
fs no included Offense.
Without objection, the court instructed the jury, in
relevant part, as fellows
+ In the Indictment, the defendant,
of
Number 1
Tracy Nichols, is chargee with the off
Terroristic Threatening in the First. Degr
A person commits the offense of Terroristic
Threatening in the First cegree if, with the intent to
ferrorize or in reckless disregard’ of the risk of
terrorizing a public servant, he threatens, by word oF
conduct, to cause bodily injury to's public servant
There are four elenente of the offense of
rroristic Threatening in the First Degree, each of
hich the prosecution must prove beyond « resonable
soubt
These four element (s] are: One, that on oF
about the 16% day of Septenber, 2003, in the county
Sf Maul, State of Hawall, the defendant, Tracy
Nichols, intentionally threatened or recklessly
Gleregatded the risk of threatening, by word oF
Conduct, te cause bodily injury to another person, to
Wit, Mcholas Krau; and, two, that the defendant,
Tracy Nichols, intended, knew or recklessly
disregarded a’ substantial and unjustifiable risk, that
the person threatened ues a public servant? and,
three, that the defendant, Tracy Nichols, did so with
the intent to terrorize of in reckless disregard of
the risk of terrorizing Nicholas Krau; and, four, chat
Nicholas Keay was a public servant
Nunber 17: A threat does not include any
statement which, vhen taken sn context, ie neta true
Ehrest becouse it is conditional or made an seat.
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An alleged true threat is one that is
objectively capable of inducing @ reasonable fear of
Bodily injury in the person at whom the threat wa
Cirected and who wes ware of the circumstances under
hich the remarks were uttered
Teve threats must be 20 unambiguous and have
such inmesiaey that they coavincingly express an
Intention of Being carried out.
A threat is, on its face and in the
circumstances in which 1¢ ie made, 30
Gneonditionsl, inmediate and Specific az to the person
theeatenes, a& to convey @ gravity of purpose and
[eminent prospect of execution.
Munber 18; Terrorize means to cause another
person to have serious slarn for his or her personal
ety.
Number 19: Actual terrorization is not #
material clement of terroristie threatening, although,
Tele evidence of the occurrence of its matériel
clenenes
Nonber 20; Law enforcement officer includes
police officer.
Doring its deliberations, the jury did not submit any
questions to the trial court. The jury found Nichols guilty as
charged.
4‘ wichols! counsel did in fact cbject te instruction No. 20, stating, “I
an aluays afraid of giving a partial piece of a statute, since it’s purely
from (HRS §) 710-1013 (aie). (i}f we are te quote the statute,
{Rous quote all of it: At the dane tine, Nichols” counsel did agree that
Ehere was absclutely no dispute in this case “as to what a lew enforcement
officer is."
HRS $ 120-1000 (1993) states An relevant part:
(23) “haw enforcement officer” means any public servant, whether
employed by the State of subdivisions thereot or by the
United states, vested by law with a duty to maintain public
order or, te make arrests for offenses or to enforce the
Grimins! laws, whether that duty extends to all offenses or
{5 limited to's specific class of offenses;
(25) “public servant” means any officer or employee of any branch
Of government, whether elected, appointed, or otherwise
Snpioyed, and any person participating as' advisor,
Consultant, or otherwise, in performing a governnontal
fonction, but the term does net include jurors or
Nitneases(.)
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ICA’s Opinion at 2-9 (footnote omitted). Judgment and sentence
were entered on September 7, 2004, and Nichols timely appealed
therefrom.
on appeal, Nichols argued that the circuit court’s jury
instructions were plainly erroneous in that the circuit court
failed to: (1) (a) specify that the prosecution must prove that
officer Krau was a public servant at the time the threat was nade
and instruct the jury to consider whether the threat was related
to, or the result of, Krau's performance as a public servant; (b)
define the term “public servant”; (c) instruct the jury that it
could consider whether Krau’s fear of bodily injury induced by
the threat was objectively reasonable under the circunstances,
based on the attributes of the defendant and the subject of the
threat; and (2) instruct the jury that it could consider the
x included offense of terroristic threatening in the second
degree.
on December 29, 2005, the ICA issued its opinion
affirming the judgment of the circuit court. In its opinion, the
ICA engaged in a lengthy meditation on the standard of review for
erroneous jury instructions, at the end of which it concluded
that
in Hawas's, absent an objection in accordance with HRPP (Hawal't
Rules of Penal Procedure) Rule 30(f}, “[nlo party may assign 2s
error the giving or the refusal to give, or the modification of,
Gn instruction.” However, even whens party faile to object to\an
instruction in accordance with HRFP Rule 30(f), appellate courts
shall apply the #APP Aule 52(b) “plain error” standard of review.
Me leave open the question of whether that standard is that (a) we
10
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may recognize plain error when the error committed affects
Substantial sents of the defendant, er (b) we will apply the
Plain error stonderd of review to correct errors which seriously
Retect the fairness, intesrity, or public reputation of Juaicial
Proceedings, to serve the ends of Justice, and to prevent the
Genial of fundamental rights, or (@) both. We further conclude
that, absent an cbjection sy'a party in accordance with HREP Rule
Sit}, the trial court's duty “either to correct any defects [in
the" Lequested instructions] or to fashion its own instructions” is
[insted to the duty to avoid only plain error father than all ron
harmless error.
ICA's Opinion at 22-23.
Applying the standard of review it had set forth, the
ICA first analyzed whether error had been committed at all with
respect to the four points assigned by Nichols, concluding: (1)
the circuit court erred ‘when it failed to tell the jury [in
instruction No. 20) that a finding that Officer Krau was @ ‘lew
enforcement officer’ /*police officer’ was a finding that officer
Krau was a ‘public servant,’ id. at 257 (2) the circuit court did
not err in failing to instruct the jury that it “must determine
that the threat by Nichols was related to, or the result of, the
performance of Officer Krau’s official duties,” id at 25-26
(citing Kubia, 105 Hawai'i at 269-70, 96 P.3d at 598-99); (3) the
circuit court “erred when it failed to provide the jury with the
‘relevant attributes’ instruction as required by Valdivia,” id.
‘at 28; and (4) Nichols’ assertion that the circuit court erred
when it failed to instruct the jury on the lesser included
offense of terroristic threatening in the second degree lacked
merit, id. at 29.
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‘The ICA next considered the severity of the errors it
had found, concluding: (1) “(t]he ‘public servant’ error was not
a plain error,” id. at 28; (2) “[a]ssuming the ‘relevant
attributes’ error was a plain error, we decline to exercise our
remedial discretion,” id.; and (3) the failure to give a lesser
included offense instruction either (2) was not error because,
although Officer Krau was off duty when the alleged threatening
occurred, evidence that the alleged threats were unconnected to
Krau’s duties as a police officer would have been irrelevant, or
(b) it was harmless error because the jury convicted Nichols of
the charged offense and so it would never have reached the lesser
included offense, id, at 29 (citing Haanic, 94 Hawai'i at 415-16,
16 P.3d at 256-57, for the latter proposition). Accordingly, the
ICA affirmed the judgment below. Id, at 29.
In response to the ICA’s decision, Nichols filed the
instant application for a writ of certiorari, arguing that the
TCA gravely erred in “refus(ing] to conduct a harmless error
analysis” and “declin{ing] to reverse the conviction once the
error is shown to not be harmless beyond a reasonable doubt.”
After Nichols’ application was granted, the State of Hawai'i
thereinafter, the prosecution) filed a supplemental brief with
Leave of this court, in which it agreed with Nichols that the
correct standard of review is whether the alleged error was
harmless beyond a reasonable doubt, but argued that the failure
12
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to give a “relevant attributes” instruction was in fact harmless
11, STANDARDS OF REVIEW
Ins nd Plain
men jury instructions or the omission thereof are at issue on
ippeal, the standard of review is whether, when read and .
Considered as a whole, the instructions given are prejudictally
ineufficient, erroneous, inconsistent, oF misi Erroneous
instructions ere presumptively harmful and are
reversal unless it affirmatively appears. from th
whole that the error vas not prejudicial. (However,
tovbe viewed in isolation and considered purely in ¢)
3 must be examined in the Light of the proc
Given the effect unich the whole record shows it to be
$n’ that context, the real question becones whether there is 3
Heasonable possibility that error might have contributed to
Conviction. If there is such @ reasonable possibility in a
Eriminal case, then the error is not harmless Beyond 2 reasonable
Soubt, and the Judgment of conviction on which it may have been,
based’ must be set aside,
vy, alves, 108 Hawai'i 289, 292-93, 119 P.3d 597, 600-01
(2005) (internal citations, quotation marks, indentations, and
paragraphing omitted; bracketed material added). See also State
‘wa Shinvama, 101 Hawai'i 389, 395, 69 P.34 517, 523 (2003)
(sane) .
HRP Rule 30(f) (2000), entitled “Instructions and
objections,” provides in relevant part
tio party may assign as error the giving or the refusal to give, or
the sedi fiestion of, an instruction, whether settled pursuant to
Subdivision (6) of evbdivision (c), of this rule, unless the party
Gbjects thereto before the Jury retires to consider its verdict,
Stating cistinetly the matter to wich the party objects and tne
grounds of the objection.
With respect to the review of errors in light of whether timely
objection was or was not made, HRPP Rule 52 (2000) provides:
(a) Marmiess error, Any error, defect, irregularity, or variance
which Goes not affect substantial rights shall be diSregaraed
a3
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(b) Plain error. Plain errors oF defects affecting substantial
Eights ney be notices although they were not brought to the
attention of the court.
In line with HRPP Rules 30 and 52, this court has held that:
As 2 general rule, jury instructions to which no objection has
Deen Sade at trisi will be reviewed ooly for glain ersor. [State
75 Baw. [282,} 251-2, 859 Pr28_(2960,) 1374 (95a
Frlihe sobstantiel rights of the’ defendant have been affected
adversely, the exzor will be Joened plain ervor~ ide” Further,
this Court will apply the plain eecor stondara of Feview to
SSrfect exzces which seriovely aftect the fairness, integrity, oF
foblic reputation of judicial proceedings, to serve the ends. of
Bietice, and co grevest the deniel of fundemental rights, date
So egy 70am, f6, 56, 760 20 670, 676 (1908) 7 see alee
EeeRrewads Se Hau. de), 48, $41 F.20 1020, 1028 978).
State v. Sawyer, 68 Hawai' 325, 330, 966 P.2d 637, 642 (1998).
‘The use of the HRPP Rule 52(b) plain error standard of
review for erroneous jury instructions was recently reaffirmed’ in
State v. Eberly, 107 Hawai'i 239, 112 P.3d 725 (2005), a case
decided six months before the ICA’s opinion in the instant case.
In Eberly, we observed that
notwithstanding #RPP Rule 30((f)], erzonecus (Jury) instructions
ay be grounds for reversal despite counsel's Zailure to cbject at
Erlal, “Where instructions were not objected to at trial, if the
appellant overcones the presumption that the instructions were
Correctly stated, the Fuie is that such erroneous instructions are
presumptively harmfvl ond are 2 ground for reversal unless it
Sefirmatively appears from the record as a whole that the error
was not prejudicial.
Id. at 250, 112 P.3d at 736 (internal citations and quotation
narks omitted) (emphasis in original). We also reaffirmed our
previous cases holding that it is ultimately the trial court that
is responsible for ensuring that the jury is properly instructed.
Id. Nichols argues that in Light of our consistent precedent
regarding the duty of the trial court to instruct the jury, the
au
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ICA gravely erred in concluding that the duty of the trial court
Ag Limited to avoiding plain error. We agree and reject the
ICA's conclusion to the contrary.
Given that the duty to properly instruct the jury 14
with the trial court, Nichols argues that “the real question for
review of jury instructions, whether as plain error or otherwise,
is whether there is @ reasonable possibility the error
contributed to the verdict. . . . If there is such a reasonable
possibility in a criminal case, the error is not harmless beyond
a reasonable doubt, and the judgment must be reversed.” Nichols
continues:
the extensive body of Lau establishing the standard of review for
Jury instructions in this Jurisdiction does not allow for the
2xetcine of “remedial discretion” once prejudicial error is
SGeneafies ‘The ICA [thus] gravely erred in concluding that
Et'had the option to decline to exercise its “remedial discretion”
of that it had any Yenedisi discretion at all in regards to such
We first note that Nichols is correct in asserting that
there is no case in this jurisdiction referring to “remedial
discretion” in connection with plain error, nor can we discover
any reported criminal case in which this court has found plain
error but refused to reverse in the exercise of discretion.
While such discretion may exist in the federal courts, we have
never employed the four-pronged plain error standard of review
set forth in United states v. Olano, 507 U.S. 725 (1993), and we
decline to do so now. See State v. King, 555 N.W.2d 189, 194
(Wis. Ct. App. 1996) (declining to follow Olano on state law
1s
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grounds even though the language of its ovn plain error rule vas
substantially identical to that of the federal rule).
We disagree with Nichols, however, to the extent his
argument can be taken as the assertion that plain error review
has no discretionary component. In State v, Aplaca, 96 Hawai'i
17, 25 P.3d 792 (2001), we stated:
IWphether to recognize error that has not been raised by trial
ESunsely appellate counsel, of both, ae plain error warranting
feversai fe, ultimately, discretionary. "See HREP Rule 52(b)
{200} (Plain errors of defects affecting substantial rights may
be noticed although mot brought to the attention of the court.”
(Emphasis sdded.)). Accordingly, we have observed that
our power to deal with plain error is one to be exercised
Sparingly and with caution beceuse the plain error rule
Eepresente a departure from a presupposition of the
adversary system ~~ that a party most look to his or her
Counsel for protection and bear the cost of counss
mistakes,
State vi Kelekolio, 74 Haw, 479, $15, 849 P.26 58, 74-75 1993),
(cited in State t. Arceo, 84 Hawai'i 1, 3¢, 928 P.24 643, 876
(i9se) Glakayama, J-- discenting}). in this vein, we will deem
formless beyond 2 reasonasle doubt, and therefore’ disregard, "any
error, defect, irregularity|,] oF variance” that “does not affect
[ihe] substantial rignee” of a defenaane. HREP Role #2(2) (2000)
Ida at 22, 25 P.2d at 797, In effect, we employ our HRPP Rule
52(b) discretion to correct errors that are not harmless beyond a
reasonable doubt and to disregard those errors that are harmless
beyond 2 reasonable doubt.
However, the necessary inplication of this approach is
that the same standard of review is to be applied both in case:
in which a timely objection to a jury instruction was made and
those in which no timely objection was made. The ICA in this
16
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case correctly recognized that the merger of the plain error and
harmless error standards of review in the case of jury
instructions flows from this court's holding in Haanio* that the
* tn Haanic, we held that “the trial courts, not thé parties, have the
uty and ultimate responsibility to insure that juries are properly instructed
fon issues of criminal Lisbility.” Haanig, 94 Hawai'i at 415, 16 P.3d at 256
(citations omitted), In-s0 doing, We Feexamined our decision in State vw.
‘Je Hawai'i 307, 879 P.24 492 (1994), and rejected the ICA's view that
EBeEkaant’s sufficient underatanding of the consequences of the waiver of the
Hight to have a lesser included offense instruction should measure a trial
Court's decision to give of not give an otherwise proper included offense
GRetruction. Id. at 412-13, 16 P.3d et 254-58." In so doing, we also rejected
the view that the parties, a# a matter of triai strategy or constitutional
Seu, Rave eny Fight to forego such an instruction. Lg. ae Alé-15, 16 23d at
2eS-se. As a consequence, we find misplaced the dissent’s contention that
Stactice or strategies in the interests of the client,” Dissent at 15, have
any relevence to s determination of the existence of instructional error.
‘At the same tine, the parties are by no means precluded from taking part
in the settling ef jury instructions. We wore careful to note in Hasna that
Sthe prosecution and the defense may, a9 they do in the ordinary course,
propose particular included offense instructions, and cur holding 1s not to be
Eiken ac discouraging of precluding their desire cr felt cbligstion te do 59.”
be tlawal'd at 415, 16 P-3d at 256. We reaffirm that statenent and also add
that nothing said in Esanig precludes the trial court from requiring the
parties to submit relevant instructions for its review. Sea HREF Rule 30(b)
Sat such reasonable tine as the court directs, the parties shall file written
fequests that the court instruct the Jury on the lav.")
Th this connection, we slso consider the dissent’ fears of ganesmanship
and manipelation in the arens of jury instructions, and find that they are, at
Bese, pr int at 9-12, Although the dissent cites various
provisions of the Sawai'i Rules of Professional Conduct (HRPC) in support of
Ets view, we Believe that it ss those very rules which facilitate and support
cur decision £0 allocate vltinate instructional responsibility in Haanie and
Rere. In particular, we enphasite the point that attorneys have a duty of
Condor toward the tribunal. gag Dissent at 147 HRFC Rule 3.3. Under HEREC
Role 3.3(0) (1) (providing that an attorney shall not knowingly make a false
Statenent of law to the tribunal], attorneys who knowingly suumit erroneous
Sory instesctions, see Dissent at'12, risk sanctions end disciplinary
Proteedings, Furthermore, under HAPC Rule 3.3(a)(3) {providing that an
Eftorney shall not knowingly £211 to disclose adverse, controlling authority
fo the tribunal), attorneys who cnit to point out erroneous instructions, sa
1G.) "face the same consequences. Horeover, attorneys contemplating
{netractional skoiduggery would be well advised to consider the risk of a
civil suit for legal salpractice by a dissatisfied client (e.a., suppose that
Gn attorney intentionally fails te request a proper instruction or object to
Gn erroneove instruction, the client is convicted, prevails on appeal, and,
Gthogsy efter having served two years of incarceration while the sppeal was
pending, sues, arguing that if counsel had net acted in a deceptive manner in
Eke fivst place, the client would not have been convicted). While we are not
Unaware of the proof probiens and attorney-client privilege issues attendant
(continued...)
v
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duty to instruct the jury ultimately lies with the trial
court:
If the duty to give the right jury instructions, is assigned to the
trial court, (a) the standard of review for an erroneous jury
Snsteuction will always be the harmless error non-discretionsry
standard, and will never be the plain error discretionary
Standarg, and mach uncertainty will be avoided: (b) an efroneous
Jury instruction will never be a basis for a defendant's assertion
That he/she nas ceen the victim of the ineffective acsistance of
Counsel; and (c) abuse of the plaia error discretionary standard
of review will be avoided.
ICA's Opinion at 19-20.
The ICA previously attempted to implement its view of
the consequences of the allocation of ultimate responsibility for
jury instructions to the trial court in State v. Astronomo,
95 Hawai'i 76, 18 P.3d 938 (App. 2001), concluding that “with
respect to jury instructions, the distinction between ‘harmless
error’ and ‘plain error’ is a distinction without a difference.”
Id. at 82, 18 P.3d at 944. Accord State v, Fields, No. 25455,
2005 WL 1274539, at *19.n.7 (App. May 31, 2005) (“Now that this
duty [to properly instruct the jury] has been imposed on the
trial court, it is logical to conclude that erroneous
instructions should be examined for HRPP Rule $2(a) ‘harmless
error! rather than HRPP Rule 52(b) ‘plain error.’”), cert
5{.- continues)
to disciplinary and civit proceedings in such cases, we consider the risks of
these proceeding and appellate sanctions to be adequate deterrence to
‘Sanesmsnehip-
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granted 108 Haw. 1, 116 P.3d7 (Haw. July 6, 2005). Based,
however, on the perceived failure of this court in State v. Iuli,
101 Hawai'i 196, 203-04, 65 P.3¢ 143, 190-51 (2003), to approve
Astronono or affirmatively cite the duty of the trial court to
properly instruct the jury, the ICA in the instant case took the
view that the ultimate responsibility for jury instructions does
not lie with the trial court and that it should thus apply a
discretionary plain error standard of review to erroneous jury
instructions. ICA's Opinion at 22-23.
We now acknowledge that the ICA's earlier view was
correct and adopt the substance of Chief Judge Burns’ analysis in
Astronono and Fields. Consequently, we hold that, although as a
general matter forfeited assignments of error are to be reviewed
under the HRPP Rule 52(b) plain error standard of review, in the
case of erroneous jury instructions, that standard of review is
effectively merged with the HRPP Rule 52(a) harmless error
standard of review because it is the duty of the trial court to
properly instruct the jury. As a result, once instructional
error is demonstrated, we will vacate, without regard to whether
timely objection was made, if there is a reasonable possibility
that the error contributed to the defendant's conviction, ie,
1s
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that the erroneous jury instruction was not harmless beyond &
reasonable doubt.¢
‘the dissent argues that the implied consequence of our holding today
Ag chat “the appellate courts shel] seek out exroneoue jury inatructione
within the record, either when called upon by the parties or gua sponte, and
Shall reverse the trial coure unless it can be proven that the instreet ional
error wos harmless beyond a reaconable doubt.” Gissent at S-é (emphasis
added). the fear that appellate discretion has been eviscerated 15 unfounded:
Wwe enphasize that the phrase “once instructional error is denonstrated” in our
holding is not to be taken lightly. Av already noted above, this point was
Bade clear in gberly: “where instructions were not objected to at trialy if
Ehe_aposllant crerccnes the cresunntion that the instructions were correctly
Aigied, the role is that such erroneous instructions are presuspetvely hesmful
ang are 3 ground for reverss! unless it affirmatively appears trom the record
‘ivhele that the error was not prejudiciale” 10? lawei at 220, 112 B30
at 936 Cinternat citations and quotation marks omitted) lenphasis added). Th
ther words, there vas and renains « presumption that ncejectedsto Jury
instructions are correct; hence, the appellate court is under ne duty te scour
the record for ezfor gua ghaate. Accordingly, we cacve cut cous) no
Minvisibie exceptions, “otesent at"12, to the rules of appeliste procedure
(Liss Hawai'i Roles of Appellate Procedure Rules 26(0) (f) and 40.1 {0)11)) oF
penal’ procedure RP? Rilea 30 and Sd) regerding appeilote diactecicn vo
Rotice forfeited assignnents of error generally of instroctional efter in
particular,
heed we part company with the dissent, hovaver, is with regard to the
question uhether an appellant, if he or sho can overcome the initial
Presumption against efter, haa an ecditionsl burden of Genonstrating the
harafuiness of the error in the sbeence of a tisely sojecticn below, Our
Precedent compels the conclusion that no auch burden eniste, he che diasent
grees, Dissent at 2, we nave a long Line of precedent stating that the
harafuiness of instructional error is prestned. Even Gaxgax, cited by the
Gissent for the proposition that we review forested cleine cf instraccional
error only for plain erfor, Sissent st ty invokes the tent iise incantation
“erroneous instructions are presunptively harmful and area ground for
reversal unless it affirmatively appesrs from the record ag a whole that the
error was not prejudicial.” $6 sawerl at 950,. 966 Fold at 12, (eltation
omitted! "see aise E5erly, 107 Hawai'i at 250°51, 192 P30 at 736-37
(applying che presumption of harfuineas in the context of plain error
Feview); State Vanstory, 91 Havas 33, 42-43, 979 F.2d 1059," 2066-89
(1955) (sane), the holding here i= nore explicitly compelled by axcaa~
There, in light Of the presumption of hasmfUlness, we rejected. Sere
proposition that an erroneous jary instruction is (per ee), sharmiess’ if ‘the
Serengant. never objected to’ of “requested his own natrectionte]@™, 8
Mawar st Iz n-€, 328 F.2d at O54 n-8. Instead, we flatly seated that the
Lack of '& timely objection ‘a. Yot no consequence” in detesmining whether
instructional efzer is harmful, ano ated thst swe have long since ported
company with the view" thats standard of Feview nore stringent than sharaless
Beyond 2 ressonable doubt” nay be applied. “La.” Accordingly, we believe ehee
cur holding today, far fron doing viclence te precedent, sag Olseent a0 7s de
in'eact the natural and inevitable culmisstion of sur insticeienal efor
Surisprodence, ss well as the only way faltheully te recencile the
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B. Included offenses
“(t)rial courte must instruct juries
to any included
offenses when ‘there is a rational basis in the evidence for a
verdict acquitting the defendant of the offense charged and
convicting the defendant of the included offense{.1’” Haanio, 94
Hawai'i at 413, 16 P.3d at 254 (quoting HRS § 701-109(5) (1993)).
IIT. DISCUSSION
In addition to his allegation of error with respect to
the standard of review, Nichols repeats three of the four points
he pressed before the ICA, arguing that the failure to give a
“relevant attributes” instruction, lesser included’ offense
instruction, and nexus instruction (ices, instruction that the
jury must find that the threat by Nichols was related to, or the
result of, the performance of Officer Krau's official duties)
were each instances of reversible plain error. The prosecution,
as the ICA noted, concedes that the failure to give the “relevant
attributes” instruction was error but argues that it was not
plain error. On the other hand, the prosecution contends that
the circuit court did not err at all in failing to give a nexus
or lesser included offense instruction. For the reasons set
forth below, we hold that: (1) the circuit court's failure to
give a “relevant attributes” instruction was plain error; but (2)
"Lo .scontinved)
simultaneous application of a presumption of harmfulness with plain error
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the circuit court's failures to give nexus and lesser included
offense instructions were not error.
A. The Circuit Court's Failure to Issue a “Relevant Attributes”
Instruction Was Not Harmless Bevond a Reasonable Doubt,
Nichols argues that the circuit court plainly erred in
failing to instruct the jury, pursuant to Valdivia, “that the
attributes of the defendant and the complainant could be taken
into consideration in assessing whether, under the circumstanc
Nichols’ remarks were a ‘true threat.’” Specifically, Nichols
argues that because Krau was “trained as a police officer to a
professional standard of behavior to handle physical
confrontations that ordinary citizens might not be expected to
equal,” the sane allegedly threatening utterances of Nichols that
might have induced “a reasonable fear of bodily injury” in an
ordinary citizen might not have had the same effect on someone
with Krau’s training. Nichols further argues that, based on
Krau’s testimony tending to show that he “dealt with the
situation in @ calm, rational manner,” there was evidence from
which a jury could reasonably have concluded, had it been
properly instructed, that Krau did not have 2 reasonable fear of
bodily injury. Based on this reasonable possibility that the
error contributed to his conviction, Nichols asserts that the
“error was not harmless beyond a reasonable doubt and the ICA
erred in failing to so find.” The ICA assuned the error was
plain, but refused to exercise its “remedial discretion” to set
22
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aside the conviction. ICA’s Opinion at 28. Applying the correct
standard of review set forth above in Section II.A, we hold that:
(2) the failure to give a relevant attributes instruction was
erroneous, and (2) there is a reasonable possibility that the
error contributed to Nichols’ conviction, the error vas not
harmless beyond a reasonable doubt.
1. The Failure to Give a Relevant Attributes
Instruction Was Erroneous.
Because the prosecution's confession of error is not
binding upon the appellate court, we must still first determine
whether the circuit court erred in failing to give a relevant
attributes instruction. State v, Solomon, 107 Hawai'i 117, 126,
111 p.3d 12, 21 (2008). In Valdivia, the defendant was arrested
while attempting to flee from police, handcuffed, and taken to
the hospital. Valdivia, 95 Hawai'i at 470, 24 P.3d at 666.
While seated and awaiting treatment, still handcuffed, and
flanked by two police officers, the defendant turned to one
officer and said, “I’m gonna kill you and your police uniform.”
Id. at 471, 24 P.3d at 667. The officer testified that this
statement “worr[ied]” him. Id. The defendant was subsequently
charged with terroristic threatening in the first degree against
a public servant. Id, On appeal after conviction, the defendant
argued that the trial court erroneously failed, over his
objection, to instruct the jury that “[w)here a threat is
a
* FOR PUBLICATION IN WEST HAWAI1 REPORTS AND PACIFIC REPORTER *
directed at @ police officer, you may consider that police
officers are trained to a professional standard of behavior that
ordinary citizens might not be expected to equal.” Id. at 479,
24 P.3d at 675. This court agreed that the failure to instruct
the jury that the threatened person's status and training as 2
police officer was relevant was reversible error, holding:
[Zin order for an utterance to constitute “true threat," it must
be cbjectively susceptible to inducing fear of bodily injury in @
Eeasonable person at whom the threat is directed and who is
Familiar with the circumstances under which the three i st
That being the case, the particular ateributes of the
‘the subject of the threatening utterance sre surely
fing whether the indices fear of bodily injury,
red.
fendant_ a1
rant in,
AE any, is objectively reasonable,
Id. This holding was based on our decision in In re Doe, 76
Hawai'i 95, 869 P.2d 1304 (1994), where we reasoned that in
considering whether the offense of harassment has been conmitted
against @ police officer, the fact that the “object of the
[allegedly harassing utterances] is a trained and experienced
police officer” maintaining a “professional standard of
restrained behavior” is a factor. Id, at 96, 969 P.2d at 1315.
As set forth above, the trial court in this case gave
the following true threat instruction without objection:
A threat does not include any statement which, shen taken in
context, 1g not a true threat because it is conditional or made in
est.
lesed true threat is one that is obtectively capable of
Anducina-a Leasonable fear of badily iniury-in the peraon at shen
ihe shreat she wae Ee
under which the remarks were uttered.
True threats must be so unambiguous and have such immediacy
tnat they convincingly express an intention of being carried outs
24
* FOR PUBLICATION IN EST HAWAI1 REPORTS AND PACIFIC REPORTER *
A threat Le, on ite face and in the circumstances in which
At is made, "so unequivocal, ‘unconditional, inediate and specific
as to the person threatened, as to convey'a gravity of purpose and
imminent prospect of execution:
(Emphasis added.) We agree with the parties thet. this
instruction 1s defective under Valdivia because it does not make
clear to the jury that Nichols’ and Krau's particular attributes,
including their relative size and weight, Nichols’ apparent
capacity and inclination to carry out his threat, and Kraus
status and training ae @ police officer, were relevent in
determining whether Nichola’ alleged threats were objectively
capable of inducing reasonable fear of bodily injury under the
circumstances. .
2. There is a Reasonable Possibility that the Failure
to Give a “Relevant Attributes” Instruction
Contributed to Nichols’ Conviction.
The prosecution argues that the circuit court’s failure
to give @ “relevant attributes” instruction was harmless on four
grounds: (1) unlike the defendant in Valdivia, Nichols did not
request the proper instruction; (2) the cases are distinguishable
on the facts because the officer in Valdivia was on duty while
Krau was off duty and did not have a weapon, back-up, or radio:
(3) An the defense’s closing argument, trial counsel “essentially
conceded that [Nichols'] words exacerbated the risk that Officer
Krau's training and professional standard of restrained behavior
would be overcome”; and (4) the prosecution cured the error in
its closing argument by “urg[ing] the jury to consider, as a
2s
* FOR PUBLICATION IN WEST HAWAI1 REPORTS AND PACIFIC REPORTER *
matter of common sense, the relevant attributes of officer
Krau.”
First, it is true that the defendant in Valdivia,
unlike Nichols, objected to the erroneous instruction at trial.
However, as explained above in Section II.A, this distinction ig
irrelevant because it is the duty of the trial court to see that
the jury is properly instructed. As also set forth above,
erroneous jury instructions are presumptively prejudicial unless
it affirmatively appears from the record as 2 whole that the
error vas harmless beyond @ reasonable doubt. Nichols argues
that the record does not in fact affirmatively demonstrate
harmlessness, referring us to evidence that Officer Krau vas calm
in departing the scene and did not immediately report the threat
to central dispatch according to police procedure. He suggests
that, had the jury been properly instructed, it could reasonably
have concluded based on this evidence that Nichols’ alleged
threats were not objectively capable of, and did not in fact,
* the prosecution also argues that the failure of Nichols’ counsel to
propose 2 "yelevant attributes” instruction was the reevlt of ganecnanship,
ind thus “in order to protect the integrity and public reputation of Judie,
Proceedings, [Nichols] should now be precluded fron unfairly invoking the
Plain error doctrine, where under the facta of this case, t¥ial counsel
Spparently had knowledge of the exror, but chose to rensin silent.” This
Court has acknowledged that, as 2 general rule, invited errors are not
Eeversible, Seate w.Jones/ 96 Hawaii 161, 166, 29 P34 391, 386. (2001);
‘State v.Puaoh, Te Wowari 185, 169, 891 P.od 272, 276 (1998) stare v, Smith,
56 fav. 304, 313-14, 712 .26 496, ‘S02 (1986). However, we have alse noted
that the general rule is inapplicable where an invites error 2s so presudicial
a2 to be plain error of to constitute ineffective assistance of counsel
Smith, eHow. st 1¢, 712 P26 at S02. See glee Haanio, 94 Hawai'i ot 415,
36 P-id at 256 ("Our Courte are not gambling halls but forune for the
Glecovery of truth.” (Citation onitted.))-" In other words, we are cycled
Back to cur original inquiry.
26
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induce a reasonable fear of bodily injury in a trained police
officer like Krau.
The prosecution counters that this case is
distinguishable from Valdivia on the facts, with the result that
there is no reasonable possibility here that the failure to give
an attributes instruction contributed to the conviction. In
Valdivia, on the one hand, the defendant was seated, handcuffed,
surrounded by two on-duty officers in uniform, and the threatened
officer testified only that the allegedly threatening statement
“worried” him. Here, on the other hand, the evidence showed,
inter alia, that: (1) Krau was off duty, alone, weaponless, and
caught off-guard; (2) Nichols was not seated and restrained in
handcuffs, but was instead standing within a foot of Krau’s face
with his fists clenched; and (3) Krau was not merely worried, but
(2) “was totally convinced [he] was going to get assaulted [and
that Nichols] was going to attempt to kick [his] ass,” (b) drove
off in the opposite direction from his home to avoid being
followed, (c) warned his father to watch out for Nichols’ truck,
and (d) called a few friends and his brother to establish Nichols
as the prime suspect in the event something should happen to him
or his family members.
While the distinctions drawn by the prosecution have
some merit, we are unwilling to speculate as to what the jury
would have done had it been given a proper “relevant attributes”
2
+ FOR PUBLICATION IN EST HAWAII REPORTS AND PACIFIC REPORTER *
instruction. In the absence of such an instruction, we cannot
know whether, under the evidence here, the jury would have
concluded beyond a reasonable doubt that Nichols’ threats were
objectively capable of inducing a reasonable fear ‘of bodily
injury in a police officer, as opposed to an ordinary person, in
Krau’s circumstances. Based upon our review of the record as a
whole, we thus conclude that there is a reasonable possibility
that the jury might have weighed the evidence differently had it
been properly instructed. Therefore, we hold that the circuit
court’s failure to provide a “relevant attributes” instruction
was not harmless beyond a reasonable doubt.* .
8. Michols’ Remaining Points of Error Are Without Merit.
Because we vacate the judgment below and remand for a
new trial due to the plain error discussed in Section III.A, we
need not consider Nichols’ remaining points of error. We
nevertheless address then in order to provide guidance to the
circuit court on remand. See, @.d., KNG Corporation v. Kim, 107
Hawai'i 73, 80, 110 P.3d 397, 404 (2005) (analyzing the
with respect to the pros
of a “relevant attributes” instruction was cured
Bastion in closing argunente, we note thet just as argunents of counsel cannot
Substitute fer evidence, state iB hawai'i 128, 144, 938 F-20553,
S15 (1939), so too may they not core defects in jury instructions
lution’ s additional contention that the Lack
statements mage by the
Argusents by counsel cannot substitute for an instruction by the
2obre. “Arguments by counsel are Likely to be viewed aa statenents
Sf advocacy, whereas 2 jury instruction is a definitive and
Binding statement of Law.
tate v. Perkine, 626 N.W.24 762, 773 (Wis, 2002).
28
* FOR PUBLICATION IN JEST HAWAI1 REPORTS AND PACIFIC REPORTER *
constitutionality of a statute for the benefit of the court on
remand); Gap v. Puna Geothermal Venture, 106 Hawai'i 325, 341-43,
104 P.3d 912, 928-30 (2004) (offering guidance on remand as to
‘State v. Reanon, 97 Hawai's 299, 303, 36
P.3d 1269, 1273 (2001) (providing guidance on remand regarding
appropriate sanctions!
the propriety of certain jury instructions). Based on the record
presently before us, we conclude that the court on remand is not
required to give either @ nexus instruction or lesser included
offense instruction.
The Trial Court Is Not Required to Issue a Nexus
Instruction on Remand Because Terroristic
Threatening in the First Degree Does Not Require a
Nexus Between the Threat and the Official Duties
of the Public Servant if the Threatened Person Is
a Governnent Officer or Employee.
Nichols contends that persons not actively performing a
governmental function at the time they are threatened should not
be considered “public servants” within the meaning of HAS § 710
1000(15). He further argues that because Officer Krau was off
duty and in plain clothes at the time of the alleged threatening
in this case, he was not a public servant and thus there was “a
question of fact as to whether there was a nexus between the
alleged threat and the complainant's official status or duties”
requiring that the trial court so instruct the jury. We, Like
the ICA, disagree on the basis that the offense of terroristic
threatening in the first degree does not require a nexus between
29
* POR PUBLICATION IN WEST HAWAI1 REPORTS AND PACIFIC REPORTER *
the alleged threat and the threatened person's status as a public
servant where the threatened person is a government officer or
employee, and thus hold that the circuit court did not err in
failing to give a nexus instruction.
HRS § 710-1000(15) does not necessarily require that a
person be actively performing @ governmental function (unlike,
ecae, HRS § 707-701 (b) (1993 and Supp. 2001), which requires that
a law enforcenent officer's death “aris(e] out of the performance
of official duties”) and acting within the scope of his or her
employnent in order to qualify as a public servant. In Kuhiay
the ICA rejected a contrary reading of the statute, reasoning a8
follows:
‘The definizion of “public servant” in HRS § 710-1000(15)
contains three clauses, as diagranned belo
“public servant” means (1) any officer or employes of any
branch of government, whether elected, sppcinted, oF
otherwise enpicyes, and (2) any person participating as
Savisor, consultant, oF otherwise, in certorming a
but [3] the term does nor include
eet)
Jurors oF withe
8 added.) The term “governmental function”
HRS $720-1000(6) (1983) as including any
Sctivity whieh a public servant is legally authorized to undertake
on behalf of the government.”
Kuhsa apparently reads the phrase “in perforning a
government function” a modifying both clause [1] and clause (2)
He believe a far more natural reading of the statute is that this
phrase only modifies clause [2]. Accordingly, we conclude that
Snder HRS § 710-1000(15) any “officer or employee of any Branch of
Government” qualifies ag a public servant~
Kubia, 105 Hawai'i at 270, 96 P.3d at 599 (emphases in original).
We agree that HRS § 710-1000(15), properly read, distinguishes
between two categories of people: (1) government employees or
30
* FOR PUBLICATION IN VEST HAWAII REPORTS AND PACIFIC REPORTER *
officers, for whom there is no requirement that they be
performing a governmental function at a given time in order to
qualify as a public servant; and (2) private persons, who must be
performing a governmental function in order to qualify as a
public servant. We therefore adopt the analysis of the Ica in ,
Kuhia and hold that: (1) a threatened person, such as Officer
Krav here, who is 2 government employee and thus falls under the
first clause of HAS § 710-1000(15),” need not be actively
performing 2 governmental function at the time he or she is
threatened in order to qualify as a public servant for purposes
of the terroristic threatening in the first degree offense; and
(2) consequently, there is no requirement of a nexus between the
alleged threats and the threatened person’s official status or
duties.* Accordingly, we hold that the circuit court on remand
+ We note that we are not presented here with a person falling under the
second clause of SRS $ 710-1000(18) and thus expressly reserve ovr opinion on
the question whether a nexus instruction (and, if 20, of what sort) might be
required in such a case.
© Nichols nevertheless maintains that “the absence of = nexus
[requirenent] could render application of the (terroristic threatening]
‘Statute unconstitutional [1y vague].” This contention is without merit. A
Cardinal rule of criminal law 1 that a defendant must have the required state
Gf mind with ceapect to each elenent of the charged offense, including che
Sttendant circumstances. Sez ARS § 702-204 (1993) (providing that "a person
{s pot guilty of an offense unless the person acted intentionally, knowingly,
recklessly, ax negligently, ao the lew specifies, with respect to each element
Of the offense”); HRS § 702-205 (1993) (providing that the elenents of an
Sftense include attendant circumstances). HRS § 707-115(1) proviaes that the
fequired state of ming for terroristic threatening generally is that the
Sileged threats be made “with the intent to terroriee, or in reckless,
Gisregard of the risk of terrorizing.” As set forth shove, terroristic
threatening in the first degree onder HRS §707-116(1) (e), aupea nove 2,
Fequires that the threat is nade against # public servant. “Because the
Offense of terroristic threatening in the first degree includes the attendant
ce "against a public servant,” a defendant must have the requisite
[cont anes.
2
+ FOR PUBLICATION IN WEST HAWAI1 REPORTS AND PACIFIC REPORTER *
is not required to give @ nexus instruction.
2. Assuming the Sane Evidence Ts Presented at a Subsequent
trial, the Trial Court Is Not Required to Give a Lesser
Included Offense Instruction.
Nichols also argues that the trial court erred by
failing to instruct the jury on the lesser included offense of
terroristic threatening in the second degree. tn Haanio, this
court hield that @ trial court is obligated to give a lesser
included offense instruction when there is a rational basis for
it in the evidence, even if, as in this case, no request or
objection is made by the parties. Haanic, 94 Hawai'i at 415, 16
P.3d at 256. Thus the sole question is, assuming the same .
evidence is presented at a subsequent trial, whether there is a
rational basis in the evidence for a jury to conclude that
Nichols committed terroristic threatening in the second degree.
upon reviewing the evidence in the record before us in
this case, we believe that there is no rational basis in the
evidence on which a jury could conclude that Nichols did not have
the requisite state of mind with respect to the attendant
™(., seontinued)
mental state with respect to that circumstance, igs, the defendant must
Thtend, know, Or recklessly disregard the risk that he or she is threatening @
person who 1s a public servant, therefore, there is no vagueness problem
EScasse’e defendant. wno threstens a stranger dressed in pejanas could not be
Convicted of terraristic threatening in the first degree even if it
Subsequently cones to light that, unbeknownst to the defendant at the time,
the pajana-clad figure 1s, soy, & police officer
32
* FOR PUBLICATION IN VEST HAWAII REPORTS AND PACIFIC REPORTER *
circumstance of “public servant.” In particular, we note Office
Krau’s uncontradicted testimony that: (1) in the course of his
official duties as a police officer, Krau had been involved in a
confrontation with Nichols on September 1, 2003; and (2) during
the course of the alleged threatening that took place fifteen
days later, Nichols stated, “You're not shit without vour aun and
vour badge and all your boys.” (Emphasis added.) The only
rational inference that could be drawn from this evidence,
assuming that the trier of fact finds it credible, is that
Nichols knew that he was threatening a police officer."
Accordingly, unless Nichols presents evidence at a future trial
that would allow some other rational inference to be drawn, we
hold that the trial court is not required to instruct the jury on
the lesser included offense of terroristic threatening in the
second degree.
IV. CONCLUSION
Based on the foregoing, we reverse the ICA’s Opinion,
vacate the circuit court’s September 7, 2004 final judgment, and
8 Although Nichols does not press the point in his application, we note
for the benefit of the court on remand that we agree with the ICA both thet
(2) the trial court erred, “when it failed to tell the jury that a finding
that Officer Krav was a ‘law enforcement officer! police officer’ was a
Finding that Officer Krau was a ‘public servent,'” TCR's Opinicn at 2
(2) the error was Rarnless because it favored the defense in failing to
complete for the jury the chain of equivalence that “police officer = law
enforcement officer = public servant.” ICA's Opinion at 28.
‘but
3
* POR PUBLICATION IN WEST HAWAI1 REPORTS AND PACIFIC REPORTER *
remand this matter to the circuit court for a new trial
consistent with this opinion.
on the application and
supplemental briefs: Guess:
Deborah L. Kim,
Deputy Public Defender, a AA
for petitioner /defendant-
or y Yon e Dostys Ov
Peter A. Hanano,
Deputy Prosecuting Attorney,
for respondent /plaintiff-
appellee State of Hawai'i
o
|
0c628794-7d41-4b4b-b269-3e20fd87f1f5 | State v. Thompson | hawaii | Hawaii Supreme Court | No. 26424
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
ee
STATE OF HAWAI'I, Respondent/Plaintiff-Appellee
vs.
MOSES L. THOMPSON, Petitioner/Defendant-Appellant
eee
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 03-1-0055)
I cart WRIT OF CERTIO
Reoba, J., for the court!)
‘the Application for Writ of Certiorari filed on
June 20, 2006 by Petitioner/Defendant-Appellant Moses L. Thompson
is hereby denied.
DATED: Honolulu, Hawai'i, June 30, 2006.
FOR THE COURT:
on
NS
hesociate sustice We a.
shavn A. Luiz, on 3
the application. ——
1 considered by: Moon, C.Je, Levinson, Nakayama, cobs, and Duffy, JJ.
|
8a4bd6c3-8a68-4a96-a004-4e00d194df45 | State v. Estrella | hawaii | Hawaii Supreme Court | LAW LIBRARY
*** NOT FOR PUBLICATION ***
No. 27611
IN THE SUPREME COURT OF THE STATE OF HAWAI'T= = 3
STATE OF HAWAI'I, Plaintiff-Appellee
vs.
MICHAEL ESTRELLA, Defendant-Appellant
APPEAL FROM THE SECOND CIRCUIT COURT
(CR. NOS. 98-0749, 98-0255, 00-1-0371, FCCR NO. 0-1-0967)
ono ING API
(By: Nakayama, J., for the court*)
upon review of the record, it appears that the circuit
court's September 29, 2005 order denying appellant’s motion for
immediate graduation from the drug court program is an
interlocutory order in Cr. Nos. 98-0749, 99-0255 and 0-1-0371
and FCCR No. 00-1-0967. The September 29, 2008 order was not
certified for interlocutory appeal pursuant to HRS § 641-17 and
the order is void as entered while jurisdiction over Cr. Nos.
98-0749, 99-0255 and 00-1-0371 and FCCR No. 00~1-0967 was with
the appellate court in No. 26027. See State v. Ortiz, 91 Hawai't
181, 197, 981 P.2d 1127, 1143 (1999) (“Appellate jurisdiction in
Hawai'i does not terminate until the appellate court files its
judgment on appeal.”). Therefore,
IT IS HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
DATED: Honolulu, Hawai", June 28, 2006.
FOR THE COURT:
Puiu Odrakaror SEAL
%
Associate Justice \%.
considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 29.
|
e7a69a13-a14c-4e88-8c6d-bd4e9cde36e8 | Enos v. Elite Mechanical, Inc. | hawaii | Hawaii Supreme Court |
NOT FOR PUBLICATION IN WEST’S HAWAT REPORTS AND PACIFIC REPORTER ***
wo. 27029 F
IN THE SUPREME COURT OF THE STATE OF HAWAI'I. =
NORMAN P. ENOS, Claimant~Appellant,
ELITE MECHANICAL, INC., and EAGLE INSURANCE COMPANIES,
Enployer/Insurance Carrier-Appellee,
and
SPECIAL COMPENSATION FUND, Appellee.
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NO, AB 2002-433 (2-99-06954) )
SPO:
(By: Moon, ¢.J., Levinson, Nakayama, Acoba, and Duffy JJ.)
In this workers’ compensation case, Claimant-Appellant
Norman P. Enos appeals from the November 29, 2004 decision and
order of the Labor and Industrial Relations Appeals Board (LIRA)
affirming in part and modifying in part the September 6, 2002
decision of the Director of the Department of Labor and
Industrial Relations (Oirector) awarding Enos temporary total
Gisability (TTD) and permanent partial disability (PPD) benefits.
On appeal, Enos contends that the LIRAB erred in determining that
he is not permanently and totally disabled (PTD) on either 2
medical or odd-lot basis. Specifically, Enos argues that: (1)
the LIRAB erred as 2 matter of law in (a) concluding that he
failed to make out a prima facie case that he was PTD on an odd-
qa
NOT FOR PUBLICATION IN WEST'S HAWAF REPORTS AND PACIFIC REPORTER
lot basis, and thus (b) failing to shift the burden to Insurance
Carrier-Appellee Eagle Insurance Companies (Eagle) and Employer-
Appellee Elite Mechanical, Inc. (Elite) [hereinafter
collectively, Elite) to show that appropriate employment exist
for Enos; (2) the LIRAB clearly erred in making certain findings
of fact and failing to make findings about other facts that would
support a finding of PTD; and (3) the LIRAB erred as a matter of
law in utilizing Enos’s medical capability to engage in Light
sedentary work as the test for whether he was PTD when it should
have assessed whether he had a reasonable prospect of finding
work in the normal labor market. Enos further asserts that his
psychiatric condition warrants greater than 15% PED of the whole
person, Elite counters that: (1) (a) the LIRAB did not clearly
err in determining that Enos had failed to establish a prima
facie case of PTD under the odd-let doctrine, and (b) therefore
the burden never shifted; (2) the LIRAB did not ery in finding
that Enos was not PTD either on @ medical or odd-lot basis; and
(3) the LIRAB did not err in determining Enos’s PPD benefits.
Appellee Special Compensation Fund (SCF) also argues that: (2)
there is substantial evidence in the record to support the
LIRAB’s finding that Enos is not PTD on an odd-lot basis; (2) the
LIRAS did not err in identifying or applying the legal standard
for “total disability” because it implicitly found that Enos had
@ reasonable prospect of finding work in the normal labor market?
NOT FOR PUBLICATION IN WEST'S HAWAT' REPORTS AND PACIFIC REPORTER
and (3) the LIRAB’s overall PTD finding is not clearly exronéous
because it is supported by substantial evidence.
upon carefully reviewing the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advocated and the issues raised, we hold as
follows:
(1) The LIRAB did not clearly err in finding that the
evidence did not place Enos prima facie within the odd-lot
category, and thus, the LIRAE did not err as a matter of law in
concluding that the burden to show appropriate employment did not .
shift to Elite. See Yarnell v, City Roofing, inc., 72 Haw. 272,
276, 613 P.2d 1386, 1389 (1991) (stating that it is a question of
fact as to whether a person prima facie falls within the odd-lot
category, but shifting the burden of proof is a question of law)
(citing Worker's Comp, Claim of Canon v, FHC Corp., 718 F.2¢ 879,
885 (Wyo. 1986)). The results of the functional capacity
evaluation (hereinafter, FCE], the opinions of Frank Izuta, M.D.,
John Endicott, M.D., and Anthony Mauro, M.D., that Enos was
capable of sedentary work for eight hours @ day, and the opinion
of Jon Streltzer, M.D., that Enos had only a mild psychological,
condition, combined with Enos’s young age, education, and
experience provide substantial evidence to support the LIRAB’s
finding. See Yarnell, 72 Haw. at 275, 813 P.2d at 1388 ("IE the
evidence of degree of obvious physical impairment, coupled with
+++ NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
other facts such es clainant’s mental capacity, education,
training, or age, places claimant prima facie in the odd-lot
category, the burden should be on the employer to show that sone
kind of suitable work is regularly and continuously available to
the claimant.” (Citation omitted.)): see also Joawa v. Koa tiouse
Rests, 97 Hawai'i 402, 409-10, 38 P.3d 570, 577-78 (2001) ("It is
well established that courts decline to consider the weight of
the evidence to ascertain whether it weighs in favor of the
acninistrative findings, or to review the agency's findings of
fact by passing upon the credibility of witnesses or conflicts in
testimony, especially the findings of an expert agency dealing
with a specialized field.” (citation omitted.)); Steinbera ve
Hgahiio, 88 Hawai'i 10, 18, 960 P.26 1218, 1226 (1998) (“(AIn
appellate court will not pass upon issues dependent upon the
credibility of witnesses and the weight of the evidence.”
(Citation onitted.)). Thus, the LIRAB did not err as a matter of
law in determining that the burden was not on Elite to
demonstrate the existence of suitable employment;
(2) The LIRAB’s finding that Enos is not PTD on a
medical basis is supported by substantial evidence in the record,
including: (a) the results of the FCE, with which Dr. 12uta, pr,
Endicott, and Dr. Mauro all agreed, showing that Enos was capable
of sedentary, light work for eight hours a days and (b) Dr.
Streltzer‘s opinion that Enos was not psychiatrically disabled
NOT FOR PUBLICATION IN WES’
HAWAN REPORTS AND PACIFIC REPORTER
from work, but may have had motivational issues that prevented
him from returning to work, Implicit in these conclusions is the
view that there is a reasonable possibility that Enos could find
suitable work in the normal labor market. To remand under the
cixcunstances because the LIRAB did not recite the statutory
language would elevate form over substance. See HRS § 386-1
(1993) (defining “total disability” as “disability of such én
extent that the disabled employee has no reasonable prospect of
finding regular employment of any kind in the normal Labor
market”); Imre Estate of Herbert, 90 Hawai'i 443, “asa, 979 P.2d
39, $0 (1999) (“It is not the function of appellate courts to
second-guess the trier of fact where there is substantial
evidence in the record to support its conclusion.” (Citation
omitted.)); Protect Ala Wai Skyline v. Land Use & Controls Comm.
of City Council of City & County of Honolulu, 6 Haw. App. 540,
547, 735 P.24 950, 955 (1987) (“[T]he law does not require that
all the evidence put before an administrative agency must support
the agency’s findings. It is legally sufficient if the findings
are supported by the reliable, probative and substantial evidence
in the whole record.” (Citations omitted.)), overruled on other
grounds by GATRI v, Blane, 88 Hawai'i 108, 962 P.2d 367 (1998);
and
(3) The LIRAB did not err in finding that Enos’s
psychiatric condition warrants 158 PPD of the whole person
NOT FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER
inasmuch as the opinions of Dr. Streltzer and Dr. Ronald Barozzi
Provide substantial evidence in support thereof. See Igawa, 97
Hawai'i at 409-10, 38 P.3d at 577-78; Protect Ala Wai Skyline, 6
Haw. App. at 547, 735 P.2d at 985,
‘Therefore,
IT IS HEREBY ORDERED that the LIRAB’s November 29, 2004
decision and order is affirmed,
DATED: Honolulu, Hawai's,
on the briefs:
Lowell K.Y. Chun-Hoon
(of King, Nakamura, &
Chun-Hoon) for clainant-
appellant Norman P, Enos
Sidney J.¥. Wong and
Colette H. Gomoto
(of Wong 6 Oshima)
for enployer/insurance
carrier-appellee
Elite Mechanical, Inc.
and Eagle Insurance
Companies
Frances £. H. Lun,
Deputy Attorney General,
for appellee Special
Compensation Fund
october 27, 2006.
Tr
ESL
Pessstes Oy scree ree
gore
Gann €. aig +
|
fadedd9b-b270-450e-b1c5-a66117074edc | State v. Garperio | hawaii | Hawaii Supreme Court | No. 26443
8
IN THE SUPREME COURT OF THE STATE OF HAWAT'SS
“Appel
STATE OF HAWAI'I, Respondent/Plaintitf-Appeliag
Rape
=
z
&
c
es =
2
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 03-1-2233)
(By: Duffy, J. for the court)
Petitioner/Defendant~Appellant’s application for writ
of certiorari filed on May 30, 2006, is hereby denied.
DATED: Honolulu, Hawai'i, June 9, 2006.
FOR THE COURT:
Pome Overs or.
Associate Justice Reon
Deborah L. Kim
for petitioner/
defendant-appellant
on the writ
and putty, 93.
considered by: Moon, C.J-, Levinson, Nakayama, Acob:
|
c0f06ab9-8419-4772-95f4-a0936deccd31 | State, ex rel, Knapp v. The Aes Corporationn | hawaii | Hawaii Supreme Court | No. 26151
IN THE SUPREME COURT OF THE STATE OF HANAI‘T
ee
STATE OF HAWAI'I, ex rel, BRUCE R. KNAPP,
Qui Tam Plaintif£/Cross-Appeliee,
and
BEVERLY J. PERRY, on behalf of herself and all
others similarly situated, Class Action Plaintift-
Appellant /Cross-Appel
THE AES CORPORATION and AES HAWAII, INC2
Defendant s-Appellees/Cross-Appellants,=5|~
and
96: Hd 61 allt 9002
HAWAIIAN ELECTRIC COMPANY, INC. and HANATZI
ELECTRIC INDUSTRIES, INC., Defendante-
Appellees/Cross-Appellees.
Sa
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 01-1-3487-12)
ER
Moon, C.J., for the court")
Upon consideration of class action plaintiff-
appellant /cross-appellee Beverly J. Perry’s motion for
reconsideration, the papers in support thereof, and the record
herein,
IT 1S HEREBY ORDERED that the motion is denied.
DATED: Honolulu, Hawai'i, June 19, 2006.
Moya ¥. sat, FoR Tus count: ae
for clase action
Platntief-appellant/
crose-appellee SEAL
fe suacice \q SEAL
Le of wi
L Consigered by: Moon, C.J., Levinson, Acoba, and Duffy, JJ.; and
Chroule Judge Cardoza, in place of takayana, J.
aaud
|
a81e3687-8179-4af2-9cd4-3f40bdd1d7b7 | Bacerra v. MacMillan. S.Ct. Order Denying Motion to Clarify, or in the Alternative, for Reconsideration, filed 07/18/2006 [pdf], 111 Haw. 121. | hawaii | Hawaii Supreme Court | *** FOR PUBLICATION ***
IN THE SUPREME COURT OF THE STATE OP HAWAI'I
--- 000
NOLY BACERRA and NELY BACERRA, Individually, and
SEAN BACERRA, a minor, through NELY BACERRA,
his mother and next friend, Plaintiffs-Appellees,
JAMES B. MacMILLAN, III, M.D., THE QUEEN'S
MEDICAL CENTER, Defendants-Appellees,
and
DOE DEFENDANTS 1-100, Defendants.
me oats
vn ee
S21 Ra oc Nar some
‘0G
APL HOTEL & RESTAURANT WORKERS HEALTH & ae
‘TRUST FUND, by its Trustees, Lienor-Appellant.
STATE OF HAWAI'I, DEPARTMENT OF HUMAN SERV:
Tntervenor-Appellee.
ICES,
No. 26377
APPEAL FROM THE FIRST CIRCUIT COURT
(crv. No,-01-2-3563)
guns 30, 2006
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY MOON, C.3.
Lienor-appellant AFL Hotel & Restaurant Workers Health
& Welfare Trust Fund, by ite trustees [hereinafter, the Trust
aa
zy
##* FOR PUBLICATION ***
eee
rund) , appeats from the January 5, 2004 orde of the Circuit
court of the First Ciroutt, the Honorable Een Elizabeth Hifo
presiding, dismissing ite wotice of Hien” filed Septenber 12
yoo in an underlying medical malpractice action (the instant
case) brought by plaintiffs-appeless Noly B2ceese (tr. Bacerra)
wuatty, and Sean Bacerza (Sean), 3 MinOT,
and Nely Bacerra, indi
chrough Nely Bacerra (lira, Bacerra), Ti mother and next friend
tnereinafter, collectively, the Bacerrae] against defendante-
apperices Janes B. Macwillen, THT, 6D) (OF yacMillan) and the
queen's Medical center (the ONC) (hereinafter, collectively, the
defendants] -
ssased on the discussion below, we conclude that
pecause the Trust Fund failed to property intervene = the
jmatant case, if 46 not a party tO ERE case ‘therefore, the
pruat Fund lacks standing to appeal the cixeuit court's order
gly, we are compelled to
aiemissing the notice of lien Recor
dismise the instant appeal.
1. BACKGROUND
the Trust Pond provides medical coverage te thousands
of hotel collective bargaining employees and their families
including the Bacerras. on July 2, 1999+ NES Bacerra went into
tapor and was admitted to the Queen's Hedical Hospital. As &
reoult of a uterine rupture, the newborn, Seah euffered severe
brain damage due to lack of oxygen and developed spastic
quadriplegia, The medical expenses incurred as a result of
*** FOR PUBLICATION ***
a
Sean‘s extensive medical care and treatment were paid by:
(a) the Trust Fund, pursuant to Mr. Bacerra’s employer-sponsored
group health insurance policy issued by the Trust Fund; and
(2) the state of Hawaii's Department of Human Services (DHS),
pursuant to an “Application for Medical Assistance” submitted on
Sean’s behalf.
on Decenber 17, 2001, the Bacerras filed a four-count
medical malpractice complaint against the defendants, essentially
alleging lack of informed consent and negligence. Ultimately,
the Bacerras reached a settlement with Dr. MacMillan, as evinced
by their “Petition for Approval of Good Faith Settlement" (the
Petition), filed December 17, 2001. In the Petition, the
Racerras stated that the case against Dr. MacMillan had bee:
seettled for a confidential amount, which amount w(ould] be
provided under seal to the [circuit cJourt and to counsel." on
Novenber 19, 2002, Dr. MacMillan filed his joinder in the
Petition.
on Decenber 5, 2002, DHS requested permission from the
circuit court to intervene in the instant case (motion to
intervene) to recover $326,288.74 in medical costs, paid by DiS
through Medicaid, on behalf of Sean. Attached to ite motion to
intervene was a proposed Intervenor’s Complaint, wherein DHS
asserted that: (1) the Bacerras were obligated to reimburse DHS
for medical coste paid on behalf of Sean in the event Sean
received any compensation for injuries and medical costs incurred
*** FOR PUBLICATION ***
as a result of the incident alleged in the complaint; and (2) DES
had a first lien on any judgment or settlement award in favor of
Sean. On February 4, 2003, the circuit court granted DHS’s
motion to intervene.
on February 11, 2003, the circuit court issued an
vorder for Attendance of Persons/Entities at Further Settlement
Conference,” mandating the Trust Fund’s attendance at a further
settlement conference.’ The order was the first notification to
the Trust Pund that Sean’s condition may have been caused by a
third-party against whom the Bacerras were pureuing an action to
ecover damages. As a result, the Trust Fund filed ite notice of
Lien on Septenber 12, 2003, asserting its right of reimbursement
for payments made by the Trust Fund on behalf of Sean in the
2 we note that, although the circuit court granted Dls' motion to
intervene, the record does not reflect that the "Intervenor’s Complaint,”
attached Co Dis's motion as Exhibit B, waa ever filed. However, we recogalze
that ONS, in its nenorandum regarding the Sacerras’ notion to dienise the
Trust Fusd’e notice of lien, stated that ‘it haw not been necessary to file
the complaint because the (Sacerras) and the State have cone to an agreement,
regarding distribution of proceeds.”
* Inacmuch a the Trust Fund had not formally intervened in the
underiying medical malpractice action, we believe the circuit court had no
personal jurisdiction over it and, therefore, did not have the suthoriey fo
fandace its attendance at a settlement conference. Kevertheless, the Trust
Fund did not object (presurably because it was in ite beat interest fo
participate); thus, it could be esid that the Trust Fund waived personal
Jurisdiction, ‘Hawai'i Rules of civil Procedure Rule (RCP) Rule 12(h) (2)
(Zo04) ("A defence of lack of juriediction over the person... is waived (A)
Af omitted from a notion in the circumstances described in subdivision Tg) or
(B) if it is neither made by notion under this rule nor inclued in «
responsive pleading or an anenduent thereof permitted by Rule 15(a) to be made
ae 2 matter of course.“); Roxas v. Marcos, 89 Hawai'i 91, 135, 969 P.24 1209,
43253 (1998) (stating chat, “notwithstanding that the ‘of tack of
personal jurisdiction vas agserted in the [defendante’| answer to che
iplaintitfs'} complaint, [ehe defendanta’) failure to assert it in eheir
notion to dismiss constitutes a waiver of the issue pursuant to HRCP Rule
2g) and (h)"); see also Rearden Family 7 Wisenbaker, 101 Hawai't 237,
247"50, 65 P.3a 1029, 1039-42 (2003). In any event, we need not address the
Sesue in light of cur decision to dignies the Trust Fund's appeal Desed on
lack of standing
+** FOR PUBLICATION ***
ee
amount of $532,960.32. However, unlike DHS, the Trust Pund did
not file a motion to intervene as a party in the instant action.
on Septenber 29, 2003, the Bacerras moved to dismiss or
determine the Trust Fund’s notice of lien (motion to dismiss) .
Although the Bacerras did not dispute the fact that Sean had
received $532,960.32 in medical benefits from the Trust Fund,
they argued that the Trust Fund’s lien action was preempted by
the Federal Employees Retirenent Income Security Act of 1974,
commonly known as ERISA, codified at 29 U.S.C. § 1001 et seq.
the Bacerras maintained that, because the Trust Fund -- an ERISA-
fiduciary -- was essentially seeking monetary compensation from
the Bacerras -- the plan-beneficiaries, -- the relief being
sought was legal (and not equitable) in nature and was,
therefore, preempted by federal law.
DHS and the GMC each filed memoranda regarding the
Bacerras’ motion to dismiss, essentially supporting the motion.
In the event the circuit court decided not to dismiss the notice
of lien, DHS urged the court to determine that its Medicaid lien
should “enjoy{] a firet priority.” The QMC requested that the
circuit court determine how much, if any, of the lien should be
allowed. ‘The Trust Fund opposed the motion, arguing that its
state law claim for reimbursement did not come within the acope
of ERISA and was, therefore, not preempted, and that its lien
should be given priority over DHS’ lien because “ERISA preempts
any state laws that interfere with an ERISA plan‘s right of first
*** FOR PUBLICATION *
covery, including any state Medicaid program's right of first
recovery." (Emphasis omitted.)
A hearing on the motion to dismiss was held on November
5, 2003. The circuit court, over the Trust Fund's objection,
“grant [ed] the motion{,] finding there [was] a preemption,”
indicating also that it would “not now decid{e] which lien would
have priority." The written order granting the Bacerras’ motion
to dismiss was filed on January 5, 2004. On Fébruary 4, 2004,
the Trust Fund filed its Notice of Appeal.
TT. STANDARD OF REVIEW
‘This court reviews a dismissal under Hawai'i Rules of
Civil Procedure Rule (HRCP) 12(b) (6) and a determination of
subject matter jurisdiction de novo. AFL Hotel & Rest. Workers
Health & Welfare Trust Fund v. Bosque, 110 Hawai'i 918, 322, 132
P.34 1229, 1232 (2006); Aames Funding Com, v, Mores, 107 Hawai‘
95, 98, 120 P.3d 1042, 1045 (2005); Noxxia v. Hawaiian Airlines,
Inc., 74 Haw. 235, 239, 842 P.2d 634, 637 (1992), aff'd, 512 U.S.
246 (1994)
III. DISCUSSION
Before this court can address whether the Trust Fund’s
notice of lien is -- as the Trust Pund asserts -- a state law
claim for reimbursement and, therefore, not preempted because it
does not come within the scope of ERISA, we must first determine
whether the Trust Fund has standing to appeal in the firet
instance. We conclude that it does not.
*** FOR PUBLICATION ***
oe
In Kepo'o v. Watson, 87 Hawai'i 91, 952 P.2d 379 (1998),
thie court state:
Generally, the requirenents of standing to appeal ares
(i) the xerson must first have been a party to the action:
(3) ERE-SEtton seeking modification of the order oF judgment
must have had standing to oppose it in the trial court; and
3) such person mst be aggrieved by the ruling, i.e., the
person must be one who ie affected Or prejudiced by the
Bppealable order.
Id. at 95, 952 P.2d at 383 (quoting Waikiki Malia Hotel, Inc, v.
Kinkai Props., Ltd. P’ship, 75 Haw. 370, 393, 862 P.2d 1048, 1061
(2993) (emphasis added) (internal quotation marks and brackets
omitted; see also Chierighino v, Bowers, 2 Haw. App. 291, 293,
631 P.2d 183, 185 (1981) (per curiam).
‘The instant case was filed solely in the names of the
Bacerras, who, in turn, named only Dr. MacMillan and the QMC as
defendants. As previously stated, the Trust Pund, unlike DHS,
did not move to intervene in the instant case, but merely filed
ite notice of lien. However, the act of filing of a notice of
lien, in and of itself, does not make the lienor a party to the
case. See Valenta v, Regente of the Univ. of California, 262
cal. Rptr. 612, 815 (Cal. Ct. App. 1991). In Valenta, the
plaintiff successfully pursued a wrongful termination action,
obtaining a judgment of $866,000. When the defendants appealed,
plaintiff's trial counsel associated with another attorney to
handle the appeal. At some point, plaintiff's discharged counsel
filed a notice of lien for his reasonable attorney's fees and
cost advanced in the underlying wrongful termination case. The
california Court of Appeals stated:
*** FOR PUBLICATION ***
Clearly, the practice of filing a notice of 1ien in a
pending action is perniseible, and even advisable.
Rowever, while a previously discharged attorney may file a
notice of lien n'a pending action, an independent’ action is
required fo establish the exiatence and amount of the lien
to enforce it.
Id. (emphases added). In other words, a notice of lien is not
the same as a lien or a lien claim. To assert its lien or lien
claim in the instant case, the Trust Fund was required to
institute ‘an independent action* or intervene as a party in the
instant case, pursuant to HRCP Rule 24 (2004).’ Having failed to
do so, the Trust Fund does not meet the first prong of the
standing requirements recited in Keno’, i.e., “the person must
first have been a party to the action.” Kepo'o, 87 Hawai'i at 95,
952 P.2d at 383 (citation omitted). We, therefore, hold that,
because the Trust Fund was not nade a party to the instant case,
it lacks standing to appeal. See Stewart Props., Inc. v.
Brennan, @ Haw. App. 431, 433, 807 P.2d 606, 607 (1992) (stating
“[a] well-settled rule is that only parties to a lawsuit
> RcP Rule 24 provides in relevant part:
(a) Intervention of right. Upon timely
application (;] anyone shail be permitted to intervene in an
action: (r) ‘shen s statute confers an unconditional right
to intervene; or (2) when the applicant claim an interest
Felating to the property or transaction which fe the subject
of the action and the applicant is so situated that the
@isposition of the action may ae a practical matter inpair
or inpede the applicant's ability to protect that interest,
Uslene the applicant's interest 18 adequately represented by
existing partie
ic) ‘piccedure. A person desiring to intervene shall
serve 4 motion to intervene upon the parties as provided in
Rule S. “The notion shall state the grounds therefor and
shall Be accompanied by a pleading setting forth the claim
or defense for which intervention ie sought
in eriginal.) (Bold emphases added.)
cone
racored empha
*** FOR PUBLICATION ***
a
may appeal an adverse judgnent{.] . . . In other words,
nonparties, who did not or could not intervene, are ordinarily
denied standing to appeal’ (citations, footnote, and internal
quotation marks omitted) (second ellipses added)); see
also Chierichino, 2 Haw. App. at 295, 631 P.2d at 186 (holding
that, because the appellant was not a party to the action, his
appeal must be dismissed) .
IV. CONCLUSION
Based on the foregoing, the Trust Fund's appeal, filed
on February 4, 2004, is dismissed.
on the briete:
Derek R. xebayesht and Gem
BESSA i Ince’ tot coodesn
Anderson Quinn & Stifel), BivenPhohernee—
Mee Tenor appel ent
Janes T. Leavitt, Jz. and Dan Corowa
Joke’on visanes dor
plaintiffs-appellees Noly Lr
Bra ely Baceeza, OOS
Md.viatenty Unc mast
Charles J. Ferrera, for
plaintiff appellee Sean
Bacerra, a minor, through
Nely Bacerra, his mother
and next friend
Michael S. Vincent and
Cora K. Lum, Deputy
Attorneys General, for
intervenor-appellee
|
51861570-e7f5-4999-bb1c-5491d9da0ccc | State v. Stans Contracting, Inc. | hawaii | Hawaii Supreme Court | ‘4+ FOR PUBLICATION #¥+
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
00 ==
STATE OF HAWAI'I, Plaintiff-Appellant,
STAN’S CONTRACTING, INC., ROY SHIOT, G.W, MURPHY CONSTRUCTION
COMPANY, JOHN PATRICK’ HENDERSON and MARK L. HENDERSON,
Defendants-Appellees.
No. 25394
APPEAL FROM THE FIRST CIRCUIT COURT
(CR. NO. 02-1-0991)
JUNE 15, 2006
MOON, ¢.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
‘OPINION OF THE COURT BY LEVINSON, J.
‘The plaintiff-appellant State of Hawai'i (hereinafter,
“the State” or “the prosecution”) appeals from the August 9, 2002
order of the circuit court of the first circuit, the Honorable
Reynaldo D. Graulty presiding, dismissing a two-count theft
indictment as time-barred and fatally defective. Count I was
filed against the defendants-appellees Stan’s Contracting, Inc.
and Roy Shioi (hereinafter, collectively, “Stan’s Contracting”,
charging them with theft in the second degree, in violation of
Hawai's Revised Statutes (HRS) § 708-831(1)(b) (1993). Count IT
fags § 708-€21(1) provides in relevant part that “{a) person
commits the offense cf theft inthe second degree if the person commits theft:
~(b) Of property, the yelue ef which exceeds 6300." Eftective July
20; i958 and uiy 2, 200%, ‘the Legislature anendea HRS § 708-631 in respecte
inneterial to the present matter. See 2008 Haw. Sess. L. Act 162, 68 3 and 7
1580; 1998 Hox, Seas: La Act 228, $§ land @ at 775-76.
‘#¢* FOR PUBLICATION *#*
of the indictment was filed against the defendants-appellees G.W.
Murphy Construction Company, John Henderson, and Mark Henderson
(hereinafter, collectively, “Murphy Construction”], charging then
with theft in the first degree, in violation of HRS .
§ 708-830.5(1) (a) (1993).? On appeal, the prosecution argues
that the circuit court erred in concluding: (1) that theft by
deception does not include “an element of . . . fraud” and is
thus not subject to the fraud exception tolling the statue of
and (2) that
Limitations under HRS § 701-108(3) (a) (Supp. 1997)
the prosecution is required to prove to the grand jury, and to
allege in the indictment, that the prosecution began within the
1 as § 708-630.5(1) provides in relevant part that [a] person
commits the offense of theft in the firet degree Lf the person commits
there: is) or property «ss , the Yalue of which exceeds $20,000."
» as § 701-108 provided tn relevant part:
(2) Except as otherwise provided in this section,
prosecutions for other offenses are subject co the following
Periods of iimitation
ia). ‘A prosecution for manslaughter where the death was not
Caused by the operation of a acter vehicle must be
Gonnenced within ten years after it is committed;
tb) Rprosecution for a class A felony must be commenced within
fix years after it is committed:
lc) Abprésecution for any other felony must be commenced within
three years after st is comitted(.|
ia] is’ene period preserived in subsection (2) has expired,
a prosecution fs be commenced for!
(a), any offense an element of which is... fraud
Mithin theee years after discovery of the offense by
Gn aggrieved party or by 8 person who has a legal duty
fo represent an aggrieved party and who s# oneself not
avparty to the offense, but in no case shall this
Erbvision extend the period of limitation by more than
[Hix years from the expiration of the period of
Limation prescribed in subsection (2)(.]
Effective April 26, 2001 and 3
§ 701-108 in respects innater
L, Act 112, $52 and 7 at 294, 2967
Si, 60.
y 1, 2005, the legisisture amended HRs
to! the present matter. See 2005 Haw. Sess.
2001" Hew. Sess. L. Act 33, §§ Zand i] at
‘4+ FOR PUBLICATION *#*
time period specified in the fraud exception. We agree with the
prosecution that, for the purposes of HRS § 701-108(3) (a), theft
by deception does include “an element of fraud” so as to invoke
the tolling provisions of that section.
Nevertheless, we hold that when the charged offense is
theft by deception, as defined by HRS § 708-830(2) (1993),1 and
the prosecution is relying on the tolling provision of HRS
§ 701-108(3) (a), relating to “[a}ny offense an element of which
is... fraud,” the prosecution must not only allege the timely
date or dates of commission of the offense in the indictment, but
also the earliest date of the “discovery of the offense by an
aggrieved party or . . . a person who has a legal duty to
represent [the] aggrieved party.” Because the indictment failed
to aver the date of the earliest discovery of the alleged
offenses, we affirm the circuit court's order dismissing the
indictment with prejudice.
BACKGROUND
The present matter arises out of the State's
investigation of a Department of Accounting and General Services
(ORGS) employee, Fidel Eviota II. Apparently, Evicta submitted
© ans § 708
10 provides in pertinent part:
A perscn ccanits theft if the person does any of the following:
(2) 111 detains, of exerte control over, the property of
Another by Seception with intent fo deprive the other of the
property.
Ettective May 2, 2001, the legislature amended HRS § 708-830 in respects
Gmmeterial £6 the present matter. See 2001 Meu, Sess. L. Act 67, $6 1 and S
aaa, 138,
‘** FOR PUBLICATION ***
multiple invoices totaling more than $700,000 for unperformed
construction services ostensibly in accordance with construction
contracts and DAGS reimbursement procedures. Stan’s Contracting
and Murphy Construction (hereinafter, collectively, “the
Appellees”) were general contractors involved in two separate
contracts that Eviota oversaw in 1996 and 1997. Shioi was a
project manager for Stan's Contracting, Inc. and the Hendersons
were president and vice president of G.W. Murphy Construction
Company at the time. Boyd Sakai, an auditor for the Department
of the Attorney General, determined that through a series of
bogus change orders -~ i,es, unwarranted construction purchase
orders allowing reimbursement for unexpected costs in a state
construction contract ~~ Evicta allegedly funneled at least
$6,117.00 through Stan‘® Contracting and $88,428.00 through
Murphy Construction toward the construction of three hones ovned
by Eviota in MA‘A1i. During the course of the investigation,
Sakai tracked the payments through a number of parties and
accounts, and traveled to California to gather original tissue
copies of some of the checks in question.
on May 1, 2002, an O'ahu grand jury returned an
indictment: (1) charging Stan’s Contzacting with one count of
theft in the second degree, in violation of HRS § 708-831(1) (b),
se supra note 1: and (2) charging Murphy Construction with one
count of theft in the first degree, in violation of HRS
§ 708-830.5(1) (a), see supra note 2.
‘The indictment read as follows
continued...)
‘+** POR PUBLICATION ***
On June 19, 2002, Stan’s Contracting filed a motion
pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 12° to
dismiss Count I on the grounds: (1) that the prosecution was not
commenced within three years of the conmission of the offense as
required by HRS § 701-108(2)(c), see supra note 3; (2) that the
evidence put to the grand jury regarding the statute of
Limitations vas insufficient; and (3) that the indictment was
---continved)
Couns I: On ox about the Teh day of July, 1997{,) to and
ineiuding the 11th day of august, 1987, in the City and county of
ignolulo, Seate of Hawai'i, Stan's Contracting, Inc. and Roy Y. Shios,
Gid obtain or exert contrel over the property of {the State), to wit,”
OLS. Currency, the valve of which exceeds Three Hundred Dollars... by
deccation, with the intent to deprive {the State) of the property
Eheresy committing the offence of Theft in the Second Degree in
Holation of (HRS §] 708-83111) (b)
‘COUNT 112" On or about the 10ch'day of February, 1997, to and
including the 29th day of October, 1997, in the City and County of
Honcluiu, State of Hawai[')i, G.W. Morphy Construction Company, John
Patrick Henderson and Mark L. lienderson dig obtain or exert control over
the property of [the State], to mit, Uns. Currency, che value of which
exceeds Twenty Thousand Dellars - .'. , by deception, with intent to
Seprive [the State] of the property, thereby committing the offe
Theft in the First Degree, in violation of [HRS §) 708-830.5(2) (a)
of
(emphases added.)
SREP Rule 12 provides in relevent part:
(b) Prateial Motions. Any defense, objection, or request which is
sable. of determination withovt the trial of the general issue may be
Eeised before trial by notion. Motions may be written or oral at the
Giscretion of the judge. The following must se raised prior to trial
t and objections base on defects in the institution of
(2) defenses and objections based on defects in the charge (other
than thet it fails to show jurisdiction in the court or to charge an
offense which objections shall be noticed by the court at any time
Goring the pendency of the procesdings)?
(al aetions to suppress evidence or for return of property:
(i) Fequeste for disccvery under Role 16)
5} requests for consolidation or seversnce of charges or
detendante under Rules 13 and 14;
ie) motions to dismiss under Rule (c) for failure to join related
offenses; and
(i) motions to transfer under Rule 21
5
‘48 FOR PUBLICATION *#*
fatally defective for failing to allege facts establishing the
tolling of the statute of limitations.’ On July 24, 2002, Murphy
Construction filed a joinder in the motion, asking that the
circuit court dismiss Count IT.
on July 26, 2002, the circuit court conducted a hearing
fon the motion to dismiss. In response to the Appellees’
contention that the indictment was not brought within the statute
of Limitations, the prosecution made an offer of proof that
Ephrain Ho, an investigator for the Department of the Attorney
General, was assigned on June 3, 1999 to investigate criminal
allegations involving Evicta.' In the offer of proof, the
prosecution stated that Ho would testify that he first heard of
the Appellees on June 16, 1999, in an interview with one of the
subcontractors through which the bogus change orders were
funneled. Ho would further testify, however, that it was not
until February 14, 2000 that he first had reason to suspect the
Appellees’ alleged criminal involvement in Eviota’s schemes. The
circuit court and the Appellees accepted the offer of proof, the
latter entering objections that the offer wes insufficient to
cure the indictment’s alleged insufficiencies.
On the sane date, Stan‘s Contracting filed a motion to dismiss
Count 1 with prejudice, siso pursuant to HREP Rule 12, on the ground thet
Sthere was insufficient evidence to establish probable cause presented to the
grane jury." By virtue of ite order granting the Appellees” HRPP Rule 12
Rotion to disnise on statute of limitations grounds, the circuit court
Geclined to rule on the second HREP Rule 12 motion on the ground that it was
+ there ig no indication on the record ae to why Ho and not Sakai
wos calied to testify as to when the #lleged crininal involvement of Stan's
Contracting and Morphy Construction wes first suspected,
6
of fact
‘+** POR PUBLICATION *##
on August 9, 2002, the circuit court entered findings
(FOFs), conclusions of law (COLs), and an order
dismissing the indictment with prejudice. The circuit court
concluded in relevant part:
2._ The Indictment returned by the O["Jahu Grand Jury
fon May iS, 2002 did not require the prosecution (tol prove,
Beyond § Feasoneble doubt as required by (HRS) § 70i-11#(ai
((1993)"), tha the [Appellees] feaudulently cbtained or
contzalled property of the State. « as an element of the
Offense of Theft By Ceception or that they acted with intent
fodefraud. See (HRS) § 708-€30(2)(, supra note 4)
3. For purposes of tolling the statute of limitations
under (ans) '§ 701-108 (2) (a) {, gag aupea note 3], fraud is
Bot synonymous with “deception” for crimes defined under
{its ch.) 706; “See (HRS] § 108-600 (Supp. 1996) (different
statutory definitions fer “deception” and “intent to
Getraus") ("
HRS § 101-114, entitled “Proof beyond a reasonable doubt,”
provides in relevant part!
(2) Except as otherwise provided in section 701-115, [relating to
defenses negating penal reeponeibility] no person aay be convicted ef an
offense unless the following are proved beyond a reasonable doubt:
a)" “Each elenent of the offense;
(B} The state of mind required to establish each elenent of the
otfons
(c) Facts eetablishing jurisdiction
(a) Facts eetablishing venue: ana
[e) Facts setablisning that the offense Kas committed within the
tine period specified in (HRS §) 7017108(, ga suka,
note 3)
HRS § 708-600 (2993) provides in relevant part:
“peception” occurs when 2 person knowingly:
(2) Sgeates or confirms snother' impression which is false and
Which the defendant does not believe to be tris
(2) Fells to correct false inpression which the person
previously har created ox confirmed:
(3) Prevents another from acquiring snfornation pertinent to the
Gieposition of the property involved;
(4) Selle of otherwise transfers or encunbers property, failing
to disclose a lien, adverse clain, or other legal inpedinent
fo the enjoyment of the property, whether that inpecinent is
of is not valid, or is of is not a natter of officiel
fecores or
(S) Premises performance which the person does not intend to
perform of knows wiil not be performed, put a person's
{eontinaed. .-)
‘+44 FOR PUBLICATION *##
4. thereas (HRS ch.] 708 contains numerous statutes
expressly requiring "intent to defraud” as an elenent of the
offense necessary to sustain a conviction, Theft by
Deception dees aot require the invent to defraud(;] rather,
the State mist prove a defendant knowingly used deception
itn the intent’ to deprive an cuner of Ais/her property.
Soe state 2 Fresman, 70 Haw. 434, 438-39, 774 Pa2a BE
5{3)i (1989) (theft ty Deception is not ah included offense
Sf Fraudvlent Use of 8 Credit Cara because the offenses,
Eaguire different states of mind to be proven beyond &
Feasonsble doubt): Mewei (i [Standard] Jury
Instruction =~ Criminal, 10,19 theft in the Second Degree ~~
Deception (Instruction for Theft by Deception does not
Eequire “fraud” ae an elenent of the offense the finder of
fact must find proven beyond a reasonable doubt) -
5. Thus, the exception provided in (HRS)
§ 701-1083) {a} does not apply’ to the crime of Theft by
Deception, as defined by (HRS) § 708-830(2), wherein fraud
fe not an element that must be proven beyond a reasenable
Goubt for conviction. Accordingly, the indictment of [the
Appellees) for Theft by Deception cn May 15, 2002, for
Ceines siiegeaiy conmitted in 1997, occurred beyond the
[three-iyear tine period permitted by (HRS) § 701-108(2) (c)
G. Furthermore, to commence a prosecution pursuant to
the statute of iimitatsons exception under (HRS)
§ "701-108 (13) (a)], the state ‘must present evidence to
the Grand Jury establishing probable cause of uben the
alleges criminal conduct was discovered, Ley, that Lt was
Siscovered at a tine within the statute of Tinitations
exception. See State v. Outal, 64 Haw(ai't) 96, 63-64, 929
Pioges, Je-177) Lev 1996) 7] Stabe v Arcee, 64 Haw. 1,
15, 928.24 043, 958°('.'. . 1986) (in an ingictnent, the’
Sitense . . . may be stated with so such detail of Eine,
Place, sud circumstances and such particulars . as are
Recessary to identify the transaction, to Bring it within
(+ .continued)
‘{etention not te perform a promise shall not be inferred
ftom the fact alone that the person did not subsequently
perform the promise,
the term *aecepticn” does not, however, include falsity as to
vers having no pecuniary significance. «
Suneent to defraud” means:
(1 "he intent te use deception to injure ancther’s interest
Gihsch has value; oF.
Enowledge by the defendant that the defendant is
facilitating an injury to another's interest which has
Effective June 16, 1997, April 24, 2002, June 28, 2002, and July 1, 2008, the
Tegislature anended HRS’ § 708-€00 in retpects inhaterial to the present
matter. Sea 2008 Haw. Sexe. L. Act 162, 562 and 7 at 579, 5607. 2002 How,
i, Ret 224) $84 and 6 at #96: 2002 Haw. Sees. L. Act 45, $9 1 and 3 at
1557 Haw. Sasa, L. het 196, 66 3 end Sat 378,
®
‘48 FOR PUBLICATION ***
the statutory definition of the offense charged, to show
that the court has Jurisdiction, and to give the accuses
Feasonable notice of the facts.) (lemphasis in] original).
J. “the State's... offer of proof.) sof
Hors discovery of the alleged thezts on Jone 26, 1999' failed
to satisfactorily identify when the proper Complainant
(OAGS) First discovered the alleged thefts. Thus, the offer
of proct of... Ho's teatinony could not cure the
evidentiary defect arising from the failure to present any
evidence to the Grand Jury as to the date of discovery of
the alleges offense. Cf, Arcos, €4 Haw. at 13.
es "Accoraingiy, the quantum of evidence presented to the
ot'Jane Grane Jury wae sneusticient to invoke the exception
[provided in (HRS) § 701-108 3) (a) and allow prosecution of the
Defendants beyond the [three-}year time limitation of (HRS)
$°701-108(2)(e)- Ide
3. Lastly, anindictnent must allege information that
provides defencents with reasonable novice of the facts
Recessary for the preparation of an adequate defense,
Unciuding facts that provide notice of possible. punishnent
and the statute of limitations. See (HRPF) Rule Tid) ("The
Gharge shell be a plain, concise and definive written
Statement of the ecsential facts constituting the offense
Gharged."); State v. Keakinaka, 84 kawaii 260, 29(5], 399
P20 613, 6(321 (1957) Tindactnent alleging conspiracy
vielated’ pue Process when charging instrument failed to
provide defendant notice of "the possible punishment and the
Statute of limitations”).
Yo. if the state commences & prosecution
utilizing af] statute ef Limications exception in (HRS)
$ 701-108 (3) (a), information nust be alleged in the
Ingictnent to denonserate che stavuce of limitations was
collec. See People v. Strait, 361 N.z.2d 692, 693. (11
1578) (ossaissing indictment pursuant to long’ standing rule
requiring facts invoking exceptions to stature of
Lisseatione be averred in charging instrument) 2
State, 726 So. 20.255, 258 (Fla. [Cte] APE. 1998)
[information tust allege on sts face facts showing stature
tolled); Moss v State, 469 5-£.24 328, 326 (Ga. (Ct. App.
1996) (Sane); Boobie v. Crosby, 375 F.2d 838, 854 (Cal.
1962) (sane); Bustamante v. Dist, Court, 329'p.2¢ 1023,
1o16-(]17 (Coie. 1958)? Eeate-e Jones, 775 F-34163,
185(-]8€ (Ken. [ct] Agp. 1969) Tsame)’ Stace v, Bovelel,
720 .26 786, 786 (Or. {Ct.) App. 1985{3) (sanely
Gounty, 601 $.w.24 357, 351-58 (Hex. Cle]. Rep. 1980)
sane).
it, thus, the failure to provide information of the
date of discovery of the sileged crines!) necessary to
Envoke the exception in [HRS] —§ 701-108 (3) (a), rendered the
Indictment .. + fatally defective. See Keakinske, 86
Nawai's at 29(5, 933 F.2d at 632).
(Footnotes omitted.) (Emphases in original.) The circuit court
then granted the Appellees’ notion and dismissed the indictment
404 FOR PUBLICATION *#*
against them with prejudice.
Following a September 5, 2002 grant by the circuit
court of an extension, the prosecution filed a timely notice of
appeal on October 8, 2002.
11, STANDARDS OF REVIEW
AL Hindi 8
In this jurisdiction, a triel court's (FOFs] are
subject ‘to the clearly erroneous standard of review.
hn POF se clearly erroneous when, despite evidence to
Support the finding, the appellate court is lett with
tne definite and fitm conviction that a mistake has
been committed.
{COL} ie net Binding upon an appellate court
ang is freely reviewable for Sta correctness. This
Court ordinarily reviews CoLe under the right/wrong
Standerd. ‘thus, 2 COL that is supported by the trial
Goure’e fore and that reflects an application of th
Correct rule of Lav will not be overturned. However,
2°CoL that presents nixed questions of fact and law is
Teviewed under the clearly erfoneaus standard be
Efe eourt’s conclusions ate dependant upon the facts
fang Sircomstances of each individual case.
Casumpang v, ILWU Local 142, 108 Hawai'i 411, 419, 121 P.3d 391,
399 (2005) (some brackets added and some in original) (quoting
Allstate Ins, Co. vs Ponce, 105 Hawai'i 445, 453, 99 P.3d 96, 104
(2004).
8. Interpretation of statutes
w(t]he interpretation of a statute
ig a question of low reviewable de
hove.” - Brseo, 86 Hawai'i [at] 10,
928 Fad [at] B82.
Grav v. Adeint,1 Dirt.) of the court, 84 Hawai's 138,
$Miy-S3r €.24 $60, S06 (1997). Furthermore, our
Statutory construction is guided by established rules
hen construing statute, our foremost
Sbligation is 20 ascertain and give effect
fo the intention of the legislature, which
$e to'be obtained prinarily fron the
Language contained in the statute itself.
And'we must read statutory lenguage in the
10
‘+++ FOR PUBLICATION #**
content of the entire statute and construe
Se°tn's manner conaiscent with ite
yen there is doubt, doubleness of
meaning, or indistinctiveness or
Gneertainey of an expression used in
Statute, an anbiguity exists
Th construing en ambiguous statute,
wieyhe meaning of the ambiguous words ney
bbe ought by examining the context, with
Which che ambiguous words, phrases, and
Sentences aay be compared, in oreer to
ascertain their true sesning.” HRS
$'1-15(1) [(1993)]. Moreover, the courts
may resort to extrinsic side in
Setermining 10318:
wenie 12 the use of legislative history
ae an interpretive tool
Gray, €4 Hawas't at 148, 931 P.24 at 590 (footnote
Snitted). This court may alec consider "(t]he reason
Gnd spirit of the lew, and the cause which induced the
{Coislature to enact it”... to discover ea crue
meaning.” #8S § 1-18(2)".".".\. "Laws an Bad
EAteria, or upon the sane subject netters shell be
Spreng seavote ay Be called. upen in aid to explain’
hat is doubtful in another." "aks 5 1-16 (1995)
State v. Koch, 107 Hawai'i 215, 220-21, 112 P.3d 69, 74-75 (2005)
(some internal citations omitted) (sone brackets and ellipses
added and some in original) (quoting State vs Kaua, 102 Hawai'i
1, 7-8, 72 P.3d 473, 479-480 (2003) (quoting State v. Rauch, 94
Hawai'i 315, 322-23, 13 P.3d 324, 331-32 (2000) (quoting State ve
Kotis, 91 Hawai'i 319, 327, 984 P.2d 78, 86 (1999) (quoting State
va Dudoit, 90 Hawas'i 262, 266, 978 P.2d 700, 704 (1999) (quoting
State v. Stocker, 90 Hawai'i 85, 90-91, 976 P.2d 399, 404-05,
(2998) (quoting Ho vy, Leftwich, 88 Hawai‘! 251, 256-57, 965 P.2d
793, 798-99 (1998) (quoting Korean Buddhist Dae Won Se Temple vs
sullivan, @7 Hawai'i 217, 229-30, 953 P.2d 1315, 1327-28
(2998)1))))))-
a
‘4 FOR PUBLICATION *#*
III. DISCUSSION
» 5 ‘ Spraua™
S$ 201-108 (3) (ay
‘This court has consistently reaffirmed the proposition
that “where the terms of statute are plain, unambiguous and
explicit, we are not at liberty to look beyond that language for
a different meaning. Instead, our sole duty is to give effect to
the statute's plain and obvious meaning.” State v. Yamada, 99
Hawai'i 942, 953, 57 P.3d 467, 478 (2002) (quoting State v
Richie, @8 Hawai'i 19, 30, 960 P.3d 1227, 1238 (1998).
Furthermore, this court has stated that “where there is
no ambiguity in the language of a statute, and the literal
application of the language would not produce an absurd or unjust
result, clearly inconsistent with the purposes and policies of
the statute, there is no room for judicial construction and
interpretation... .” e. Born, .
109 Hawai'i 399, 408, 126 P.3d 1086, 1095 (2006) (citation and
internal quotation signals omitted).
However, “[wJhen there is doubt, doubleness of meaning,
or indistinctiveness or uncertainty of an expression used in a
statute, an ambiguity exists.” Grav, 84 Hawai'i at 148, 931 P.24
at 590, In construing an ambiguous statute, we may resort to
extrinsic aids in determining legislative intent. Id. This
court may also consider “[t}he reason and spirit of the law, and
the cause which induced the legislature to enact it. . . to
discover its true meaning.” RS § 1-15(2); Koch, 107 Hawai'i at
220-21, 112 P.3d at 14-75.
2
‘** FOR PUBLICATION ***
‘The prosecution's argument for a review of the circuit
court's interpretation of the term “fraud” in HRS § 701-108 (3) (a)
can be reduced to two grounds: (1) that the meaning of the tezm
is ambiguous, in that the term “fraud” is multi-faceted and
inclusive of more criminal activities than those offenses
expressly employing that specific word; and (2) that, assuming
arguendo the plain language requires @ strict construction, the
results are absurd and unjust. We agree with the prosecution on
both grounds.
Murphy Construction asserts that the language of the
tolling provision is unambiguous -- that either fraud must be
expressly alleged in the indictment or must be contained in the
language of the statute for the offense to qualify as a “crime,
an elenent of which is fraud." It argues that the legislature
an Line with this argument, Stan's Contracting cites to Hawed't
Standard Jury Instructions, Crininai 10,19 (Theft in the Second Degree:
Deception), gointing out chat the word “fraud” is not an element ena
therein. The instruction provided in relevant part!
‘there are four materisl elenents of the offense of Theft in the
Second Degree, each of which the prosecution must prove beyond &
Feasonable doubt.
‘These four elenents are
1." That, on or about (date) in the [City and) County of (name.
sf-county), the Defendant obtained or exerted control over
fhe property of another; and
That" the Defendant di s0 by deception: and
lat_the Defendant did se with the intent to deprive the
person of property; and
4, That the petendent believed the value of the property
exceeded £300
(continued.
13
‘4+ FOR PUBLICATION ##*
could have crafted language, for example, applying the tolling
provision to “any offense committed through the use of any
fraudulent act or concealed by any means of fraud,” but chose not
to.
Stan's Contracting adds that, because HRS § 708-800,
see supra note 10, provides a definition of “intent to. defraud”
that is distinct from the definition of “deception” contained in
the sane section, theft by deception is not a species of fraud
within the meaning of the tolling provision.
The prosecution responds that “fraud” cannot be so
facil
to defraud” is, in fact, defined as “an intent to use deception
to injure another’s interest which has value,” HRS § 708-800.
construed as to exclude “deception,” noting that “intent
(Emphasis added by prosecution.) Deception, the prosecution
argues, is therefore the characteristic that imbues “intent to
defraud” with its requisite state of mind: in other words,
without “deception,” “intent to defraud” statutes are merely
general intent statutes requiring only that “the defendant
knowingly or intentionally injure another's interest which has
value.” Therefore, the prosecution concludes, if deception does
not contain within it a fraudulent component, then neither does
“intent to defraud.”
The prosecution further notes that there is no precise
definition of the term “fraud” -- as opposed to an “intent to
(Emphasis and brackets in original.) Effective February 28, 2006, the
instruction hae oeen amended te add 9 fifth elene!
the property did in fect exceed £300,
ay that the value of
4
‘++ FOR PUBLICATION *¥*
defraud” -- in the Hawai'i Penal Code (HPC). The prosecution
highlights the requirement of HRS § 701-104 (1993) that words be
taken “in their usual sense” absent statutory definition and
cites Black's Law Dictionary at 788 (4th ed. 1968), defining .
“fraud” in part as “a false representation of a matter of fact
- which deceives and is intended to deceive another,” and the
oxford Concise Enalish Dictionary at 562 (10th ed. 1999), which
defines “fraud” as “(1) wrongful or criminal deception intended
to result in financial or personal gain [or} (2) a person or
thing intended to deceive.”
‘The prosecution delves into the Model Penal Code (MPC)
for the historic roots of fraud and theft by deception.” It
points out that the MPC drafters consolidated false pretenses and
larceny by trick into theft by deception and that false pretenses
and larceny by trick were a species of fraud dating back to the
1757 English statute of false pretenses. (Citing MPC § 223.3
cmt. (Proposed Official Draft 1962); Wayne R. LaFave & Austin W.
Scott, Jr., Substantive Criminal Law § @.7(a) (1986).)
Marphy Construction counters that while the MEC
discusses theft by deception in MPC § 223, it analyzes crimes of
‘The prosecution further argues that this court has in the past
resisted « rigid or nerfow definition ef fraud. "(Quoting Yon Hols zy auo
i shit, 42 Haw. 671, 122 (1958) (" (1) has been stated
that fraud is better left ondefined . . .'. (O]wing to the muleiform
Character of fraud and the great variety of ateendant circumstances no
Gefinition wnich ie all inclusive can be framed, But each case must De
Seternined on ite particular facte.").) (Citing 37 An. Jur. 2d rau and
Deceit $1 (2003
» an 1972, the Legislature reformed the HFC, including the
provisions under digcsseion, besed on the Model Penal Code. K-B. 20, 6th
Yeg-, Reg. Sess. (1972) ge& glge Commentary to HAS §§ 706-830 to ~833.
15
‘+44 FOR PUBLICATION ##*
fraud in MPC § 224, demonstrating that the treatment of
fraudulent behavior in MEC § 224 is designed to complement the
coverage of theft offenses set forth in MPC § 223. (Citing MPC
§ 224 introductory note (American Law Institute 1980).) Murphy
Construction argues that the drafters of the MPC viewed theft by
deception as a separate species of crime distinct from fraud and
hence not within the meaning of “fraud” in the tolling statute.
In reply, the prosecution points out that, according to
the introductory notes to MEC § 224, two of the fraud offenses -~
simulating objects and securing execution of documents by
deception -- are both characterized as lesser included offenses
of theft by deception. The prosecution argues that if, as the
Appellees contend, crimes of fraud are addressed in MEC § 224,
then fraud offenses are included within the definition of theft
by deception, and theft by deception itself becomes a species of
fravd.
Stan's Contracting invokes the conmentary to HRS
§ 708-230, see supra note 4, to establish that theft by deception
does not contain an element of fraud. It argues that
paragraph (1) is the repository of the traditional common law
fraud offenses of larceny, embezzlement, and fraudulent
conversion and that because the defendants were charged under
paragraph (2) ~~ through the use of the term “deception” in the
indictment, see supra note 5 -- there is no element of fraud
inherently present in the charged offense.
‘The prosecution retorts that the same commentary to HRS
§ 708-630 cited by the Appellees states that paragraph (2)
16
'*# BOR PUBLICATION ***
“covers the same kind of deprivation to a property.owner as that
covered in [paragraph] (1), except that the deprivation here
proscribed is accomplished by deception.” Therefore, the
prosecution argues, if Stan's Contracting is correct, then HRS
§ 708-830(2) is @ more fraudulent form of theft that includes the
fraud crimes of paragraph (1), accomplished as they are through
deception.
The Appellees also cite to this court’s holding in
Exeeman, 70 Haw. at 438-39, 774 P.2d at 891, that theft by
deception was not a lesser included offense of the charge of
fraudulent use of a credit card, because the two crimes required
different culpable states of mind. The prosecution urges that
Exeeman is not dispositive of the question whether theft by
deception is a crime of fraud, but only of the proposition that
“intent to defraud” and “intent to deceive” are not equivalent
states of mind; the correct analysis, the prosecution maintains,
must focus on whether theft by deception entails 2 requisite
state of mind that is compatible with the historical meaning of
“fraud.”
Murphy Construction, in turn, insists that the correct
analysis is not whether fraud subsumes a quality of deception,
but whether deception alone is fraud. Both answering briefs
i _urphy Constructios quing that fraud encompasses more than
ere deception by including the element of false or fraudulent
Feprecentations, also cites to Nolfer vs Wut. Life Ine, Co. of New York, 3
few. App. 65, 76, 681 P.20 1349, 1357 (1982)? "Actual fraud contemplate:
i including felse and fraudulent misrepresentacions.”
enphasis sdaed Gy Morphy Construction). This pacsege, however, cited as well
by the prosecution in its opening Brief, serves more to bolster the
prosecution's argusent that sctual fraud includes precisely the deception at
(continued.
uv
‘44 FOR PUBLICATION *#*
cite Shopee v. Gucci America, Inca, 94 Hawai'i 368, 386, 14 P.3d
1049, 1067 (2000), for the proposition that while deception may
be a component of fraud, fraud requires the additional elenent of
detrinental reliance. The prosecution's response is twofold:
(2) criminal fraud need not conform to civil fraud (eiting HRS
§ 701-102 (1993)) ("No behavior constitutes an offense unless it
is @ crime or violation under this Code or another statute of
00, see
this state.”); and (2) in the language of HRS § 708;
supra note 10, neither “intent to defraud” nor “deception”
require that detrimental reliance be proven.
b. Analysis
HRS § 708-800 does not contain a definition of the term
“fraud.” The circuit court, nevertheless, determined that the
existence of separate definitions of “intent to defraud” and
“deception” justified a conclusion that theft by deception did
not contain an element of fraud for the purposes of the tolling
statute. However, in doing so, the circuit court glossed over an
important aspect of the relationship between these two terms.
“Deception” is defined for the purposes of theft by deception as
occurring “when a person knowingly: . . . (2) [f]ails to correct
a false impression which the person previously created or
confirmed,” involving matters having pecuniary significance. HRS
(continued)
jcution also notes that if civil fraud can serve as a
frame of reference for analysie, then according to Cosme, Fin, Corp. 9,
Runnels, 2 Haw. Ape. 33, 625 2.24 390 (1961), "a statement or Claim OF
Gocunent is frauaulene if it is falsely made, of caused to be made, with the
intent to deceive.” 2 Haw. App. at 99, 625 F.2d at 396 (citing
Hawalian ing. Cos. 2 Haw. apps 355, 389-60, 19 P.2d 10B6, 1080. (1580)!
ae
The pe
‘** FOR PUBLICATION *#*
§ 708-800, see supra note 10. “Intent to defraud,” in turn, is
defined as “[ajn intent to use deception to injure another's
interest which has value . . . .” Id, (emphasis added). Boiled
down, “intent to defraud” is theft -~ i.e., injuring another’s
interest having pecuniary significance -- through the use of
deception.* Inasmuch as defrauding is defined as theft by :
deceiving, it is difficult te conclude that theft by deception is
not @ fraudulent act within the tolling provisions of HRS
§ 701-108(3) (a), see supra note 3.
In our view, the foregoing analysis demonstrates at
least that there is doubt, indistinctiveness, and uncertainty
with respect to the meaning of the term “fraud,” as it appears in
HRS § 701-108(3) (a), and that, therefore, an ambiguity exists as
to whether theft by deception falls under the tolling provision
We may therefore examine the legislative history of the statute
“as an interpretive tool in determining legislative intent.”
Gray, 84 Hawai'i at 151, 931 P.2d at $93 (internal quotations
omitted). We do this “in order to harmonize the wording of the
statute with the purposes and policies underlying [the
provision].” Peterson v. Hawaii Elec. Licht Co., 85 Hawai'i 322,
328, 944 P.2d 1265, 1271 (1997).
w_tihile in Ereeman, this court held that “intent to defraud” ss not
eoterminous with “intent to deprive” for purposes of determining thet thefe by
deception was not a lesser included offense of fraudulent use of # credit
card, 70 aw, at 438-35, 174 F.2d at €91, we have never addressed the question
weether the intent to deprive through the use of deception is a type of
fraudulent state of ming. We believe that it is, particularly in Tight of the
traditionally intertwined usage of the terms “fzaud" and “deceptions:
discussed aubre in part T12.A.1.a, at least for the purposes of tolling the
statute of limitations under RS $ 701-108 (21 Ca
19
‘#4 POR PUBLICATION *#*
2. . seraud
absurd and uniust results.
In addition to arguing that an ambiguity exists as to
the plain meaning of fraud in the tolling statute, the
prosecution further contends that the circuit court's
interpretation of fraud yields absurd and unjust results. We
concur.
‘The prosecution argues that the circuit court’s narrow
interpretation of “fraud” in the tolling statute excludes a
sizeable nunber of offenses involving clearly fraudulent
behavior, (Citing, inter alia, HRS §§ 19-3 (1993) ("Election
frauds”), 19-3.5 (1993) ("Voter fraud”), 231-34 (Supp. 1999)
(Attempt to defeat or evade tax”), 346-43.5 (1993) (“Medical
assistance frauds"), 431:10C-307.7 (Supp. 2000) (“Insurance
fraud”), 7108-870 (1993) (“Deceptive business practices"), 708-871
(1993) ("False advertising”), 708-873 (1993) ("Defrauding secured
creditors”), 708-874 (1993) (“Misapplication of entrusted
property”), and 708-8200 (1993) ("Cable television service
fraud”). The prosecution points out that the commentaries
accompanying two of the offenses within the rubric of “Business
and Commercial Frauds,” HRS $§ 708-871 and 708-673, suggest that
they are lesser or inchoate misdemeanor forms of theft by
deception. The circuit court's interpretation of HRS
§ 701-108(3) (a), however, would result in these misdemeanors
being tolled, while the felony offense of theft by deception
would not, merely due to the presence or absence of the phrase
“intent to defraud,” thereby rendering the scope of the tolling
20
‘4+ FOR PUBLICATION *¥¥
provision illogically restrictive. A more rational reading of
“fraud,” the prosecution argues, would encompass statutes that
describe fraudulent states of mind or conduct but that may not
expressly contain the word “fraud” or “defraud.”
‘The Appellees counter that while the circuit court’s
interpretation of HRS § 701-108(3) (a) excludes a nunber of :
statutes arguably dealing with fraudulent practices, it
nonetheless does apply to an equal number of offenses involving
fraud, which demonstrates that the circuit court’s interpretation
of the term is not illogically restrictive.”
Nevertheless, the fact that the circuit court’s
interpretation of the tolling statute extends to a number of
statutes involving fraudulent behavior is not itself dispositive
of the issue. More important is that the circuit court's
interpretation excludes felonies from tolling but includes:
misdemeanors by creating a false dichotomy between offenses that
expressly contain the phrase “intent to defraud” in the body of
the statute and those that do not. The interpretation urged by
» stan's contracting cites 2 host of offenses requiring an “intent
to defraud": HRS $§ 159-52 (¢) (1993) (neat inspection fraud)? 325-37 (1993)
(vaccinations and immunization fraud); 229-42(a) (3) (A) (Supp. 2000)
(Sontrslled substances. fraud)? 346E-16 (Supp. 1994) imureing facility tax
Fraud! 366-38 (a) (Supp. 1996) workers’ compensation fraud): 486~32(a) ()
(1383) (measurements fraud); 708-830(6) (Supp. 2001) (felony shoplifting) ;
708-855.6 (Supp. 2001) (telemarketing fraud); 708-€51 to -652. (Supp. 1997)
(first ang second degree forgery) 708-883 (1993) (third degree forgery):
208-855" (1995). (ersminal simulation) ; 708-856 (1993) (obtaining signatures by
Geception) ; 708-856 (1993) (fraudulent suppression of a testanentary oF
Fecordable instrument); 708-872 (1993) (falsifying Business records) ; 708-891
fo =891.5 (Supp. 2002) (conputer fraua)? 708-8100 (1993), (fraudulent use of @
Efedit card); "708-€100.5 (1983) (fraudulent encoding cf a credit card);
50s=810214) (2993) {eredit card theft); 708-8103 (1995) [creak card fraud by
a provider of goods snd services); 708-£202 to 8203 (Supp. 1996) (telecon
fxasa)
au
‘++ FOR PUBLICATION *
the prosecution would eliminate the absurd and unjust result of
subjecting those charged with misdemeanor infractions such as
falsifying business records, making false statements concerning
vaccinations, or tampering with commercial scales to extended ©
exposure to prosecution while those charged with voter fraud,
election fraud, insurance fraud, tax fraud, and other serious
crimes would be afforded early relief from the threat of
prosecution.
Therefore, wholly independent of the statutory
ambiguity discussed supra, and mindful of the language of HRS
§ 1-15(3) that “(e]very construction which leads to an absurdity
shall be rejected,”
tolling provision to determine legislative intent. See State v
Haugen, 104 Hawai'i 71, 77, 85 P.3d 178, 184 (2004) ("Inasmuch as
we may look beyond the language of the
a literal construction would produce an absurd and unjust result,
we are willing to lock beyond the plain, obvious, and unambiguous
Language of the statute and ascertain its underlying legislative
intent.”) (Internal quotations, citations, and brackets
omitted.) .
at 2o1-
to theft by deception,
While we “construe penal statutes narrowly, [we
analyze] them in the light of precedent, legislative history, and
common sense.” State v. Soto, 84 Hawai'i 229, 249, 933 P.2d 66,
86 (1997) (citing State v. Gavlord, 78 Hawai'i 127, 137, 890 P.24
1167, 1177 (1995)). “[T]he strict construction rule does not
permit the court to ignore legislative intent, nor require the
22
‘+#4 FOR PUBLICATION *#*
court to reject that construction that best harmonizes with the
design of the statute or the end sought to be achieved.” Gaylord
78 Hawai'i at 138-39, 890 P.2d at 1178-79 (citation and internal
quotations signals omitted) .
The prosecution maintains that the legislature intended
that any statutory offense involving fraudulent behavior
rendering the uncovering and prosecution of an offense
particularly challenging should fall under the tolling provision,
not just those that expressly contain the term “fraud.” The
prosecution cites Senate Judiciary Committee comments pertaining
to the 1986 amendments to HRS § 701-108(3) (a):
Cases involving fraud or breach of fiduciary
goty are sifficult co prosecute secause
7 Snumisieading
bookkeeping ana tvaudolent records. Extending ine
Seibeiatire and extent of cfiminel activicye
Sen. Stand. Comm. Rep. No. 1084-86, in 1986 Senate Journal, at
1283 (emphases added). The prosecution notes that the history of
the present case exemplifies the difficulties envisioned by the
legislature.
HRS § 701-104 requires that construction of the penal
code be “with reference to the purpose of the provision,” an
obligation reinforced by the conentary to HRS § 701-104, which
states that “[t]his section, read in conjunction with § 701-103,
is intended to assure that this Code will be construed by the
courts in such a way as to effectuate the declared purposes of
the law.”
23
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A review of the legislature's declared purpose of the
tolling statute supports a conclusion that theft by deception
falls within the fraud exception set forth in HRS
$ 701-108(3) (2).
The legislature has amended HRS $ 701-108(3) (a) twice
since its enactment in 1972, Effective May 30, 1986, the
legislature extended the tolling provision from one year
following discovery of the offense to two years and the maximum
tolling period from three years to six years. See 1986 Haw.
Sess. L. Act 296, $§ 1 and 4 at 543. Effective June 12, 1996,
the legislature further extended the tolling period, from two
years to three, and stated more expressly that the six-year
extension for discovery of the offense was consecutive to the
normal three-year period under HRS § 701-108(2), clarifying that
prosecution for crimes involving fraud and fiduciary breaches may
be possible for up to nine years from the date of the incident
giving rise to the charged offense. See 1996 Haw. Sess. L. Act
148, $8 1 and 3 at 325-26.
In recommending passage of the 1986 amendments, the
House Judiciary Committee noted that “[t]hese cases often require
review of financial records covering several years and sometines
records are difficult to obtain because they are in the
defendant's possession." Hse. Stand. Comm. Rep. No. 434-86, in
1986 House Journal, at 1184, Similar sentiments were expressed
by the Senate Judiciary Committee, see supra.
24
4" FOR PUBLICATION ***
In recommending passage of the 1996 amendments, the
Senate Judiciary Committee stated:
{Fler crines involving fraud and breach of fiduciary
Gury, it sometimes taker several years before the
Erine is uncovered. The Giscovery process for
Socunentary evidence is often tedious, voluminous and
aiefieult to unravel Since these complex
Grimes sonetines take years to uncover, snvestigate,
nd’ prove, your Committee Believes these factors
Narrant a reasonable extension of the statute of
Tinltatsone
Sen, Stand. Comm. Rep. No. 2030, in 1996 Senate Journal, at 987.
‘The House Judiciary Committee, for its part, noted that
the dnvestigation of fraud can be a complicated and
Jone, idesunvout process in whieh the investigstor
fellows the paper trail step-by-step as each new Lead
ig uncovered’ Fraud cases can involve many victims
and large losses. these cases should not be ended
Before getting off the ground because of statutory
tine Limitaesons
Hise. Stand. Comm. Rep. No. 1015-96, in 1996 House Journal, at
1430. The effect of these two amendments has been to extend the
time available to prosecute crines characterized by cover-up,
deception, and complex financial fact gathering.
‘The present matter is an exemplar of the type of crime
the legislature envisioned. Eviota has been convicted of using
the Appellees as conduits through which he issued false change
orders pursuant to state construction contracts. By way of these
fraudulent change orders, he billed the State as much as $700,000
for work never scheduled or completed and used the proceeds to
build three homes for himself in Ms‘ili. Uncovering the
cixcunstances of Eviota’s false billings involving the Appellees
obliged Sakai, a certified public accountant, to track multiple
Payments to bogus subcontractors, entailing, among other things,
25
‘88 FOR PUBLICATION
a trip to California to gather original tissue copies of sone of
the checks. Application of the conmon meaning of the term
“fraud” tolls the statute of limitations with respect to crimes
employing deception and subterfuge, including theft by deception,
thereby allowing the prosecution sufficient time to investigate
and charge parties to schenes like Eviota’s in clear accord with
the legislature’s intent
4 £ her =
sonclusion that theft by deception contains an “element
of fraud.”
In Wolfer v. Mut, Life Ins, Co. of New York, 3 Haw.
App. 65, 641 P.2d 1349 (1962), the Intermediate Court of Appeals
stated that “{alctual fraud contemplates intentional deception,
including false and fraudulent misrepresentations." 3 Haw. App.
at 76, 641 P.2d at 1357 see also Keanu v. Kamanoulu, 20 Haw. 108
(1910) (concluding that fraud “includes . . . misrepresentation
in all its varied forms, drawing this inference without
departure from any rules of law or common experience”); In zea
Male Minor Child, Born on February 14, 1971, 1 Haw. App. 364,
371, 619 P.2d 1092, 1097 (1980) ("By its nature, fraud involves
deception, which may not come to light during the year following
entry of a decree."); Kawaihae v, iawaiian Ins, Cos., 1 Haw. App.
355, 359-60, 619 P.2d 1086, 1090 (1980) ("TA statement is
“fraudulent” if it was falsely made, or caused to be made, with
the intent to deceive. Fraud is. . . a false representation of
a matter of fact . . . which deceives and is intended to deceive
another so that he shall act upon it to his legal injury.'”)
(quoting Black's Law Dictionary (Sth ed. 1979)).
26
FOR PUBLICATION *4*
Federal authority is in accord. tn Lord vs Goddard, 54
U.S. 198, 211 (1851), the United States Supreme Court put it
succinctly: “Fraud means an intention to deceive.” More recent
decisions of the courts of appeals are of the same bent. See
McClellan v. Cantrell, 217 F.3¢ 890, 893 (7th Cir. 2000) (noting
that Collier on Bankruptcy 523-25 (15th ed. 2000), “while .
assuming . . . that ‘actual fraud’ involves a misrepresentation,
defines the term much more broadly -- as ‘any deceit, artifice,
trick or design involving direct and active operation of the
mind, used to circumvent and cheat another’); Kenty v, Bank One,
92 F.3d 384, 389-80 [6th Cir. 1996) ("A scheme to defraud
consists of intentional fraud, consisting in deception
intentionally practiced to induce another to part with property
To allege intentional fraud, there must be proof of
misrepresentations or omissions which were reasonably calculated
to deceive persons of ordinary prudence and comprehension.”)
(internal quotation signals and citations omitted); United states
Ye Dial, 757 F.26 163, 168 (7th Cir. 1985) ("Fraud in the common
law sense of deceit is committed by deliberately misleading
another by words, by acts, or . . . by silence.”); Blachly v
United States, 360 F.2d 665, 671 (Sth Cir. 1967) (defining a
scheme to defraud as one “accomplished by the most base form of
deceit -- a misrepresentation”).
Finally, State vs Wilson, $73 N.W.2d 248, 252 (Iowa
1998), and Commonwealth v. Volk, 444 A.2d 1162, 1187 (Pa. Super.
ct. 1982), both interpret theft by deception and tolling
- in Wilson, without
provisions similar to Hawaii's and conclude
27
‘44 FOR PUBLICATION *#*
dispute between the parties
that fraud is a component of theft
by deception.
Ultimately, any determination that theft by deception
contains an element of fraud must comport with the definition of
“element” set forth in HRS § 702-205 (1993): “such (1)
conduct [] (2) attendant circumstances(;] and (3) results of
conduct, as: (a) [a]re specified by the definition of the
offense[;] and (b) [nlegative a defense (other than a defense
based on the statute of limitations, lack of venue, or lack of
jurisdiction) .”
In State v. Aiwohi, 109 Hawai'i 115, 126-28, 123 P.3¢
1210, 1221-23 (2008), we revisited the distinctions between
conduct, attendant circumstances, and results of conduct. See
also 109 Hawai'i at 130-33, 123 P.3d at 1225-28 (Levinson, J.,
concurring); 109 Hawai'i at 133-37, 123 P.3d at 1228-32 (Acoba,
J.» concurring). As we noted in Aivohi, “*the distinction
between conduct and attendant circumstances or result is not
always a bright one.’" 109 Hawai'i at 126, 123 P.3d at 1222
(quoting Model Penal Code § 2.02 cmt. 3 (1962)). Nevertheless,
in this instance it is evident that deception represents a
conduct element of HRS $ 708-830(2) in that it is the accused’s
deceptive conduct in securing the property that gives rise to
penal responsibility, and, pursuant to our analysis, supra, the
common meaning of the term “fraud” encompasses intentionally
deceptive conduct.
Therefore theft by deception, containing an
28
‘4+ FOR PUBLICATION +
element of fraudulent conduct, invokes the tolling provision of
HRS § 701-108(3) (a) as a “crime, an element of which is fraud.”
Sonclusion
Accordingly, we hold that the circuit court erred in
concluding that theft by deception does not constitute = form of
fraud so as to qualify for the tolling provisions of HRS
§ 701-108(3) (a). We hold that for purposes of the tolling
provision, the fraudulent component of HRS § 708-630(2) is the
use of deception in the taking of property.
B. Th wer Lint =
1, The prosecution's contentions
‘The prosecution argues that the requirements of the due
process clause of article 1, section 14 of the Hawai'i
Constitution are fulfilled when an indictment “*contains the
elements of the offense intended to be charged, and sufficiently
apprises the defendant of what he or she must be prepared to
meet’” (quoting State v. Wells, 78 Hawai'i 373, 379-80, 894 P.2d
70, 76-77 (1995) (brackets omitted)) and that, if the indictment
tracks the language of the statute alleged to have been violated,
the indictment is sufficient (citing State v. Silva, 67 Haw. 581,
585, 698 P.2d 293, 296 (1985); State v. Treat, 67 Haw. 119, 680
P.2d 250 (1984); State v, Robins, 66 Haw. 312, 600 P.2d 39
(1983).
‘The prosecution also asserts that the HPC does not
require it to allege limitation-tolling facts in the indictment.
‘The prosecution argues that if, pursuant to HRS § 806-29
28
‘FOR PUBLICATION +¥+
(1993), it is not required to aver facts as to exceptions or
excuses contained within a statute describing an offense, a
fortiori it need not aver facts as to non-elements of the offense
contained in separate statutes. Rather, the prosecution insists,
“*Limitations are imposed by independent statute... . [T]hey
are matters of defense, and avoidance need not be alleged in the
indictment.’” (Quoting People v. Kohut, 262 N.E.2d 312, 315
(W.-Y. 1972).) Statutes of limitation are not fundamental rights,
the prosecution urges, nor are they jurisdictional, but they may
be waived by a defendant, reflecting their status as defenses
rather than fundamental elenents of an offense. (Citing State ve
‘Dimoteo, 87 Hawai'i 108, 113-14, 952 P.24 865, 870-71 (1997).)
The prosecution insists that it met the requirements of HRS
§ 806-34 (1993) simply by setting forth the charge with
sufficient detail as to time, place, and circumstances so as to
RS § 606-29 provides:
Exceptions need not be negatived. to indictnent for any offense
creates or defined by statute shall be deened objectionable for the
Feason that it fsile to negative any exception, excuse, or proviso
Contesned in the statute creating cr defining the offense. The fact
that the charge is made shall be considered as an allegation that ne
Tegal encase for the doing of the act existed in a particular case.
ans § 206-38 proviaes:
Sofficiency of avernents az to offente and transaction. In
fan indictnent che offense may be charged either by name or by
Eeference to the statute defining or making it punishable; and the
transaction may be states with so much detail of time, place, and
Sirconstances and such particulars as to the person (if any)
Against when, and the thing (if any) in respect to which the
Offense war Committed, as are necessary to identify the
Exansaction, co Bring it within the statutory definition of the
Gifense charges, to show that the coart has jurisdiction, and to
give the accused reasonable notice of the facts,
‘Rverments which so charge she offense and the transaction
be neld to be sufficient
sha
30
‘48 FOR PUBLICATION *#*
Give the accused reasonable notice of the facts
2. The informs jury wi
sufficient to-satiefy article I, sections 10 and 14
wai” ity
Article I, section 10 of the Hawai'i Constitution
provides in relevant part that “[nJo person shall be held to
answer for a capital or otherwise infamous crime(] unless on a
presentment or indictment of a grand jury or upon a finding of
probable cause after a preliminary hearing held as provided by
law." We have said that “an indictment must be specific enough
to ensure that the grand jury had before it all the facts
necessary to find probable cause.” State v. Israel, 78 Hawai'i
66, 73, 890 P.2d 303, 310 (1995) (citing State v. Kane, 3 Haw.
App. 450, 457, 652 P.2d 642, 647 (1982)). Furthermore, HRS
§ 806-34, see supra note 19, states that an indictment must set
forth the details of the transaction involving the defendant
‘with so much detail of time, place, and circumstances . . . as
are necessary to identify the transaction, to bring it within the
statutory definition of the offense charged, to show that the
court has jurisdiction, and to give the accused reasonable notice
of the facts.” This requirement is grounded in article 1,
section 14 of the Hawai'i Constitution, which requires that “{iln
all criminal prosecutions, the accused shall enjoy the right
|.» « to be informed of the nature and cause of the
on November 2, 2004, Senate Bill No. 2851, anending article 1,
section 10 to allow inaictnent ty written information by s prosecuting
Giticer, was approved by the Voters ins general election. Se 2004 Haw.
Sere. Ll, ae 1085,
a
‘+## FOR PUBLICATION #44
accusation.” In order to honor this right, an indictment must
“apprise the accused of the charges against him, so that he may
adequately prepare his defense.” State v, Vanstory, 91 Hawai'i
33, 44, 979 P.2d 1088, 1070 (1999) (quoting State v. Sword, 68
Haw. 343, 345, 713 P.2d 432, 434 (1986)). Nevertheless, we have
not yet identified which of the substantive components set forth
An HRS § 701-114(1), gee supra note 9, must be factually alleged
in the indictment to ensure that the due process requirement of
article 1, section 14 is fulfilled and, pursuant to article I,
section 10, “to ensure that the grand jury has before it all the
facts necessary to find probable cause.” Israel, 78 Hawai'i at
73, 890 P.24 310,
An indictment must enable a grand jury to determine
that probable cause exists that the accused committed a violation
of the charged offense both as to the elements of the offense and
the concomitant culpable state of mind. See Ontai, 84 Hawai'i at
63, 929 P.2d at 76 ("Probable cause is established by ‘a state of
facts as would lead a person of ordinary caution or prudence to
believe and conscientiously entertain @ strong suspicion of the
guilt of the accused.’") (quoting State v. Chung, 75 Haw. 398,
409-10, 962 P.2d 1063, 1070 (1993)); State vs Araki, 62 Hawal't
474, 482, 923 P.2d 891, 899 (1996) ("Probable cause has been
established when it can be said that a reasonable and prudent
on Novenber 2, 2004, articie 1, section 14 was amended by
ratification of the electorace in respects’ immaterial to che present matter |
See 2000 aw. Sess. Lay at 1086
32 |
44+ FOR PUBLICATION ***
person viewing the evidence would have a strong suspicion that @
crime has been conmitted.”); Kane, 3 Haw. App. at 458, 652 P.2d
at 648 (holding that the grand jury had sufficient facts to find
probable cause that the defendant had committed a violation of
HRS § 134-9, relating to firearms possession); State v. Okumura,
59 Haw. 549, 550, 584 P.2d 117, 119 (1978) (A grand jury
indictment must be based on probable cause . . . [, meaning such
facts necessary) to believe and conscientiously entertain a
strong suspicion of guilt of the accused.”) (Internal citation
omitted.). Because “conscientiously entertain{ing] a strong
suspicion of guilt of the accused” necessitates establishing a
Likelihood that (1) all elements of the charged offense are
Present and (2) the accused possessed the requisite state of mind
as to each element of the charged offense, an indictment must,
ipso facto, aver facts sufficient to permit the grand jury to
find probable cause both as to the elements of the charged
offense and to the accused’s state of mind.
b. Jurisdiction and venue
In addition to alleging the elements of the charged
offense, the plain language of HRS § 806-34 requires that an
indictment aver facts sufficient to “show that the court has
jurisdiction.” In turn, HRPP Rule 12(b) (2), see supra note 6,
allows motions to dismiss based on jurisdictional defects at any
time during the pendency of the proceedings. Indeed,
“jurisdiction of the offense charged and of the person of the
accused is @ fundamental and indispensable prerequisite to a
valid prosecution.” Adame v. State, 103 Hawai'i 214, 221, 81
33
444 FOR PUBLICATION +++
P.3d 394, 401 (2003) (citing State v, Mevers, 72 Haw. 591, 593,
825 P.2d 1062, 1064 (1992) (citations omitted)).
Venue too mist be established for an indictment to be
sufficient, though, under Hawai'i law, venue rides the coattail’s
of jurisdiction: HRS § 806-16 (1993) states that “[i]t shall not
be necessary to state any venue in the body of any indictment,
but the jurisdiction named in the margin thereof shall be taken
to be the venue for all facts stated in the body of the
indictment.”
Finally, article I, section 14 of the Hawai‘i
Constitution requires that,
ijn a2 ceiminal prosecstions, the accused
all enjoy the Fight to'a speedy and public trial by
Sn inpareiai jury ef the district whecein the erie
shall have’ been, Committed
hich district shal) have
been -crevicusly ssceztsined Py tamer of sect other
@istrict to which the prosecution may be renoved with
the consent of the aectsed sss
(Bmphasis added.) A plain reading of this language supports the
conclusion that proper venue must be ascertained before a
prosecution at trial may lawfully proceed.
HRS § 806-17 (2995) provides in relevant part that “(t]he Judicial
circuits of the State established by (HAS §) 603-1 are deened to be the
“districts” referred to in Article I, section 14, of the Constitution of the
Other states have taken the position that venue must be alleged in an
indictnont. “See, gua, State v. WebE, 915 S.W.26 255, 262 (Ack. 1996); Crouse
waState, 611 s-£.24 113, 116 (Ga. ce: App. 2005); Weaver v, State, 503 N-E.ze
136, 141 (Ind. 1991). It is wel! settled, on the other hand, that federal
indictments need not ‘allege verue. See, £.c., United States vw. Brenan, «57
Fiza 1062, 10es (eth Cir. 1972); Sonphuii o, Uniteg states, 392 F.20 45, 47
UGth Cer. 1968)7 Carboy. Unised fates, Sid Fiza Tie, 733 (9th Cir. 1963).
34
484 FOR PUBLICATION ##*
It is true, as the prosecution urges, that an
indictment need not allege facts golely related to negating
defenses that may be raised by the accused. State v. Adams, 64
Haw. 568, 571, 645 P.2d 308, 309 (1982) (“It has long been held
that indictments need not anticipate and negate possible
defenses; rather, it is left to the defendant to show his
defenses at trial."). It is equally true that the statute of
Limitations is a waivable affirmative defense. See Adams vs.
State, 103 Hawai'i at 226, @1 P.3d at 406 (citing Acevedo-Ramos
vs United States, 961 F.2d 305, 307-09 (1st. Cir. 1992)
(concluding that statute of limitations is a waivable affirmative
defense) }; Timotes, 87 Hawai'i at 115-16, 952 P.2d at 872-73
(holding “that [the defendant] waived the statute of limitations
for the time-barred lesser included offense of simple trespass by
requesting that the trial court instruct the jury on it”).
Nevertheless, while statutes of limitation may be
invoked, and waived, as affirmative defenses, that is not the sum
total of their nature or function. As set forth in HRS
§ 701-114(1) (e), the timeliness of the prosecution in
satisfaction of HRS § 701-108 constitutes a baseline substantive
component that the prosecution must prove beyond a reasonable
doubt at trial; silence by the defendant on the issue of
timeliness does not relieve the prosecution of its burden of
proving that component. Rather, facts establishing timeliness,
Like facte establishing jurisdiction, must be averred in order to
35
‘++ FOR PUBLICATION ##+
fulfill due process notice requirements.” This court’s holding
in Kaakinaka implicitly established this proposition.
In Kaakimaka, the defendant was charged, inter alia,
with conspiracy to commit second degree murder, in violation of
HRS § 705-520 (1993), three years and eleven months after the
victin’s murder, Pursuant to HRS § 701-108(2) (e), see supra
note 3, prosecution for conspiracy to comnit second decree
murder, as an unclassified felony, had a statutory limit of three
years. Therefore, in an effort to preserve the conspiracy charge
in the face of the three-year Limit, the prosecution alleged that
the conspiracy included an underlying felony of concealment of
murder which ran continuously past the date of the murder such
that the statute of Limitations had not expired by the tine of
the indictment.
% the eizeuit court reached # sinilar conclusion in its COL No. 10,
sypia part c, relying in part on Bowers, 718 Sc. 2¢ 285, and Hoss, 469 8.6.20
525: Esuers' and fous reflect a long tradition in Florida and Georsia,
Fespectively, of requiring the State to allege statute of limitation
exceptions in the indictment if the exception will be relied upon at trial.
Bowers, 716 So. 24 at 256 ("An information must show on its face that the
Prosecution hac begun within the statute of limteations or must allege facts
Eovshow that the statute was tolled."); Moss, 469 8.£.2d at 326 ("It has. long
been the law in Georgia ‘in a crininal case, where an exception is relied upon
fo prevent the bar of the statute of limitations, it must be slleged and
proved."") (quoting Hollingsworth v State, €5 8:8. 1077, 1077 (Ga. Ct. APP.
1509)
% HRS § 105-820 provides:
A person ts guttty of criminal conspiracy if, with intent to
promote Gr facilitate
Tay he agrees with one Gr more persons het they or one or nore of
them will engage in or solicit the conduct or will cause or
Solicit the fesslt specified by the definition of the offens.
(2) fe of another person with whom he
in pursuance of the conspiracy.
(Emphasis added.)
36
‘** FOR PUBLICATION
‘This court held that because “concealment” was not an
identifiable underlying felony offense set forth in the HPC, as
required by HRS § 705-520, see supra note 24, the indictment vas
insufficient. 04 Hawai'i at 293, 933 P.2d at 630, This court
demanded specificity as to which particular felony underlay the
conspiracy charge because of the correlative nature of punishment
for a conspiracy conviction, where “the grade and class of the
conspiracy is contingent upon the grade and class of the most
serious underlying offense that is an object of the conspiracy.”
84 Hawai'i at 295, 933 P.2d at 632 (citing HRS § 705-526
(2993). Thus, we ruled that failure to aver an identifiable
underlying offense “deprives the defendant of notice of the class
and grade of conspiracy and, therefore, deprives him or her of
notice of the possible punishment and the statute of limitations.
Such failure to notify a defendant of the charges he or she must
prepare to meet deprives him or her of due process.” Id.
our decision in Kaakimaka supports the proposition that
an indictment is insufficient if: (1) on its face, it ts
untimely: and (2) it fails to allege facts that invoke an
exception to the standard statute of limitations set forth in HRS
RS § 705-526 provided:
(2) A conspizacy to commit « class A felony is a class 8 felony.
(2) Except as provided in [paragraph} (1), conspiracy to commits
crine 1s/an offense of the sane class and grade as the nest serious
offence which is an ebject of the conspiracy
Extective June 16, 1997, the legislature amended HRS § 705-526 to make
Conspiracy to conmit murder in any degree a class A felony. See 1997 Haw.
Sesse L. Act 249, $5 3 and 9 at 290-91. Nevertheless, the anendnent does not
affect the centre] holding of Kaakinaka: failure to silege facts in an
Indictment invoking exceptions te the statute of limitations relied upon by
ihe prosecution resders the indictment insufficient on due process grounds
3
‘** FOR PUBLICATION ***
§ 701-108(2) so that “[the accused] may adequately prepare his
lor her} defense,” Yanstory, $1 Hawai'i at 44, 979 P.2d at 1070,
as required by due process. That is because facts necessary
adequately to prepare a defense include those that put the
accused on notice as to any exception to the applicable statute
of limitations upon which the prosecution is relying.
We therefore hold that, on the facts before us, when
the charged offense is theft by deception, as defined by HRS
§ 708-830(2), and the prosecution is relying on the tolling
provision of HRS § 702-108(3)(a}, relating to “[alny offense an
element of which is. . . fraud,” the prosecution must not only
allege the timely date or dates of commission of the offense in
the indictment, but also the earliest date of the “discovery of
the offense by an aggrieved party or . . . a person who has a
tegal duty to represent [the] aggrieved party.” Inasmuch as the
indictment in the present matter failed to aver facts pertaining
to the date of discovery of the aggrieved party, DAGS, the
circuit court correctly determined that it was insufficient.#
‘The indictment alleged sufficient facts to put the Appellees on
notice as to which statute of limitations exception the prosecution wes,
Felying spon. Farsuant te sur holding in pare 1i]-Acé, supra, that theft by
deception is an “offense an elenent of which is... fraud,” alleging theft
by deception invoked the Traud exception of HRS § 30i-108(3)(a) and served to
put the Appellees on notice that, because on ite face the indictment was
Untimely, the prosecution was relying on the fraud exception to preser™
timeliness. The Appeliess expressly recognized that reliance in their
fo'disnies, See discussion anira in pare Ji!08.5
38
‘48 FOR PUBLICATION ##*
An insufficient indictment can be cured. This court
stated in Treat that,
in determining whether the accused's right to be
Informed of the nature and cause of the accusation
agninet him hos been violated, we must lock to all of
the information supplied to nim by the State to the
point where the court passes pon the contention that
hie rignt hae been violates.
67 Haw. at 120, 680 P.2d at 251 (quoting Robins, 66 Haw. at 317,
660 P.2d at 42-43); see also State v. Elliott, 77 Hawai'i 309,
312, 884 P.2d 372, 375 (1994) ("One way in which an otherwise
deficient count can be reasonably construed to charge a crime is
by examination of the charge as a whole.”); State v. Abellira, 67
Haw. 105, 106, 678 P.2d 1087, 1088 (1984) (holding that grand
jury transcripts supplied to defendants served to fully apprise
them of the nature of the charges). In weighing the curative
effect of the supplemental information provided to the accused we
consider only the facts of which the accused is placed on actual
knowledge. Israel, 78 Hawai'i at 70-73, 890 P.2d at 307-10
(citing State v. Tuya, 3 Haw. App. 287, 292, 649 P.2d 1180, 1184
(1982).
Under the tests enunciated in Treat and Israel, the
Appellees had actual knowledge of the prosecution's reliance on
the fraud exception. On June 19, 2002, Stan’s Contracting filed
its motion to dismiss on the grounds that the statute of
Limitations had run and that the fraud exception under HRS
§ 701-108(3) (a), see supra note 3, did not apply to theft by
38
+++ FOR PUBLICATION ++*
deception. On July 24, 2002, Murphy Construction joined that
motion. In the motion, the Appellees acknowledged that the
prosecution was relying on HRS § 701-108 (3) (a) for its authority
to prosecute these charges. .
The indictment, however, is devoid of any facts
averring when the alleged involvement of the Appellees: in
Eviota's scheme was first discovered and, therefore, provides no
facts that, if proven at trial, would establish that the extended
Limitation period had net expired. The prosecution, at the July
26, 2002 hearing, attempted to cure this deficiency through an
offer of proof that Ho first “determined there was sone criminal
Liability on the part of [the Appellees]” on February 14, 2000.
Under HRS § 701-108(3) (a), the period to indict would run until
February 14, 2003, and the States prosecution would therefore be
timely inasmuch as it began on May 15, 2002.
However, under HRS § 701-108(3) (a), the extension
begins to run when either the “aggrieved party” ox the “person
who has @ legal duty to represent (the) aggrieved party”
discovers the scheme. The prosecution's offer of proof
established, at most, when Ho, as an agent of the Department of
the Attorney General, “discover(ed) . . . the offense,” not when
the aggrieved party itself, DAGS, learned of the scheme.
Therefore, to cure the indictment, an affirnative offer of proof
was required that no representative of DAGS had discovered the
alleged involvement of the Appellees prior to May 15, 1999.
Absent such facts, the indictment did not sufficiently allege
that the prosecution was timely
40
44+ FOR PUBLICATION ***
‘Therefore, the circuit court correctly concluded that
the prosecution's offer of proof failed to cure the insufficient
indictment.
IV. CONCLUSTON
Accordingly, we affirm the August 9, 2002 order of the
circuit court granting the Appellees’ motion to dismiss the
indictment with prejudice.
on the briefs:
Adina L.K. Cunninghan
Deputy Attorney General,
for the plaintiff-appellant
State of Hawai'i
David J. Minkin, of MeCorriston
Miller Mukai MacKinnon,
for the defendants-appellees
Stan's Contracting and Roy Shioi
William A. Harrison, of Harrison
& Mateucka, for the defendants~
appellees G.W. Murphy
Construction Co., John Patrick
Henderson, and Mark L. Henderson
a
Sp
BP Larcnee—
Pecseuse oN salsbep men
aon
Game, Dues Gs
|
30aa2d92-e6ad-4625-bb9b-1c0bf6a2b936 | Office Disciplinary Counsel v. Roberts | hawaii | Hawaii Supreme Court | No. 22927
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
...__—————
OFFICE OF DISCIPLINARY COUNSEL, Petitioner,
PETER E. ROBERTS, Respondent
(DC 00-033-6379, 00-034-6380, 00-035-6361, 03-339%7939)
on USPS!
(ay: Acoba, Acting C.J., Duffy, J., First
Circuit Judges Waldorf, Chang, and Ayabe, in
Place of Moon, C.J., Levinson, J., and
Nakayama, J., Respectively, Recused)
upon consideration of the Disciplinary Board’s Report
and Recommendation for the Suspension of Peter B. Roberts From
the Practice of Law for a Period of One Year and One Day, the
exhibits thereto, the record, and Respondent Roberts’ lack of
objection thereto, it appears Respondent Roberts failed to
provide competent representation, failed to act with reasonable
diligence and promptness in representing his clients, failed to
keep clients reasonably informed about the status of matters and
promptly comply with reasonable requests for information, failed
to explain matters to the extent reasonably necessary to permit
clients to make informed decisions regarding the representation:
failed to take step to the extent practicable to protect clients’
interests upon termination of representation, failed to make
reasonable efforts to expedite Litigation, knowingly disobeyed
obligations under the rules of a tribunal, failed to respond to
aad
Disciplinary Counsel's lawful denands for information, and failed
to cooperate during the course of the ethics investigations in
violation of Rules 1.1, 1.3, 1.4(a), 1-4(b), 1-16(d), 3.2,
3.4(e), 8.1(b), 6.4 (a), and 8.4(4) of the Hawai'i Rules of
Professional Conduct. It further appears that there were
multiple acts of unethical behavior, a pattern of misconduct, bad
faith obstruction on the disciplinary proceeding by intentionally
failing to comply with rules or orders of the disciplinary
agency, and vulnerable clients. Respondent Roberts also refuses
to acknowledge the wrongful nature of his conduct despite his
substantial experience in the practice of law. Finally,
Respondent Roberts has prior discipline involving sinilar
professional misconduct (a five year suspension in 1999 and
informal admonitions in 1994 and 1995). Finally, it appears from
our record that Respondent Roberts was suspended effective
January 12, 2000 and has not been reinstated. Therefore,
IT IS HEREBY ORDERED that Peter E. Roberts is
innediately suspended from the practice of law in this
jurisdiction for one year and one day.
IT IS FURTHER ORDERED that in addition to any other
requirenents for reinstatement inposed by our Rules, Respondent
Roberts shall pay for all costs relating to this proceeding, as
reconmended by the Board.
I 1S FINALLY ORDERED that Respondent Roberts shall,
within ten (10) days after the date of this order, file with this
court an affidavit in full compliance with RSCH 2.16(d).
DATED: Honolulu, Hawai'i, June 28, 2006.
moe
Gans, Datiyi he
GO
fe
|
329c5212-5d3c-4318-8a4f-a4ae17d71c17 | State v. Williams | hawaii | Hawaii Supreme Court | No. 27107
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
DAVID VERDEN WILLIAMS, JR., Petitioner/Defendant-Appellant
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 03-1-2668)
R_WRIT OF CERTI:
(By: Duffy, J. for the court")
Petitioner/Defendant-Appellant’s application for writ
of certiorari filed on June 20, 2006, is hereby denied.
DATED: Honolulu, Hawai'i, June 30, 2006.
Shawn A. Luiz FOR THE COURT: at
for petitioner/
defendant-appeliant Gere dutty //
on the application tion ~
Associate Justice
al
hp
es:0)
Considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 23.
ane
21)
|
24df6494-0139-4a59-8c1e-b0959d6f95d6 | State v. Chatman | hawaii | Hawaii Supreme Court | *NOT FOR PUBLICATION IN IEST HAWAII REPORTS AND PACIFIC REPORTER®
No. 26763
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAI'I, Plaintift-Appellee
vs.
3d
ANTHONY CHATMAN, Defendant-Appellant }
APPEAL FROM THE FIRST CIRCUIT couRT §| =
(FC-CR. NO, 02-1-0011; CR. NO, 02-1-2383)
Jd.
MEMORANDUM OPINION
Levinson, Nakayama, and Duffy,
(By: Moon, C.J.
J. Concurring Separately)
With Acoba,
Defendant-appellant Anthony Chatman appeals fron the
Circuit Court of the First Circuit’s July 19, 2004 judgment of
conviction and sentence’ of life imprisonment with the
possibility of parole and a fifteen-year mandatory minimun for
attempted murder in the second degree, Hawai'i Revised statutes
(HRS) §§ 707-701.5 (1993)? and 705-500(2) (1993)? in FC-cr.
\ the Honorable Karen 5.5. Ahn presided over this matter
} Rs § 707-701.5, entitled "Murder in the second degree,” provides in
relevant part
(2)... (81 person commits the offense of aurder in the second
degree if the person intentionally oF knowingly causes the death of
another person:
+ RS $ 708-500(2) provides in relevant part:
nen cousing a particular result is an element of the crine, 2
person se guilty of an attempt to commit the crise if, acting with
Che state of mind required to establish liability with respect to
the attendant circunstances specified in the definition of the
Grine, he person intentionally engages in conduct which 1s 2
(continued.
*NOT FOR PUBLICATION IN WEST HAWAIT REPORTS AND PACIFIC REPORTER*
No. 021-0011; and sentences of five years’ imprisonment each for
bribery of a witness, HRS § 710-1070(1) (1993),* intimidating 2
witness, HRS § 710-1071 (1993),* and extortion in the second
degree, HRS $§ 707-766(1) (b) (1993) and 707-764(2) (Supp. 2001)"
in Cr, No. 02-1-2353, to run concurrently with each other and
consecutively with the sentence in FC-Cr. No. 02-1-0011. On
D1. scontinved)
Cubstantial step in = course of conduct intended or known to cause
such a result.
“Rs § 710-1070(2) provides in relevant part
A person commits the offense of bribing 2 witness if he
confers, or offers oF agrees to confer, directly or indirectiy,
Gny benefit pon a witness or a person he believes is about to’ be
Galled af a witness in any official proceedings with intent to
{al Influence the testimony of that person:
[B} Induce that person to avoid legal process sunnoning him to
testify: oF
fc) Tnduce thst person to absent himself from an official
proceeding to which he hi
been legally susmoned,
+ Re § 720-2071 provides in relevant part:
(2) A person commits the offense of int: a witness
Af ne Uses force upon or a threat directed to a witness or a
person he believes ss about to be called as a witness in any
Stticlal proceeding with intent to:
(a) Influence the testimony of that person:
(b) Induce that person to avoid legal process summoning
him to testify; oe
(c) Induce that person to absent himself from an official
proceading to which he has been legally. summoned.
(2) "threat" ae usec in this section means any threat
proscribed by section 707
eat)
uns § 707-766(2) (B) provides that “[a] person commits the offense of
extortion in the second degree if the person commits extortion... [als set
forth in section 107-764(2) <=
wns § 707-7642) provides that a person commits extortion if the
person “[i]atentionally compels or induces another person to engage in conduct
Prem which another hase legel right to abstain or to abstain from conduct in
hich another has a legal right to engage by threatening by word or conduct te
Up any of the actions fet forth in {HRS '§ 707-764(1) (a) through (k) J”
2
=NOT FOR PUBLICATION IN WEST HAWAIT REPORTS AND PACIFIC REPORTER*
eee
appeal, Chatman contends that the circuit court: (1) erred when
ie requested that Chatman’s brother Wesley and Wesley's
girlfriend, Victoria Filoteo, leave the courtroom, in violation
of Chatman’s constitutional right to a public trial, based on the
fact that Filoteo and one of the jurors, Jacom Reyes, were
acquainted; (2) abused its discretion when it denied Chatman‘ s
motion for a mistrial after Asahi Suzuki (Suzuki) testified to a
prior bad act by Chatman in violation of Hawai'i Rules of
Evidence (HRE) Rules 402, 403, and 404(b); (3) abused its
discretion when it excluded the written statement of an
unavailable witness, Eri Gunji, when the statement was relevant
and admissible under a catch-all exception to the hearsay rule,
HRE Rule 804(b) (8); (4) abused its discretion when it ellowed a
police officer, Tai Nguyen, to testify as to his opinion and
impression regarding Suzuki's state of mind; (5) plainly erred
when it allowed testimony that witness for the defense, Eugene
Rupak, had been arrested and was in custody in that such
testimony was irrelevant and overwhelmingly prejudicial;
(6) erred when it allowed Chatman’s ex-wife, Kaori Takenaka, to
give @ lay opinion on rebuttal that a letter purportedly written
by suzuki did not appear to be written in language natural for
Japanese person; (7) abused its discretion in admitting evidence
that Chatman had previously assaulted Suzuki because such
“NOT FOR PUBLICATION IN WEST HAWAIT REPORTS AND PACIFIC REPORTER*
evidence was irrelevant, unduly prejudicial, and improper
character-propensity evidence: (8) violated Chatman’s right to a
fair trial due to the individual and cumulative impact of the
foregoing seven errors; (9) erred when it failed to instruct the
jury on the merger of the intimidation and extortion counts as
required by HRS § 701-109 (1993); and (10) erred when it denied
his motion for a mistrial due to prosecutorial misconduct based
con (a) Amproper elicitation, during cross-examination, of
references to Chatman’ s assertion of his fifth amendment
privilege against self-incrimination, and (b) several improper,
prejudicial renarks made during closing argument. For his
eleventh point of error, Chatman argues that his trial counsel's
failure to secure the attendance and testimony of Gunji at trial
and other witnesses at the hearing on his motion for a new trial
due to juror misconduct constituted ineffective assistance of
counsel. The State of Hawai'i (hereinafter, the prosecution]
counters that there was no error or alternatively that any error
was harmless, and, in the case of the alleged merger error, the
proper renedy, assuming the jury instruction was flawed, would be
vacatur of one of the convictions rather than remand for 2 new
trial.
Based on the following, we affirm the circuit court's
judgment, except that: (1) Chatman’s conviction and sentence for
NOT FOR PUBLICATION IN WEST HAWAIT REPORTS AND PACIFIC REPORTER*
—_—_— SSeS
extortion in the second degree in Cr. No. 2-1-2353 is vacated:
and (2) Chatman’s ineffective assistance claim is denied without
prejudice to a subsequent Hawai'i Rules of Penal Procedure (HRPP)
Rule 40 petition.
T. BACKGROUND
on April 26, 2002, the prosecution filed a complaint in
the family court of the first circuit, docketed as FC-Cr.
tio, 2-1-0011, charging Chatman with the attempted murder of his
infant son, Taigon Suzuki (Taison), based on conduct occurring
between April 6 and April 8, 2002. On October 29, 2002, the
prosecution secured a grand jury indictment against Chatman,
docketed in the circuit court of the first circuit as Cr.
No, 02-21-2353, for bribing, extorting, and intimidating Taison’s
mother, Suzuki, between September 3 and October 20, 2002, in
order to influence or prevent her testimony at his upcoming trial
in FC-Cr, No. 02-1-0011.' On December 30, 2002, the circuit
court orally granted the prosecution’s motion to consolidate
cr. No. 02-1-2353 for trial with FC-Cr. No. 02~1-0011, which had
already been committed from family court to circuit court.
Chatman was e120 charged in Cr. No. 02-1-2353 with abuse of
househoid menber in violation of HRS § 708-806 (1993), but was found not
BaLItp oe that charge at teiel due to its merger with the intimidation charge.
“NOT FOR PUBLICATION IN WEST HAWAIT REPORTS AND PACIFIC REPORTER*
A, The Prosecution’s Case
Chatman’s four-week jury trial began on May 29, 2003,
and the prosecution, after opening statenents, presented the
following case in chief.
Suzuki's Testimony, Part 1°
Through an interpreter, Suzuki gave the following
testimony, She met Chatman at a WaikIkI nightclub in June 2000
while on vacation from her native Japan. Chatman accompanied her
and a friend back to their room at the Ambassador Hotel, where
Chatman spent a long time, mostly talking with Suzuki's friend.
When the prosecution asked whether she saw Chatman after he left
the room, she replied, “I think I had alcohol that night and 1
fell asleep. And the next thing I noticed that he was on top of
me and -~[.1"
Suzuki's reply was interrupted at this point by
defense counsel's objection. When the trial judge called counsel
for a bench conference, the defense moved for a mistrial, arguing
that Suzuki's response could be construed as improper evidence of
a prior bad act of Chatman. The prosecuting attorney explained
that he did not know what Suzuki's response to his question would
have been if completed, but that he had cautioned her prior to
* sugukt’s testimony was not actually given in two parts, but Ls divides
herein to maintain narrative structure.
«
“NOT FOR PUBLICATION IN WEST HAWAIT REPORTS AND PACIFIC REPORTER*
testifying that she should “not talk about any other incidents
unless she’s specifically asked about them.” The circwit court
denied Chatman’s motion, but instructed the jury to disregard
both the prosecution's question and Suzuki's partial response.
After corresponding with Chatman by phone, Suzuki
returned to Hawai'i in August 2000, again staying at the
Ambassador Hotel. It was during this vieit that she and Chatman
first became intimate. she visited again in October 2000,
staying at the Ambassador initially and then at Chatman’ s
apartment, where Chatman's ex-wife, Kaori Takenaka, and daughter
also resided. In December 2000, she made another visit, staying
at Chatman's apartment for approximately two weeks.
In February 2001, Suzuki discovered she was pregnant
with Taisen. Chatman asked her via email not to have an abortion
and stated that he would like to marry her. At that tine, Suzuki
too wanted them to be married, and had asked Chatman to leave his
ex-wife. She visited Hawai'i again in April 2001 and stayed with
Chatman at his new apartment, where he lived alone. She returned
to Japan and gave birth to Taison in September 2001. In October
2001, Chatman visited her and Taison in Japan, applying for a
birth certificate and passport for Taison. Suzuki, Taison, and
her family then visited Chatman in Hawai'i in Novenber 2001. In
December 2001, just prior to returning to Japan, Suzuki decided
“NOT FOR PUBLICATION IN WEST HAWAIT REPORTS AND PACIFIC REPORTER*
that she would not return to Hawai'i, and that she would not see
Chatman again, but she did not tell Chatman of her intentions.
In February 2002, Suzuki changed her mind after Chatman
called her in Japan and told her that “because Taison is a boy,
he needs @ father(.]” Suzuki subsequently returned to Hawai'i
with Taison and her sister-in-law Noriko" to stay with Chatman
at his apartment. Upon arriving in Hawai'i on April 2, 2002,
however, Chatman told her they could not stay at his apartment.
After her sister-in-law returned to Japan on April 6, 2002, she
and Taison ended up back at the Ambassador Hotel.
on their firet night at the Ambassador, Taison vas
being fussy. Chatman pushed Taison’s chin upwards with his hand
and said, “Shut your mouth.” When Taisen began to cry more,
Chatman flipped him face down onto the bed and pressed his head
and neck into the bed. Fearing that the situation might escalate
Af she said anything, Suzuki pretended as if nothing was
happening and went into the bathroom. Chatman told her to cone
out, and eventually Taison cried himself to sleep.
‘he next afternoon, Sunday, April 7, at around 3 or
4 pem., Chatman came to the Anbassador and net with Taison and
Suzuki at the front desk. Chatman carried Taison as they
1 Noriko also testified at trial. She confirmed that she arrived in
Hewaiti on April 2, 2002, ané left on April 6, 2002.” She added that she
thought prier to arriving that Suzuki and Chatman were going to get married,
Sno thet Susuki, Taigon, ang Chatman would stay at his apartment while Noriko
Stayed at a hotel,
NOT FOR PUBLICATION IN WEST HAWAIT REPORTS AND PACIFIC REPORTER*
proceeded upstairs to their rooms Taison began crying when
Chatman took him. When the room key did not work, Suzuki went
back to the front desk, leaving Chatman and Taison waiting by the
door, After she returned about five to eight minutes later with
a new key, Taison was still crying and had a reddish, raised
bruise above hie right eyebrow. Chatman told Suzuki that Taison
got the bruise when Chatman had held him up in the air and Taison
kicked Chatman's shoulder, sending Taison backwards.
When Taison continued to cry after they had entered the
room, Chatman pushed Taison’s chin upwards in the same manner as
he had done the previous evening, and again said, “Shut your
mouth, Taison.” When Taiscn’s crying only increased, Chatman
loudly said, "No, Taison.” As Suzuki again pretended not to see
what was happening, Chatman again flipped Taison onto the bed,
pushing him face-down into the bed. After a while, Chatman
flipped him face-up again.
Chatman told Suzuki to come closer and watch, saying
that a “mother should be near the baby.” When she approached,
Chatman again pushed Taison’s chin upwards, causing a loud sound
that “sounded like somebody bit really hard. It sound[ed] like 2
snappy sound. And [Taison] looked really uncomfortable because
his chin was pressed upwards(.]” She saw some bubbles coming
from Taison’s mouth. Suzuki then went to the veranda because she
“NOT FOR PUBLICATION IN WEST HAWAIT REPORTS AND PACIFIC REPORTER*
could not bear to watch, covered her ears, closed her eyes, and
prayed that Taison would go to sleep.
When Suzuki he
rd banging noises coming from inside the
room, she looked over and saw Chatman hitting Taison in the
stomach. She again did nothing, feeling that she could not stop
Chatman. She remained on the patio for about fifteen minute:
while Taison cried loudly. When Taison then abruptly stopped
crying, she looked into the room and saw that he appeared to be
sleeping.
Suzuki then went back into the room, and saw Chatman
sitting on the bed with his hand over his forehead, looking down.
lle said in a faint voice, “I’m no good.” Suzuki then went to
check on Taison, and noticed that the tip of his tongue was dark.
She told Chatman, who put his finger in Taison’s mouth, saying
that Taison could not breathe.
Later, Chatman and Suzuki decided to go out to dinner,
and the three of them went down to the car. When Suzuki put
Taison in the car seat, he vomited. Suzuki told Chatman that
they could not go out since Taison was sick. Suzuki and Chatman
showered together, during which time Suzuki told Chatman that
they should take Taison to the hospital, but he did not respond.
Suzuki thought about taking Taison to a hospital in
Japan, given that her English was poor, she was unfamiliar with
10
“NOT FOR PUBLICATION IN WEST HAWAIT REPORTS AND PACIFIC REPORTER*
the American medical system, and was unsure whether her Japanese
health insurance would work outside of Japan. then she told
Chatman that she wanted to take Taison back to Japan, he agreed
Suzvki then called her sister-in-law Noriko in Japan and arranged
for her flight reservation to be changed so that she and Taison
could return to Japan the next day since Taison vas sick.”
Chatman told Suzuki that Taison might have internal bleeding in
his head and that “if anything should happen to Taison, [she] had
to be strong.” Chatman left the hotel after Suzuki told him to
because “Taigon would be stressed out when he wakes up and see(s]
him.”
During the night, Taison vonited several times and ran
a fever. Suzuki placed a sticker on Taison’s forehead in an
attempt to reduce his fever. Also, she tried to feed him milk
and juice, but he continued to vomit. Suzuki did not attempt to
go for help because she did not “know anything about 911," could
not speak English well “enough to really express [herself], and
was dependent upon Chatman, the only person she knew in Hawai'i.
The next day, April 8, Taison’s appearance was changed.
His eyes were open, but he was unresponsive when spoken to.
4 Noriko confirmed that Suzuki called her in Japan, sounding a “Iittle
fearful.” Suzuki requested that Noriko find a hospital near the airport i
Japan and have Taigon’s health certificate ready so that they coula go te the
hospital as soon aa she arrived, Noriko did not make the preparations,
however, because Suzuki called her the next cay “and saig they went on the
Sabulance.”
u
*NOT FOR PUBLICATION IN WEST HAWAIT REPORTS AND PACIFIC REPORTER*
Chatman picked her and Taison up at the hotel and took then to
the airport. Before leaving them, he told her that if anything
were to happen, she could call him. Chatman did not interact
with Teison at all. From April 6 to April 8, 2002, Suzuki and
Chatman were the only people to interact with Taison.
At the Airport (Jeanne Kaiinoto’s and Suzuki*s Teotimony)
Suzuki proceeded with Taison to the departure gate at
around 10 a.m. on April 8, 2002, but Jeanne Kajimoto, an airline
supervisor, prevented her from boarding based on Taisen’ s
condition. Airport medical personnel were summoned and, after
they reconnended that Taison be taken to a hospital, an ambulance
transported Taisen and Suzuki to Kapiolani Medical Center
(Kapiolani). child Protective Services and police met Suzuki and
Taison at the hospital
Robert D. gart’s Testimony
Robert D. Bart, N.D., @ child neurologist at Kapiolani,
testified that Taison was admitted in a comatose condition on
April 8, 2002. He had three bruises, one on each cheek and one
on the right side of his forehead. In examining Taison’s eyes,
he found blood at the back of each eye, indicating that Teison
had been shaken vigorously. He added that a CAT scan showed
swelling along the right side of Taison’s brain, suggesting
either blunt-force trauma or lack of oxygen to the brain. While
2
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in the ICU, Taison stopped breathing and had to be placed on a
respirator. Dr. Bart noted that he was concerned that Taison
night die due to the swelling in his brain, or suffer permanent
impairment even if he survived. He concluded his testimony by
opining, to a reasonable degree of medical certainty, that Taison
had been shaken and had sustained his injuries within 48 hours
prior to his admission to Kapiolani.
Dimas Amon
Robert DiNauro, M.D., a pediatric radiologist at
Kapiolani, testified that Taison had suffered brain hemorrhages
in areas which almost always lead to death to those parts of the
brain, “the baby will have a stroke. And this part of the brain
will just disappear. It will turn to water." Dr. DiMauro’s
opinion, like Or. Bart's, ‘was that this was a case of shaken
baby syndrome.” He added that the injuries were consistent with
the baby’s head having been rapidly and violently shaken back and
forth and slanned down onto a bed or other soft surface. In his
opinion, the injuries occurred between 11:45 a.m. on April 6,
2002, and 11:45 a.m. on April 8, 2002. Dr. DiMauro concluded, to
2 reasonable degree of medical certainty, that Taison, when
admitted on April 8, 2002, “was either in a coma or a semicoma,”
and at a significant risk of death.
3
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Peggy Liao’s Testimony
Peggy Liao, M.D., a pediatric ophthalmologist at
Kapiolani, testified that Taison’s retinas were covered with
fresh blood and hemorrhages when she examined them on April 9,
2002. Or. Liao concluded that, due to the hemorrhages and to
brain damage, Taison was almost blind in his right eye and his
vision in his left eye was also impaired. She also concluded
that the injuries were caused by shaking.
rt nay
victoria Schneider, M.D., @ pediatrician and child
abuse expert at Kapiolani, also evaluated Taison on April 8,
2002. She testified that Taison had bruises on his chest and
abdomen consistent with having been grabbed from under his arms
and flipped over. Taison’s brain injuries were, she opined, the
result of shaking that occurred on April 7, 2002. She also
concluded that the injury inside Taison’s mouth was unlikely to
have been caused accidentally, and was an additional indication
that Taison had been abused.
Test:
After Chatman was charged with Taison’s attempted
murder, Suzuki briefly returned to Japan. The family court
entered a protective order enjoining Chatman and Suzuki from
seeing each other. Suzuki subsequently returned to Hawaii to
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*NOT FOR PUBLICATION IN WEST HAWATT REPORTS AND PACIFIC REPORTER*
complete conditions set by the family court for her to regain
custody of Taison, who had been placed in foster care.
on September 2, 2002, Suzuki ran into Chatman while
waiting at a bus stop. Chatman told her to get in his car and
she agreed. ‘They ended up talking, and spent the night at the
Hawaiian Monarch Hotel. Thereafter, they maintained daily
contact and stayed together at various hotels and Chatman’ s
apartment. Chatman was the kindest toward her that he had ever
been, taking her clothes shopping, to the nail salon, and various
other places.
At some point after she had begun staying at Chatman’s
apartment, they had a conversation regarding the criminal charges
pending against him. Chatman told Suzuki thet the case was “a
very serious problem.” He asked her to return to Japan, but she
refused. He asked her on two other occasions to return to Japan,
but she again refused. In asking her to return, Chatman told her
that if she did not testify, the case would be dismissed. He
also told her thet “this was an accident.” During the same time
period, Chatman showed her two diamond rings, said that he had
been meaning to give them to her for over a year, and asked her
Af she wanted them. Suzuki was very happy and said she would
accept them when they were married.
Toward the end of Septenber, Chatman began asking her
to write @ letter for him so that the criminal case “would
a
“NOT FOR PUBLICATION IN WEST HAWAIT REPORTS AND PACIFIC REPORTER*
disappear.” At around 1 p.m. on October 20, 2002, while at
Chatman’'s apartment, Suzuki told him that she wanted some space
apart from him. Chatman then struck her in the eye," telling
8 on cross-exanination, Suruki was unable to recall which eye Chatman
had struck her io
(DEFENSE): Okay. Lets You testified... that you got
Snte an srgunent and Antheny Chatman got sad” and' that
he hit you in your left eye) is that correct?
[s020K7): Now 2 don't renenber whether it was the left eye or
Fight eye, but I zenenber him hiteing me with nie
(DEFENSE): So =~ so you [are] testifying that today you don’
Fecall what eye ne hit you, what eye was hits a8 that
Fight? “is that right? “I'm sorry.
[s020KT): Weld, he ALE me in the past on my eye, 40.
(DEFENSE): 1'm going to ~~
(suruer): I'm confused as to -~
[DEFENSE]: I'm going to object, You Honor; ask to approach the
bench:
At the bench, Chatman cbjected that her testimony was non-responsive and
Brejudicial {o that it referred co a prior bad act’ (duge, suggested that
Ehetman had hit her in the eye on an occasion other than Octeser 20, 2002, the
Gate of the charged offense) that he had not asked about, and moved for 0
Rictrial, in the alternative, he asked that the testimony be stricken and the
Jury be instructed to disregard it. The circuit court overruled the
abjdctioar Finding that the answer was responsive co why she could not recall
Shien eye hed been struck:
(THE couRT): ‘I don’t think it’s non-responsive because the
question was, “You testifying today you don't
Fecal which eye he hit you, which eye was Bit;
fe that right?
And she said, “Yeah, can’t remenber
because he it me another time in the eye,” oF
something to that effect. I think it's
Fesponsive to why you can't == she cant
Eenenber. That was yosr question, “You're
Eestifying you can’t renenber?” She saial,)
“yeah.”
(oBeense)
I was asking specifically about October the 20 -
(contanved.«.)
16
NOT FOR PUBLICATION IN WEST HAWAIT REPORTS AND PACIFIC REPORTER*
her not to “think about enjoying just yourself. why are you here
for?” He then dragged her by her hair into the next room,
pulling her head backwards. Suzuki heard her neck snapping and
screamed, but Chatman told her, “I can hurt you," adding, “[oh,
yeah, just come.”
Chatman led Suzuki to a small table, gave her sone
white, unlined paper, and told her to write that he “didn’t do
anything,” that she had lied to the police, and that she would
tell her parents the truth. The undated letter, which was
adnitted into evidence, wae written in Japanese and was read on
the stand by Suzuki as follows:
To Tony, How are you? it ie your Birthday. It's a good day
ioday. "i'm sorry I wrote you's letter. 1 wanted to apologize.
hat trouble cane up Because 7 Lied to the police. know thet
you didn't hit Taisen or hurt Taison st that hotel. T'was scered
Because you have trouble with the police. I don’t want to lose
Faison, ‘Ivwas scares and 1 was ‘nervous. I talked to many people
8, .continved)
= you look at the follow-up question. That
question refers to October the 20th, no other
Gate. . + (s)hat is not a responsive answer
Because that goes beyond what happened on
October the 20th, 2002.
(THE COURT]: That ds true, but the question was, “Are you
testitying you can't remember which eye he Rit
you in," and that was her answer
[oBFENSE) On October the 20th. She gives an explanation
Of what heppened to her other than October the
2oen, which 1s prejudicial.
(THE COURT]: Okay. We have different interpretations of what
fa regponsive answer is.
(DEFENSE): 0 you're going to ~~
(2HE court] 1m going to Leave st in. 1 think it's
responsive.
vn
“NOT FOR PUBLICATION IN WEST HAWAIT REPORTS AND PACIFIC REPORTER*
at the hospital. I couldn't quite understood what happened,
wg this thing happened. After I went back to
‘Japan, I will coll the prosecutor's office and Cell then that you
Sidn't burt Taison, that you didn't hurt him at the hotel. And T
SLIT Cell my mother and father eruth
P.5., To Tony's friend, thank you for translating. Asahi Suzuki
Suzuki explained that she usually uses lined paper, and chooses
stationery with a matching envelope.”? After she had written the
letter, Chatman allowed her to leave the apartment. The
following day, she went to the prosecutor's office to file a
complaint against Chatman.
‘Tai Nouven’s Testimony
Honolulu Police Department (HPD) Officer Tai Nguyen
testified that on October 21, 2002, he took Suzuki's statenent
via a Japanese interpreter regarding Chatman's conduct the
previous day. He stated that during the interview, Suzuki
“seemed really distraught” and was “constantly crying.” Without
objection, he continued that it was his impression that she “was
really scared, scared of [Chatman], and seemed like she was
really scared to lose her child.” Based on her statenents,
mannerisms, and demeanor, Officer Nguyen further opined that
Suzuki “was a girl that was afraid for her life, afraid for her
child, afraid to lose her child.” After a defense objection, the
circuit court struck the statenent and instructed the jury to
} At thie point, the prosecution introduced a sample letter from Suzuki
that was on lines paper, dated, and had picture of a flower
1
*NOT FOR PUBLICATION IN WEST HAWAI REPORTS AND PACIFIC REPORTER*
disregard it. In response to 2 subsequent question, Officer
Nguyen again stated that it was his impression that Suzuki was
afraid “she was going to lose her son.”
A defense objection that
the testimony was non-responsive was overruled.
5B. Afossible Problem with a Juror
on the second day of the trial, one of the jurors,
Jacom Reyes, recognized a woman, Victoria Filoteo, in the
courtroom. As the jury was exiting during a recess, he gave
Filoteo a kiss as he passed her. tt turned out that Chatman’s
brother, Wesley, was Filoteo’s boyfriend and was standing next to
her at the tine of the kiss. After learning of the incident, the
prosecution requested that Reyes be excused from the jury and
replaced with an alternate juror.
Counsel for Chatman acknowledged that Reyes, and
possibly other jurors, might have been affected by the incident,
but proposed that Reyes and the other jurors be questioned by the
court to determine whether this was in fact the case. The
circuit court agreed to find out whether Reyes had recognized
Wesley or realized the connection between Filoteo, Wesley, and
Chatman. The court indicated that if no connection had yet been
made, it was inclined to ask Wesley not to return to the trial in
order to avoid the possibility that Reyes might eventually make
the connection from Filoteo to her boyfriend, Wesley, to Wesley's
brother, Chatman, and form a bias based thereon. Chatman’s
1»
“NOT FOR PUBLICATION IN WEST HAWAIT REPORTS AND PACIFIC REPORTER*
counsel responded that Wesley had a right to attend the trial,
which the court acknowledged.
linen the court questioned Reyes, he revealed thet he
knew Filoteo as a childhood acquaintance, but had not seen her
for over a year, He stated that his relationship with her would
not impair his ability to be fair in the case, but asked if there
was a reason why she was in the courtroom. The circuit court
told him not to concern himself with that.
After this interview, the circuit court indicated that
it was inclined to replace Reyes due to the danger that, over the
course of the trial, Reyes would eventually connect the dots
between his childhood acquaintance and Chatman, possibly
affecting his impartiality. Counsel for Chatman offered an
alternative proposal, stating, “Maybe [Wesley] would agree not to
be here in court, along with [his girlfriend)." The circuit
court balked, noting, “this is a public proceeding. And I don’t
want to bar anyone from the courtroom.” However, the court added
that if Chatman’s counsel could persuade Wesley and Filoteo
voluntarily not to return, it would be willing to retain Reyes.
The prosecution, however, maintained its position that
it was better to replace Reyes, to which the defense objected
that a juror could not be replaced “willy-nilly” without evidence
that he had “been infected.” After an extended back-and-forth,
the circuit court decided to excuse Reyes over the defense’s
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——_—_ SSS
objection. The defense continued to object, however, arguing
that there was not a sufficient basis to do so. Finally, while
voicing its continuing disagreement, the circuit court offered
another choic:
t would instruct Reyes to “bar the incident
from his memory,” question the other jurors individually to see
if they had witnessed the incident and formed a bias, and follow
the proposal to have Wesley and Filoteo not attend the trial.
chatman's counsel was agreeable to this alternative, and the
circuit court stated, “I'm [going to] ask [the couple] to leave,
please, If that’s with their consent, because I'm not (going to]
bar anyone from this courtroom.”
c De: 20
After the prosecution ended its case in chief, Chatman
‘opened his case on June 18, 2003.
‘the Unavailable witne:
on June 9, 2003, Chatman had made submissions in
support of the admission of the statement of an unavailable
witness, Eri Gunji. Prior to trial, on February 14, 2003,
Chatman had moved in limine to have the written statement of
Gunji, @ Japanese national, admitted at trial. The statement,
which was written in Japanese, signed by Gunji, witnessed by Greg
Tavares, an investigator at the Office of the Public Defender,
and dated June 12, 2002, was officially translated as follows:
a
“NOT FOR PUBLICATION IN WEST HAWAIT REPORTS AND PACIFIC REPORTER*
1, Ei Gunji, give the following information freely and
Woluntarily.” On the evening of April 6, 2002] ardund 8:30, T met
Tonis [eicl in front of the front desk of the Aubassedor Hotel.
At that tine, Iwas doing monetary exchange [aie] at the front
Gesk. Coming from tne outside, Toni: Walked into the notel,
Roticed me, tapped ne on my shoulders and talked to ne. while
Chatting, “Why sre you here?" and "iow ore you?,” [sic] Tonii, who
Sas carrying @ baby, accompanies by 2 ledy, was waiting for the
Clevaters “The elevator came, and just when Tonily who was
Eafeying ‘the Baby, and the other lacy, west ineiae, I saw th:
{aay slap the left cheek of the baby with her tight hand. The
baby began to cry. Because I hag gotten into the elevator quickly
from the back, the sound of the slap sounded strong. 1 got off at
the 6 floce,’ vnsle the three of then continued eo ascena in the
slevator
Chatman had argued that the statement was relevant because it
established Suzuki's motive to lie as well as reasonable doubt as
to the identity of the person who had caused Taison’s injuries.
In response to the prosecution’s objection that the statenent was
hearsay, Chatman had countered that Gunji would be in Japan and
thus unavailable for trial, bringing the statenent under an
exception to the hearsay rule for statenents by unavailable
declarants. The circuit court deferred its ruling on the
adnissibility of the statement until the presentation of the
defense’s case at trial in light of the possibility that Gunji
might be availeble
‘the defense now duly renewed its motion and the circuit
court held a hearing outaide the presence of the jury.
Investigator Tavares testified that Gunji had told him she would
be unavailable for the originally scheduled trial date of March
2003 because she planned to return to Japan in December 2002. He
recalled discussions about taking a video deposition of Gunji,
22
“NOT FOR PUBLICATION IN WEST HAWAIT REPORTS AND PACIFIC REPORTER*
but it was never done. He did not know if a motion for material
witness had been filed with respect to Gunji. Finally, he
admitted that he could not attest to Gunji’s truthfulness,
reliability, or competency.
During argument, defense counse} represented that
efforts had been made to secure Gunji’s presence at trial.
Specifically, counsel argued that he had contacted Gunji in
Novenber 2002, whereupon she told him that she had changed her
plans and would not be returning to Japan until late April or
early May 2003. He also represented that she had been served
with a subpoena before she eventually left Hawai‘ in February
2003. Finally, counsel added that her statement would be
corroborated by other defense evidence and was therefore
reliable, accurate, and truthful.
‘The prosecution countered that the statement was not
probative because it did not specifically identify Chatman,
Suzuki, or the baby. Also, the prosecution noted that, after the
trial had started, the defense had contacted Gunji in Japan, but
she refused to return to Hawai'i due to the late notice and
because she expected to be paid for her appearance.
After hearing the preceding evidence and argument, the
circuit court excluded Gunji’s statement, ruling:
23
*NOT FOR PUBLICATION IN WEST HAWAIT REPORTS AND PACIFIC REPORTER*
(Elven if this wonan is unavailable, . . . (HRE Rule 806
(1993) }) catchall requires equivalent circumstantial guerentees
of trustworthiness = the other hearsay exceptions unger [HRE Rule
808)
In addition, [MRE Rule £04) requires that the Court must
find that the statenent 1s more probative on the point for which
it is offered than any other evisence which the Defense can
procure as to the equivalent guarantees of trustworthiness, Here,
fre pave an apparent Japanese National abost whom no one knows
Shuch, except. that she may have been « student in Hawaii at one
Eine. "Neither state nor Defense knows thie individual or anyening
about this individuel. (Chatman) supposedly knew this witness,
But there's, really, ot auch nore available about her, And oo
that basis, Jt would be very difficult to test her motive, Biss,
Intelligence, of memory. This individual statenent was provided
about tuo nonthe after the incident st issue and adentifies 3
Tonii, Teornei-i, a lady anda baby about #130 in the evening on
April’ 6th. ‘There's no veal certainty about wno Toni, the Lacy,
GF the baby are. Aleo(] unidentified() are many sther devaile
Sneluding the witness's perspective, what she sew [tnat] is celled
3 slap, how hard the slap was, and eny surrounding eizcunstances
This Individual defied a court order to spear at First circuit
Court and, apparently, offered to consider returning eo Hewois for
sufficient monetary compensation. These do not suggest
Erustworthiness. These factors, the Court cannot find rise to the
Lelvel} of the guarantees of trustworthiness discussed in the
other [MRE Rule 60d] ‘exceptions, such as cress-examination. These
Sre four instances from the other [HRE Rule 604) exceptions:
Grossmexanination with motive and interest similar te the Party
against whom the hearsay statonent is offered, 2 statenent mace
Gnder belie! thet desth was imminent, corrcboration required where
3 eclarant exculpates an accused and takes the lame himself, oP
& statenent of recent perception not provided in response to the
Instigation of ® person investigating’ a case.
Now, [the defense) has represented that there’ s ancther
witness available to testify to this sane matter. Further, Mr.
Chatman, who plans to teke the stand, anyway, can testify co thie
incident.” So the Court is hard put to find that Ms. Gungi’s
Statement is nore probative than any other evidence that ie
Svailable on this matter. And because the [IRE Rule #08)
Fequirenents are not net, even if ve assume unavailability, the
Court cannot Let the statement go in
2 WRE Rule £04(b) (8) (ines the “eatchail") is an exception to the
hearsay rule providing in relevant part that a statement of an unavailable
witness is ednissible
GE the court determines that (A) the statement is more probative
fon the point for which it is offered chan any other evicence wnsch
the proponent can procure through reasonable efforts, and (B) the
‘eneral purposes of these rules and the intersste of justice will
Bert be served by adsission of the statenent into evidence.
2
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Chatman's Testimony
Chatman took the stand in his own defense, and gave
testimony which differed from or expanded upon Suzuki's testimony
in the following material respects. With respect to Suzuki's
April 2001 visit, he stated that the two discussed marriage.
When she expressed her desire for then to be married, he told her
he loved her but was not ready to commit to marriage. He told
her the same thing during his October 2001 visit to Japan and
asked her to tell her family this, given that he could not
communicate with them in Japanese, When Suzuki brought her
family to visit Hawas‘i in Novenber 2001 and her parents asked
through an interpreter about their wedding date, he told them
that in America having a child does not necessarily mean
marriage, but that he would be responsible for his son. When he
asked Suzuki whether she had told her parents they were getting
married, she began crying. After her parents left, Suzuki became
depressed; she cried a lot and lost her appetite.
the couple broke off contact for a time after this
visit, but began corresponding again prior to Suzuki's April 2002
trip to Hawai'i. The subject of marriage again came up, with
Suzuki reiterating her desire to get married while Chatman
expressed his ambivalence.
As to thé events of April 6-8, 2002, Chatman denied
that he caused Taison’s injurie:
instead, he gave the following
2s
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version of events. On the evening of April 6, 2002, Chatman,
Suzuki, and Taisen returned fron dinner to the Ambassador Hotel.
on the way up to the room, they ran into Gunji, an acquaintance
of Chatman’s, and Gunji and Chatman engaged in some brief chit-
chat, As all four were entering the elevator, Suzuki, who “had
got angry for some r
son," slapped Taison in the face.”
Chatman believed that at this time Suzuki was intoxicated due to
the two beers she had consumed at dinner.
In the room, they again talked about marriage. Chatman
told Suzuki that he could not do it, that he was not ready te
make that commitment. Suzuki reacted in a “hostile, violent,
[and] depressed” manner. To calm her down, Chatman took @ shower
together with her. Throughout this time, Taisen was mainly
asleep on the next bed. Chatman did not push Taison’s chin up,
flip him onto the bed, hit, or slap him. He left the room at
approximately 3 a.m. At that time, he did not see any marks or
injuries to Taison.
on Sunday, April 7, 2002, Chatman returned to the hotel
around 3 or 4 p.m. He met Suzuki, who was carrying Taison, in
the lobby. Chatman, “took Taison and . . . noticed that Taison
had a small bump on his head.” Suzuki explained that he had been
crawling on the bed and had bunped his forehead.
% suauki denied striking Taisen in the elevator:
26
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———
The three went up te the room, and Chatman played with
Taison on the bed. Chatman and Suzuki talked, and the subject of
marriage came up again, After about 15 minutes, during which
time Chatman again expressed his unwillingness to commit to
marriage, Chatman left the hotel because he did not want to
Listen to Suzuki's complaining.
Wanting to see hie son, Chatman returned to the hotel
around 6 pom. Suzuki was intoxicated and would not let hin enter
the room. Chatman left. He did not push Taison’s chin up, flip
him onto the bed, hit, or slap him on Sunday evening. On cross~
exanination, Chatman agreed that he was “aware that shaking @
baby could cause the child's death(.]”
on Monday, April 8, 2002, at about 7:30 of 7:45 a.m.,
suzuki called Chatman and asked him “for the ticket to the
airport.” He went to the hotel to pick her up and take her to
the airport for her flight, which was at 10:30 a.m. oF
thereabouts. He met her in the lobby: Taison was with her, but
he did not notice any injury to Taison at that time. When he
dropped Suzuki and Taison off curbside at the airport, he hugged
and kissed Suzuki, and kissed Taison, who was in his stroller.
‘taison appeared to be asleep, but had a sticker on his forehead.
when Chatman asked what it was, Suzuki explained that Taison had
a fever. Needing to move the car, Chatman left it at that and
2
*NOT FOR PUBLICATION IN WEST HAWAI REPORTS AND PACIFIC REPORTER*
eee
drove off. He never told Suzuki, at any time, that Taison was
bleeding on the brain.
As to the evente of September and October 2002, Chatman
testified as follows. Contrary to Suzuki's version, Chatman
stated that she called him three tines beginning in mid- or late
‘August, and they talked on two occasions, despite the family
court restraining order. On September 3, 2002, Suzuki called him
and asked if he could pick her up at the bus stop. He picked he
up, they talked, went shopping, and he bought Suzuki a pair of
shoes at her request. When Suzuki expressed the desire to spend
the night with him, they went to the Hawaiian Monarch, where she
got then 2 roon.”* They stayed together at various places
thereafter, spending almost every day together.
Chatman stated that on each of Suzuki's visits in 2000
land 2001, he would do things for her such as take her shopping
land to the salon, take her to dinner, and buy her things. During
their time together in Septenber 2002, they did much the same,
going shopping, to dinner, and other “{t]ypical things that
lovers do{.]” The subject of marriage came up very often, but he
never showed or gave Suzuki any diamond rings.
\ the parties stipulated that, if called to testify, the records
custodien of the Hawaiian Monarch would state that Asahi Sozuki registered
(0 ain. on September ¢, 2002.
NOT FOR PUBLICATION IN WEST HAWAIT REPORTS AND PACIFIC REPORTER*
Chatman’ birthday was on October 9. Within a day or
two thereafter, he received a birthday card from Suzuki along
with a letter in Japanese, which he could not read. This was the
letter x
\é by Suzuki on the stand and allegedly written on
october 20, 2002. On or about October 12, 2002, Suzuki explained
to him that the letter was an apology for Lying to the
prosecution.
on or about October 15, 2002, Chatman gave the original
copy of the letter to his friend Anthony Brown, keeping copies
for himself, because he wanted to find out exactly what it said,
but was afraid that Suzuki might take the letter back. on
october 18, 2002, Chatman had lunch with Phillip Meiave and
another friend, during which he showed them the birthday card”
and a copy of the letter, which he explained were from Suzuki.
Later that evening, he called Brown to get the original so that 2
woman named Junko could translate the letter. After Junko
translated the letter," Chatman and Brown made more copies.
Y the birthday card and envelope were not introduced at the trial
Chatnan testifies that he believed Suzuki tosk then, although he did not see
on crose-examinetion, Chatman agreed that he had had his ex-wife,
Kaori Takenats, translate the letter for him on October 22, 2002, but denied
that he had asked her "[I]e st okay?” On redirect and rectoss, Chatman stated
that he had Takenaks translate the letter on Octeser 17, 2002.” In denying
that Takenaka hed translated the letter for him on the night of October 21,
2002, ‘Chatman engaged in the following colloquy with the prosecution:
{PROSECUTION}: Tent st true, atx, that at that particular time
hen (Takenaka) read the letter, she hac
(cont snue
2
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Also on the night of October 18, Suzuki called and
asked for the letter back because she was afraid of losing
Taison. Having found out what the letter said, Chatman refused,
stating that he intended to give it to his attorney.
fon october 20, 2002, Chatman met with Akiko Wong at
around 9:00 a.m. for an hour or an hour and a half. He then got
in touch with Eugene Carroll, meeting him around 11:00 a.m. and
staying at Carroll's place for two or three hours. Chatman
denied being with Suzuki at or around 1 p.m. on October 20, 2002,
denied striking her in the eye, grabbing her hair, or forcing her
to write a letter that day.
During cross-examination, a bench conference was held
at which the prosecution requested a ruling on whether it could
impeach Chatman using a prior out-of-court statement made to the
police on April 10, 2002. In the statement, Chatman failed to
sesontsnues) questions ebout the letter?
onan) : She had questions ebout the letter.
PROSECUTION): She didn't think At sounded Like senething &
Sspanese person wovld write, isn’t that correct?
(cnnman 1 don't think 20.
[PROSECUTION]: Didn't she express those concerns to you?
onary) 1 don’t think 20
PROSECUTION): Didn't ahe pointedly ask you at that monent(,]
(Dita you rake [Suscki] write this Letter?
(cnaruan 1... don't gecsll her making that statenent.
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ee
mention that he had seen Suzuki strike Taison in the elevator on
April 6, 2002; instead, while opining that Suzuki had caused
Taison’s injuries, he repeatedly stated, “I don't want to get
inte that{,]" when pressed a to how Taison’s injuries might have
cccurred. Accordingly, the prosecution asked for clarification
as to whether such a response was “tantamount to an assertion of
[chatman’s} Fifth Anendnent right” Limiting the prosecution's
ability to use the prior statement. Defense counsel noted that
there would not be @ problen and that he would object on @
squestion-by-question basis{.)" The circuit court then withheld
a blanket ruling.
linen trial resumed, the prosecution asked whether it
was true that Chatman, when speaking to police on April 10, 2002,
had failed to mention seeing Suzuki strike Taison in the elevator
on April 6, 2002, Chatman replied, “At the time, I
I dign't
want to get her in trouble so I asserted my Fifth Amendment right
privilege [sic].” The defense did not object to either the
question or the answer, but another bench conference ensued at
the prosecution's request, and the prosecution again requested a
ruling as to how to proceed.
The circuit court stated that it did not really see a
Fifth Amendment issue, but that it could not give 2 definite
ruling in advance. When questioning resumed, the following
exchange occurred:
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(PROSECUTTON}: So you never told [the police] anythi
seeing this alleged incident in the e!
April th, correct?
(vereNse) Asked and enewered.
(Twe county Sustained,
PROSECUTION): Now, your testimony {8 thet you didn't want to
get Asahi Suzuki in trouble?” Ie that your
fest imony?
CHATHA) And 1 asserted my Fifth Amendment right.
(PROSECUTION): You're saying that when you spoke to the
(police), you aid not sant to get Ash: Suzuki
in trouble, correct?
cHaTMAR : ‘And 1 asserted ay Fifth Amendment right.
IPROSECUTION]: Listen to -- and just anewer the question I'm
asking. T understand wast you're saying about
your Fifth Amendment,
(cHATHAR : vee
[PROSECUTION]: You're saying that you dia not want to get Aeané
Suzuki in crouble when you nade these statenente
oF you spoke to [the police]?
(DEFENSE): Objection. Asked and answered. Ask to approach
the bench.
At the bench, the defense objected to the entire line
of questioning and moved for a mistrial based on the
impermissible negative inferences that could be drayn from
Chatman’s testimony regarding his assertion of a Fifth Amendnent
privilege. Defense counsel conceded, however, that the way in
which Chatman was testifying made it unclear as to whether he had
asserted a Fifth Amendment privilege on April 10, 2002, or wa
currently attempting to raise the privilege in response to the
prosecution’s questions. Counsel and the court also agreed that:
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(2) Chatman clearly had no Fifth Amendnent privilege regarding
what Suzuki had allegedly done: and (2) no one had eny idea why
Chatman was persisting in such responses. Ultimately, the
circuit court was concerned that “by asserting the Fifth,
[chatman was] making the jury think that he's hiding
sonething[,]” and stated that it would instruct the jury not to
Graw any negative inference from Chatman’s assertion of a Fifth
Amendment privilege, and strike the problematic questions and
answers. The circuit court then denied the motion for a
mistrial, the testimony was stricken, and the jury was duly
instructed to disregard it.
Eugene Rupak's Testimony
Eugene Rupak testified that he was working at a car
wash on Saturday; April 6, 2002, when he saw Chatman arrive in a
Corvette following a light-colored van occupied by Japanese
lady and a baby some time between 10 a.m. and 2 p.m. Rupak
looked over again when he heard the baby crying and saw the
sapanese lady slap the baby's face and choke his neck for
approximately five seconds. The lady stopped choking the baby
when she noticed Rupak observing. He observed the incident from
a distance of approximately 30 feet.
° gunukd denied etriking or choking Taison at the car wash that day.
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On crose-examination, Rupak stated that he could not
remember exactly when he began working at the car wash. Among a
series of questions ained at testing Rupak’s menory for dates and
whether he could be certain that the incident had occurred on
April 6, 2002, the prosecution asked Rupak if he was currently
incarcerated and the date on which he was arrested. without
defense objection, Rupak replied that he had been arrested on
May 24, 2002, but admitted that when he was earlier questioned by
the prosecution on May 23, 2003, he could not remenber the
specific date of his arrest even though it was almost precisely a
year to the day. He also admitted that in his May 23, 2003
statement, he did not give a precise date for the slapping
incident, stating only that it occurred during the first week of
April 2002. He added that he could not renember the specific
date when he immigrated to Hawai'i in 1997 or the date when he
got his first job in Hawai'i, although those were important dates
to hin.
Chatman’ s Other Witnesses
Guy Okada stated that he saw Chatman vith Taison and a
Japanese woman on the morning of April 6, 2002, around
0 a.m.
but did net notice any injuries to Taison. Anthony Brown
testified that Chatman asked him to keep Suzuki's apology letter
for him some time between October 15 and October 18, 2002. Brown
added that he met with Chatman and a woman named Junko a few days
2%
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later so that Junko could translate the letter, Phillip Meiava
testified that on October 18, 2002, Chatman showed him “a normal~
size birthday card,” written in Japanese, from the Japanese “wife
of his son.” On re-direct, Maiava clarified that he only saw an
envelope, not an actual card. Eugene Carroll declared that
Chatman visited him on October 20, 2002, arriving at around
31:18 a.m, and renaining for approximately 2.5 hours.
D. The a al
ori 1. mon
The prosecution called Chatman's ex-wife, Kaori
‘Takenaka, to challenge Chatman's testimony that she had not told
him that she did not think Suzuki's letter sounded like something
a Japanese person would write. Takenaka, originally from Japan
and a native Japanese speaker, gave the following testimony
regarding the letter. On October 21, 2002, Chatman called her at
work and told her that he needed to see her after work. hen he
picked her up, he told her that he had a letter written by Suzuki
that he wanted her to translate into English. ‘This was the first
time she had seen the letter, but Chatman told her that Junko had
translated the letter for him earlier thet day.
linen the prosecution asked Takenake whether she had
asked Chatman about how the letter was prepared, the defense
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objected that it was improper rebuttal. The circuit court,
before allowing her to answer, instructed the jury as follow:
T]he answer you're about to hear, you cannot consider to prove
Any matters asserted within whatever 18 going to be asserted,
this 42 only fo De considered... on the issue of
bility ang for no ether purpose: “You cannot consider it as
Sroct of any substantive matteré. Iv'e enly relevant ang to be
Considered by you on the issue of credibility and for no other
purpose.
‘Takenaka then answered that she asked Chatman whether he had
forced Suzuki to write it, but he denied it. When the
prosecution asked why Takenaka was concerned about the letter,
the defense again objected, and the circuit court again gave the
seme instruction te the jury regarding the forthcoming answer
‘Takenaka then answered that she was concerned because the
Japanese used in the letter “was not natural for Japanese would
write. ‘That wae interpreted from English.” The defense
objected, arguing that there was no basis for Takenaka to give
such an opinion. The circuit court sustained the objection and
instructed the jury to disregard Takenaka’s response in total.
When questioning resumed, Takenaka verified that, after
translating the letter, she had told Chatman that the letter did
not “sound like something @ Japanese person would write[.]" The
circuit court again instructed the jury that this answer could
only be used on the issue of Chatman's credibility. Takenaka
concluded her testimony, over objection, by stating that Chatman
told her that he had pulled Suzuki’s hair in anger, telling
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Suzuki he was upset with her for being selfish and concerned only
with herself and Taison.
E. Closing Argument
In its closing argunent, the prosecution referred,
without objection, to the fact that Rupak had been in custody
during his questioning:
Saturday might mean different things for different people. It
Bight mean a weekend for many. It doesn’t mean a weexend for
Br. fupak. Be works seven days @ week. He worked the sane heure
every day. Every day was the same. iothing, he cells you,
happened around the date of April éth that’s. significant
Bife cther than thie alleged incident thet he sees. Ke cen
Eenenber that dete. But how ironic that this same inaivisual
Ean’ even renenber the date that he had been arrestes and wes in
custody when he was questioned one day short of # year of thet
sate
nse
The prosecution also described defense counsel as
having “played up” allegations that Suzuki had slapped Taison.
In response to the defense’s closing argument that “the defense
position is that [Suzuki) did this to (Taison, but] we also
submit that (Suzvki] did not mean to kill Taison,” the
prosecution, over the defense objection that the remarks were
personal and demeaning, argued:
(Defense counsel} tells you about Asahi Suzuki doing this te
[vaison] and tells youl,] Dut she didn’t mean it. Where did he
get that fron? If you believe Asahi Suzuki did it, isn’t there
Every reason to believe that she would have done thie purposely?
What's the reason to say she didn’t mean it?) Why does he say
This?” Why does he Rake these comments? Why does he cone forward,
by does Hr. Kanai suggest to you that, well, Asahi Suzuki
Wovldn't have meant it, nobody would have meant it? Because you
Know why? He wants (Co have) his cake and est it, toe.
You see, ladies and gentlenen, when counsel made that
argunent, he wants You to say, well, you know, if Anthony Chatman
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Af you tind that Anthony Chatean is guilty or did the act
against (Taison), I want to give you an cot. I want to let you
think that you can consider the included offenses.” 1 got to find
a way to do that. I got to find a way Eo argue out of both sides
Gf'my mouth, and that’s really what be did. 'So he cane up with,
well, Asahi’ suzuki cidn’t mean it, just like no one would have
Beant it. But there's no evidence of any of that
With regard to the letter and whether Chatman had
compelled Suzuki to write it, the prosecution argued:
He had just assaulted her. He told her what to write. He's
sitting there witn his imposing presence next to ner.” He
Snsaulted her in the past." These are. things that jou cen
Consider in determining whether or not the defendent sae
Compelling [Suzuki] to write the letter
‘The prosecution also mentioned, without objection, the effect of
shame on Japanese people, arguing:
Fear of the letter by [Suzuki] meant she was controlled. was it
intent to induce [Suzuki] to avoid legal process? Well, the
contents of the Letter ill shane her. che has to tell’ her
family, ‘the prosecutors, the policel,] I'ma liar. shane- Now,
ladies and gentlemen, you can use your life experiences. shane’ is
a'very big thing. I¢ means o Lot.” Now, ladies and gentlemen, to
People in Japan, to people in Japan, shane is even grester
Finally, the prosecution asked rhetorically, “Why is it that the
defense attorney didn't really want to address how that letter
4 prior to closing, the defense objected to the prosecution's use of a
Power Foint slide referring to this evidence, arguing thet it was prejudicial.
‘The prosecution respondes that Suzuki had testified on cross-examination that
he had been struck in the eye by Chatman in the past and the court hea denied
the motion for # nistrial ang request to strike, so the testimony wae in
evicence. The circuit court overruled the defense objection, reasoning that
The evidence of the past assault was relevant to che exterticn count onder
State vs Valdivia, 95 Hawai's 465, 24 P32 661 (2001), because 1t would
Satablisn the genuineness of the threat and compulsicn te write the letter.
‘The defense argued that because Suzuki's statement Was Made in the context of
‘Gxplaining way she could not recall which eye she had been struck in, it was
Sneoanected ta any fear she may have nag at the time she wrote the letter.
The circuit court remained unmoved, and the slide was allowed. In total, the
slide in question, titled "Defendant Compelled Asahi to Write the Letter,”
Contained four numbered points: (1) “He had Just assaulted ner"; (2) “He told
her what to write’) (3) "He was sitting next to her") and (4) "He had
asequlted her in the past.”
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was made and why there’s all these [sic] inconsistent evidence
with respect to that?”
At the close of argument, defense counsel noted for the
record that he objected to all of the prosecution's personal
references to him as unnecessarily demeaning.
F. dury Instructions
hen instructions were settled, the defense requested a
merger instruction for the extortion, intimidation, and abuse
counts. Counsel explained his request as follows:
IW]e'ze saying that (the intimidation count) along with (the
extortion count and atuse of = househeld member count] provides
Shat I call e merger problem, In other word ‘under the
Rete" aGduced, "We taxe the position that nether you're telking
[in] terms of conduct of intent, it's clear that there wes just a
singular ineident or occurrence’... « such that. [Chetman] 1s
being overcharges. And the impact upon the Jury of being
overcharged 12 quite significant. Tt is significant in the sense
Ekta jury woule tend to believe thet -- they believe chat
Gefendant charges with & greater nunber of offenses 1s more likely
fo be guilty than net.
The circuit court rejected Chatman’s request in part, but did
allow 2 merger instruction as to the ebuse count. On the
intimidation and extortion counts, the circuit court instructed
the jury as follows:
A person connite the offense of Intimideting a witness if he
uses force upon a person he believes is about to be called as &
Mdtness in any official proceeding, with intent to influence the
"Sstinony of thet witness or £0 induce that person to avoid Legal
process sunnoning her to testify.
There are two material elenents of the offense of
Intimidating a Witness, cach of which the prosecution must prove
beyond a reasonable doubt.
‘These tho elements are:
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1, That, on oF about the 20th day of October, 2002,
wani)_used' farce upon Asahi Suzuki, a person he believed is|
o be called ass witness in any official proceedings and
cha
500
2. That (Chatman) did so with the intent to influence the
testimony of Asahi Suruki oF to induce Asahi Survei to avoid legal
process summoning her to testify.
A person comite the offense of Extortion in the Second
Degree if he intentionally conpels or incuces ancther person to
‘engage in conduct from which she has a legal right to abstain by
Ehzeatening sy word or conduct to cause Bodily injury in the
futore to the person threatened,
There are three elenents of the offense of Extortion in the
Second Degree, each of which the prosecution must prove beyond a
reasonable couse
‘These three elements are
2, that, on or about the 20th day of October, 2002, .
Chatnan{) coapelied or induced Asahi Suzuki to engage in conduct,
from which she had a Legal right to ebstaini and
2. That (Chatman) did so by threatening by word or conduct
to cause bodily injury in the future to Asahi Sotuki; and
3. Tat (Chataan) did so sntentionslly.
The circuit court also charged the jury to consider the lesser
included offenses of assault in the first degree and assault in
the second degree in the event it could not reach @ unaninous
verdict on the attempted murder charge. In addition, the court
cautioned the jury that “[yJou must not be influenced by pity for
the defendant or for any other person[.)”
Verdict and Post-Tria:
The jury retired for deliberations on June 26, 2003.
on June 30, 2003, the jury found Chatman guilty as charged. On
July 24, 2003, Chatman filed a motion for a new trial, alleging,
{inter alia, juror misconduct by Jacom Reyes. The motion came on
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for hearing on Septenber 15, 2003, and November 17, 2003, was
continued for further hearing on February 9, 2004, April 19,
2004, and May 10, 2004, and continued again to duly 19, 2004. In
between episodes of the new trial saga, Chatman filed a motion on
April 20, 2006 for reconsideration of the request for a mistrial
due to prosecutorial misconduct in eliciting references to
Chatman’s Fifth Anendnent privilege.
With respect to the juror misconduct issue, Wesley
testified at length that juror Reyes had spoken to him about the
case at @ graduation party in ‘Eva Beach on June 21, 2003.
Filoteo also testified that Reyes and Wesley had talked. Reyes,
fon the other hand, denied that a conversation had taken place
Chatman then asked for a two- or three-week continuance to secure
witnesses to rebut Reyes’ testimony. At the July 19 hearing,
Chatman moved for another continuance of the hearing in order to
secure the appearance of witnesses. Counsel represented that one
of the witnesses, according to the sheriff, was avoiding process.
The cixcuit court denied the continuance, stating that the motion
had now been pending for nearly a year. Defense counsel then
moved to withdraw from the case, and Chatman addressed the court
in support of the motion, stating that he had lost confidence in
counsel due to his failure to procure the attendance of witnesses
he considered crucial to his defense. The circuit court denied
the motion to withdraw and request for new counsel, denied the
a
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motion for reconsideration of the request for mistrial as already
ruled upon, and denied the motion for a new trial based upon the
following findings of fact:
1
acon Reyes... sat a5 a juror in the consolidated trials
[ef Chatman) fom May 29, 2003, through Jone 26, 2003) Sury
deliberations begen on the afternoon ef June 26, 2003.
During trial, Reyes occupied Chait Ho, 10,
fon May 30, 2003, as he filed out of the courtroom with other
Jurors duting 2’ trial recess, Reyes greetea with @ nelle end
ities on the cheek a wonan who wae sitting in the back tow of
the courtroom gallery. This woaan, identified ae Victoria
Filotes, was @ distant childhood friend of Mr. Reyes’ [ese]
and sat with (Chataan's] brother, Wesley Chathan, After
Questioning of Mr. Reyes by Court and counsel, at th
Fequest of the defense, the Court permittes Mr. Reyes to
Hesain on the Jury
(on June 30, 2003, the jury returned verdicts of guiity.
=) These verdicts were read in open ccurt, with Jury,
Counsel, and Defenaant present. Then, pursuant to a request
for a poll of the Jury, the Court anstractes the Jury that,
as to each count of cage, the clerk would call each juror,
Who should answer "yee" if he or she agreed with the verdict
Fead, and "no" if he or she cig not agree with the veraict
Feed. “During the polling, Reyes, together with all ether
Sleven jurors, responded that he agreeo with each and all of
the guilty verdicts unich had been read.” As to each count
or case, Reyes answered in the affirmative.
During the hearing on the motion, Wesley Chatman testified
tthat, on the evening of June 21, 2003, Reyes told hin that
Reyes did not think [Chatman] was guilty; no one Listened te
Reyes during “conferences,” which therefore were
eaningless; Reyes slept during sone proceedings; and Reye:
“sometimes” cane to court “stoned,” the three terms within
apostrophes [sic] being undefined.
fon June 21, 2003, during trial, Reyes, at the invitation of
his brother, ateended for ® to'10 minutes a party, whose
Purpose and whose honoree Reyes dic not know. He’ say have
Naved to Filoteo, who was present at the party with Mm
Chatman, whose last nane Reyes did not know
Filotes' and Chatman were about 30 £
Reyes had a plate of food nade up, then left the party. He
told his brother that he had to leave the get-together “now”
because two persons somehow connected to the trial for which
Reyes was serving as a Juror were present, Reyes hed been
instructed by the Court not to have contact with the two
Sdiviguals, and Reyes was “under cath.”
a
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20
n
a.
2.
During the 5 to 10 minutes at the party, Reyes had stout
ial of a Budweiser Light beers He was not under the
{neluence of any substance st the time. Filoteo did not
introduce Reyes to Wesley Chatman, nor did either exchange
any words with Reyes. Reyes has hot otherwise seen either
{ndvviaualy prior to trial, he had last seen Filoteo about
10 years earlier:
During the party, Reyes did not say or suggest that
Tehatmen] wee net guilty, or that he dia not pay full
attention of slept during trial, or that he was under the
{influence of ony substance during trial, or that he felt his
Opinions would tot be listened of were rot listened to by
SEher Jurors. On dune 21, 2003, jury deliberations had not
yer begun
fihen Reyes responded during the jury polling that he agreed
Muth the gullty verdicts which had been read, his answers
weflected Reyes! considered opinion in sccordance with the
Evidence and instructions of law, ond reflected the vote of
the Susy
fon March 10, 2004, in response to the Court's subpoena,
Reyes speared and answered all questions fut to hin by the
Court ond both counsel. Reyes, @ college student, sppeared
Sober ond sppropristely responsive
According to the verdict forms and the polling of the Jurys
the jory’s veraicts . . , were unanimous.
lesley Chatnan's testimony was incredible, and Reyes"
Sestimony was credible,
Based upon the credible evidence and the totality of the
Circumstances, Reyes wee not under the influence of any
Substance during trial or deliberations, ang he did not
Wiolate the Court's inetruction to him that h
Contact with Filotes.
‘The court then entered its judgment of conviction and sentence as
indicated in the introduction above. Chatman filed a timely
notice of appeal on August 18, 2004.
on February 24, 2005, the clerk of this court filed
letter from Chatman in which he alleged that his trial counsel,
Chester Kanai, had failed to appear at a scheduled February 7,
2005 parole hearing, failed to communicate with him, failed to
a
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diligently pursue his appeal, and failed to effectively assist
him at trial. Chatman attached @ letter, dated Novenber 16,
2004, and addressed to Kanai regarding: (1) Kenai's failure to
take a video deposition of Gunji in Japan when he had taken a
video deposition of Rupsks (2) Kanai’s failure to subpoena a
witness named Akiko Wong who would have provided an alibi for
Chatman and testified that she translated Suzuki's letter for him
on October 18, 20027 (3) Kanai’s failure, due to alleged
unwillingness to delay his trip to Japan, to raise the issue of
Jacom Reyes’ alleged misconduct before the defense rested or the
jury retired for deliberations; and (4) Kanai’s slow pace in
pursuing the appeal. On February 25, 2005, Kanai filed @ motion
for withdrawal and substitution of counsel based upon his belief
that Chatman intended to claim on appeal that Kanai provided
ineffective assistance. He agreed in an attached declaration
that Chatman had complained to him regarding the points raised
above. After remand by order of this court, the motion was
granted and Chatman’s current counsel, Linda Jameson, was
appointed.
IT. STANDARDS OF REVIEW
Lon: ions, Statutor: nd
Questions of Law
"A trial court's conclusions of law are reviewed de
nove, under the right/wrong standard of review.” Child Support,
“
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Enforcement Agency v. Ros, 96 Hawai'i 1, 11, 25 P.3d 60, 70
(2001) (quoting State v, Ah Loo, 94 Hawai'i 207, 209, 10 P.3d
728, 730 (2000)) (brackets omitted). Questions of constitutional
law and statutory interpretation are reviewed under the sane
standard, State v, Rogan, 91 Hawai'i 405, 411, 984 P.2d 1231,
1237 (1999); State vs Arcee, 84 Hawai'i 1, 10, 926 F.2d 843, 852
(1996).
B. Motion for a Mistrial
A trial court's denial of a motion for a mistrial is
reviewed for abuse of discretion. State v. Loa, 83 Hawai'i 335,
349, 926 P.2d 1258, 1272 (1996). “Generally, to constitute an
abuse [of discretion] it must appear that the court clearly
exceeded the bounds of reason or disregarded rules or principles
of law or practice to the substantial detriment of a party
litigant.” Sapp v. Wong, 62 Haw. 34, 41, 609 P.2d 137, 142
(1980) (quoting State v. Sacoco, 45 Haw. 288, 292, 367 P.2d 11,
33 (1962))-
C. Erosecutorial Misconduct
“prosecutorial misconduct warrants a new trial or the
setting aside of a guilty verdict only where the actions of the
prosecutor have caused prejudice to the defendant's right to a
fair trial.” State v. McGriff, 76 Hawai'i 148, 158, 971 P.2d
782, 792 (1994) (citations omitted). “Allegations of
prosecutorial misconduct are reviewed under the harmless beyond a
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reasonable doubt standard, which requires an examination of the
record and a determination of ‘whether there ie a reasonable
possibility that the error complained of might have contributed
to the conviction.’" State vs Hauge, 103 Hawai'i 36, 47, 79 P.3d
131, 140 (2003) (citations omitted). In determining whether such
fa reasonable possibility exists, the appellate court considers:
(1) the nature of the alleged conduct: (2) the promptness or lack
of a curative instruction; and (3) the strength or weakness of
the evidence against the defendant. State v, Aorabante, 13 Haw.
179, 198, 830 P.2d 492, 502 (1992).
Evidentiary Rulings
[D]itferent stancarde of review must be applied te trial court
Gecisions regarding the scmicsibslity of evidence, depending cn
the requirenents of the particular rule of eviaence st issue.
nen application of a particular evidentiary ule can yield only
fone correct result, the proper standard of appellate review 12 the
Fignt/usong Stangats. However, the traditiens: abuse of
Giscretion standard should be applied in the case of those rules
of evidence that regeire “Judgment call” on the part of the
trial court.
Kealoha v. County of Hawai'i, 74 Haw. 308, 319-20, 844 P.2d 670,
676 (1993). Evidentiary rulings on relevance under HRE Rules 401
and 402 are reviewed under the right/wrong standard. Tabieres v
Clark Buin, Cou, 65 Hawai'i 336, 350-51, 944 P.2d 1279, 1293-94
(1997). Similarly, the adnissibility of evidence based on the
hearsay rules is generally reviewed under the right /wrong
stondard, State v, Moore, 82 Hawai'i 202, 217, 921 P.2d 122, 197
(1996). However, determinations of trustworthiness under HRE
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Rule 604(b) (8) are reviewed for abuse of discretion. ev
Haili, 103 Hawai'i 69, 99-100, 79 P.3d 1263, 1273-74 (2003).
Admission of opinion testimony is also reviewed under
the abuse of discretion standard. State v. Ferrer, 95 Hawai'i
409, 422, 23 P.3d 744, 757 (App. 2001). Similarly, the decision
to exclude otherwise relevant evidence under HRE Rule 403 because
of the potential for prejudice “is eminently suited to the trial
court's exercise of ite discretion because it requires a cost-
benefit calculus and a delicate balance between probative value
and prejudicial effect.” Haili, 103 Hawai'i at 101, 79 P.3d at
1275 (citations, brackets, and internal quotation marks omitted).
Finally, absent plain error, a party may not assign as
error the admission or exclusion of evidence unless a substantial
right of the party is affected and a timely objection, stating
the specific grounds, was made. HRE Rule 103(a). Whether an
error in admitting or excluding witness testimony is harmless
beyond @ reasonable doubt or affects a substantial right depends
on various factors including: (1) the importance of the witness
to the party's case; (2) whether the testimony was cumulative:
(3) the presence or absence of testimony corroborating the
testimony on material points: and (4) the overall strength of the
party's case. State v. Cordeiro, 99 Hawai'i 390, 420, 56 P.3¢
692, 722 (2002).
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E. dury Instructions
lien jury instructions or the omission thereof are et issue on
‘appeal, the standard of review ie whether, when read and
Goneicered as 2 whole, the instructions given are prejudicially
Insufficient, erroneous, inconsistent, or mislesding. Erronecus
instructions’ are presumptively harmful andere a ground for
Feverssl unless it affirmatively appears from the record a2 &
hole that the error was not prejudicial. (However, ejrror is not
fo'be viewes in isciaticn and considered purely in the abstract
Tt must be examined in the Light of the entire proceedings and
given the effect unich the whole record shoe it to be entitled
In that context, the real question becones whether there i# 8
Feasonable possibility that error might Reve coneedbutes to
Conviction. If there ie such @ reasonable possibility ina
Erininal case, then the error is not harmless beyond a reasonable
Goubt, and che Sudanent of conviction on which iz may have Deen
Bared must be set aeide:
State v. Gonsalves, 108 Hawai'i 289, 292-93, 119 P.3d 597, 600-01
(2005) (internal citations, quotation marks, indentations, and
paragraphing omitted; bracketed material added) .
F. Improper Remarks by a Witness
Whether a witness's improper remarks constitute
reversible error depends on: (1) the nature of the impropriety;
(2) the promptness of a curative instruction; and (3) the
strength or weakness of the evidence against the defendant.
State v. Samuel, 74 Haw. 141, 148-49, 838 P.2d 1374, 1378 (1992).
G. Ine! vs e]
‘the defendant has the burden of establishing ineffective
asistance of counsel and must meet the following two-part test:
i}"that there vere errors or omissions reflecting counsel's lack
of skill, Judguent, or ailigence: and 2) thet such errors or
Omissions resulted’ in either the withdrawal or substantial
impairment of «potentially meritorious defense. To satisfy this
second prong, the defendant needs to show a possible impairment,
Eather than a probable ispaimment, of a potentially neritorious
Gofense. A defendant need not prove actual prejudice.
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State v. Wakisake, 102 Hawai'i 504, 514, 78 P.3d 317, 327 (2003)
(internal quotation marks, citations, and footnote omitted)
TIT. piscussion
A. The Circuit Court Did Not elainly Err in Acceding to the
fonse Request. in Jt Sleva
Eiloteo Voluntarily Not Attend the Trial.
Chatman first argues that the circuit court violated
his constitutional right to a public trial when it excluded
Wesley and Filoteo from the trial. The pro:
cution counters that
this claim ie without merit because it was in fact at the
strenuous insistence of the defense that Reyes was retained as a
juror in conjunction with Wesley and Filoteo’s voluntary
agreement not to return to court, Based on the following, we
hold that the circuit court did not plainly err in acceding to
the defense request to keep Reyes as 2 juror and secure the
voluntary departure of Wesley and Filoteo.
At the outset, it must be emphasized that not only did
the defense not object to the retention of Reyes as a juror when
it was determined that he was acquainted with Filoteo, but it
expressly requested his retention even after the circuit court
and prosecution indicated their desire to have him excused. As
such, any error can only be considered invited, and, as a general
rule, invited errors are not reversible. State v, Jones,
96 Hawai'i 161, 166, 29 P.3d 351, 356 (2001); State v. Puaoi,
78 Hawai'i 185, 189, 891 P.2d 272, 276 (1995); State v. smith,
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68 Haw. 304, 313-24, 712 P.24 496, $02 (1986). However, it is
also true that this court will still reverse where an invited
error is so prejudicial as to be plain error or to constitute
ineffective assistance of counsel. Smith, 68 Haw. at 314, 712
P.2d at 502.
In this case, however, there was no error at all. A
defendant in a criminal case is guaranteed by state and federal
constitution the right to a public trial. State v. ortiz,
91 Hawai's 181, 190, 981 P.2d 1127, 1136 (1999). Ae set forth
above, the circuit court in this case acknowledged this right,
stating, “This is a public proceeding. And I don’t want to bar
anyone from the courtroom." After agreeing to the defense
proposal to keep Reyes, the court also stated, “I’m (going tol
ask [the couple} te leave, please. If that’s with their consent
(Emphasis added.) Based on the facts of this case, therefore, it
cannot be said that the trial court's assent to the defense
proposal to have Chatman’s brother and Filoteo leave can even be
considered a closure of the courtroom: had the couple or the
defense requested that they be allowed to stay, it appears from
Pie note that the focus on the spectators’ consent rather than
chatnan'S consent woe misplaced. It s¢\ well settied that the sixth chendnent
sour ins," Bebseauale, €49 G-5. 366, 399080 11575): ‘Sinilerly, article se
Section i7 of the Hawai's Constitution, entitied “Rights of Accused,” provides
thet “the secused shall enjoy the right toa speedy and public trusl(.]"
(Emphasis added.)
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———
the record that Reyes would have been excused as a juror and
their attendance would have been permitted. Because the circuit
court did not bar anyone from the courtroom, Chatman’s right to a
public trial was not violated and there was no error, much less
plain error.
B, The Circuit Court Did Not Abuse Its Discretion in Denving
Chatman’ s Mot ea Misi ed on SUZUKI" mon’
# 4 +
Chatman next argues that the circuit court abused its
discretion in denying his motion for a mistrial based on Suzuki's
testimony that, after falling asleep the first night she met
Chatman, the next thing she noticed was that he “was on top of
[her.]” Chatman argues that the prejudicial effect of this
testimony, which constituted evidence of a prior bad act, could
not be cured because this case ultimately boiled down to &
4 alternatively, we believe that Chatman's right to a public tri
should be decned waived,” Although it does not appear thet this court has ever
Eassed on the issue, other courte have held chat, unlike other constitutional:
Plghes, walver cf the right to public trial need not be made by the defencant
Zefesneily. See Levine v, United Steves, 362 U.S. 610, 619 (1960) (holding
Bhat the failure to object to closure of the courtroom constitutes waiver of
the right tes public trial)? see also People v. Stadiarg, 929 P.2a $44, $70
(esi. 1897), (hofding that no personal waiver By the cefendant is required to
Acive the figne toa public trial and defense counsel's failure to object to
“osure ss sufficient for weiver to be found); Berkuts v. State, 788 So. 24
{obi, 1082-63 (ria. Dist. Ct. App. 2001) ("A defense counsel's affirmative
Eeprésentation to the court chat the defendant consents to excluding persons
Etherwise entitled to be in the courtroom ie sufficient to effectively waive
fhe defendens's right te a public trial"); People vs Hayden, 786 N.£.2d 106,
SESAU"TEi, app, cts 2003) (etaing that the rignt to a public trial may be
“dived by counsel or by failure to ebject to closure); Besple vy, Oauahtry, 664
Riv.s.26 30e, 308 (1997) (fSnding that defense counsel effectively waived the
Sofendant’s fight to a fair trial by consenting to closure of the courtroom).
‘esuning arguendo that the courtroen was Constructively closed in part,
counsel not only failed to object but affirmatively requested and
to the partial closure. Accordingly, he waived Chatman’ s right to
have Wesley and Filotes present
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credibility contest between Suzuki and Chatman? as such, the
effect of her testimony damaged his credibility and could easily
have tipped the contest in her favor. The prosecution responds
that
(2) the incomplete response given by Suzuki was not p:
bad act evidence: and (2) even assuming that it was improper
prior bad act evidence, the circuit court’s prompt curative
instruction was an adequate renedy in light of the strength of
the evidence. Based on the following, we conclude that the
prosecution's response has merit.
The controlling case regarding this point of error is
Samuel. In that case, an expert witness for the prosecution, who
had previously been warned not to mention prior bad acts,
testified that the defendant had a history of violence. 74 Haw.
at 149, 838 P.2d at 1378. After the defense objected, the trial
court struck the remark and instructed the jury to disregard it.
Jd. 0n appeal, the defendant contended that the trial court's
response was inadequate to remedy the prejudicial effect of the
witness’s improper remarks and a mistrial should have been
granted. Id, at 148, 838 P.2d at 1378. This court disagreed,
applying the three-pronged prosecutorial misconduct analysis and
concluding that the curative instruction was sufficient. Id. at
148-43, 838 P.2d at 1376-79.
The circumstances of the instant case are
indistinguishable from Samuel. Having been cautioned by the
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prosecution not to refer to other incidents unless specifically
asked, Suzuki nevertheless began to describe what could be
construed as Chatman's initiation of a sexual act without
consent. Also as in Samuel, the defense promptly objected and
the trial court struck the remark, instructing the jury te
disregard it.
Tt must also be acknowledged, however, that while the
circumstances here and in Samuel are similar, the substance of
the analysis is different, As Chatman correctly notes, the
principal issue in this case was the identity of the person who
caused Taison’s injuries. the prosecution's only substantive
evidence on this point was the testimony of Suzuki, which the
defense countered with the denials of Chatman. In short, the
jury was tasked with weighing the credibility of Suzuki against
that of Chatman. Thus the third prong of the misconduct analysis
points in Chatman's favor.
on the other hand, the first two prongs point in the
prosecution's favor. First, the harm to Chatman was less than in
Samuel in that Suzuki, unlike the expert in Samuel, who clearly
stated that the defendant had a history of prior bad acts, was
not allowed to finish her response. Therefore, although Suzuki's
testimony might suggest non-consensual sexual activity, there was
no definitive introduction of prior bad act evidence. Moreover,
the testimony did not bear on Chatman’s character for
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truthfulness, nor were there any charges of sexual misconduct in
this case such that there was 2 danger that the testimony could
be used as improper propensity evidence. Finally, the circuit
court responded promptly by striking the testimony and
instructing the jury to disregard it. Accordingly, we hold that
the circuit court's remedy was adequate, and thus no abuse of
discretion was committed in denying the motion for a mistrial.
c. cut e
to he Statenent of G ‘ton
touthe Hearsay Rule
Chatman’s third point of error is that the circuit
court abused its discretion in refusing to admit Gunji's
statement that she saw a woman, presumably Suzuki, strike a baby,
presumably Taison, in the hotel elevator on April 6, 2002.
Chatman argues that the hearsay analysis is less stringent when
it is the defense seeking admission of an out-of-court statement
because the defendant’ s constitutional right to confront
witnesses is not implicated, only the rules of evidence. The
prosecution counters that the circuit court did not abuse its
discretion because Chatman failed to show that Gunji's statement
was trustworthy and more probative on the point for which it was
offered than any other evidence that Chatman could procure.
Again, the prosecution’s argument has merit.
First, it is true that the hearsay analysis in this
case is both simpler and less stringent because it is the
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defendant who seeks to introduce the out-of-court statement. In
Haili, this court noted, “Evidence may be admissible pursuant to
the hearsay rules and yet violate a defendant’s constitutional
right to confront adverse witnesses.” Haili, 103 Hawai'i at 100,
79 P.3d at 1274 (citations onitted). Here, only the catchall
exception to the hearsay rule, HRE 804(b) (8), is implicated,
because it is the defendant proffering the evidence. To be
admissible under HRE Rule 804(b) (8), a statement must be
“trustworthy.” Id. at 102, 79 P.3d at 1276.
As set forth above, the circuit court engaged in a
detailed inquiry as to the trustworthiness of Gunji's statement.
‘The court found the statement untrustworthy on the grounds that
(1) Ae did not clearly identity Chatman, Suzuki, or Taison:
(2) various material details were lacking and (3) Gunji had
refused to obey subpoena and had indicated a willingness to
testify only upon sufficient compensation. We do not believe
that the foregoing analysis clearly exceeds the bounds of reason;
as such, it cannot be said that the circuit court's decision to
exclude the statement constituted an abuse of discretion.
D. Chatman’s Araument that Officer Nauven’s Testimony Was
‘Improper Opinion Should Be Deened Waived.
Chatman next contends that the circuit court abused its
discretion in allowing Officer Nguyen to give his lay opinion
that Suzuki was afraid she was going to lose Taison. He argues
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that Nguyen’s opinion was not helpful to the jury and was unduly
prejudicial in that, due to Nguyen’s status as a police officer,
the opinion had the effect of improperly bolstering Suzuki's
credibility. The prosecution argues that: (1) this objection
should be deemed waived because Chatman failed to raise it in the
trial court; (2) the objection fails on the merits; and (3) even
Af the testimony was improperly adnitted, any error was harmless.
We agree with the prosecution that Chatman failed to preserve an
objection.
As set forth above, Officer Nouyen gave what could be
considered opinion testimony at three points:
(1) he testifies,
without objection, that Suzuki “was really scared, scared of
[Chatman], and seemed like she was really scared to lose her
child”; (2) he testified that Suzuki “was a girl that was afraid
for her life, afraid for her child, afraid to lose her child{,1”
but that testimony was stricken in response to a defense
objection and the jury was instructed to disregard ity and (3) in
response to @ subsequent question, he gave his impression that
Suzuki was afraid “she vas going to lose her son{,]” and a
defense objection that the testimony was non-responsive was
overruled.
It is well settled that testimonial objections not
raised or properly preserved at trial will generally not be
considered on appeal. See, £.c., State v. Crisostono, 94 Hawai’
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282, 290, 12 F.3d 873, 881 (2000) ("A hearsay objection not
raised or properly preserved in the trial court will net be
considered on appeal.” (Citation omitted.)}. Moreover, “(where
specific grounds are stated in an objection, the implication is
that there are no others or, if there are others, that they are
waived." State , 57 Haw, 96, 101, $50 P.24 900, 904
(1976) (citations omitted). See also Crisostome, 94 Hawai'i at
290, 12 P.3d at 681 (holding that even if an objection to
testimony was made on other grounds, a hearsay objection on
appeal was waived). Here, Chatman did not object to the first
opinion statement, and objected only on responsiveness grounds to
the third. In between, his objection to the second statement was
sustained and the jury was instructed to disregard the statement.
Accordingly, his objection on appeal is waived in two cases and
moot in the third.
EB. the Court Did Wi p Allowing Evidence
of Rupak’s Arrest and imprisonment.
Chatman’s £i£th assignment of error is that, even
though he did not object, the circuit court plainly erred in
allowing the prosecution to elicit testimony from Rupak that he
had been arrested and imprisoned. The prosecution responds that
the evidence was relevant to Rupak’s memory for specific dates
and, therefore, also to his credibility. Chatman counters that
even if the evidence tended to undermine Rupak’s memory as to the
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precise date, April 6, 2002, of the slapping incident, it was
outweighed by the risk of unfair prejudice. Based on the
following, we hold that the circuit court did not plainly err in
allowing the testimony.
Evidence of the date of Rupak's arrest was relevant
both to Rupak’s memory and to his credibility, It is well
established that on cross-examination, a party is entitled to
test a witness's perception, memory, and credibility. State v
Beseti, 101 Hawai'i 172, 180, 65 P.3d 119, 127 (2003). on
May 23, 2003, Rupak testified in his deposition that he had seen
the wonan slap the child sone time during the first week of
April. Consistent with this level of precision for dates, he
also testified that he did not remember the precise date on which
he was arrested (even though it was almost a year to the day) or
the day on which he first came to Hawai'i, though he acknowledged
that these were important dates in his life. However, less than
a month later, Rupak testified at trial that the date of the
slapping incident was April 6, 2002. Accordingly, the
prosecution asked a question designed to show that, if Rupak
could not even renenber the day on which he was arrested, May 24,
2002, it was unlikely that he could suddenly remember the precise
date of an event that occurred one month earlier and was
presumably of less significance in his life.
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Of course, this question also implicated Rupak's
credibility (e.a., it suggested that perhaps he had been coached
subsequent to his deposition and prior to trial). With respect
to attacks on credibility, this court has held:
Evidence to be adnissible for the purpose of affecting the
credibility of a witness must be such as bears directly upon his
character for truth and veracity. Otherwise it would be
ferelevant. It is not competent if it parely tends to aisgrs
Asato v. Furtado, 52 Haw. 284, 294, 474 P.2d 288, 295 (1970)
(citation omitted; emphasis added). Here, however, the evidence
did not tend merely to disgrace Rupak; rather, it also
demonstrated his memory for dates. Moreover, its probative value
could not clearly be said to be outweighed by any unfair
prejudice because the prosecution did not dwell on the arrest,
nor did it reveal the nature of the crime for which it had been
made or whether @ conviction had resulted. Accordingly, there
was no error, much less plain error, in admitting it.
Fr
Ws Rebuttal Test izony Regarding He:
Whether the Apology Letter Was Translated from English.
Chatman next contends that the circuit court abused its
discretion in allowing Takenaka to give her opinion as to whether
the letter appeared to have been translated from English. He
argues that Takenaka was not qualified to give such an opinion
and that the opinion was not relevant to impeachment. The
prosecution counters that: (1) Takenaka’s testimony was relevant
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to impeachment; and (2) her testimony did not constitute an
opinion, but was simply her statement as to the conversation that
took place between her and Chatman regarding the letter (ie,
whether or not it was in fact Takenaka’s opinion that the letter
appeared to have been translated from English, the point vas that
Chatman had denied that Takenaka had expressed such concerns and
Takenaka on rebuttal impeached that denial by stating that she
had expressed such concerns). The prosecution’s argument is
convincing.
Assuming without deciding that Takenaka’s testimony
would have been an improper opinion if considered for substantive
purposes, Takenaka’s testimony was nevertheless properly adnitted
for impeachment purposes to contradict Chatman’s version of the
facts. As set forth above, Chatman denied on cross-examination
that Takenaka had expressed the concerns that the letter did not
sound like something a Japanese person would write and thet
Chatman had forced Suzuki to write it. On rebuttal, Takenaka
testified to the exact opposite, and the circuit court instructed
the jury that it could consider her testimony for the purposes of
impeachment. The contradiction of Chatman’s version of events --
dst., that no opinion had been given by Takenaka regarding the
origin of the letter -- with impeachment testimony to the effect
‘that an opinion had been given does not constitute a substantive
opinion. C£, State v, Rabe, 5 Haw. App. 251, 260, 687 P.24 $54,
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561 (1984) (noting that “mere contradiction of 2 witness's
version of the facts does not constitute” an attack on that
witness's character) (citations omitted). Here, Takenaka’ s
testimony, which directly contradicted Chatman’s, was highly
relevant to the events that occurred during the meeting where
Takenaka translated the letter and was clearly framed with a
Limiting instruction. As such, its probative value was not
compromised by any danger that the jury might consider Takenaka’ s
testimony as a substantive opinion on the nature of the letter:
thus, the circuit court did not abuse its discretion in admitting
see
s i Ni
Chatman’s objec Zaki" ‘on_Cross-
amin ra ev
Exe.
Chatman next argues that the circuit court abused its
discretion in failing to strike (or grant a mistriel based on)
Suzuki's testimony that Chatman had previously struck her in the
‘eye when her testimony was non-responsive to the question asked
by the defense. In response, the prosecution argues that:
(1) the circuit court did not abuse its discretion in concluding
that the testimony was responsive as to why Suzuki could not
remember which eye Chatman had struck her in on October 20, 2002;
(2) in the alternative, the testimony was relevant to the
question of whether Chatman’s threat to harm Suzuki was genuine,
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and therefore admissible: and (3) assuming arguendo thet the
circuit court erred in admitting the testimony, the error vas
harmless in light of the “overwhelming and compelling evidence”
of Chatman’s guilt. For the reagons set forth below, we hold
that the circuit court did not abuse its discretion.
To review, Suzuki was unable to recall on cross-
examination which eye Chatman had struck her in during the
letter-writing incident of October 20, 2002. Chatman’s counsel
then pressed her, “So. . . you [are] testifying that today you
don't recall what eye he hit you, what eye was hit; is that
right? Is that right? I’m sorry.” Suzuki replied, “Well, he
hit me in the past on my eye, so... . I’m confused{.]* The
circuit court denied chatmen’s request to strike and motion for a
mistrial, finding that the answer was responsive to why she could
not recall which eye had heen struck.
We do not believe that there is a fair basis on which
to conclude that the trial judge's determination regarding the
responsiveness of Suzuki's answer constituted an abuse of
discretion. See State v, Corella, 79 Hawai'i 255, 265, 900 P.2d
1322, 1332 (App. 1995) (concluding that @ trial court’s rulings
on the scope of cross-examination and the admission of testimony
generally are reviewed for abuse of discretion). while it may
appear from the transcript that the defense asked a yes-no
question as to Suzuki’s recall of the incident, not for an
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explanation, the transcript of course provides no indication as
to the tone or manner in which the question was asked. The trial
judge, who was there to hear the question as posed, concluded
that the defense’s question called for an explanation as to why
Suzuki could not recall which eye Chatman had struck her in. See
State vs. McElroy, 105 Hawai'i 352, 357 n.1, 97 P.3d 1004, 1009
1.1 (2004) (stating by implication that a witness’s answer to a
question on cross-examination is responsive where the question
calls for or requires the witness to answer as he or she did)
Given that the defense’s purportedly desired answer ("I don’t
remember”) had already been elicited from the witness in response
to the previous question, and given that the trial judge, unlike
this court, had the benefit of hearing both the question and
response live and in full context, it cannot be said that the
circuit court’s determination of the answer's responsiveness
clearly exceeded the bounds of reason.
Assuming arguendo, however, that the circuit court
abused its discretion in finding the answer responsive,
“responsiveness is not the ultimate test of admissibility.”
State v. Batts, 277 S.B.2d 385, 388 (N.C. 1981). “If an
unresponsive answer is otherwise competent as evidence, it need
not be stricken.” State v. Williams, 305 S.£.2d 519, 522 (N.C.
1983) (citations omitted). To put it another way, the erroneous
admission of non-responsive testimony is harmless error if the
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——
testimony would have otherwise been admissible. Here, Chatman
argues that the “alleged prior assault was not relevant and its
only [effect] was to prejudice the jury against [him].”
Accordingly, he contends that the evidence should have been
excluded under HRE Rules 402 (relevancy),” 403 (prejudice),* and
404(b)" (prior bad act). The prosecution counters that: (1) as
the circuit court found, the evidence was relevant not as
improper character-propensity evidence but to establish an
element of the extortion count because it showed Suzuki's fear of
Chatman and compulsion she was under to write the letters and
(2) the probative value of the testimony was not substantially
outweighed by the danger of unfair prejudice. The prosecution’ s
argument has merit.
First, the evidence was not precluded by HRE Rule
404(b) because it was not used for improper character-propensity
2 RE Rule 402 provides in pertinent part that all irrelevant evidence
Ae inacniseible:
2c HR Rule 403 provides in relevant part that a trial court may exclude
otherwise relevant evidence
UP dts probative value is substantially outweighed by the danger
Of unfair prejudice, confusion of the issues, or misleading the
ir by considerations of undue delay, waste of time, oF
presentation of cumulative evidence.
% GRE Rule 404(b) provides in relevant part
Evidence ot Sther erines, wrongs, or acts is not adnissible to
prove tne charecter of @ person in order to shew action in
Bontoraity therewith. It may, however, be admissible where such
evidence is probative of any other fact that is of consequence to
the determination of the action, such as proof of motive,
Speortuaity, intent, preparation, plan, knowledge, identity, modus
Sperandi, of absence of mistake or accident.
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purposes (i,e., no attempt was made to use the impermissible
inference that because Chatman had struck Suzuki in the past, it
is therefore more probable that he struck her on October 20,
2002). Second, the evidence was not precluded as irrelevant
under HRE Rule 402 because it vas used to establish that suzuki
was under threat from Chatman to write the letter. Because the
evidence was relevant for a permissible purpose, the real
question is the applicability of the HRE Rule 403 balancing test,
4
did the danger of unfair prejudice (the risk that the jury
would on its own draw an impermissible character-propensity
inference or conclude that Chatman was a bad person generally and
therefore must be guilty) substantially outweigh the probative
value of the evidence (that Suzuki was under a genuine compulsion
to write the letter). See State v. Castro, 69 Haw. 633, 643, 756
P.2d 1033, 104 (2988) (holding that the use of the word “nay” in
HAE Rule 404(b) was designed to trigger the HRE Rule 403
balancing test).
In applying the balancing test to prior bad act
evidence, this court has identified various, non-exclusive
factors, such as: “the strength of the evidence as to the
commission of the other [bad act], the similarities between the
[bad acts], the interval of tine that has elapsed between the
(bad acts}, the need for the evidence, the efficacy of
alternative proof, and the degree to which the evidence probably
6
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will rouse the jury to overmastering hostility.” Castro, 69 Haw.
at 644, 756 P.2d at 1041 (citation omitted). Here, the mults-
factor analysis can be sinplified. While there was no compelling
need for the testimony in that Suzuki had already testified to
various other acts to establish threat or compulsion, it was also
unlikely that the jury was roused to overmastering hostility
against Chatman based on the context in which the response was
given. Unlike in Castro, where the prosecution deliberately
elicited testimony from the complaining witness of multiple prior
bad acts including threats, assault, and rape, id. at 641, 756
P.2d at 1039-40, the prior bad act evidence here constituted only
one isolated response not solicited by the prosecution. As such,
it could not be considered clearly beyond the bounds of reason to
conclude that the prejudicial effect of the testimony did not
substantially outweigh its probative value. Accordingly, the
cizeuit court did not abuse its discretion in allowing Suzuki's
response because it was otherwise adnissible.
H. ve & ts Errors pot
Require Reversal.
Chatman argues that the cumulative effect of the
foregoing errors justifies a reversal. As this court has
recognized, there are cases where the cumulative weight of
individually harmless errors can prejudice the defendant's right
toa fair trial such that reversal is warranted. State v.
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Pemberton, 71 Haw. 466, 475-76, 796 P.2d 80, 84-85 (1990).
Chatman contends that this is one such case because the
“credibility of [Suzuki] was pitted against the credibility of
[Chatman]. Yet each of the evidentiary rulings, individually and
cumulatively, unfairly bolstered [Suzuki's] credibility.” The
prosecution counters that because each of the errors alleged by
Chatman is individually without substance, it necessarily follows
that his claim of cumblative error fails as well. Because we
agree that none of Chatman’s first seven assignments of error has
merit individvally, we also agree that there is necessarily no
cumulative effect to consider, See Samuel, 74 Haw. at 160, 938
P.2d at 1383 (declining to address the cumulative effect of
errors where each alleged error was individually insubstantial).
I. ‘The Circuit Court Did Not Abuse Its Discretion in Denving
Chatman: Wotica fees Wietaal Gis te Erocscutosial
Chatman argues that the prosecution engaged in
misconduct when it: (1) deliberately induced Chatman on cross-
examination to invoke his Fifth Amendnent privilege, thereby
allowing the jury to draw negative inferences (i.e., that Chatman
was hiding something); and (2) made a variety of improper remarks
during closing argument. The prosecution responds that there was
no misconduct, and even if there was, it was harmless. For the
reasons set forth below, we agree with the prosecution.
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a. Chatman’s reference to his Fifth Amendment
privilege during cross-examination
Chatman’'s first point
that the prosecution committed
misconduct by asking questions designed to induce him into
invoking or referencing his Fifth Amendment privilege -- is
without merit. First, the prosecution did not “unfairly, by
implication, conent(] on (Chatman's) Fifth Amendment rights
thereby committing misconduct," because it did not induce Chatman
into invoking his Fifth Amendment right against self-
inerimination. As set forth above, Chatman did not clearly
invoke the Fifth Amendnent in his April 10, 2002 statement to
police: instead, he deflected inquiries into the cause of
‘Taison’s injuries by stating, “I don’t want to get into that.”
when the prosecution advised the circuit court and defense
counsel of its intent to inguize into the April 10 statement and
asked whether Chatman’s refusal to answer certain questions
should be considered the equivalent of a Fifth Amendment
invocation, the defense did not raise a general objection,
agreeing instead to proceed on a questicn-by-questien basis.
‘Then, when the prosecution asked Chatman to confirm that, in
contrast to his trial testimony, he never mentioned in his
April 10 statement that he had seen Suzuki strike Taison in the
elevator, the defense did not object either before or after
Chatman’s response that he did not want to get Suzuki into
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trouble and so asserted his Fifth Amendment privilege
Accordingly, the error, if any, must be plain for this court to
consider it.
Second, Chatman’ s volunteered references to the Fifth
Amendment were non-responsive to the questions posed by the
prosecution. As set forth above, the prosecution asked a series
of yes-or-no questions about the conduct of a party other than
Chatman. Even assuming that Chatman was reasonable in his belief
that the questions called for an explanation other than or in
addition to a yes or no, he could easily have answered, “I didn’t
want to get her in trouble|,]” without volunteering a reference
to the Fifth Amendment. Contrary to Chatman’s assertions that
the prosecution persisted in this line of questioning to bait him
inte a Fifth Amendment assertion, the record clearly shows thet
the prosecution persisted only because Chatman initiated the
exchange by refusing to listen to and address the questions
asked. See People v. Brigaman, 316 N.E.2¢ 121, 127 (T11. App.
ct. 1974) (finding that it was proper for the prosecution to
pursue a line of questioning that was initiated by the
defendant). Moreover, the prosecution made every effort to
notify the defense and the court of its intended line of
questioning (both bench conferences were initiated by the
prosecution), and thus to the extent it erred, it was a mistake,
not misconduct. See State v, McElroy, 105 Hawai'i 379, 285,
6
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98 F.3d 250, 256 (App. 2004) ("It is settled that a mere mistake
relative to the admissibility of proffered evidence is not
misconduct in the absence of a showing that the prosecutor was
not acting in good faith.” (Citation omitted.)), overruled on
other grounds, 10$ Hawai'i 352, 97 P.3d 1004 (2004)
Assuming arguendo, however, that the prosecution did
engage in misconduct or induce error, application of the three~
pronged misconduct analysis demonstrates that reversal is not
required. While the third prong favors Chatman for the reasons
set forth above, see Section III.B, gupra, the first two prongs
favor the prosecution
As to the first prong, the nature of Chatman's
testimony and the inferences that could reasonably be drawn from
it are harmless, if not beneficial, to Chatman. In contrast to
the typical fact pattern where a witness is asked, did you do
such-and-such (bad) act, and remains silent or invokes the Fifth
Amendment, Chatman was asked about an inconsistency in his
statements regarding the conduct of another, Suzuki. Thus, to
the extent that the jury might draw an inference from the Fifth
Amendment reference (as distinct from the inconsistency in
chatnan’s two statements, which does not derive from or arise out
of the voluntary Fifth Anendnent assertion at trial), the
reasonable inferences would be (1) Chatman was trying to protect
Suzuki even at his own expense (which might in turn cause them to
0
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—_——
believe, to Chatman’s benefit, that he was a stand-up, credible
person), or (2) Chatman was simply confused, because there was,
in context, no reason to refuse to answer a question, on self-
incrimination grounds, about something someone else did. As
such, Chatman’s concern that he was prejudiced because the jury
might have drawn an inference that he was hiding something is
unfounded.
‘The second prong also favors the prosecution. The
circuit court struck the whole line of testimony and instructed
the jury to disregard it. Given that the jury is presumed to
follow the court's instructions, v. Kupthea, 80 Hawai‘
307, 317-18, 909 P.2d 1122, 1132-33 (2996), any prejudicial
effect was cured. On balance, therefore, it cannot be said that
the prosecutorial conduct complained of rises to the level of
plain error.
The prosecution’ s closing argument
Chatman also argues that the prosecution “committed
misconduct by repeatedly disparaging defense counsel during
closing and rebuttal{,} and argued evidence that should not have
been adnitted.” The prosecution counters that prosecutors have
broad latitude in closing arguments and comitted no impropriety
here. The prosecution’s arguments have nerit.
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First, the prosecution correctly states the applicable
law:
IA] prosecutor, during closing argument, is permitted to draw
Hoesoneble inferences tren the evidence and wide latitude 1s
Allowed in discussing the evidence. it is also within the bounds
Sf legitimate argunent for prosecstors to state, discuss, and
Sorento the evidence sz well as to draw all ressonsble
Enterences from the evidence
State v. Clark, @3 Hawai‘! 269, 304, 926 P.2d 194, 209 (1996)
(citations omitted). Where no objection was made to closing
renarks, this court reviews only for plain error. Id, The
application of this law to the alleged inproprieties raised by
Chatman is considered next.
i. Reference to Rupak being in custody
As set forth above, the prosecution referred to the
fact that Rupak had been in custody during his questioning:
Saturday might mean different things for different people. Tt
might mean s weekend for many. It doesn’t mesn s weekend for
Hrs Rupes. “Ke works aeven days @ week. He worked the sane hours
Gvery Gay. Every day was the sone. Nothing, he tells yoo,
Rappened around the date of April 6® that’s significant’ in his
Iie other than this alleged incident that he sees. He cen
Femenber that dete. But Row ironic that this sane individual
However, testimony that Rupak had been arrested and was in
custody was properly admitted. See Section ITI.£, supra.
Moreover, the prosecution in its closing used the evidence in
precisely the sane way it had on cross-examination -~ to impeach
Rupak’s menory (and, by implication, his credibility). Because
7
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the prosecution, without objection, drew a reasonable inference
from properly admitted evidence, this argument was not improper.
Si. Reference to a prior bad act of Chatman
Riso as set forth above, the prosecution used a Power
Point slide stating that Chatman “had assaulted Suzuki in the
past” to establish that Suzuki was under @ genuine compulsion
from Chatman to write the apology letter. However, testimony
that Chatman had struck her in the eye before was properly
admitted. Moreover, the prosecution in its closing used the
evidence to establish compulsion, not to encourage an improper
character-propensity inference. Because the prosecution drew a
reasonable inference from properly admitted evidence, this
argument was not improper.
ALi, Characterizations of defense arguments
The prosecution also described defense counsel as
having “played up” allegations that Suzuki had slapped Taison and
asked, “why is it that the defense attorney didn’t really want to
address how that letter was made and why there’s all these [sic]
inconsistent evidence with respect to that?” Defense counsel
objected below that the prosecution's remarks were unnecessarily
personal and demeaning. The circuit court overruled the
objection, stating that this was argunent. As set forth below,
we hold these remarks were within the bounds of permissible
closing argument.
n
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In Clark, this court cited with approval Eeople vs
Sutton, 631 8.£.2d 1326 (I11, App. Ct. 1994). Clark, 83 Hawai'i
at 305, 926 P.2d at 210. In Sutton, the court held that in its
closing argument, “(t]he prosecution may . . . xespond to
comments by defense counsel which invite or provoke response,
denounce the activities of defendant and highlight the
inconsistencies in defendant's argument.” 631 N.E.2d at 1335
(emphases added). the prosecution's comments here were made for
precisely those purposes. They were not improper ad hominem
attacks on defense counsels rather, they were attacks on defense
counsel's argument.
iv. Reference to the importance of shane in Japan
Although no objection was made below, Chatman argues on
appeal that the prosecution's argument that Japanese people like
Suzuki are powerfully influenced by shame was an improper
emotional and racist appeal. He cites no authority for this
point, and we conclude that it does not constitute plain error.
Assuming arguendo that the prosecution's remarks
constituted an unfairly prejudicial enotional appeal, ** any
prejudicial effect was preempted by the circuit court's prior
¥ the remark was not racist, at least as that word ie commonly
underatosd, Because st connot be understood to contain a view that, the
Gapanese “race” 2 superior or inferior to any other. Sea Webster’ e Third New
Int'l Dictionary at 1870 (1993) (stating that racism "is usulallyl coupled
Sith a belief in the inherent superiority of a particular race and its right
fo doninstion over others”).
“NOT FOR PUBLICATION IN WEST HAWAII REPORTS AND PACIFIC REPORTER*
ee
instruction to the jury that “[y]ou must not be influenced by
pity for the defendant or for any other person{.]” Accordingly,
we aze unable to identify any harm from the prosecution's remarks
that rises to the level of plain error.
v. Negative characterizations of the defense’s
inconsistent argument
Chatman also contends that the prosecution's criticism
that his counsel was arguing “out of both sides of [his] mouth”
was an improper criticism of his right to argue inconsistent
defenses. The prosecution responds that the allegedly offending
remark “was not a negative comment on (Chatman's] inconsistent
Gefenses(,)” but was merely a characterization of defense
counsel's statement that Asahi injured Taison but without intent
to kill. We hold that the prosecution’s remark was improper, but
harmless.
As a preliminary matter, the prosecution acknowledges,
that “{iJt is the rule in Hawai'i that a defendant has the right
to argue inconsistent defenses(.]” State v. Smith, 91 Hawai'i
450, 457, 984 P.2d 1276, 1283 (App. 1999) (internal quotation
marks, brackets, and emphasis omitted). The prosecution also
recognizes that “it is improper for the State to speak negatively
to the jury about such an argument by the defendant.” Id. Here,
the prosecution clearly offended that rule when it argued:
you see, ladies and gentlemen, when counsel made that argument, he
Xahes yoo to say, well, you know, if Anthony Chatman -~ if you!
1
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find thet Anthony Chatman is guilty of did the act against
(Tatson}, Tivant to give yoo sn cut.
ior the included off Se
ang that’s really what he dig, So he cane up with, well, Avani
Suzuki cidn't mean it, just like no one ould have meant it. But
there’s no evidence of any of that:
It {8 commonly understood that “to talk out of both sides of
one's mouth” is dishonorable, and the prosecution used that
phrase in connection with Chatman’s attempt to argue the lesser
included offense of assault, based on lack of the requisite state
of mind for the greater offense, while simultaneously maintaining
that he did not commit any offense. Accordingly, the remark was
an improper negative characterization of Chatman’s inconsistent
defenses.
However, this case is distinguishable from Smith. In
Smith, the defense timely cbjected to the prosecution’ s
pejorative characterizations of its inconsistent arguments for
acquittal and conviction of a lesser included offense. Id. at
455, 984 P.2d at 1281. Here, on the other hand, defense counsel
below did not raise the correct objections instead, counsel
objected only on the ground that the conments constituted an
improper ad hominem attack. Accordingly, the objection now
raised was forfeited and this court may reverse only if the error
is plain.
As Chatman himself repeatedly points out, this case was
a credibility contest; either the jury would believe his story,
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eee
in which case he would be acquitted, or it would believe Suzuki,
in which case he would be convicted of the charged offense of
attempted murder. Accordingly, it cannot be said that there is
sonable possibility that the prosecutions improper comments
on his lesser included offense defense contributed to Chatman’s
conviction on the attempted murder count.
J. The Circuit co n
a ‘ounts were Si mand
Required
Chatman next argues that the circuit court erred in not
giving the jury his requested instruction regarding the mezger of
the extortion and intimidation counts. The prosecution
disagrees, arguing that the evidence supports the conclusion that
Chatman acted with two distinct intents: (1) “to intimidate
[suzuki] from appearing as a witness against him or influence her
testimony when he pulled her hair and dragged her across the
room{:] and later, [(2) to) compel] her to write @ letter
exonerating him when he “threaten[ed], by word or conduct, to
cause bodily injury in the future’ to (Suzuki) by telling her ‘I
can hurt you.'" We hold that the prosecution's argument is
without merit, but that remand for a new trial is not required.
Both parties appear to concede the issue is controlled
by HRS § 701-109(1) (e) (1993), That statute provides that a
defendant cannot be convicted of more than one offense where
“[ethe offense is defined as a continuing course of conduct and
n
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the defendant's course of conduct was uninterrupted, unless the
law provides that specific periods of conduct constitute separate
offenses.” This court, in turn, has interpreted the statute as
follows:
ne
wienin
F 3 course of conduct gives rise to more than one crime
fe nearing of HRS 701-109(1) te)] depends in part on the
intent end cbjective of the defendant. The test to deversine
whether the defendant intended to comit nore than one offense Le
“nether the evicence discloses one general intent of discloses
Separate and distinct intents. Where there is one intention, one
General impulse, ana one plan, there is but one offense. All
ihe trier of fae
State v. Matias, 102 Hawai'i 300, 305, 75 P.3d 1191, 1196 (2003)
(citations omitted) (bracketed material and emphasis in
original). In Matias, we held that a merger instruction should
have been given where place to keep and felon in possession of @
firearm charges “arose out of the same factual circumstances[.]”
Id. at 306, 75 P.3d st 1197. In so doing, we emphasized that
“the question whether [the defendant's] conduct constituted
separate and distinct culpable acts or an uninterrupted
continuous course of conduct . . . was one of fact that should
have been submitted to the jury[.]” Id. (internal quotation
marks and citation omitted).
In this case, as in Matias, the two offenses have
similar elements and arise out of the same factual conduct.
First, the offense of extortion is committed if a defendant
“[{]ntentionally compels or induces another person to engage in
7
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eee
conduct from which another has a legal right to abstain or to
abstain from conduct in which another has a legal right to engage
by threatening by word or conduct [.]" HRS § 707-764(2), supra
note 7, Similarly, intimidating a witness is committed if
defendant “vs
s force upon or a threat directed to a witness or a
person he believes is about to be called as a witness in any
official proceeding” in order to influence the witness's
testimony or cause the witness to avoid legal process. HRS
§ 710-1071, supra note 5
Second, the two charges arise out of the same factual
circumstances -- the events of October 20, 2002, when Chatman
assaulted and threatened Suzuki, who he knew or believed would be
a witness at his upcoming attenpted murder trial, in order to
nake her write the exculpatory letter and influence (i.ee,
prevent or discredit) her testimony. To the extent the
prosecution attempts to isolate discrete points in time and
separate Chatman’s intent to compel Suzuki to write the letter
from his intent to influence or prevent her testimony, it merely
raises @ question of fact that should, under Matias, have been
decided by the jury. First, whether the hair-pulling and
Gragging can be separated from Chatman’s statement, “I can hurt
you," is a question for the jury as to whether each act was or
was not part of one course of conduct designed to end in Suzuki
writing a letter exculpating Chatman. Second, the fact that
18
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Chatman acted with the intent to compel Suzuki to write the
exculpatory letter begs the question, “To what end?” Again, the
jury should have decided whether his intent to make her write the
letter could be separated from his intent to use the letter to
dissuade her fron testifying or, in the event she did testify, to
undermine the credibility of her testimony. In other words, it
was for the jury to decide whether there was an overriding
general intent connecting
ch of Chatman’s acts during an
uninterrupted span in order to prevent or influence Suzuki's
testimony as a witness against him in the attempted murder trial.
Accordingly, the circuit court erred in not giving the jury a
merger instruction as requested by Chatman.
‘The next question, however, is with regard to the
appropriate remedy for the circuit court’s error. the
prosecution requests that this court vacate one of the
convictions rather than remand. We agree that this is the
appropriate renedy based on a review of two cases in which the
same statute at issue here, HRS § 701-109, was violated, albeit
in different part.
The case most closely on point is Matias because it
involves an HRS § 701-109(1) (e) merger violation, as does this
case. In that case, we renedied the violation by remanding for a
new trial, 102 Hawai'i at 306, 75 P.3d at 1197. However, it
does not appear in Matias that the prosecution requested vacatur
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See
instead of remand in the event error was found, and the court in
any case did not discuss the renedy issue at all.
Instead of citing Matias, the prosecution directs us to
a case, this one involving HRS § 703-109(1) (a) mezger error,
where vacatur, rather than remand, was found to be the
appropriate remedy. In State v. Jumila, this court, finding that
the defendant had been improperly convicted of both an offense
(use of a firearm in commission of felony murder in the second
degree) and an included offense (murder in the second degree) as
defined by HRS § 701-109(1) (a), vacated the conviction for the
firearm offense. 67 Hawai'i 1, 3-4, 950 P.2d 1202, 1203-04
(2998), overruled on o rounds by State v. Brantley, 99
pawai'i 463, 56 P-3d 1252 (2002). The Jumila Court reasoned,
wthis solution is fair to the defendant because it remedies the
RS § 701-109 violation, and it is fair to the prosecution and
the public because it sustains the conviction of the offense of
the highest class and grade of which the defendant was
convicted.” Id, at 4, 950 P.2d at 1208.
The precise question presented on these facts, then, is
whether Matias forecloses vacatur as a renedy where there is 2
subsection 109(1) (e) merger error, but the prosecution indicates
its willingness to give up one conviction rather than retry both.
based on the rationale espoused by this court in umila, we hold
that the prosecution may avoid remand by offering to give up the
a
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extra, improper conviction.” Such a solution remedies the
violation while avoiding the hardship of a retrial on the victims
and witnesses and conserving judicial and prosecutorial
resources. Here, both the intimidation and extortion in the
second degree offenses are of equal grade. See HRS § 707-766(2)
(providing that extortion in the second degree is a class C
felony); HRS $ 710-1072(3) (providing that intimidating a witness
isa class C felony). Accordingly, this court may vacate either:
however, we believe that it is more appropriate to vacate the
extortion conviction and leave intact the intimidation
conviction, as that offense more precisely covers the conduct
committed by Chatman.
. Chatmant fective Asst. e) CL
Exemature,
Chatman’s final assignnent of error is that hie trial
counsel was ineffective in failing to secure: (1) the presence
and testimony of Gunji at trial: and (2) the attendance and
testimony of witnesses to support his allegations of juror
misconduct in his motion for a new trial. The prosecution argues
that this claim is without merit ox, in the alternative,
premature. We agree that the claim is premature. Accordingly,
P of course, had the prosecution elected to pursue both convictions,
‘then renand would be required, Moreover, if, as in Matiag, 102 Hawaii at 206
pill, 15 P.3d at 1187 nll, the defendant’s inproper conviction had served as
the basis for extended tern or other enhances, multiple offender sentencing,
jcution's willingness to give up the conviction could net aveia the
ity of renand for resentencing.
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ee
Chatman’s claim is denied without prejudice to a subsequent post-
conviction petition on ineffectiveness grounds.
Iv. gowcuusion
Based on the foregoing, we affirm the circuit court's
guly 19, 2004 judgments of conviction and sentences, except that
(2) Chatman’'s conviction and sentence in Cr. No. 02-1-2353 for
extortion in the second degr
ie vacated, and (2) Chatman’s
ineffective assistance of counsel claim is denied without
prejudice to a HREP Rule 40 petition for post-conviction relief
on that ground.
DATED: Honolulu, Hawas", August 3, 2006.
on the briefs: erm
Linda C.R. Jameson d (
for defendant-appellant ba.
Anthony Chatman
Stephen K. Tsushima, Pesci Caen fi.
Deputy Prosecuting Attorney,
for plaintiff-appellee Yorn, Duty: hy
state of Hawai'i
CONCURRENCE BY ACOBA,
I concur in the result only,
BS
cy
|
0c86476c-051a-4390-a572-0e6cd473d2a7 | Haque v. Hawaii Residency Program, Inc. | hawaii | Hawaii Supreme Court | LAW UBrnet
*** NOTFOR PUBLICATION ***
No. 26934
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
MOPIZ HAQUE, M.D., Plaintiff-Appellant
HAWAII RESIDENCY PROGRAM, INC.; RICHARD I. FRANKEL, M.D.
and PATRICK J. SOUSA, M.D., Defendants-Appellees 3
and cS
DOE DEFENDANTS 1-100, Defendants
ld
oats
APPEAL FROM THE FIRST CIRCUIT court gl E
{erv, NO, O0-1-1798) as
(By: Moon, C.J., Levinson, Nakayama, and Duffy, JJ., and
Circuit Judge Nishimura in place of Acoba, J., recused)
Plaintiff-Appellant Nofiz Haque, M.D., appeals from the
October 8, 2004 final judgment of the Circuit Court of the First
Circuit! in favor of Defendants-Appellees Hawaii Residency
Program, Inc. (HRP), Richard I. Frankel, M.D., and Patrick J.
Sousa, M.D. (hereinafter, collectively, Defendants]. Dr. Haque
contends that the circuit court erred in entering its “order
Granting Defendants’ Motion to Enforce Settlement Agreement”
because: (1) the written settlement agreement enforced by the
court (hereinafter, Draft #2) contained provisions to which he
never agreed; and (2) “The restrictions imposed upon Dr. Haque by
The Honorable Eden Elizabeth Hifo presided over this matter beginning
June 21, 2004. The Honorable Bert I. Ayabe presided over this matter from
Sune 4,"2003 to June 21, 2004. The liondrable bexter Del Rosario presided over
this matter from May 10, 2002 to June 4, 2003. The Honorable Dan T. Kochi
Initially presided over’ this matter until May 10, 2002-
*** NOT FOR PUBLICATION ***
the circuit court should be void as against public policy.”
Defendants counter that: (1) Dr. Haque’s counsel specifically
agreed to the inclusion of the provision of which Dr. Haque now
complains; (2) Draft #2 accurately reflects the agreement placed
on the record? (3) Draft #2 does not preclude Dr. Haque from
bringing concerns about patient care to the attention of proper
authorities? and (4) Dr. Haque’s assertion that he has complaints
against Defendants that are improperly precluded by the
jet tlement agreement is purely speculative.
upon carefully reviewing the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advocated and the issues raised, we hold as
follows:
(1) The circuit court did not err in enforcing Draft
42. See Assocs. Fin, Servs, Co. of Hawai'i, Inc. v. Mito, 87
Hawai" 19, 28, 950 P.2d 1219, 1228 (1998) (quoting Sylvester v.
Animal Bnergency Clinic of Oahu, 72 Haw. 560, 565, 825 P.2d 1053,
1056 (1992)) (“A trial court’s determination regarding the
enforceability of a settlement agreement is a conclusion of law
reviewable de nove."); see also Amantiad v. Odum, 90 Hawai'i 152,
162, 977 P.2d 160, 170 (1999) (quoting Haller v. Wallis, 89
Wash.2d $39, 544, 573 P.2d 1302, 1305 (1978)) (“The law favors
settlements and consequently it must favor their finality.”).
Dr. Haque admitted in his Opening Brief that @ settlement among
NOT FOR PUBLICATION ** *
all parties was reached in @ private mediation following
extensive discovery and motion practice and that the terms of the
settlement were placed upon the circuit court record. Draft #2
substantially conforms to the agreement placed upon the record
inasmuch as Dr. Haque agreed to release all of his claims; he did
not indicate that he intended only to release claims filed in
certain forums. See Matsuura v, E.1. Du Pont De Nemours & Co.,
102 Hawai'i 149, 174, 73 P.3d 687, 712 (2003) (*[S]ettlement
agreenents in Hawai"i are viewed as contracts.” (Citations
omitted.)); Shimabuku v, Montgomery Elevator Co., 79 Hawai'i 352,
358, 903 P.2d 48, 53-54 (1995) ("A release is an ‘abandonment of
claim to party against whom it exists and is a surrender of a
cause of action and may be gratuitous or for consideration’ and
occurs when a party gives up or abandons a claim or right.”
(Citations and brackets omitted.)); Earl M. Jorgensen Co, v. Mark
Constr, Inc., $6 Haw. 466, 470-71, 540 P.24 978, 982 (1975)
(“unexpressed intentions are nugatory when the problem is to
ascertain the legal relations, if any, between two parties.”);
Standard Mont., Inc. v. Kekona, 99 Hawai'i 125, 134, 53 P.3d 264,
273 (App. 2001) (*[T]he purely subjective, or secret, intent of a
party in assenting is irrelevant in an inguiry into the
contractual intent of the parties.”). Therefore, Draft #2 is not
rendered unenforceable merely because it specified certain forums
in which Dr. Hague could not bring his released claims;
*** NOT FOR PUBLICATION ***
(2) pratt #2 does not violate public policy because the
written settlement agreenent does not preclude Dr. Haque from
reporting concerns over patient care. First, Dr. Haque has only
released claims that he has or may have. As Defendants concede,
this does not prohibit him from raising concerns regarding
patients. Second, Dr. Haque is not restricted from filing
complaints with private organizations such as the Accreditation
Council for Graduate Medical Education, which Draft #2 expressly
allows him to do;
(3) The circuit court did not err in enforcing Draft
#2 because Dr. Haque’s alleged reservation of his right to file
complaints in public agencies was not part of the settlement in
that there is no evidence that his intent to make such a
reservation was ever raised during settlement negotiations. see
Milo, 87 Hawas's at 32, 950 P.2d at 1232 (stating that, where
“(t]he record is devoid of any evidence that tax considerations
were ever raised during [settlement] negotiations(, 1" tax
considerations were not part of the settlement and the circuit
court did not err in enforcing the agreement).? Therefore,
Ehrough his counsel at the
‘of paragraph 2(c) in
2 Defendants also assert that Or. Haque,
une 22, 2004 hearing, did in fact agree to the Lengua:
Draft #2 and also agréed that if Dr. Heque did not execute the settienent
‘agreenent by July 13, 2004 and did fot submit the contemplated stipulation for
Gismissal by July 13, 2004, then the Defensants could submit, and the court
could enter, an Order enforcing the settlenent agreement. Or. Haque counters
that “Defendants nowhere cite to any evidence in the record reflecting that
De. Haque’s counsel had the written authority required by (Hawai'i Revised
Statutes (HIRS)] § 605-7 [(1993)] to agree to terms Other than those placed on
(continued.
*** NOT FOR PUBLICATION ***
IT IS HEREBY ORDERED that the circuit court’s
October 8, 2004 final judoment is affirmed.
DATED: Honolulu, Hawai'i, June 21, 2006.
on the briefs:
Frederick W. Rohlfing, IIT, GO
for plaintiff-appellant
Mofiz Haque, M.D.
Regalia
A. Richard Philpott,
Carolyn K. Gugelyk,
and Lian Y. Ebesugawa Rete Oraeleer gree
(of Goodsill Anderson a
Quinn « seifel). for
-defendants-appellees Gone aig oe
Hawaii Residency Program,
Ince; Richard 1. Frankel,
M.D.; and Patrick J. Role Hduinur—
Sousa, M.D.
(,..continued)
the record at the Novenber 4, 2003 hearing.” This court need not determine
Haque's counsel hea authority to agree to the language of Draft 42
22, 2004 hearing, however, because even assuring, axausnde, that
.Nggue's colnsel dia not have written authority, for the reasons discussed
herein, the circuit court did not err sn enforcing Draft #2
5
|
2c84b269-9605-4bad-aec0-d8aff4b51e33 | Elizares v. State | hawaii | Hawaii Supreme Court | No. 26923
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
CALVIN D. ELIZARES, Petitioner-Appellant,
ve.
STATE OF HAWAI'I, Respondent-Appellee.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(S.P.P. NO. 03-1-0025(2) and
CR. NOS. 98-0463(2) & 99-0076 (2))
(By: Moon, C.J., for the court!)
Petitioner-appellant Calvin D. Elizares’ application
for writ of certiorari, filed June 13, 2006, is denied.
June 23, 2006.
DATED: Honolulu, Hawa:
calvin D. Blizares, FOR THE COURT:
petitioner-appellant,
appearing pro se, opp b
on the writ
abe em aN
® SEAL
Reo ws
* Considered by: Moon, C-J., Levinson, Nakayama, Acoba, and Duffy, oy.
aaa
|
46d36614-c0a1-4437-88a0-1c9090ac2b6c | Shipman v. State | hawaii | Hawaii Supreme Court | NOT FOR PUBLICATION
No. 27257
IN THE INTERMEDIATE COURT OF APPEALS
sag
OF THE STATE OF HAMAI'T
Petitioner-Appellant, v. .
: -
r
c
JAMES T. SHIPMAN,
STATE OF HAWAI'I, Respondent -Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(8.P.P. NO. 05-1-0003 (Cr. No. 97-2556))
ORDER DENYING APPELLANT'S MOTION FOR
RECONSIDERATI: ITION ORDER
Watanabe, Acting C.J., Foley and Nakamura, JJ.)
t
Upon consideration of Defendant-Appellant Jar
2006, Motion for Reconsideration of the
shipman's June 15,
Intermediate Court of Appeals’ Summary Disposition Order filed on
2006, the memorandum and documents in support of the
motion, and the records and file:
XT IS HEREBY ORDERED that the motion is denied.
2006
May 25,
in this case,
Hawaii, June 20,
DATED: Honolulu,
on the motion
Janes T. Shipman, ubanil
Acting Chief Judge
Petitioner-Appellant pro se
ds al. Phat
Associate Judge
|
264cc93a-0ef7-4add-8c30-b38c7531a54c | A&B Properties, Inc. v. Dick Pacific Construction Co., Ltd. | hawaii | Hawaii Supreme Court | +*+NOT FOR PUBLICATION IN WEST HAWAI'I REPORTS AND PACIFIC REPORTER***
No. 27154
a fawas't sommes
“appellee, “Zl
L036 wy 12 anv 3002
DICK PACIFIC CONSTRUCTION CO., LTD., a Hawai'i corporation,
Respondent Appellant.
APPEAL FROM THE PIRST CIRCUIT COURT
(S.P. NO, 04-1-0302)
(By: Moon, C.J., Levinson, Nakayama; Acoba, and Duffy 23.)
In this construction contract case, respondent
appellant Dick Pacific Construction Co., Ltd. (Pacific) appeals
fron the first circuit court's August 2, 2004 order? granting
petitioner-appellee A&B Properties, Inc.’s (Ré8) Application to
Conpel Arbiteation. Pacific contends that the circuit court
ersed when St: (1) granted the Application to Conpel Arbitration
because AGB did not introduce any evidence to establish that AGS
held a valid assignnent of the construction contract or its
arbitration clause; (2) ruled that the right to compel
erbitration under the arbitration clause of the contract could be
assigned even though the contract prohibite assignment without
the consent of the other party: (3) failed to determine whether
AGB’s claim was barred by the statute of limitations and instead
Hifo presided over this ma
‘The Honorable Eden £1420
aa
***NOT FOR PUBLICATION IN WEST HAWAI'I REPORTS AND PACIFIC REPORTER***
left that to the arbitrator’s determination; and (4) did not
dismiss the Application to Compel Arbitration on the grounds that
the claim sought to be arbitrated was barred under the applicable
statute of limitations as a matter of law.
Upon carefully reviewing the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advocated and the issues raised, we hold as
follows:
(2) The circuit court did not err when it granted the
Application to Compel Arbitration. See Luke v. Gentry Realty,
105 Hawai'i 241, 246, 96 P.3d 261, 266 (2004) ("A petition to
compel arbitration is reviewed de novo, which is the same
standard applicable to a motion for summary judgment.” (Internal
quotations and citation omitted.)). A&B provided sufficient
evidence to establish a valid assignment of the contract and
Pacific failed to submit any evidence to the contrary. see
Exench v. Hawai‘i Pizza Hut, Inc., 105 Hawai'i 462, 470, 99 P.3¢
1046, 1054 (2004) (holding that after the party moving for
summary judgment satisfies its initial burden of production, the
non-moving party must “demonstrate specific facts, as opposed to
general allegations, that present a genuine issue worthy of
trial”) (citation omitted). Pacific's unverified claims of the
invalidity of the assignment agreement do not satisfy this
burden. See Au, Au, 63 Haw. 210, 213, 626 P.2d 173, 177 (1981)
‘***NOT FOR PUBLICATION IN WEST HAWAT'T REPORTS AND PACIFIC REPORTER***
(Unverified statements of fact in counsel's memorandum or
representations made in oral argunent cannot be considered in
determining a motion for sunmary judgment.” (Citations
omitted.)). Therefore, AsB satisfied its burden of proof;
(2) The circuit court did not err in ruling that the
arbitration clause under the contract was assignable without
Pacific's consent because allowing AsB, instead of its
predecessor in interest, KY Planning Co., Ltd., formerly known as
Toses Shoji Co., Ltd., to arbitrate claims for damages against
Pacific will net prejudice Pacific, See, e.a., Elzinga & Volkere
vs LSSC Corp., 838 F.Supp. 1306, 1314 (D. Ind. 1993) (holding
that “the assignnent of a contract where the only right remaining
is to sue for damages will not prejudice [the signatory party) in
this case and should be enforced, notwithstanding the
nonassignment provision”); Prubowitch v. Riverbank Canning, 162
P.2d 182, 188, 30 Cal. 24 335, 344 (1947) (holding that “a
provision against assignment does not govern clains for money due
or claims for money damages for nonperformance,” and that the
assignee could therefore compel the signatory to arbitrate)
(citation omitted) ; Crown Oi) & Wax Company, Inc, v. Glen Constr.
Coss Ince, 578 A.2d 1184, 1193-95 (Md. 1990) (ruling that an
assignment was valid, notwithstanding a no-assignment clause, and
therefore the non-signatory could compel arbitration, because
there was no detriment to the signatory): and
***NOT FOR PUBLICATION IN WEST HAWAI'I REPORTS AND PACIFIC REPORTER***
SSS
(3) The circuit court did not err when it reserved for
the arbitrator the issue of whether the claim sought to be
arbitrated was barred by the applicable statute of limitations.
See Lee v. Heftel, 81 Hawai'i 1, 4, 911 P.2d 721, 724 (1996)
(holding that “any doubts concerning the scope of arbitrable
issues should be resolved in favor of arbitration”) (citation
omitted). Given the breadth of the arbitration clause in section
7.9.1 of the contract, leaving the issue of Pacific's statute of
Limitations defense to the arbitrator to decide is consistent
with the Hawai'i and federal policy favoring arbitration.’ See
United Steelworkers of America v. Warrior and Gulf Navigation
Sou, 363 U.S. 574, 582-83 (1960) (holding that an order to
arbitrate should only be denied when “it may be said with
Positive assurance that the arbitration clause is not susceptible
of an interpretation that covers the
serted dispute”); Koolau
Radiology, Inc, v, Queen’s Medical Center, 73 Haw. 433, 444, 834
P.2d 1294, 1300 (1992) (stating that Hawaii's arbitration statute
contains language “virtually identical to the language of the
federal arbitration statute,” and therefore, this court “look(s}
to federal authority for guidance” when faced with a motion to
compel arbitration). Therefore,
Pacific's fourth point of error need not be addressed because the
issue of the statute of Limitations defense is for the arbitra
4
**°NOT FOR PUBLICATION IN WEST HAWAI'I REPORTS AND PACIFIC REPORTER*
IT IS HEREBY ORDERED that the circuit court's August 2,
2004 order is affirned.
Rt
Honolulu, Hawai", August 24, 2006.
on the brief:
Erik D. Bike
for respondent-appellant
David Schulmeister
and W. Keoni Shultz
for petitioner-appellee
|
b0ea9330-9251-4cf3-855c-269b2cc4effe | Test v. Leonard | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION ***
No. 27718
LY SINT S002,
3
IN THE SUPREME COURT OF THE STATE OF HAWAT‘E|
sh
JULIE A. TEST and DONALD YAMASHITA, THROUGH THEIR MANAGING AGENT,
LIN POLING, Plaintiffs-Appellees
vs.
WILLIAM G. LEONARD and HARUMI Y. LEONARD, Defendants-Appellants
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CIV. CASE NO. 1RCOS-1-6266)
‘ORDER DISMISSING APPEAL
(By: Nakayama, J., for the court’)
Upon review of the record, it appears that this court
informed Appellants by letter dated April 28, 2006, that the time
for filing the statement of jurisdiction expired on March 24,
2006, and the time for filling the opening brief expired on
April 23, 2006, and that, pursuant to Rule 30 of the Hawaii Rules
of Appellate Procedure, the matter would be called to the
attention of the court for such action as the court deemed proper
including dismissal of the app Appellants having failed to
file the statement of jurisdiction and the opening brief,
I IS HEREBY ORDERED that the appeal is dismissed.
DATED: Honolulu, Hawai'i, June 15, 2006.
FOR THE COURT
Due Creal ine i
Associate Justice
‘Considered by: Moon, C.J.» Levinscn, Nakayama, Acoba, and Duffy, 32.
ace
|
b20e43ee-8a4b-4efa-b7e9-281f4a9699c3 | Yamane v. Pohlson. | hawaii | Hawaii Supreme Court | *** FOR PUBLICATION ***
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
= o00 ~
JOHN YAMANE, as Special Administrator of the
Estate of John Duong; HUNG DUONG, and DUC LAT,
Plaintiffe-Appellants,
ELIZABETH C. POHLSON, M.D., MITSUO HATTORI, M.D.,
MITSUO HATTORI, M.D., INC., and KAPI‘OLANI MEDICAL
SPECIALISTS, ‘Defendants-Appellees,
and
KAPI‘OLANI MEDICAL CENTER FOR WOMEN AND CHILDREN;
JOHN DOES 1-10, Defendants.
No. 27047
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO, 01-1-0940)
coe HY LZNAr
JUNE 27, 2006
MOON, C.J., LEVINSON, NAKAYAMA, AND DUFFY, JJ. ; AND
CIRCUIT JUDGE ALM, IN PLACE OF ACOBA, J., RECUSED
OPINION OF THE COURT BY MOON, C.J.
‘The present appeal concerns the issue whether
plaintiffs-appellants John Yamane, as special administrator of
the Estate of John Duong (John), Hung Duong, and Duc Lai
(hereinafter, collectively, the plaintiffs] have complied with
Hawai'i Revised Statutes (HRS) chapter 671, which established the
Medical Claims Conciliation Panel [hereinafter, the MCCP or the
aaws
*** FOR PUBLICATION ***
Se
panel] to treview and render findings and advisory opinions on
the issues of liability and damages in medical tort [*] claims
against health care providers(,]* HRS § 671-11(a) (1993), prior
to filing their medical malpractice suit in court. sriefly
stated, twelve-year-old John was taken by his father, Duong, to
the emergency room at defendant Kapi'olani Medical Center for
Women and Children (hereinafter, the Medical Center] because he
was having difficulty breathing. It was determined that John had
@ large mediastinal mass (tumor) compressing hi
airway.
Following a surgical biopsy to determine the histology of the
tumor -- performed by defendant-appellee Elizabeth Pohlson, M.D.
(Dr. Pohlson), a self-employed pediatric surgeon, and defendant-
appellee Mitsuo Hattori, M.D. (Dr. Hattori), an anesthesiologist
~~ John passed away due to cardio respiratory arrest.
Thereafter, the plaintiffs filed a medical tort claim before the
MCCP, naming, inter alia, the Medical Center and defendant-
appellee Kapi‘olani Medical Specialist (KMS), alleging that
John’s death was a result of the medical care and treatment
rendered by their employee-physicians, who were not specifically
named as defendant:
‘The plaintiffs also named Dr. Pohlson as a
respondent in the MCCP action, but did not name Kelly Woodruff,
M.D. (Dr. Woodruff), a specialist in pediatric
hematology/oncology and a former employee of KMS, who was
= HRS 5 671-1(2) (1993) defines “medical tort* to mean “professional
negligence, the rendering of professional service without informed consent, or
an error of omission in professional practice, by = health care provides,
witch proximately causes death, injury, or other damage to a patient-"
*** FORPUBLICATION ***
—
Gnvolved in the pre-biopsy care and treatment of John. The
plaintiffs alleged that the health care providers’ faited to take
precautionary measures to shrink the tunor in order to provide
jnereased aizway protection prior to undertaking a biopsy.
men the plaintiffs ultimately filed their complaint in
ene cizeuit court, they did not name Dr. Woodruff as a defendant,
put alleged vicarious liabilitysgainst KMS for the acts and/or
of omissions of its employees. The Circuit Court of the First
circuit, the Honorable Bert I. Ayabe presiding, dismissed the
plaintiffs’ vicarious Liability claim against 1%S on the ground
that the plaintiffe were precluded from asserting such clais
because Dr. Noodruff was not named in the MCCP action and that,
tnerefore, the plaintiffs had not perfected a vicarious Liability
claim against INS as a condition precedent to bringing an action
in cireuit court. Consequently, the circuit court granted KMS’s
motion to dismiss for lack of subject matter jurisdiction. Tn
accordance with Hawai'i Rules of Civil Procedure (HRCP) Rule
sa(b) (2004), @ final judgment was entered with respect to KMS
—_—
> yas § 673-1(2) (1993) defines “health care provider" as va plyaician
ox surgenn ihenoed under chapter 453, a physician and surgeon, Licenses. yodey
og surgeon, Mepsaiatrist licensed under chapter 4602, a health care facility
peer 460) BCeion 3230-2, and the employees of any of then.*
5 ymce Rule $4(b) provides in pertinent parts
hen more than one claim for relief is presented in an
action” Ge when multiple parties are involv
*** FOR PUBLICATION ***
Sa
fon Decenber 20, 2004, and the plaintiffs now appeal from that
judgment .
On appeal, the plaintiffs argue that the circuit court
erred in dismissing KMS because HRS chapter 671 does not require
the plaintiffs to nane KMS‘s employee, Dr. Woodruff, as a party
in the antecedent MCcP proceedings and that such requirement
would be contrary to vicarious liability law. The plaintiffs
also assert that the circuit court erred in dismissing «MS for
lack of jurisdiction inasmuch as KS waived its right to
challenge jurisdiction by not filing its motion prior to the
deadline for substantive motions.
Inasmuch as we conclude that the plaintiffs have
complied with the requirements of HRS chapter 671, we vacate the
circuit court’s December 20, 2004 final judgment and remand thie
case for further proceeding:
1. BACKGROUND
A. Factual Backsround
On August 8, 1998, John was admitted to the Medical
Center with complaints of coughing and difficulty breathing. A
chest x-ray and CT scan revealed a large anterior mediastinal
mags‘ (tumor) compressing or displacing John’s trachea (windpipe)
jhe mediastinun is the region between the pleural sace (double layers
of membrane that surround each lunge). Tt iv separated ints thr:
Conpartnents: The anterior mediastinum extends fron the sternum anteriorly to
the pericardium and brachiocephalic vessels posteriorly, ani contains tee
thymus gland, ‘the anterior mediastinal lymph nodes, and the internal manary
arteries and veine. i vs Principl ermal Me pat 1475" (14th
ea. 1958).
*** FORPUBLICATION ***
and right main bronchus. John was placed in the Pediatric
Intensive Care Unit (PICU) for further evaluation and treatment.
on August 9, 1998, oncology and surgical consultations
were obtained from Dr. Woodruff and Dr. Pohlson. Following
several conferences with John’s family, a decision was made to
perform a surgical biopsy in order to obtain a pathological
Giagnosis and determine the type of cancer treatment to use.
on August 9, 1998 at 3:55 p.m., Dr. Pohlson, assisted
by Kimberly Moseley, M.D., (Dr. Moseley), performed the biopsy
surgery with Dr. Hattori providing anesthesia care. Although an
initial blood gas analysis revealed that John was severely
acidotic (excessive acid in the body fluids), John was
transferred out of the operating room to the PICU and placed
under the care of Paula Vanderford, M.D., (Dr. Vanderford), a
pediatric intensivist employed by KMS. A second blood gas
analysis indicated worsening acidosis and hypoxia (lack of
oxygen), and, at 7:45 p.m., John went into cardiopulmonary
arrest. Efforts to resuscitate him failed, and he was pronounced
dead at approximately 8:10 p.m. on August 9, 1998.
B. Procedural Backeround
‘The NCCP Procedure Generally
‘The NCCP (now codified in HRS chapter 671) is a
“comprehensive system of medical malpractice dispute resolution,”
Dubin v. Wakuzawa, 89 Hawai'i 188, 197, 970 P.2d 496, 505 (1999),
created because of a “crisis in the area of medical malpractice.”
*** FORPUBLICATION ***
Tobosa v. Owens, 69 Haw. 305, 311, 741 P.2d 1280, 1285 (1987)
(internal quotation marks omitted).
‘Among other objectives, the legislature sought thereby to
“igltabilize the sedical malpractice insurance aituation by
reintroducing sose principles of predictability and
spreading of risk and "(Glecrease the coste of the legal
system and Improve the efficiency of its procedures to the
end that avards are nore rationally connected to the actual
Gamages.” Id... . The panele undoubtedly vere
established *to'eacourage early settlement of claims and to
Wieed out unneritorious claine.* lise, Stand. Comm. Rep. No
355; fn'1976 House Journal, at 1460+
Ad. at 311-12, 741 P.2d at 1285 (brackets in original);
nee alec Doe v. City & County of Honolulu, 93 Hawai'i 490, 497-
98, 6 P.3d 362, 369-70 (App. 2000).
In the context of the instant appeal, the following
provisions of HRS chapter 671 are relevant:
4 671-22 [(4993)1 Review by panel required; notte
presentation of clainas request for’ nore definite
Statement of thee a) Eefective July 1, 1996, any
person oF the person's’ representative claigiag chat’ a
edical tort has been conaitted shall submit a at
the claim to the [wcce) before a suit based
be commenced in any court of ehie State, cl
submited to the (NCCP) in writing. The claimant shall set
forth facts upon which the claim is based and shall incluge
ade who are then sown to the claimant. -
4 671-26 [(supp. 2005)) subsequent 1itigations
exclusive evidence.
je claim in an appropriate steers
MeSP] bear eth oft
Sr after the twelve-month period under section 673-18
{isupe. 2005)*} hae expired
% was § 671-18 provides that:
‘The filing of the claim with che (CCP) or with an approved
alternative dispute resolution provider shall toll any
Applicable statute of limitations, and any euch stature of
Limitations shall remain tolled until sixty days after the
date the decision of the panel or the notification of
completion from the approved alternative dispute resolution
provider is mailed of delivered to the parties. Ifa
(continued...)
*** FOR PUBLICATION ***
—_—_— SSS
No statement made in the course of the hearing of the
cee) shi Sple in evidence either as an
Adniseion, to impeach the credibility of a witness, or for
any other purpose in any trial of the action[.]
(Bold emphases in original.) (Underscored emphases added.)
During the MCCP process, the panel’ conducts an informal hearing
and, if no settlement is reached, issues a written advisory
decision, including a finding of damages, if any. HRS §5 671-13
and -15 (1993); see also lumv. Quesn’s Med. Ctr., 69 Haw. 419,
422, 744 P.24 1205, 1207 (1987) ("A reading of the provisions of
Chapter 671 suggests a scheme whereby the members of a [MCCP] can
share their knowledge and expertise in determining what
information and evidence are relevant and necessary in rendering
an advisory opinion.” (Footnote omitted.)).
‘The NCCP Proceedings in the Instant C
on August 7, 2000, the plaintiffs filed a medical tort
claim before the MCCP, pursuant to HRS § 671-12, against twelve
respondents as indicated in the table below:
*(. continued)
oa is ached ve month
e within a state.
ba ns he_clais
Gethie State. the panel or the approved alternative
Sfepuce resolution provider shall notity all parties in
weiting of this provision.
(emphasis added.)
« pursuant £0 HRS § 672-12(b) (1993), each panel is composed of one
person experienced in the personal injury clains settlement process, @
Pidenved sttorney experienced in trial practice, and a licensed physician or
surgeon,
*** FOR PUBLICATION ***
Description
the physician who performed the surgical blopsy
Carlos #. woreno-Cabral, | cardiothoracic eurgeon consulted during the
mo. biopsy
Dr. Hattori the anesthesiologist who assisted in
John’s care during the surgical Diopey
Miteus Hattori, m.0., | Dr. Hattori's medical practice
ae.
Dr. Vandertord 12 HNS-enployed pediatric int
fhe post-biopsy' care and tre:
Todd T. Kuwaye, W.D. [a pediatric resident
Dr. Moseley, '@ surgical resident who assisted Dr. Pohison in
the surgical Biopsy
the Medical Center | the hospital where John was admitted for
evalvation and treatment
1 the physicians group wilch employed Dr.
Vanderfors
‘The State of Hawai'i aba | he institution which conducts the residency
university of Hawai'i Joh | training program
‘S. Burne school of
Medicine
Hawai'i Residency @ not for profit corporation which coordinated
Programs, nc. the residency training of Dre. Kovaye and
Noteley.
John Does 1-20; Jane Does | unidentified defendance
acto;
‘The plaintiffs alleged that the above respondents were negligent
in their treatment and care of John and that Dr. Pohlson and Dr.
Hattori failed to obtain informed consent from the plaintiffs
regarding the course of treatment. Specifically, the plaintiffs
alleged that KMS, under the doctrine of respondeat superior,” was
vicariously liable for the negligent acts and omissions of ite
employee-physicians who treated John.
Under the doctrine of reepondeat superior, an enployer ie held
vicariously Liable for the negligent acta of an employee coumitted while the
employee was acting within the scope of the employer's business. sae
Hoshijo-ex rel. white, 102 Hawal't 307, 319, 76 Prd $50, S62 (2003)
* FOR PUBLICATION ***
a
on Septenber 12, 2000, KMS filed a request for a more
definite statement pursuant to HRS § 671-12(c) (1993)," seeking
an order from the Department of Commerce and Consumer Affairs
(occa) requiring the plaintiffs to name the specific employees of
MS whose care allegedly imposed vicarious liability, as well as
the treatment by each such enployee who was alleged to have
breached the standard of care. Although no order was issued by
the DCCA director with respect to KNS’s request, the record
reflects that the DCCA director, on September 21, 2000, entered
an order granting the Medical Center’s request (which it had
apparently filed) for ‘a more definite statement setting forth
‘all of the facts upon which [the plaintiffs] base(d their] claim
against (the Medical center].*
on septenber 29, 2000, the plaintiffs complied with the
ncca’a order and submitted a second claim letter with additional
factual information as to both the Medical Center and KMS, noting
that, in addition to Dr. Vanderford, who is an employee of KNS
+ section 671-12(¢) provides
If the statenent of the claim in the notice is 0
vague of anbiguous that any party receiving notice of the
vias cannot Feascnably be required to frame a written
Sean ca che party nay submit a written request to the
repens’ of commerce and consumer affaires for a nore
Girector Clatenent before filing the written response.»
Setimiee ctor may deny, grant, or modify the request at the
ee eee SSue discretion, without the necessity of &
sarerterfiehough the director may reach a decision after
Coasuleing wien the panel or the claimant.
mms § 671-6 (2993) further states that:
the director of comerce and consumer affairs shall be
Ts citibie for the inpleentation and adninistration of
TeiRone sper and hall adopt rules, in conformity with
ibipeer Bi, necessary for the purposes of this chapter.
<3.
*** FOR PUBLICATION ***
eee
and was naned an individual respondent for her alleged negligence
in John's post-operative care, the plaintiffs also alleged
vicarious liability for the negligent acts of any and all other
¥O1S employees connected with John’s care treatment. In their
second claim letter, the plaintiffs also included the following
caveat
Please be informed that these further clarifications shall
Rot be construed to lime [the plaineiffe’] theories ot
Liability; and are subject to further modification based
upon additional information as it becomes available,
Thereafter, on October 3, 2000, the Medical Center filed ite
second request for a more definite statement, which was surmarily
denied.
On October 20, 2002, KMS’s counsel gent a letter to the
plaintiffs’ counsel, indicating that, because
[the plaintiffs) have not voiced criticions of any other
otS) “empioyea physicians | we assume that the claim
fs alleged negligence of only
Dr. Vandertord. Based on these assumptions, se have noe fe-
filed a Request for Nore Definite statement, but have
prepared and submitted cur Response co Claia.
In response, the plaintiffs’ counsel, in a letter dated Novenber
3, 2000, stated:
‘As you know, the MCCP process ‘e jurisdictional, and many of
Che facts are not clear yet because no depositions nave Lect
Eaken. Accordingly, you should not assine that the elaine
against Kus are *based upon the nesligen
Vanderford,” as you suggest (edi_in your
possible that any of the other respondents nay allege that
another (currently unidentified) respondent did something
below the standard of care, or my own expert might 20 opine,
Realistically, absent further developments or information,
Ehink HS and’ any other employees, agents, spparent ageact
1 and/or agents by estoppel of FMS oF any
other respondents’ connected with John Disng'a care and
treatment will be deened to be vicariously 1iable for their
Regligent acts and omissions.
-10-
#** FOR PUBLICATION ***
‘on October 22, 2000, the plaintiffs filed their MCCP
pre-hearing statement, reiterating their position chat,
= [g]espite knowledge that John had an extremely large mediastinal
nage with significant narrowing of the trachea, one or more of
gohn’s health care providers failed to take necessary precautions
against the risk of total airway obstruction. The pre-hearing
etatenent included, inter alia, facts relating to Dr. Woodruff’s
examination of John, her discussion with John’s parents, and her
perfornance of a bone marrow aspiration to determine whether the
‘tumor was cancerous.
In response, KMS stated in ite responsive pre-hearing
etatement that:
the onty claim of independent negligence asserted 8, to 145,
Fe ey eee renuered by Dr. vanderford who is alleged to
Felates co cenely monitored and treated (John’s) condition,
pave eg ige Ene Intubation attempts, resuscitation efforts
see een e plue." At the tine of the hearing, it will be
2nS the cCgord's position that she was not consulted, and
pr, YeMsger responaibiiity, with respect co the
had 0 lity of preoperative or intraoperative airvay’
advisability Reter the biopsy, when Jokn was returned to the
managenen ig in respiratory distress, Dr, Vanderford
PICU, Be y"aiiple incervertions to renedy the eituat ion:
attempeed Oot ner resuscitation efforts were unsuccessful ie
Toe eection of the quality of care rendered by Br.
Vanderford.
le Medical Center also filed its pre-hearing statement, wherein
it maintained that:
tm (the plaintifts’] discussion of the facts regarding the
7a, (ene Paeticient medical care provided to John (2, (the
allegediy i have not identified of named any specific person
cae el allegedly negligent employee, servant, or agent
ag being egical Center] (The plaintiffs) have not offered
of ene litic criticiens of the hursing or support staff at
{the Redical Center)
wa1-
*** FORPUBLICATION ***
=
On January 24, 2001, the MCCP held a hearing on the
claims, At the hearing, Dr. Pohlgon testified,
jerting that she rejected the various treatments (i.e.,
radiation therapy and/or administration of corticosteroid
therapy) that could have shrunk the tunor on the basis of
warnings and recomendations she received fron Dr. Woodruff, who
insisted she go ahead with the surgical biopsy without fire
shrinking the tumor. The plaintiffs claimed that this was the
first time they were aware of Dr. Woodruft’s substantial
involvement in John's treatment.’
‘The next day, the plaintiffs’ counsel informed NS, via
a letter dated January 25, 2001, tha
le have no earlier notice of Dr. foodruff's alleged active
yole in the decision not to administer corticc
irradiation therapy to Jahn Duong?
hhas mot been available because it se not permitted in’ mece
Proceedings. “Therefore, Dr. Woodruff wae aot nased
individually as a {rJespondent in the NCEP ciaia”
aiscovery
However, based on the
testinony regarding thi
involvenent in
juned accuracy of Dr, Pohison’s MCCP
extent of Dr. Woodruft's active
e decision not to attempt to enrisk the
mediastinal mass pre-operatively, and by virtue of Ox.
Woodruft's status as an employes and/or ageat ostensible,
apparent or otherwise) of IMG... it ie Our position
hae 2 Ue) vicariousty itapie tor br. Noosrute’
tortious acts and/or omissions in this matter. ne wii ke
Proceeding on that basis, in part, in the Piret Ciecuie
Court action which will be filed shortly after receint of
the MccP’s decision.
On the same day, the NCCP issued its advisory opinion, finding no
actionable negligence. On March 8, 2001, the plaintiffs filed
| dhe plaintiffs further contend that their MOcP clain was filed two
faye prior to the expiration of the two-year period after John's death ace
ghus, Tit was too late to file a new medical fort claim naming Dre aeedas
indiviauatly."
-12-
+** FOR PUBLICATION ***
their rejection of the NCCP’s advisory opinion purs\
§ 671-16.
3. The Circuit Court Proceedings
on March 22, 2001, the plaintiffs commenced the instant
action in the circuit court, The complaint included three
counte, alleging negligence (Count 1), lack of informed consent
(count 12), and loss of @ chance of survival (Count ITI), naming
ae defendants Dr. Pohlson, Dr. Hattori, Mitsuo Hattori, M.D.»
tne.,% the Medical Center, and WIS [hereinafter collectively,
the defendants]. Like the MCCP claim letter, the plaintiffs’
complaint did not name Dr. Woodruff as a defendant, but, as
previously indicated, the plaintiffs alleged in their complaint =
claim for vicarious Mability against 11S.
thereafter, the defendants separately filed their
anawer to the complaint. On Decenber 23, 2002, the plaintiffs
gubmitted their pretrial statement. On February 21, 2003, the
defendants filed their responsive pretrial statenents, In its
responsive pretrial statement, ¥¥S admitted the following facts:
‘an employee of 13 performed an oncology consultation
coe ees sagust 9, 1998, end provided opinions and
SEcogmendatione regarding the treatment of Joba [1
an exployee of 11S performed a bon
on dota". on August 9, 1998, which
non-diagnostic.
narrow aspiration
‘Feported to be
Hereinafter, Dr. Hattori and Mitsuo Hattori, M.D., Inc. are
collectively referred £0 as Dr. Hattori.
che plaintiffs elected not to proceed against Dr Mos
cabrat, Dr 'kiuayer Hawalis Residency Programs, and the, John A. Bus
ceprals OF, Manl® gineitte sleo aid not name Dr. Vanderford saa defendant
of Medicine. Ter eragreanent that Dr. Vanderford is employed by TAS and acted
based on cOguaree and scope of employment while caring for John,
-13-
FOR PUBLICATION ***
eee
jetween May 2, 2003 and May 10, 2004, the circuit court
granted various motions for summary judgment and partial summary
judgment, including substantive joinders, filed by the Medical
Center, Dr. Pohlson, Dr. Hattori, and KMS, which rulings are not
at issue in this appeal. As a result of these various rulings,
the following claims remained: (1) Counts I (informed consent)
and II (negligence) as to Dr. Pohlson and Dr. Hattori; and
(2) Count 11 (negligence) as to XMS." ‘Trial was scheduled for
October 25, 2004, and the circuit court ordered that all
substantive motions be filed by September 15, 2004.
One week before trial (on October 18, 2004), KMS moved
to dismiss the plaintiffs’ complaint on the ground that, inter
alia, the circuit court lacked subject matter jurisdiction to
review the plaintiffs’ clains inasmich as the plaintiffs failed
to name or criticize Dr. Woodruff in the underlying MCCP action
and, thus, did not “comply with HRS chapter 671, a’ condition
Precedent to any medical malpractice action." In the
alternative, KS argued that sunmary judgment should be granted
in its favor. on October 20, 2004, the plaintiffs filed their
opposition, wherein they maintained that (1) they had fully
satiofied the letter and spirit of HRS chapter 671 because KMS
was named as a party in the MCCP proceedings as well as in the
2» The plaintiffs also sought partial summary judgnent a8 to Count 12
ce
(lack of informed consent) againat Dr. Pohlaon and Dr. fattarl. ‘Gosetnt, he
cireuit court denied the plaintiffs’ motion
% Both Dr. fohlson and Dr. Kateri filed a statement of no position to
Ws" notion to dient
nie
*** FOR PUBLICATION ***
co
underlying litigation and that (2) Dr. Woodruff was not
neceseary party to the MCCP claim for vicarious liability. The
plaintiffs further asserted that, because HIS filed its motion to
dismiss long after the deadline for substantive motions, which
expired on September 15, 2004, 1™S had waived and/or was estopped
from asserting the lack of jurisdiction.
A hearing on KMS‘s motion to dismiss was held on
october 21, 2004. Tt appears that the circuit court orally
granted X¥S’s motion inasmuch as, on October 25, 2004 (the
acheduled trial date), the plaintiffs filed their motion for
reconsideration of XMS’ dismissal or, in the alternative, for
HRcP 54(b) certification and/or leave to file interlocutory
appeal and for stay of proceedings pending appeal. On the same
day, the circuit court held a hearing on the plaintiffs’ motion
for reconsideration. The court denied the plaintiffs’ motion,
but
ftound) that there {was] no just reason for delay. The
[Ge Marect (eal the entry of Judgnent . - . in accordance
Git (mcr) Hole S¢(b), and the matter will be stayed
Pending the reault of the appeal.
on October 29, 2004, the circuit court issued a written
order granting S's motion to dismiss, stating specifically that
[the pllainti¢fs failed te comply with (clhapter 671 of the
(isyPa (or) Woodrust . . waa not named as a party in
qeiicee hearing. Therefore, (the pllaintitfe are precluded
EiSalbringing cheir elaine against Dr. Woodruff in this
Uivsule ad tthe pllaintitfs cannot sustain a vicarious
jlubility claim against ms.
Aelordingly, Kiss notion ie hereby granted as this
court Macks subject matter jurisdiction to hear (the
Piiaintifte’ claine against Dr. Woodruff.
-15-
FOR PUBLICATION ***
SE
Therefore, the court dismissed all of the plaintiffs’ claims that
were premised on the alleged acts or omissions of Dr. Woodruff
and granted dismissal of all claims against KMS. on December 13,
2004, the circuit court filed its order denying the plaintiffs’
motion for reconsideration and granting their request for a HRCP
Rule 54(b) certification. Thereafter, a final judgment was
entered on December 20, 2004. on January 4, 2005, the plaintiffs
timely filed their notice of appeal.
TI. STANDARDS OF REVIEW
Motion to Dismiss
A trial court's dienie
juriediction sa 8 qu
law, reviewsble de
aStates, 850 P-24 558, 360° (3th Cir.
2988) (.]_ Moreover, we adopt the view of the Minth Circuit
Court of appeais in Love ve United States. 871 Fad 1499
(sth cir. i989) +
Our review [of a motion to diamies for lack of subject
Batter jurisdiction] is based on the contents of the
Complaint, the allegations of which ve accepe as true
fand constiue in the light moat favorable to the
plaintife(e). “Dismissal is improper uniess “ie
appears beyond doubt that the plaintif? (sl can prove
no sat of facts in support of [their] claim wich
would entitied (thes) to relief."
Id. at 1491[.] However, "when considering a motica to
@iemiee pursuant to (MRCP) Rule 12(b) (1) the Teriel] court
As not restricted to the face of the pleadings. but may.
Feview any evidence, such as affidavit and testimony, to
vesolve factual disputes concerning the existence of
Jurisdiction. ucCarthy, #50 7.24 at 560 (citations
onitted) ; see algo SAC. wright & A. Milles. Federal
Eractice and Procedure § 1350, at 213" (1990).
Casumans v. ILWU, Local 142, 94 Hawai'i 330, 337, 13 P.3d 1235,
1242 (2000) (quoting Norrie v, Hawaiian Airlines, Inc., 74 Haw.
235, 239-40, 842 P.2d 634, 637 (1992)) (some brackets in
original) (some citations omitted) .
-16-
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a
B. Stati werpretal
othe standard of review for statutory construction is
well-established. The interpretation of a statute is a question
of law which this court reviews de novo.” Liberty Mut. Fire Ing.
co. vs Dennison, 108 Hawai'i 380, 364, 120 P.3d 111, 1119 (2005)
(quoting Labrador v. Liberty Mut. Group, 103 Hawai'l 206, 212, 91
p.3a 386, 391 (2003)) (intexnal quotation marks omitted). In so
doing, this court mist adhere to the well-established rule of
statutory construction that the "foremost obligation is to
ascertain and give effect to the intention of the legislature,
which is to be obtained primarily from the language contained in
the statute iteelf." Gray v, Admin, Dir. of the Courts, 64
Hawai'i 136, 148, 932 P.24 580, 590 (1997) (citations omitted) .
TIT. DISCUSSION
As previously stated, the circuit court dismissed the
plaintiffs’ remaining claim of negligence against KMS, which was
premised on the actions or inactions of Dr. Woodruff, based upon
its lack of subject matter jurisdiction to review the plaintiffs’
claim in light of their failure to name or criticize Dr. Woodruff
in the underlying MCCP action. On appeal, the plaintiffs argue
that the order dismissing their claim against KMS mst be
reversed because, inter alia, the circuit court’s dismissal
tranforms the NCCP process from an advisory, informal forun
KEERC°ES weed out unmeritorious claims, to one with pleading
Geauizenents srricter than those of the judicial system.
Zhe dismissal sige runs contrary to all established
Frinciples of vicarious liability and is premised upon the
preeghon belie? hat a vicarious ability claim vagainst
“Claim against Dr. Woodruff.”
(iis) ie the sane
-17-
*** FOR PUBLICATION ***
SSS
‘The plaintiffs further maintain that, inasmuch as KMS brought its
motion to dismiss after the deadline for substantive motions and
on the eve of trial, KMS waived its rights to object to
jurisdiction. The plaintiffs, therefore, submit that the circuit
court erred in considering KMS's motion.
KMS, however, argues that the circuit court properly
dismissed the plaintiffs’ claim against it when the plaintiffs
failed to comport with the jurisdictional requirements of HRS
chapter 671. KMS contends that the plaintiffs
pamed Or. Vanderford a8 the only XS employed physician at
the NCCP hearing, and thus, only Dr. Vanderfora'y alleged
negligence was put before the MCP Zor consideration: "As a
Feault, Dr. Woodruft's actions of inactions were not
considered by the panel and neither she nor INS) her
esployer, were afforded an opportunity to defend against any
claims based on her conduct in the ciroult court action
‘Thus, KMS submits that the plaintiffs frustrated the legislative
intent and policy of HRS chapter 671 by completely bypassing the
MCCP process with respect to Dr. Woodruff’s alleged acts or
omissions in the care and treatment of John.
‘The ultimate question in this appeal is whether it was
appropriate in the circumstances to dismiss the plaintiffs’ suit
against KMS on the ground that they failed to abide by the
pr
-quisites provided in HRS chapter 671 prior to commencing the
action in the circuit court on a claim of vicarious liability by
virtue of KMS’s employees’ alleged negligence in rendering
professional medical services. preliminarily, however, we
address whether KMS has waived its right to contest subject
-18-
*** FOR PUBLICATION ***
a
matter jurisdiction by failing to raise the issue prior to the
deadline for substantive motions.
A. Subject Matter Jurisdiction
‘the plaintiffs argue that “the [c]ircuit [clourt is a
court of general jurisdiction, and a party can waive its claim
that the court lacks jurisdiction and be estopped from raising
the issue thereafter.” (Emphasis in original). In support of
their contention, the plaintiffs rely upon case law from
alifornia, Indiana, and Missouri. Particularly, the plaintiffs
quote the following from in xe Maxxiage of Neal, 699 $.W.24 92
(Mo. Ct. App. 1985)
where the subject matter of Litigation is within the general
Weettaietien of the trial court, the claim of want of
JeeSGiction by reason of the existence of exceptional or
Jweetei Siecumseances can be waived if not timely raised
Id. at 94 (citations omitted). However, existing Hawai'i
authority controls.
uRcP Rule 12(h) (3) (2004) provides that, “{wIhenever it
appears by suggestion of the parties or otherwise that the court
lacks jurisdiction of the subject matter, the court shall dismiss
the action.” (Emphasis added.) Further, it ie well established
that “lack of subject matter jurisdiction can never be waived by
any party at any time." Chun v, Employees’ Ret. Sya., 73 Haw. 9,
14, 626 P.2d 260, 263 (1992) (citation omitted) ; see also
wathewson v. Aloha Airlines, Inc, 92 Hawai'i 57, 69, 919 P.24
969, 961 (1996). Accordingly, the plaintiffs’ contention and
reliance upon case law from other jurisdictions are unavailing
-19-
*** FORPUBLICATION ***
Se
inasmuch as this court has held that the jurisdictional question
can never be waived by any party at any time and that *[sluch a
question is in order at any stage of the case[.J* In ze
Application of Rice, 68 Haw. 334, 335, 713 P.2a 426, 427 (1986) .
We, therefore, hold that the circuit court did not err in
considering XMS’s motion to dismiss." We now turn our attention
to the remaining issue in this appeal, i.e., whether the
plaintiffs have satisfied the requirements of HRS chapter 671.
B. ance with ERS cha: 71
As previously stated, the plaintiffs alleged -- not in
the MCCP proceedings, but during the circuit court proceedings --
that KMS was vicariously liable for the negligence of ite
employee, Dr. Woodruff, for her failure to adviee Dr. Pohleon to
begin corticosteroid or radiation therapy prior to John’s biopsy.
As a result, the circuit court ruled that it lacked jurisdiction
M Although we recognize that subject matter jurisdiction may be raised
at any stage of the proceeding, we emphasize hare that our approal of ont
Gixcuit court's consideration of "S's motion should not be coast aves
condoning M5"s action in filing its motion on the eve of srial, asich sas
Clearly in direct violation of the court's expressed deadline for tiling
Substantive motions.
He further note that, during the hearing on X48's motion to dismiss, the
plaintiffs requested that the court sanction iS for violating che same!
ordered deadline, regardless whether the court granted or denied the cation,
At the hearing, ios maintained that the iseue of subject master jurssdietsoa
Gid not arise until the trial court’s rulings on motions in linine establioned
Chat the plaintiffs’ clains against KMS would be Tinited tot
omissions of Dr. Woodruff (and not Dr. vanderford). In rebutta:
Plaintiffs argued that KMS via an e-mail from che plaineifte
Gounsel, dated July 9, 2008, approximately two months prior to the septenkes
35, 2004 substantive motions deadline, that the plaintiffs’ Claims saeisec iS
would be premised solely on the acts or omissions of Dr. woolrass, genet, i
Gourt took the matter under advisement, including the sation te diearn
Although the court’s written order, dated October 25, 2004; granted g's
notion to dismiss, the order is silent with respect to the piaintitte” ora
Fequeat for sanctions.
-20-
*** FOR PUBLICATION ***
to entertain the plaintiff's theory of liability with respect fo
EMS.
It is well-established that the MCCP requirement of HRS
chapter 671 is a pre-condition to suit -- although determinations
of the panel have no preclusive effect on subsequent litigation:
see, e.c., Garcia v. Kaiser Found. Hosps., 90 Hawai'i 425, 442,
978 P.24 862, 879 (1999) (holding that “the cireuit court did not
err in concluding that it had no subject matter jurisdiction as
result of Plaintiffs’ failure to comply with the requirements of
urs § 671-12[,]* which mandated that such claims be first filed
with the NCCP prior to filing suit); ase also Humv. Dericka, 162
P.R.D. 628, 636 (D. Haw, 1995) ("While in Hawai'i state courts
the Mccp procedure is a prerequisite to suit, it does not
determine the outcome of a lawsuit in state court.").* As this
court has indicated, *[t]he procedures outlined [in HRS §§ 671-12
and -16] are juriedictional prerequisites to suit, and they wilt
be enforced.” Tobosa, 69 Haw. 314-25, 742 P.2d at 1286,
Here, the plaintiffs submitted a medical claim against
joi to the NCCP in a letter dated August 7, 2000, The letter
stated that the plaintiffs’ claims against XS were based on the
theory of xespondeat superior, alleging that KMS was vicarsousiy
—_—
indeed, URE § 671-16 provides in relevant part thats
no decision, conclusion, finding, or recosmendation of he
fe of damages
fa'an opesing #
£8 the court or juryl-]
*** FOR PUBLICATION ***
=
Liable for the negligent acts and omissions of its agents,
servants, and employees. 44S, however, argues that the
plaintiffs failed to comply with HRS chapter 671's requiremente
because they named “Dr. Vanderford as the only xMS employed
Physician at the MCP hearing[.]* We cannot agree inasmuch as
HRS § 671-12(a) requires only that a “claimant . . . set forth
facts upon which the claim is based and . . . include the nanes
of all parties against whom the claim is or may be made who are
nown to the claimant." (Emphasis added.) As previously
indicated, the plaintiffs did not discover Dr. Woodruff’ s
allegedly substantial, active involvement in making or
Participating in the decision to proceed with John’s biopsy
without first shrinking the tumor until the MCCP hearing via pr,
Pohlaon’
testimony. Nevertheless, the plaintiffs had named xs
as a respondent and had asserted a vicarious liability claim
against it. Nowhere in the statute does it require the
Plaintiffs to name ‘all known negligent health care providers,*
a8 KMS contends, with respect to their claim against KMS. Having
filed the requiaite MccP claim, participated in the required
hearing, and rejected the MCCP’s finding of no actionable
negligence, we believe the plaintitts have satisfied HRS chapter
671'8 statutory prerequisites for filing suit in circuit court.
¥O1S, however, contends that the plaintiffs frustrated
the legislative intent and policy of HRS chapter 671 by
completely bypassing the MCP process with respect to Dr.
-22-
+#** FOR PUBLICATION ***
—
yoodruft’s alleged acts or omissions in the care and treatment of
John. We disagree. ‘The plaintiffs’ complaint did not include
any claim against Dr. Woodruff individually. As the plaintsffe
point out, it is well settled that @ vicarious liability claim
does not require that the agents or employees of the entity
ought to be held liable be naned as parties. “The employes is
not a necessary party to a suit against his employer under
respondeat superior. Hall_v. Nat'l Sexy. Indue.. Inc., 172
P.R.D. 157, 159 (B.D. Pa. 1997) (intexnal quotation marks and
brackets omitted) (quoting Risser v. Dist. of Columbia, 563 F.24
462, 469 0.39 (D.C. Cir. 1977)); see also Cheney v, Hailey, 686
p.2d 808, 812 (Colo. Ct. App. 1984); Kocsis v. Harrison, 543
N.w.2a 164, 168-69 (Neb. 1996); Trans Union Leasing Corp. vs
damilton, 600 P.2d 256, 256 (W.M. 1979); Vendrell_v. Sch. Dist
No. 26¢ Malheur County, 360 ?.24 262, 269 (Or. 1961). To hold,
aa the circuit court did, that the plaintiffs’ failure to comply
with HRS chapter 671 because Dr. Woodruff ‘was not named as a
party in the MCCP hearing” precludes the plaintiffs from
asserting a vicarious liability claim against KMS would run afoul
of the well-established doctrine of respondeat superior/vicarious
liability.
Accordingly, we hold that the circuit court erred in
Gismissing the plaintiffs’ claim against KMS.
-23-
* FOR PUBLICATION ***
IV. concn
Based on the foregoing, we vacate the First Circuit
Court's December 20, 2004 final judgment and remand this case for
further proceedings.
On the briefs: Yy i
James J. Bickerton and tm Boe certa a
Daniel A. Morris (of
Bickerton Saunders Dang Rasta cinema
& Sullivan), for
Plaintiffs-appeilante re cutyin.
Kenneth 8. Robbins,
Leighton M. Hara, and
Wendy M. Yamamoto (of
Robbins & Associates),
for defendant-appellee
Kapi‘olani Medical
Specialista
-24-
|
d19d9319-de5b-405d-91bd-65c2f489bc42 | McElvaney v. Yo | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION ***
No. 27809
IN THE SUPREME COURT OF THE STATE OF HAWAT'I
KAMALI C.E.M. MCELVANEY; JOHN E. MCELVANEY,: ¥
Plaintiffs-Appellants,
atte
HARVELEE H, LEITE~AH YO, R.P.T., D.C., et ale,
Defendants-Appellees. 2
SE -O1H 91 ane
APPEAL FROM THE THIRD CIRCUIT COURT
(CIV. NO. 03-1-169)
for the court!)
(py: Nakayama, J.,
rs that we lack
upon review of the record, it apps
jurisdiction over Plaintiff-Appellant Kamali C.E.M. McElvaney and
Jon E. McElvaney''s (the McElvaney Appellants) appeal in this
case, because the Honorable Greg K. Nakamura’s Novenber 7, 2005
judgnent does not satisfy the requirements for an appealable
final judgment under HRS § 641-1(a) (1993), Rule $8 of the
Hawai'i Rules of Civil Procedure (HRCP), and our holding in
Jenkins v, Cades Schutte Fleming & Wright, 76 Hawai'i 115,
869 P.2d 1334, 1338 (1994).
Under the HRCP Rule 58 separate document rule,
19,
“fain
appeal may be taken from circuit court orders resolving clains
against parties only after the orders have been reduced to a
judgment and the judgment has been entered in favor of and
against the appropriate parties pursuant to HRCP [Rule] 58[.]"
Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai'i 115, 119,
869 P.2d 1334, 1338 (1994).
‘considered by! Moon, C.J. Levinson, Nakayama, Acobs, and Duffy, 99.
*** NOT FOR PUBLICATION ***
(Z}f a judgment purports to be the final iudament
multiple claims or multiple
Earties, the judgment (a) must specifically
identity the party or parties for and against whom
and (b) must (i) identify
the claims for which it is entered, and
(44) dismiss any claims not specifically
identified(.]
Ids (emphases added) .
Although the McElvaney Appellants asserted their
complaint against three defendants, i.e., Defendante-Appellees
Harvelee H. Leite-Ah Yo, R.P.T., D.C., Otagani Maysonet, D.C.,
and Hawaii Physical Therapy & Chiropractic Clinic, Inc., the
Novenber 7, 2005 judgment enters judgment “in favor of Defendant”
without specifically identifying the defendant for whom the
judgment is entered. Therefore, the November 7, 2005 judgment
does not satisty the appealability requirements of HRS § 641-1(a)
(1993) and the HRCP Rule 58 separate docunent rule under our
holding in Jenkins v, Cades Schutte Fleming § Wright. Absent an
appealable final judgment, the appeal is premature. Accordingly,
IT 18 HEREBY ORDERED that the appeal is dismissed for
Jack of appellate jurisdiction.
DATED: Honolulu, Hawai'i, June 16, 2006.
FOR THE COUR:
Pesier C1: Toate
Associate Justice
|
204d5a72-8f04-4615-b935-cd2cf80ab722 | Outlaw v. Kurpis | hawaii | Hawaii Supreme Court | No. 27092
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
HEATHER WHITFIELD OUTLAW, formerly known as HEATHER KURPIS,
Respondent -Appellee,
PETER KURPIS, Petitioner-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(FC=D NO. 98-150K)
LICATION FOR WRIT OF CERTIORAR:
ROER_PENYII
J, for the court}
(By: Nakayama,
Petitioner-Appellant’s application for writ of
certiorari filed on June 18, 2006, is hereby denied.
DATED: Honolulu, Hawai'i, June 26, 2006.
FOR THE COURT:
Nona e
Associate Justice
Peter Kurpis,
petitioner-eppellant
Pro se
on the writ
aan
Noon, C.3., Levinson, Nakayama, Accbs, and Duff}
‘consicered by:
|
f6c33d41-ec11-422c-ba49-d5c112948a0f | Samonte v. State | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION ***
Wo. 27483
IN THE SUPREME COURT OF THE STATE OF HAWATT
STATE OF HAWAI'I, Respondent-Appellee
a
APPEAL FROM THE FIRST CIRCUIT COURT
(8.P.P. NO. 05-1-0051; CR. NO. 88-0003)
oe 22
(py: Nakayama, J., for the court!)
on March 21, 2006, this court ordered Appellant pro se
to either file the opening brief in the above entitled matter or
an appropriate dismissal of the appeal within 30 days from the
date of the order. Appellant having failed to comply and it
app
ring that the opening brief is in default,
IT IS HEREBY ORDERED that the appeal is dismissed.
DATE
Honolulu, Hawai'i, June 1, 2006.
FOR THE COURT:
Bese 6
Associate Justice
‘considered by: Moon, C.J.» Nakayama, Acoba and Ouffy, 03. and
intermediate Court of Appeals Associate Judge Nakenura, in place of Levin
|
d9315a74-ab28-4a36-b372-bc7442a17e19 | State v. Kalili | hawaii | Hawaii Supreme Court |
*** NOT FOR PUBLICATION
No. 27617
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
y
STATE OF HAWAI'I, Plaintif£-Appelle¢
HY war sun
z
Pp
c
JAMES DAVID KALILI, Defendant-Appellant _
———— i
APPEAL FROM THE THIRD CIRCUIT COURT ©
(CR. NOS. 05-1-0006K and 05-1-0087K)
"
ORDER DISMISSING APPEAL
(By: Nakayama, J., for the court!)
Upon review of the record, it appears that the
August 18, 2005 judgments were appealable under HRS § 641-11 by
notices of appeal filed by the original thirty-day deadline of
September 19, 2005 or by an extended deadline not exceeding
thirty days past September 19, 2005, which was October 19, 2005.
See HRAP 4(b) (17 HRAP 4(b) (5) ("(T]he circuit . . . court may .
| extend the time for filing a notice of appeal for a period not
to exceed 30 days from the expiration of [the original 30-day
deadiine]."). Appellant’s motions for extensions of time to
appeal, though not acted upon, were filed on Novenber 17, 2005,
after expiration of the extension period, and were of no effect.
‘the notices of appeal filed on Novenber 17, 2005 were untimely.
our recognized exceptions to late criminal appeals do not apply
in this case. Thus, we lack jurisdiction. See Grattafior:
considered by! Moon, C.J., Levinson, Nakayama, Accba, and Duffy, 33.
*** NOT FOR PUBLICATION ***
State, 79 Hawai'i 10, 13, 697 P.2d 937, 940 (1995) ("[C]ompliance
with the requirement of the timely filing of a notice of appeal,
is jurisdictional, and we must dismiss an appeal on our own
motion if we lack jurisdiction.”). Therefore,
IT IS HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
DATED: Honolulu, Hawai'i, June 14, 2006.
FOR THE COURT:
Peete C1. Name omer
Associate Justice
|
e28ed6d0-58ed-4259-aa4c-78686418d45e | Kaina v. Gellman | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 27912
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
a
GENEVIE MOMILANI KAINA, Plaintiff-Appellant ,,
vs. #
MARK, GELLMAN, 0.0. CHERYL VASCONCELLOS 8:
HANA COMMUNITY HEALTH CENTER; DOES 1-20; INCLU:
Defendant s-Appellees
Ha 92 aynsoeg
oss
Is
APPEAL FROM THE SECOND CIRCUIT COURT
(CIV. NO. 3-1-0259)
ORDER
Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
ey:
upon consideration of: (1) Defendants-Appellees’ motion
to dismiss the appeal of Plaintiff-Appellant Genevie Momilani
Kaina for lack of jurisdiction (2) the motion to expedite
decision on the motion to dismiss the appeal; (3) the notice of
withdrawal of the motion to expedite consideration of motion to
dismiss and the motion to dismiss; (4) the papers in support and
oppositions and (5) the records and files herein, it appears
that: (1) the right of appeal is purely statutory and exists
only when given by some Constitutional or statutory provision.
Chambers v. Leavy, 60 Haw. 52, $7, 587 P.2d 807, 610 (1978)
(citations omitted); (2) pursuant to HRS § 641-1(a), which
governs appeals in civil cases, appeals are allowed in civit
cases only from final judgments, orders, or decrees; (3) there is
no final judgnent, order, or decree in this cases (4) Appellant
is appealing fron an interlocutory order denying a motion to
consolidate; (5) the circuit court did not grant Appellant leave
to take an interlocutory appeal pursuant to HRS § 641-1(b)s (6)
the order denying the motion to consolidate does not finally
determine clains of right separable from and collateral to rights
asserted in the action, and is not independent of the cause
itself; thus, the collateral order doctrine allowing for an
immediate appeal is inapplicable. See Chuck v. St, Paul Fire &
Marine Ins., Co., 61 Haw. 552, 555, 606 P.2d 1320, 1323 (1980)
(citing Cohen v. Beneficial Loan Corp, 337 U.S. 541, 546 (1949))7
and (7) this appeal from an interlocutory order is premature, and
this court lacks jurisdiction. Therefore,
IT IS HEREBY ORDERED that this appeal is dismissed as
premature for lack of appellate jurisdiction.
DATED: Honolulu, Hawai‘i, May 26, 2006.
William A. Bordner
and John Reyes-Burke
for defendant s-appellees
on the motions
R. Steven Geshell Btsepiormse~
Dennis L. Buckley
for plaintiff-appellant b Gano
tn obpeeition Dante Coney
|
aa6dc4cb-c40c-4d30-aa19-255da40c7c0a | Fisher v. Fisher. ICA s.d.o., filed 04/19/2006 [pdf], 110 Haw. 258. S.Ct. Order Granting Application for Writ of Certiorari, filed 05/30/2006 [pdf]. | hawaii | Hawaii Supreme Court | *** FOR PUBLICATION ***
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
00 ---
MARIE STELLA MARTIN FISHER,
Petitioner-Plaintiff-Appellant,
oats
"251 Ha cman sag
DAVID THOMAS FISHER,
Respondent Defendant -Appellee.
No, 26935,
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS.
(FC-D NO. 03-21-3145)
JUNE 30, 2006
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY MOON, C.J.
on May 19, 2006, petitioner/plaintift-appellant Marie
Stella Martin Fisher (Mother) timely petitioned this court for a
writ of certiorari to review the Intermediate Court of Appeale’
(ICA) surmary disposition order, filed on April 19, 2006.
‘Therein, the ICA affirmed in part and vacated in part the Family
court of the First Circuit’s' decree (divorce decree) entered on
+ per diem Family Court Judge Gregg Young presided over the divorce
proceedings.
FOR PUBLICATION ***
October 13, 2004, granting Mother a divorce from
defendant -appellee David Thomas Fisher (Father) and determining
custody arrangements for their three minor children. In her
application for writ of certiorari, Mother, the primary parent,
argues that the trial court erroneously permitted Father, the
non-primazy parent, to relocate with their minor children to
Virginia, over her objection, which decision Mother apparently
believes is contrary to Hawai'i precedent. Mother contends that
Hawaii's standards for relocation cases are “too amorphous to
provide meaningful guidance and predictability to prospective
custody/relocation litigants and counsel” and urges this court to
provide “much needed judicial guidelines, policies, and/or
presunptions in the adjudication of relocation cases." We
granted certiorari on May 30, 2006 to address Mother’ s
contentions.
A. Eactual Backoround
The following facts are taken from the Findings of Fact
(PoFs) and Conclusions of Law (COLs) issued by the family court
on March 8, 2005 and are generally uncontested, except where
noted, The parties married on October 13, 1990 in Latah, Idaho
and had three daughters during the marriage: (1) Sarah Elaine
Fisher, born on June 18, 1992; (2) Lauren Dolores Fisher, born on
Novenber 12, 1995; and (3) Grace Kathryn Fisher, born on June 2,
1999. Father began military service in 1982 and served in the
*** FOR PUBLICATION ***
United states Navy throughout the marriage. As of the date the
Aivorce proceedings were initiated, Father had completed 19.5
years of military service and had risen to the rank of Commander.
Mother had completed two years of college prior to the marriage
and did not work throughout the marriage. During the marriage
and after the children were born, the family resided in four
locations prior to moving to Hawai'i in June 2001. Because of
his duties, Father was avay fron the family for several months at
a tine either on ship or at sea duty.
The family resided in Kailua, Oahu during their
residence in Hawai'i, and the children attended St. Mark school
in Kaneohe. After commencing divorce proceedings in Septenber
2003, Mother applied for and was accepted into the Nursing
Program at Hawai'i Pacific University (HPU) and began attending
classes in June 2004 to complete some prerequisite courses.
In September 2004, Father was transferred to
Washington, D.C., for a position with the Joint Chiefs of staff
at the Pentagon. Father wished to pursue his career in the
military, as he is eligible for promotion to Captain in June
2006. Father bought a hone in Virginia with the help of his
parents, who sold their home in North Carolina in order to live
with Father in Virginia, As of the date of trial (August 2004),
Father's gross salary, including allowances, was $9,765.93 per
month, while his expenses were $4,300. During’the marriage, the
parties accumiated substantial assets including life insurance
*** FOR PUBLICATION ***
policies, savinge, and investments. Additionally, upon the
completion of twenty-six years of military service, Father will
receive military bénefite which he expects to consist of
seventy-five percent of his base pay.
B. Proceedings
on September 30, 2003, Mother filed a complaint for
divorce against Father. Mother subsequently filed a Motion for
Pre-Decree Relief, seeking, inter alia, an order: (1) maintaining
the custodial status quo, with continued joint occupancy of the
marital residence; (2) requiring Father to pay monthly family
support; and (3) requiring Father to maintain various household
payments and living expenses. On December 12, 2003, the parties
entered into a Stipulated Order re Pre-Decree Relief
thereinafter, the Stipulation], which provided temporary custody
as follows:
‘The parties shall continue ag joint legal custodians of the
Children. (Mother) shall be primarily responsible for the
Sare of the chileren during each weekday day, and eaca
‘ieeday & Friday evenings, until bed time. {Pather] shall
be pritarily reaponsible for the care for the children
Goring Monday, Nedneeday, & Thureday evenings. The parties
Shaliveach have a weekend day and evening each weekend,
Subject to their agreement, the foregoing 1s subject to
Change and reasonable flexibility, by agreement (.i
Pursuant to the Stipulation, the family court entered an order on
December 12, 2003, appointing Marianita Lopez, Faq. as a Custody
Evaluator. On March 1, 2004, Lopez filed her Custody Evaluators
in, Lopez made several findings
Report to the family court. Th
regarding the children, some of which were later adopted by the
family court in its FOFs. Lopez determined that the three
*** FOR PUBLICATION ***
children were well-adjusted and performing excellently at st.
Mark, with very high grades and excellent behavior report!
Lopez also found that Mother had been the primary caretaker of
the children, but that Father had remained very involved with
them and that the children were bonded to both parenta. Lopez
reported that both parents were competent, loving parents and
that both were willing to live in or move to the location the
court determined as being in the best interest of the children.
ultimately, Lopez found that (1) the children’s futures could
best be secured by Father’s continuing to earn a living in the
military; (2) Nother would be able to pursue her educational
and (3) living in Virginia would allow
career goals in Virgini
the children greater access to extended family.? Based on her
findings, Lopez recomended that (1) the children be permitted to
relocate to Virginia incident to Father’s military reassignment
to Washington, D.C. and (2) the parties be awarded joint legal
and physical custody of the children.
‘Trial Proceedings
on August 9 and 10, 2004, trial was held before the
Honorable Gregg Young. At the conclusion of trial, the family
court judge rendered an oral decision on all disputed issues,
contested FOF now. 50-52,
‘any credible evidence. However, the ICA
+ am her opening
stating that they were
Fejected her content Lon
*** FOR PUBLICATION ***
including, inter alia,’ custody and relocation. With regard to
custody, the family court: (1) adopted the recommendations set
forth in Lopez's report; (2) permitted Father to relocate to
Virginia with the children; and (3) awarded joint legal and
physical custody to the parties if Mother moved to Virginia as
well, such that (a) Mother was to have the children on the first
and third weekends of each month, from Wednesday after school
until Monday morning (b) each parent was permitted to have a
right of first refusal, under which one parent could watch the
children during pericds when the other parent was unable to watch
the children.
on August 18, 2004, Mother moved for reconsideration
of, inter alia, the family court’s order regarding physical
custody of the children. On September 3, 2004, at the conclusion
of a hearing on the motion, the family court judge orally ruled
that the time-sharing schedule would be revised such that the
parties would have the children for equal periods of time and
that the right of first refusal would be amended. The family
court also requested that Father draft the divorce decree to
include the family court’s oral rulings and modifications of the
Stipulation. On Octcber 1, 2004, Mother objected to several
portions of the proposed divorce decree tendered by Father,
> me family court aleo ruled on the allocation of credit card debt,
which Nother appesied to the ICR. Mother does not appeal the ICA's ruling on
the debt allocation in her Application.
*** FOR PUBLICATION ***
pursuant to Hawai'i Family Court Rules (HFCR) Rule 58 (2004) .*
‘The family court denied all of Mother's objections and approved
Father's proposed divorce decree in its entirety on October 13,
2004. Mother filed a timely notice of appeal on Novenber 5,
2004. At Mother's request, the family court issued written Fors
and COLs pursuant to HFCR Rule 52(a) (2004)* on March 8, 2005.
Therein, the family court made the following relevant findings:
531.1 Among witnesses called upon by the parties to
testity at trial, penultinate testimonial evidence presented
by other's sister Dr. Sarah Lawrence, N.D. ("Lawrence") and
Fistor Mark Alan Bowditch (*sowditch") forsed decisive
Hons on the court buttressing Father's custodianehip
S4(.)_ Lawrence, a practicing physician in Moscow,
rdaho, testified that ehe and Mother were roommates in
college when Nother first set and dated Father:
55{.]_ while growing up tog Lawrence
testified that ahe and Nother had a very close relationship
until approximately two years ago when the relationship
becane “strained.”
56[.]_ Lawrence observed Mother's level of anger nore
fgg Eecane Scappropriate at seeningiy meaningtess
feritations
“WFR mule 58 provides in pertinent part:
Within 10 daye after entry or announcesent of the decision
of the court, the prevailing party, unless otherwise ordered
by the court; shail prepare « judgeent or order in
ccordance with the Geciaion and secure thereon the approval
fae to form of the opposing counsel... . Any party
Sbjeceing to a propeeed Judgnent, OF oxder shally within 5
Gays after receipt, serve upon all parties and deliver to
the court that party's proposed Judgment or order, and in
such event, the court shall proceed to settle the judgzent
or order.
* HECR Rule 52 (a) provides in pertinent party
Ivipon notice of appeal filed with the coure, the [family]
court shall enter its findings of fact and conclusions of
Tew where none have been entered... .. Findings of fact if
entered shall not be set aside unless Clearly erroneous, and
Sue regard shall be given to the opportunity of the trial
Court to judge the credibility of the wits
*** FOR PUBLICATION ***
57[.] tn the last two years Mother appeared defensive
and hostile to her parents and in-laws.
Se[.] Mother seened to focus her lifestyle primarily
pon personal fitness and triathion training.
59[.] Mother's priorities changed; according to
Lawrence, Mother's attitude towards children during the last
vo yeare is best expresced, “let someone lee take care of
then, i've done my part-"
60{.} Trial witness Bowditch, was a 6th grade teacher
at st. Natk’s [aie] school whore the parties's [ele] two
eldest daughters, Sarah and Lauren, attended school at the
Eine of trial and was a reserve chaplin in the U.8. Air
Force, having attended four years of divinity school
6i[.]_ Sarah and Bouditch's daughter were best friende
and had many sleep overs at each other's home.
621.] Bowditch had known both parties, equally well
throughout 12 year old Sara and @ year old Lauren's
attendance at St. Mark's. [sic]
63[.] As a USAP chaplain, a large part of Bowditch’s
work vas devoted to sarriage counselling {eic) and child
Custody and care.
G6.) While he did not find any fault in his
observations of others child care, Bowditch pointed out an
Snueual child care attribute.
65{.]_ From the first day Sarah started at st. Mark's
aie] to the present, Pather has never failed, when
transporting the giris to school, to park Als car to
personally walk sarah and tauren’ to clase and greet their
Eeachere every day while not on active duty outside Hawal'i.
66{.] At the came time, Father{) not only volunteered,
to chaperan {sic} Sarah and Lauren's field trips, he
chaperened all the other etudente’ field tripe hie active
Guty schedule pernitted.*
The family court concluded that, with regard to custody:
AL]. Te 4g in che best interests of the minor
‘children that joint legal and physical custody be awarded to
Nother and Father, with equal time with beth parents, with
te-breaking authority to Father.
«me family court aleo entered FOF no. 67, which stated that *I£]rom
hia observations and contact with the family over the years, Bowditch
testified the girls’ welfare and care would be better served by having the
Girls and Father relocated to Virginia.” Nother contested the finding and the
{ca concluded that the finding vas erroneous because the family court struck
that testimony during erial and there was thus no substantial evigence to
support that Finding,
* FOR PUBLICATION ***
2[.]_ 1 te dn the best interests of the minor
children’ to relocate to Virginia.
2. Appellate Proceedings
On appeal to the ICA, Mother argued that the unique
facts of the instant case provide the court with an excellent
opportunity to make inportant policy determinations affecting
3 because thie is the first reported appellate
relocation ©
case reviewing an order by the family court allowing a relocation
by the non-primary parent, where the primary parent was found to
be competent and fit and where the children were thriving in
Hawai'i, specifically, Mother alleged that the trial court erred
in: (1) failing to place a priority and preference upon the
continuity of the children’s primary care by Mother, as required
by case law and policy; (2) failing to place a priority and
preference upon maintaining the stability of the children’
residential and educational arrangements, ae required by case law
and policy; (3) failing to place a priority and preference upon
the avoidance of parental conflict and by disregarding the clear
risk that the children would be exposed to strongly negative
views by Father and his parente against Mother when the judge
conditioned the avard of joint legal and physical custody upon
Mother's moving to Virginia; (4) placing undue priority and
preference upon economic factors; (5) discriminating in favor of
Father's career goals over Mother's; (6) finding that living in
Virginia would allow the children greater access to extended
family; (7) characterizing Father's residence in Virginia as “the
*** FOR PUBLICATION ***
children’s primary residence’; (8) concluding that it was in the
best interests of the children to relocate to Virginia; and (9)
awarding “tie-breaking authority to Father," when the divorce
decree stated that “all decisions which materially affect the
health, education and general welfare of the minor
children . . . shall be made jointly by the parties.”
on August 22, 2005, Father soved to dismiss Mother's
appeal on the baeie that the relocation issue on appeal was moot
because Mother had since moved to Virginia and was exercising her
custodial and vieitation righte. Mother opposed Father’s motion
to dismiss and moved to strike his attached declaration on the
basie that he improperly attempted to introduce facts not
presented to the family court. On February 10, 2006, Mother
filed a motion for an order to expedite consideration of the
ued a receipt of Mother's
appeal. On March 10, 2006, the ICA 4
motion to expedite and stated that it would take action as soon
o it wae reasonably possible. The ICA subsequently denied
Father’s motion to dismiss the appeal and granted Mother's motion
yarate orders entered on
to etrike Father’s declaration in
April 10, 2006.
As previously mentioned, the ICA issued its summary
disposition order on April 19, 2006, wherein it stated that:
After a painstaking review of the record and the
briefs submitted by the parties, and giving careful
consideration to the argunents advanced and the issue!
Fsisea by the parties, we resolve Mother's posnte of
fon appeal as follows:
-20-
*** FOR PUBLICATION ***
2, Im Einding that relocation to Virginia waa in the
best interests of the minor children, the family court dia
not clearly err, Macda v, Mada, 6 Haw. App. 139, 143, 794
P.2a 268, 270 (1990), Because there was substantial evidence
to support that finding. In re Dos, 95 Hawai'i 183, 190, 20
Prad 616, 623 (2003); Tetreaile v. fetreaule, 29 wawai'd
‘55 P.34 645, 849-51 (app. 2002)- CE. Maeda, 8
4, The family court erred in appending to ite
conclusion of law Ar1 the ultimate clat seteh
Ele breaking authority to Father" -- because the family
court thue derogated the avard of joint legal custody.
contained in the divorce decree, snd apparently did so
Without motion, notice or opportunity to be heard.
5. The family court erred in paragraph 4 of the
divorce decree by referring to Father's residence in
Virginia as the children’s “primary” residence, because the
decree awarded the parties joint physical custody.
‘Therefore,
TT 18 HEREBY ORDERED chat . . . che ultimate clause of
conclusion of law A.1, contained ia the family coure’s March
1, 2008 Findings of fact and conclusions of law, (18)
vacated. The word "primary" is stricken from paragraph 4 of
the family court's October 13, 2004 divorce decree, but the
Givorce decree ie otherwise affirmed.
As previously mentioned, Mother filed her timely
application for writ of certiorari, which we granted on May 30,
2006. In her application, Mother apparently believes that the
ICA's upholding of the family court's divorce decree permitting
relocation by Father with the children is contrary to early
Hawai'i case law and that a recent ICA decision has left parents
contesting relocation issues with no guidance or standards to
follow. Because of the gravity of Mother's allegations, we
granted certiorari to address Mother’s contentions.
-n-
*** FORPUBLICATION **
11, say REVI
amily Court Decisions
Generally, the family court possesses wide discretion
‘and those decision will not be set
manifest abuse of discretion. Thus,
weil not Gisturb the family court's decisions on appeal
Uniess the family court disregarded rules or principles of
Yaw or practice to the substantial detrinent of a party
iitigane and ite decision clesrly exceeded the beunds of
Inte Doe, 95 Hawai'i 183, 189-90, 20 P.3d 616, 622-23 (2001)
(internal quotation marks, citations, brackets, and ellipsis
points omitted) .
B. Famil +9 Findin« ene of Lav
‘The family court's Fore are reviewed on appeal under
the ‘clearly efoneous" standard. A FOF ie clearly
Erroneous when (2) the record lacks substantial evidence to
Support the finding, or (2) despite substantial evidence in
Support of the finding, the appellate court is nonethele
jefe with a definite and firm conviction that a mistake has
been sade. “Substantial evidence is credible evidence
Whlen ie of cufticient quality and probative value to enable
Spereon of reasonable cation to support a conclusion
‘on the other hand, the family court's COLs are
reviewed on appes! de_navo, under the right/wrong standard.
Gite, consequently, ave thot binding upon an appellate court
Gnd are freely reviewable for their correctness.
foteover, the fanily court is given quch leeway in ite
‘examination of the reporte concerning a child's care,
SSetody, and welfare, and ite conclusions in this regard, if
Supperced by the record and not clearly erroneous, mist
stand on appeal.
Id. at 190, 20 P.3d at 623 (citations, some internal quotation
marks, brackets, and ellipsis points omitted).
Cc. Credibility of Witnesses
“rt is well-settled that an appellate court will not
pass upon issues dependent upon the credibility of witnesses and
the weight of evidence; this is the province of the trier of
-12-
FOR PUBLICATION ***
fact." Id, (ellipsis points, brackets, internal quotation
marks, and citations omitted).
TIT. DISCUSSION
Nother contends that the criteria and standards for
relocation cases in Hawai'i, including “best interests [of the
child)" and “totality of circumstances" are “too amorphous to
provide meaningful guidance and predictability to prospective
custody/relocation litigants and counsel.” specifically, Mother
contends that the leading case on the subject “merely sets forth
a review of the varying approaches to adjudicating relocation
cases, wi a which a
be_used in Hawai'i.’ Mother urges this court to “join the
enormous body of cases from around the country which expressly
state a preference and priority upon the continuity of care by
the primary caretaker and stability in residential and
educational arrangements as the paramount considerations in
law
relocation cases” and states that “[elarly Hawai'i cé
is for a definitive ruling.” Mother apparently
provides the
believes that the family court's order permitting relocation by a
ye Law.
non-primary parent is inconsistent with Hawai'i ci
HRS § 571-46 (Supp. 2004), entitled “Criteria and
in
procedure in awarding custody and visitation,” provid
pertinent part:
In the actions for divorce, . . . oF any other proceeding
where there is at deque a diepute as to the custody of 2
Manor child, the coure, during the pendency of the action,
Bt the final hearing, or any time during the minority of the
Child, may make an order for the custody of the minor child
o13-
*** FOR PUBLICATION ***
fas may seem necessary of proper. In awarding the custody,
the'tourt shall be guided by the following standards,
Considerations, and procedures:
(1) Gustody should be auaxded to either parent orto
[Sth coarente scesrding to the best Interests of
she_chilas
(4) Maenever good cause appears therefor, the court
may require an investigation and report
Converting the care, welfare, and custody of any
Binor child of the parties. when so directed by
The court, Investigators or professional
Personnel attached to or assisting the court
Thal make Investigations and reports which
Shall be made available to all interested
Parties and counsel before hearing, and the
Fepores say be received in evidence if no
Chhection ie sade and, if objection ie made, may
be received in evidence; provided the persoh oF
persons responsible for the report are available
ination ag to any matter that hae
(5) Te court may hear the testimony of any person
or expert, produced by any party or upon the
Court's oim motion, vhose skill, insight,
Saowladge, oF experience ie such that the
Person's or expert's cestinony is relevant to a
Suet and reasonable determination of what is for
the best physical, wental, moral, and spiritual
well-being Of the child whose custody 1s at.
issuet-]
(Smphasis added.) Under HRS § 571-46, the sole issue in a
custody determination is the child’s best interests, which is an
issue of ultimate fact. Maeda v, Maeda, 8 Haw. App. 139, 143,
794 P.2d 268, 270 (1990) (citing In_xe Jane Doe, 7 Haw. App. 547,
558, 784 P.2d 873, 875 (1989) (stating that ‘in the child’s best
interest . . . is an ultimate finding of fact which must be
adequately supported by preliminary findings of fact”)).
In Tetreault v, Tetreault, 99 Hawai'i 352, 55 P.3d e845
(app.), cert, denied, 99 Hawai'i 352, 55 P.3d 845 (2002), a
mother sought to relocate with her children to another state over
-14
*** FOR PUBLICATION *
the father’s objection that (1) he was equally fit to have
custody and (2) there was “no showing that the children’s
well-being would be better served by such a move." Id. at 356,
55 P.3d at 850. The ICA rejected the father’s contentions, and,
in an extensive footnote supporting its decision, the ICA
reviewed two Hawai'i cages on point, including Gillespie v.
Gillespie, 40 Haw. 315 (1953), and Maeda, and provided examples
of case law from other jurisdictions.
In Gillespie, decided by the Suprene Court of the
Territory of Hawai'i, the father of two minor female children
appealed from an order amending a divorce decree which, inter
alia, permitted the mother of the two children to take them “from
Hawai"i to the mainland of the United States." 40 Haw. at 317.
‘The mother of the children had remarried and her new husband, who
was a menber of the United states’ military, had received word
that he would be transferred to the continental United States.
‘The trial court found that, although both parents were fit
custodians, it was in the children’s best interests to be with
their mother and permitted the mother to relocate with the
children. id, Before the trial court issued a final order, the
mother relocated with the children, and the trial court entered
an amended decree permitting the mother to take the children and
awarding her sole custody.” Id, at 318. According to the
territorial supreme court, the mother provided no reason why it
-15-
*** FOR PUBLICATION ***
should amend the decree to permit relocation, other than her
husband's transfer. Id, The appellate court stated that:
‘al rule of custody that the
‘parancunt consideration, this
court consistently hae given preference over the father in
favor of the sother here her custody appears sore
beneficial to the child. That does not mean, however, that
Custody will not be avarded to the father where his custody
Sppears core beneficial than the sother’s.” On the contrary,
iEineane chat
Pursuant to che ger
welfare of the children
dered and te far superior to the claina of
r = fre
row res To insure
that welfare, 3 divorced parent on entry of
ai bs tonsved from ite protective jurisdiction
Better eubserved thereby gat therewitn, coures in
farding custody ordinarily will prefer a resident parent
Over the other parent who 1a either « nonresident oF a
Yesident contemplating immediate removal fron the
juriediction where both parents are equally fit to have
Qustedy. Nevertheless, the welfare of the children’
sonkinuee to be paranoint over the claims of either parent.
fe he or she the resident or nonresident. for a child to be
En the costody of a resident, however, ie a benefit in
LE to the child as a ward of the coure within ite
protective jurisdiction.
Id, at 320-21 (emphases added) (citations omitted). The court
then reversed the order, allowing relocation on the basis that
the “record [was] barren of a sufficient basis on which to
ascertain whether the change [the mother] contemplates will be
beneficial or detrimental to the children.” Id. at 323.
In a subsequent case, Estrella v. Estrella, 43 Haw. 210
(2959), the territorial supreme court clarified its holding in
Gillespie, stating that euch holding was consistent with its
holdings in earlier cases that followed no other general rule
than “the rule to the effect that thé welfare of the children is
of paramount consideration and that each case must be decided
upon ite own facts." Id, at 213. The court further stated that,
-16-
*** FORPUBLICATION ***
winiie the court did refuse in the Gillespie case to permit
tke"nother of minor children... to take them to the
fainland after her renarriage, and the opinion dié contain
Done rather unnecessarily emphatic statenents against
Permitting the removal of the children from the court's
Jurlediction, i aid not in any way attenpe to overrule the
well recognized rule [ehat) "{i]m determining divorced
Parente’ claim to child's custody, child’ welfare
Parancunt.* [glilespie, 49 Haw, at 325.) In the Gillespie
fase there was no_allegation and no_proof that the best
{Mtereste of the children would be served by their removal
from the Territory.
Id, at 213-14 (emphases in original).
Nore recently, in Maeda, the ICA addressed the issue of
relocation for a nother who sought to move with her boyfriend and
son from Hilo, Hawai'i to California or Florida because of better
employment opportunities and a nore feasible economic standard, of
Living, @ Haw, App. at 140-41, 794 P.2d at 269, The family
court order awarded sole legal and physical custody to the
mother, but provided that, if the mother decided to move to the
mainland, the father would be awarded sole custody. Id, at 142,
794 P.2d 269-70. The ICA upheld the order, holding, sua sponte,
that
eg § 571-46 gives the family court the power, where
Marranted by the facts, to award sole legal and physical
Custody of child to hls mother subject to the condition
Subsequent that the award of his custody to his mother will
be automatically terminated and awarded to his father one
week prior to the time when hia mother effectuates her plans
{Stnove with the child toa new residence out of the family,
court's Jurisdiction.
Id. at 143, 794 P.2d at 270, The ICA explained that:
es a
2 Seis in son inte =
‘sourt'a decision is not based on Mathers olaniad save fron
Hava to someuhere in California or Florida. It ie based
Mother's nove ETH Nother 18
Free to nove, if she nove, however, ner existing legal
Hight to son's physical custody 18 automatically terminated
and avarded to Father until she proves in court, asa aatter
<17-
*** FOR PUBLICATION ***
of fact, that it will be in son's best interests to save
Tn the usual case, if it Se ina child's best.
interests to be in the mother’s sole legal and physical
Gustody, that will be true no matter where the mother
Shocses to live with her child. gee Estrella v. gatrella,
$3 Baw. 310 (1959). In thie case, however, the evidence
forced the fanily court to choose between a situation and
Elreuietances in Hawai'i chat ave known to be beneficial to
Son, even if Nother is "and an unknown #ituation
and elreumstanct or Florida.
‘As noted sbove, ty court's
fact, that it would be in Son'a beat inte:
ith’ rather in'Bilo if Nother leaves Havai'd, ie not clearly
Id, at 144, 794 P.2d at 270 (emphases added) .
in Tetreault, the ICA further noted that:
Across the country, the lay applicable to interstate
relocation of a child by a parent ie diveras. For example,
in Michigan,
wa judgment or order avarding custody of a minor mist
provide that (2) the donicile or residence of @ minor
Ray not be noved from Michigan without the approval of
the judge. "Michigan further requires that &
moving party prove, by a preponderance of the
evidence, that removal ie/warranted. A trial court
muse analyse four factors(.1
As noted in [a later Cave], those four factors are:
(2) whether the prospective move has the capacity to
Improve the quality of life for both the custodial
parent and the child; (2) whether the nove is inspired
By the custodial parent's desire to defeat or
Flustrate visitation by the noscustodial parent and
whether the custodial parent is likely to comply with
The substitute vieitation orders where he or abe le no
[Seger subject to the jurieaiction of the courts of
thie state; (3) the extent to which the noncustodial
parent, in resisting the nove, is motivate by che
Seeire to secure a financial advantage in respect of a
Continuing support obligation; and (a) the degree to
which the court is satiefied that there will be a
Tealistic opportunity for visitation in lieu of the
seeckly pattern which can provide an adequate basis for
preserving and fostering the parental relationship
With the noneustodial parent if resoval is allowed,
In Wiesouri, a statute andates that
‘lal person entitled to the custody of a child shall
not change the residence of the child to another state
or renove the child from this state for a period of
time exceeding ninety days except upon order of the
court or with the written consent of the parties with
Custody or viaitation rights... -* Ia determining
Shether to grant the custodial parent’s motion, the.
farancunt concern is the Dest intereste of the child
Th ew York, s
re ‘enphaaie ol what cube
i interes cals.
-1e-
*** FOR PUBLICATION
Jota, where the custodial pa:
permanently move the children £0 another state over the
Ron-custodial parent's objection, an evidentiary hearing ie
fot required absent a priaa facie case of endangerment Or
that the nove was intended to deprive the non-custodial
parent of visitation,
‘in california the custodial parent has a
presumptive right to relocate with the minor child, subject
bo the pover of the court to restrain a change that would
prejudice the rights or welfare of the child
Tetreault, 99 Hawai'i at 357.8, 55 P.3d at 850 n.8 (citations
and brackets in original omitted). The ICA also noted that some
courts recognize that restrictions on the domicile of an
individual potentially violate parents’ rights to certain
individual freedoms, including travel. Id, at 356 n.8, 55 P.34
at 51 n.8, In addition, contrary to Mother’s contention that
Tetreault merely provided a review of various criteria without
providing guidance, the ICA expressly adhered to the best
interest standard applied in Maeda. Specifically, the ICA
rejected the father’s contention that there vas no evidence to
support the family court’s finding that relocation was in the
best intereste of the children, and referred to the family
court's findings that: (1) the mother was the primary caregiver;
(2) st was in the children’s best interests to award full custody
to the mother; (3) the city the mother wished to move to had
excellent schools, good job opportunities, and was a “low-crine,
family-friendly, unpolluted envizonment.” Id. at 358, 55 P.3d at
851. On that basis, the ICA affirmed the award of custody to the
mother.
In sun, Hawai'i courts have consistently adhered to the
best interests of the child standard as paramount when
-19-
*** FOR PUBLICATION
considering the issue of custody. In 80 doing, the family court
is granted broad discretion to weigh the various factors
involved, with no single factor being given presumptive paramount
weight, in determining whether the standard has been met.
in the instant case, neither parent presently contest
the other parent’s fitness,’ and, although Mother is considered
the “primary caretaker,” Father has also been substantially
involved in the children’s lives and is willing and ready to
accept full custody of the children. In addition, as Mother
stated in her Opening Brief,
Ibloth the hone the children have known for years and the
propesed relocation would provide good opportunities for the
Etilgren, “the two locations are in nice family-friendly
Reighborhoode, have excellent schools, and provide nurcuring
Places to raise the children.
‘the Gne najer Gifference ie that mother, the primary
caretaker wisher to Fenain in Hawai'i, in the home that the
chilaten nave called home for many years.
Thus, the only question before this court is whether there is
substantial evidence to support the trial court’s determination
that relocation was in the best interests of the children and
that such ruling does not conflict with prior case law.
Here, unlike Gillespie or Maeda, the record is not
barren of facts regarding the relocation and the opportunities it
holds for the children. on the contrary, the record indicates,
as Mother expressly adnita, that the new location is comparable
in living conditions for the children, and, moreover, Mother
Previously, Father raised {esues regarding Mother's mental fitn
mever, by the tine of trial, Pather stated that he no longer believed she
"o mentally ill.
-20-
*** FOR PUBLICATION ***
stated that she was willing to move with the children, if
relocation was permitted. Also, the family court stated that the
testimonial evidence presented by Mother’s sister, Sarah
Lawrence, and Pastor Mark Alan Bowditch “formed decisive
impressions on the [clourt buttressing Father’s custodianship of
the children.” Dr. Lawrence and Pastor Bowditch testified, inter
alia, as to Father’s excellent relationship with hie children and
Anvolvenent in their everyday lives. Even though the custody
evaluator, Lopez, expressed some concern at trial that the
conflict between the parents had not dissipated as she had hoped
since her recommendation for relocation, Lopez nevertheless
continued to express her belief that (1) Father was an excellent
parent, (2) he would encourage contact with the children’s
extended family, (3) Father and Mother had always planned to
leave Hawai'i eventually, but that, if the family relocated
again, Mother should then be granted custody. Inasmuch as the
family court accorded weight to certain witnesses over others and
those witnesses provided evidence that the relocation would
benefit the children, the ICA did not err in upholding the family
court’s findings and conclusions regarding the best interests of
the children, See In re Doe, 95 Hawai'i at 197, 20 P.3d at 630
(recognizing that “it ig not the province of the appellate court
to reassess the credibility of the witnesses or the weight of the
evidence, as determined by the family court"); HFCR Rule 52(a),
supra. Moreover, the ICA’s holding is consistent with its
-21-
*** FOR PUBLICATION ***
decision in Naeda and ite subsequent decision in Tetreault. In
the two cases in which a relocating parent was denied custody of
a minor child, i,e., Gillespie and Maeda, the relocating parent
id not provide the court with evidence that the relocation
destination was well-suited for their children and, in fact,
neither mother knew where they would be moving at the time
custody was determined. In contrast, the ICA, in Zetreault,
affizmed the family court's award of custody to the relocating
parent based upon the uncontested findings and conclusions that
mother’s proposed relocation would be to a place with excellent
schools, good employment opportunities, and a suitable
environment. The instant case involves similar facts.
Consequently, although Mother contends that Hawaii's standards
are “too amorphous" to apply and that her status as the primary
caretaker of the children should be given preference, the record
indicates that the family court had substantial evidence upon
which it based its determination that relocation was in the best
interests of the children. Because the family court's
determination is entitled to deference, Inxe Doe, 95 Hawai'i at
190, 20 P.34 at 623, we see no reason to disturb the October 13,
2004 decree. Nor do we see any reason to expressly establish, as
Mother urges, “a preference and priority upon the continuity of
care by the primary caretaker and stability in residential and
educational arrangements as the paramount considerations in
-22-
*** FOR PUBLICATION ***
relocation cases." Accordingly, we hold that the ICA did not err
in upholding the family court's custody award.
IV. CONCLUSION
Based on the foregoing, we affirm the ICA’s April 19,
2006 sunmary disposition order.
Paul A, Tomar and Gyn
Jill M. Hasegawa (of
Ashford & Wriston), BleaVflcmeen—
for petitioner-plaintiff-
feeeBiahes cn che erie now
fk. steven Geahell, for eee
Nopettene Seeeadane:
Seer onthe response
Unc dee:
-23-
|
2cff7a24-fe6f-4cb5-b82f-72c9d368923c | State v. Ayres | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION ***
Wo. 25530
IN THE SUPREME COURT OF THE STATE OF HAWAI'I 3
ee
STATE OF HAWAT'L, Plaintiff-Appellee &
vs. =
JOAQUIN AYRES, Defendant~Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIFTH CIRCUIT
(CR. NOS. 269252MK, 268786NK)
or NF
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Defendant-Appellant Joaquin Ayres (“Ayres”) appeals
from the denial of his oral motion for judgment of acquittal on
November 8, 2002, and the judgment of the District Court of the
Fifth Circuit! (“district court”) entered on November 8, 2002.
At trial, Ayres was found guilty of his March 6, 2002 failures to
(1) wear a seat belt in violation of HRS § 291-11.6 (Supp. 2002)?
and (2) possess no-fault motor vehicle insurance in violation of
{the Honorable Trudy K, Senda presi
2 ag § 291-11.6 provides in pertinent part
(a) Except a8 otherwise provided by law, no person:
(2) shail operate a motor vehicle upon any public highway
Unless the person Je restrasned by © seat belt assembly
(e) A person who fails to comply with the reguirenents of this
Stieich shel be subject toa tine of $46 for each violation and 0
IT'Ee deposited inte the neurotrauma
Special fund
(emphasis added.)
ants
*#* NOT FOR PUBLICATION ***
HRS § 431:10C-104 (Supp. 1997)°.
on appeal, Ayres essentially argues that (1) he was
never arraigned as to the HRS § 431:10C-104 violation, such that
his judgment and sentence as to that violation must be reversed,
(2) the district court plainly erred in failing to engage Ayres
in the colloquy required for him to validly waive his
constitutional right to testify on his own behalf as set forth in
‘Tachibana uv State, 79 Hawai'i 226, 900 P.2d 1293 (1995)
("Tachibana colloquy”), and (3) the district court improperly
denied Ayres’ motion for judgment of acquittal where Plaintiff-
Appellee State of Hawai'i ("prosecution") failed to adduce
substantial evidence that Ayres was operating his vehicle on @
public highway, such that Ayres’ conviction must be reversed on
all counts, insofar as HRS §§ 291-11.6 and 431:10C-104 both
require that the violation take place on a public highway.
Upon carefully reviewing of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we hold as follows:
(1) The prosecution failed to arraign Ayres on the HRS
§ 431:10C-104 charge in violation of his constitutional rights.
Inasmuch as (a) Ayres’ counsel waived an oral reading of the
charges against him at Ayres’ April 26, 2002 arraignment hearing
and (b) because Ayres was never provided with a written
complaint, Ayres was required to receive an oral statement of the
2 as § 4328
0c-10¢ provides in pertinent part:
(a)... . no person shall operate or use a motor vehicle upon
any pubic’ street, road, or highway of this State at any tine
ales such motor vehicle is insured at all tines under @ motor
venicle insurance policy.
*** NOT FOR PUBLICATION
charges against him by the prosecution at the commencement of
trial pursuant to Hawai'i Rules of Penal Procedure (“HRP”) Rule
5(b) (1) (2000)! and this court's caselaw. “{Tlhe onus is on the
prosecution to inform the accused fully of the accusations
presented against him or her”, because “the principle of
fundamental fairness, essential to the concept of due process of
law, dictates that the defendant in a criminal action should not
be relegated to a position from which he or she must speculate as
to what crime he or she will have to meet in defense.” State v.
Sotattling, 99 Hawai'i 312, 318, 55 P.3d 276, 282 (2002)
(emphasis added) (citations omitted) (internal quotation marks
‘and brackets omitted).
It is clear from a careful review of the record that
the prosecution wholly failed to orally charge Ayres at trial as
to the HRS § 431:10C-104 offen:
Because the prosecution’ s
charge cannot be reasonably interpreted to charge 4 crine as to
the HRS § 431:10C-104 violation, gee id., his HRS § 431:10¢-104
conviction must be reversed. State v. Cummings, 101 Hawai'i 139,
142, 63 P.3d 1109, 1112 (2003) ("An oral charge, complaint, or
in pertinent part
In the district court, if the offense charged
fondant is ether than a felony, the complaint. shall
be filed or the oral charge stated, a copy of such charge and any
aftidavite in support thereof, and a copy of the appropriate
titer, if any, shell be furnishes to the defendant and proceedings
Ti'be had in accordance with this section (b). Arraignnent
ILI be in open court and shall consist of the reading of the
Complaint or the statenent of the oral charge to the defendant, oF
Stating the substance of the charge and calling on the defendant
fo plead thereto, nt ee
se alot ested a
(Emphasis added.)
*** NOT FOR PUBLICATION ***
indictment that does not state an offense contains within it 2
substantive ional , rather than simply a defect in
form, which renders any subsequent trial, judgment of conviction,
or sentence a nullity.” (Emphasis added.) (Citations omitted.)).
(2) The Tachibana colloquy vas not required because
Ayres’ only remaining conviction on review is for the civil
infraction of failure to wear a seat belt under HRS § 291-11.6.
“A person who fails to comply with the requirements of this
section shall be subject to @ fine of $45 for each violation and
a surcharge of $10 which shall be deposited into the neurotrauma
special fund.” HRS § 291-11.6(e) (emphasis added).’ Because
violation of HRS § 291-11.6(a) (1) carries no possibility of
Amprisonment, st is a civil infraction, as confirmed by HRS
Chapter 2910 (“Adjudication of Traffic Infractions”). Violation
of HRS § 291-11.6 is a “traffic infraction” under HRS § 2910-2
(Supp. 1997) because it is a violation of statute “relating to
traffic movement and control. . . . for which the prescribed
penalties do not include imprisonment.” (Emphasis added.) And
as per HRS § 291D-3 (Supp. 1997), “[t]raffic infractions shall
not be classified as criminal offenses.” (Emphasis added.)
Ayres correctly points out that “[iJn order to protect
the right to testify under the Hawai'i Constitution, trial courts
+ an the instant case, Ayres was sentenced to a total of $67 in fees
and fines and no jail tins for the HRS § 291-11.6 conviction
«was § 2810-2 states in pertinent part:
“traffic infraction” means all violations of statutes, ordinances,
or rules relating to traffic sovenent and control, including parking,
Standing, equipment, and pedestrian offenses, for which the prescribed
Pensities do not include imprisonment.”
4
+** NOT FOR PUBLICATION ***
must advise criminal defendants of their right to testify and
must obtain an on-the-record waiver of that right in every case
in which the defendant does not testify. [citing Tachibana, 79
Hawai"l at 236, 900 P.2d at 1303)” (Emphasis added.). However,
the rights conferred upon defendants charged with criminal
offenses under Tachibana, by definition, do not attach to civil
infractions. Because Ayres’ remaining “conviction” on review,
failure to wear a seat belt under HRS § 291-11.6, is a civil
matter, 2 Tachibana colloquy was unnecessary.
(3) Viewing the evidence in a light most favorable to
the prosecution, inasmuch as the combined testimonies of Kauai
Police Department Sergeants Lawrence Stem and Robert Gausepoh)
indicated that Ayres was stopped on a state roadway while
operating a motor vehicle without wearing a seat belt, a
reasonable mind could fairly conclude that Ayres was encountered
driving on a public highway without a seat belt beyond a
reascnable doubt. See State v, Keawe, 107 Hawai'i 1, 4, 108 P.3d
304, 307 (2008); HRS § 291-11.6; see also HRS § 264-1(a) (1993)
(*[alll roads, alleys, streets, wavs, lanes, bikeways, and
bridges in the State, opened, laid out, or built by the
overnment_al to i * (emphases
added.}) Consequently, the lower court did not err in denying
Ayres’ motion for judgment of acquittal as to the HRS § 292-11.6
no seat belt offense.
(4) When considering the evidence in the strongest
Light for the prosecution, Sergeant Stem’s testimony that he
witnessed Sergeant Gausepohl stop Ayres on what he later
“** NOT FOR PUBLICATION ***
described as a “state roadway,” combined with Gausepohl's
testimony that Ayres was not wearing a seat belt, constituted
credible evidence of sufficient quality and probative value to
enable a person of reasonable caution to find Ayres guilty of not
wearing a seat belt while driving on a public highway in
violation of HRS § 291-11.6. See State v. Maldonade, 108 Hawai'i
; State v, Pulse, 83 Haw. 229,
244, 925 P.2d 797, 613 (1996) ("The testimony of one percipient
436, 442, 121 P.3d 901, 907 (2005
witness can provide sufficient evidence to support a
conviction."). Consequently, Ayres’ HRS § 291-11.6 no seat belt
conviction must be upheld.
‘Therefore,
IT IS HEREBY ORDERED that Ayres’ HRS § 431:10C-104
conviction is reverse
and that Ayres’ HRS § 291-11.6 conviction
is affirmed.
DATED: Honolulu, Hawai'l, May 25, 2006.
on the brief:
George A. Burke, Deputy DA
Public Defender,
for Defendant-appellant LEAH lier se
Joaquin Ayers:
Roland J. Talon, Deputy Penn 61am
Prosecuting Attomne',
for Plaintiff-Appellee
State of Hawai'i G—~ A>“
Bare e, Raaan ty +
|
d785b88b-fd0b-43e1-bbbd-9d04a9130315 | Aha Hui Malama O Kaniakapupu v. Land Use Commission, State of Hawaii. Dissenting Opinion by J. Acoba, with whom J. Duffy, joins [pdf]. | hawaii | Hawaii Supreme Court | +** FOR PUBLICATION ***
in West's Hawai'i Reporter or the Pacific Reporter
ee
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
000-
—_—
ANA HUI MALAMA © KANIAKAPUPU, Appellant-Appellant, :
LAND USE CONMISSION, STATE OF HAWAI'I; ELIZABETH
MIDKIFF MYERS fka ELIZABETH MIDKIFF MORRISS;
and OFFICE OF PLANNING, Appellees-Appellees,
and
ROBERT H. MIDKIFF; JOAN H. SHIGEKANE, as Trustee
of the Joanne H. Shigekane Revocable Living
‘Trust, Appellees.
SSS
No. 26964
APPEAL PROM THE FIRST CIRCUIT COURT
(CIV. NO, 04-1-0276-02 (BEH))
avk 1 YHUDN
JULY 24, 2006
eb:2 Rd 42 TO 9002
MOON, C.J., LEVINSON, AND NAKAYAMA, JJ.; ACOBA, J.,
DISSENTING, WITH WHOM DUFFY, J., JOINS
OPINION OF THE COURT BY MOON, C.J.
In thie secondary appeal, appellant-appellant Aha Hui
Malana © Kaniakapupu (the Hui) appeals from the Circuit Court of
the First Circuit’s November 5, 2004 judgnent* in favor of
‘The Honorable Eden Elizabeth Hifo presi
proceedings
over the underlying
qa
*** FOR PUBLICATION ***
in West's Hawai'i Reporter or the Pacific Reporter
appellees-appellees state of Hawai'i (State) Land Use Commission
(LUC), Elizabeth Midkiff Myers fka Elizabeth M. Morris (Myers),
Robert R. Midkiff, Joanne H. Shigekane as trustee of the Joanne
H, Shigekane Revocable Living Trust, and State Office of Planning
(hereinafter, collectively, Appellees]. Therein, the circuit
court dismissed the Hui‘s agency appeal from the LUC’s March 25,
2004 order that denied the Huis motion for an order to show
cause, based on lack of subject matter jurisdiction. In
upholding the LUC’s determination, the circuit court concluded
that, inasmich as Hawai'i Revised Statutes (HRS) § 91-14(a)
(1993), quoted infra, requires that a contested case occur before
appellate jurisdiction may be exercised and a contested case
hearing did not occur in the instant case, the Hui could not seek
judicial review of the LUC’s decision.
on appeal, the Hui essentially claims that the circuit
court erred in dismissing its agency appeal for lack of subject
matter jurisdiction. For the reasons discussed below, we hold
that the Hui's contention lacks merit inasmuch as a contested
case hearing did not occur in the instant case, thereby
precluding judicial review pursuant to HRS § 91-14(a)
Accordingly, we affirm the circuit court’s November 5, 2004
judgment
*** FOR PUBLICATION ***
in West's Hawai'i Reporter or the Pacific Reporter
es
1. BACKG!
Factual Backaround
on February 1, 1989, the Henry H. Shigekane Revocable
Living Truet and the Joanne H. Shigekane Revocable Living Trust
Ihereinafter, collectively, the Shigekanes], Midkiff, and Myers
petitioned the LUC to amend the land use district boundary for
approximately 9.917 acres situated in an area known as Nu'uanu,
in Honolulu, Hawai'i (the 1989 boundary amendment petition). The
Shigekanes, Midkiff, and Myers sought to anend the land use
district boundary from "Conservation Land Use District Boundary"
(conservation district) to “Urban Land Use District Soundary*
(urban district). ‘The approximately 9.917 acres consist of two
adjoining homesteads assigned tax map key (TMK) numbers: (2) 2-
2-88:02; and (2) 2-2-55:04. TMK #2-2-55:02 is owed by the
Shigekanes and their family (the Shigekane Parcel) .* Midkiff and
Myers, who are brother and sister, each hold an undivided one-
half interest in TMK #2-2-55:04 (the Midkiff /Myers Parcel)
thereinafter, the shigekane Parcel and the Midkift/Myers Parcel
are collectively referred to as the Property]. The Shigekane
Parcel consists of approximately 5.104 acres, and the
Midkiff/Myers Parcel consiate of the remaining 4.613 acres
> Inassuch as the Shigekanes were excused from the LUC proceeding
underlying the instant secondary appeal and there were no objections from any
SEthe’pecties, the Shigekane Parcel is not at issue in this case. The
Sf Sbeahes elica a tatenent of nonparticipation with the circuit court on May
5, 2004.
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Reclassification of the Property was sought to enable
the Shigekanes, Midkiff, and Myers “to subdivide the Property,
construct both replacement and new hou
on the Property, and
make such other repair and inprovenents of the existing units in
a manner ordinarily and customarily allowed for urban residential
uses and thereby provide house lots or hones for their children.”
‘The LUC conducted a hearing on the 1989 boundary amendment
petition on July 27, and 28, 1989.
on Novenber 9, 1989, the LUC entered ite findings of
fact (FOFs), conclusions of law (Cols), decision, ‘and order,
approving the reclassification of the Property from conservation
district to urban district (the November 1989 order). The LUC
found that,
[in order to provide reasonable assurance to the [LUC] that
the proposed development is a family enterprise to provide
housing for the family members and nota comercial
enterprise for speculation, (che Shigekanes, Midkiff, and
fyere) have represented that they are willing to be
Subjected to a condition that mesbers of the fanii[ies] of
{the shigekanes, Midkite, and Myerel, respectively, would
have a right of first refusal to purchase if any interest in
the Property were sought to be sold.
Indeed, the LUC imposed the following relevant conditions on
Midkiff and Myers:
4, That [hidkiff and Myers] shall agree to a
covenant, said covenant to run with the land and in a form
Sgreeable to the office of State Planning that. with respect
£0 the Midkitt/Myers (Plarcel (TMK: 2-2-85:04), for a period
fof 20 years after the date of this (olrder, if (Midkiff] or
(tyers) desires to sell or convey all or portions of thelr
in saic parcel, he or she shall tizer
Senvey such interest to any of his of her children as the
and if any of the children #0 acquiring said
interest desires to sell or convey all or portion(el of
their interest in saa parcel, they ehall first offer such
interest in the parcel to their eiblings and/or [idkit#]
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es
land [Myers], as the case may be, however, provided, that the
folder of interest in the Midkit#/myers (Plarcel may
mortgage the interest at any time. (/]
8." ithe shige
the Property in aubstaneial compliance with
ade to the (Lic) in obtaining the reclassific
Property
(emphasis added.)
wnee, Midkiff, and Myers] shall develop
presentations
Sometime in 2000 -- approximately eleven years after
the Novenber 1989 order -- the Hui was formed in order to ‘care
for and serve as a steward of Kaniakapupu, the historic ruins of
the royal summer cottage of Kamehameha III." . Kaniakapupu is
located on property owned by the State that shares common
boundary with, and ie situated, approximately 200 to 300 feet
from, the Midkiff/Myers Parcel.
on August 21, 2002, Myere listed 2.32 acres of the
Midkiff/Myers Parcel for sale to the public with the Multiple
Listing Service (MLS) for $12,000,000. On January 20, 2003,
Myers listed an additional 20,001 square feet of the
Midkif£/Myers Parcel for sale to the public with the MLS.
1. ‘The LUC Proceeding
on April 21, 2003, the Hui filed a “Motion for an Order
to Show Cause Regarding Enforcement of Conditions,
Representations, or Commitments” (motion for an order to show
cause) pursuant to Hawai'i Administrative Rules (HAR)
2g wimilar condition vai
to the shigexane Parcel
iso imposed on the Shigekanes with respect
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§§ 15-15-70" and 15-15-93, The Hui sought to have the LUC
ieeue an order to show cause as to why the classification of the
Midkif£/Myers Parcel should not be reverted to conservation
district. Generally, the Hui contended that Myers! failed to
“RAR § 15-15-70, entitled "Motions," provides in pertinent part:
(a) Any party may make motions before, during, oF
after the close of @ hearing:
(b) “All motions, other than those made during a
hearing, shall:
ti) be in writings
(2) State the grounde for the motion;
(3) Set forth the relief or order sollght; and
(4) Be accompanied by @ menorandun in support of the
notion, if the motion involves a question of
Taw.
(c) Every notion, except one entitled to be heard ox
parte, shall indicate whether « hearing 1s requested on the
Roticn.” If a sotion requires the consideration of facts not
fppearing of record, ir shall be supported by an affidavit
or aftidavite:
is)” it a nearing ta requested, the executive officer
ehall get a date and tine for hearing 'on the notion.
(G) Tf a bearing on the motion ie not requested, the
[uuc) may decide the matter upon the pleadings, menoranda,
and other docunents filed with the [0c]
5 HAR § 15-15-93, entitled *Rnforcenent of conditions, repre
or commitments," provides in relevant pare
(a) Any party or interested person my file a notion
with the (LUC) ‘requesting an issuance of an order fo show
Cause upon a showing that chere has been a failure to
perform a condition, representation, cr comitsent on the
part of the petitioner. The party or person shall sleo
Berve a copy of the motion for an order to show cause upon
any person bound by the condition, representation, or
Commicnent. The notion for an order to show cm
state:
(2) The interest of the movant:
(2) The ressons for filing the motion;
(3) A description and a map of the property affected
bythe condition;
(4) The condition ordered by the [UUC] which has not
been performed or eatistied;
(5) Coneisely and with particularity the facts,
supported by an affidavit, giving tive to
Belief that a condition ordered by the LUC) has
not been performed oF satisfied: and
(6) The specific relief requested.
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a
perform her representations and commitments and the conditions of
the Novenber 1989 order by Listing portions of the Midkift/Myers
parcel for sale to the public with the MLS. The Hui apparently
believed that Myers violated Condition No. 4 of the Novenber 1989
order. Ta addition, ‘the Hui alleged that Midkiff and Myers
srepiestnted and made commitments that their property was not
going to be used for conmercial venture, but rather{,] they
sought reclassification for ‘family use purposes|:]'*
Furthermore, the Hui expressed concerns that selling portions of
the Midkiff/Myers Parcel ‘will result in the influx of many new
people to the Kaniakapupu site and further endanger the
preservation efforts carried out to date.” The Hui requested a
hearing on its otion for an order to show cause pursuant to HAR
§ 15-15-70(c)
In a faceimile dated April 24, 2003 and sent on April
28, 2003 from Myers to her listing agent, Myers withdrew her
Listings with the MLS. On January 7, 2004, Myere submitted her
memorandum in opposition to the Hui’s motion for an order to show
cause, which Midkiff joined on the same day. Myers stated that
she had complied with Condition No. 4 by first offering the MLS-
Listed portion of the Midkif£/Myers Parcel to Midkiff. Moreover,
wyers contended that, inasmuch as the purpose of the instant
proceeding was to consider the Hui's motion for an order to show
cause, *[alny evidence or issues presented to the [LUC] about
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Kaniakapupu . . . is irrelevant to the purpose of [the]
proceeding.”
‘The LUC held a'hearing on the #ui's motion for an order
£0 show cause on January 15, 2004 (the January 2004 hearing). At
the conclusion of the January 2004 hearing, the LUC orally voted”
to deny the Hui'e motion on the basis chat the Hui had not net
its burden of denonstrating a failure to perform a condition,
representation, or commitment on the part of Myers. On March 25,
2004, the LUC entered its written order denying the Huis motion
for an order to show cause. The LUC surmarized the argunents
advanced by the Hui and Myers as follows:
[The Mui) argued chat an [older to [e)how (clause
should be {asued because Ridkit£/myere failed to comply with
Fepresentations and comitnents made to the [Le] curses the
original proceedings (iua., the proceedings relating tothe
3588 boundary amendment petition) Ie argued that the (LUC)
granted a “conditional” reclassification of the (property!
from the (clonservation (glistrict to ehe (ulean (@) istrict
because [Midkiff and Myers) represented that they vere
seeking the reclassification for continued family
Fesidential use through existing and new structures. (Th
ial] further argued ehat the listing of the Midkift Myers
(Blarcel() for sale showed that Midkift/Myere had failed the
commitment to keep the (Midkiff/Myers Parcel] in family
Feuldential use. The renedy that (the Mul] seeks ia the
reversion of the Midkitf/myers [Parcel] of the [Property]
from the (u)xban (a) ietrict to the [elonservation
(alistrict.
{The Mui} acknowledged that condition No{]. 4. . . of
the (ovenner 1989 order] restricted the eale of the
[idkite/myers Parcel] for twenty (20) years from the
issuance of the [Novenber 1965 order], Unless 2 right of
first retusal amongst [Midkiff/myers] ‘and their successor
are offered prior to any sale of the (P]roperty outalde the
families.
{rie'mut] acknowledged that Midkiff /Myers complied
with the Fight of fire: refusal requirenents, But it argued
That despite the compliance of Midkitf/myere with this
requirenent, they failed in their representations to the
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[uue} by listing the (Mdki¢f/myers Parcel) for sale
pursuant to Condition ilo. 6.4)
iisdkiei/myere . . . opposed the {mui's motion for an
order to show cause) on the following bas(ele: (1) (the
Rail dove not have standing to file the (notion for an order
fo show cause) because it 12 not an adjacent ‘landomer: (2)
{ene fui) has not alleged any injury; and (3) the "[2C’s]
jurisdiction da in the area of the Property] and not off-
ite at Keniakapups. ‘aleo, MiGkifE/Myere stated chat |,
Tehey] withdrew the isting(.]
The LUC then stated:
‘The (Luc) discussed
compliance with Condition lo. hse the
ferent of the condition was Co enforce the representations
Of [iiidkite and Myers) to Keep the [Mickift/Myers Parcel]
for family use purposes. It determined that the offer of
firet refusal cequirenent wae satisfied, but it raised the
Concerns that the $12,000,000 listed sales price in relation
Eovcurrent infrastructure conte and tax assessment of che
[uiGkift/Myere Parcel] called into question the sincerity of
the offer and refusal on. the Price between Myers and
Midkiee; and if the [Midkiff /myers Parcel) were sold for
hear the list price the significant financial gain would be
Contrary to. [Midkit#'e and Myera'] representations.
ations of
Ghioigh the evidence and arguments provided by (the
ui) and the parties, the [WUC] was concerned that the [Huil
id not meet ite burden() in demonstrating chat
Midkift/Myere had not satiefles Condition Nos. 4 and 8. The
{Luc} ackzowledged that the (elotion (for an order to show
Cause] vas not Fipe because of the withdrawal of the
Nsakite/uyers (P]arcel from the listing.
Finally, the LUC stated that it was denying the Hui's motion for
an order to show cause pursuant to HAR § 15-15-93, gee supra note
5
2. Appeal to the Circuit Court
on February 12, 2004, before the LUC entered its
weitten order denying the Hui’s motion for an order to show
cause, the Hui filed a notice of appeal with the circuit court.
«As previously indicated, condition No. 8 provided that the
Shigekanes, Woakitf, and Myere “shell develop the Property in substantial
Compliance with representations nade to the [LUC] in obtaining the
feclaselfication of the Property.”
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on March 29, 2004, the circuit court, dismi:
sd the appeal for
non-compliance with Hawai'l Rules of Civil Procedure (HRCP)
Rule 72 (2004) (xelating to appeals to a circuit court) inasmuch
as the Hui failed to timely file the designation ct the record on
appeal and the statement of the case. On April 5, 2004, the Hui
filed another notice of appeal with the circuit court pursuant to
HRS §§ 91-14,’ 205-4 (2001),* HAR § 15-15-93, and HRCP Rule 72.
RS § 91-14, entitled “Judicial review of contested cases,” provides
Am relevant parts
na contented case oF Dy a preliminary ruling of the nature:
Ehat deferral of review pending entry of a subsequent final
Geciaion vould deprive appellant of adequate relief ta
ed-to-iudietal revi but
fothing tn This section shall be Geoned to prevent Feaort to
Other beans of review, redress, relief, or trial de nova,
Sncluding the right of trial by jury, provided by law.
Notwithstanding any other provision of this chapter to the
contrary, for the purposes of this section, the term “person
Sogrieved" shall include an agency that ie a party to =
contested case proceeding before that agency Or another
agency.
(Bnphasie added.)
(a) Any department or agency of the state, any
department oF agency of the county in which the’ land is
Situates, oF any person with « property interest in the land
Sought to be reclassified, may petition the (LUC] for =
change in the boundary of a district.
isi Patties to proceedings to amend land use district
boundaries may obtain judicial review thereof in the manner
bet forth in section Si-lé, provided that the court may also
‘or modify a finding Of the [LUC] if such finding
te be contrary to the clear preponderance of the
the Mul maintained that ite notion for an order to
constitutes a "petition for reclassification,” i,e., a petition for
Boundary anendnent, However, the Hul now concedes that its notion for an
order to sho cause “ie not @ petition for boundary anendnent." Ac such, the
Mai could not file ite notice of appesl pursuant to HRs § 205-4
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a
on April 27, 2004, the circuit court entered an order withdrawing
its notice of dismissal of the Hui’s appeal.
on July 21, 2004, the Hui filed its opening brief with
the circuit court. The Hui contended that it had standing to
bring the appeal inasmich ae “the rights of native Hawaiians are’
a matter of great public concern in Hawai'." Specifically, the
Hui argued that development of the Midkiff/Myers Parcel would
endanger Kaniakapupu and ancient burial mounds that lie across &
stream to the south of the Midkiff/myers Parcel. The Hui also
contended that the LUC erred in concluding that its motion for an
order to show cause was not ripe because (1) the doctrines of
ripeness and mootness apply only to Article III courts and not to
state courts or administrative agencies and (2) Myers ‘definitely
and concretely intend{ed] to place her property on the market.”
tn addition, the Hui argued that the LUC erred in concluding that
Ae did not meet ite burden of demonstrating that Myers failed to
perform a condition, representation, or commitment. The Hui
contended that it “presented more than sufficient facts to give
rise to a xeason to believe that [Myers] ha(d] failed to perform
a condition, representation, or commitment.”
on August 30, 2004, the LUC filed its answering brief
with the circuit court in which the Office of Planning joined on
che sane day. The LUC argued that the circuit court lacked
subject matter jurisdiction to entertain the Hui’s appeal
inasmuch as the Hui was not “aggrieved by a final decision and
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order in a contested case’ as required by HRS § 51-14.
specifically, the LUC contended that the Hui was not an
saggrieved person’ because: (1) the Hui was not a. party to the
proceeding that resulted in the Novenber 1969 orde#; (2) the
proceeding that considered the Hui's motion for an order to show
cause was not a “contested case’ as defined in HRS § 91-14; and
(3) the Hui did not have standing to prosecute the motion for an
order to show cause. The LUC further contended that, even
assuming arguendo that the instant case is a contested case, the
Hui's motion for an order to show cause is moot because “the
record shows that Myera complied with the requirenents of
Condition [No.] 4 prior to listing" the property at issue.
According to the LUC, *[t}here is in the record an offer to sell
the property to. . . Midkiff and his refusal to buy it." As
such, the LUC maintained that it did not have reason to believe
that there had been a failure to perform a condition,
representation, or commitment on the part of Myers. Finally, the
WC argued that the Hui’s native Hawaiian practices and rights
are not implicated because
tthe record ie bare of any evidence that Midkif£/ (Myers)
Enrough the actions of myera have prevented. [the Hii] from
exercising customary rights over the property that is
Subject to che LUc's jurisdiction, i.e., the Shigekane
[Parcel] and [the Midkiff/Myers Parcel. The LUC has no
Juriediceion over Fantakapupu ie te State land chat
Se within the conservation aie: tthe subject
of @ past or pending land use proceeding under HRS chapter
os. “Jurisdiction over conservation district lands are
wiehin the purview of the Depertnent of Land and Natural
Resources. ‘Furthermore, (the Hul’s) action ie not in the
ature of a boundary reclassification petition. (See supra
Bote 6]. The LUC's obligation to consider Hative Hawaiian
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ee
rights ie in petitions for boundary amendnente, Thus, (the
folvs] attempe to inject a Native Hawaiian rights issue into
thie proceeding 1s inappropriate.
Myers filed her answering brief with the circuit: court
on August 30, 2004, which Midkiff joined on September 2, 2004.
Myers contended that’ the appeal should be dismissed becau
(1) the cd#cuit court lacked subject matter jurisdiction; (2) the
ui lacked standing; and/or (2) the Hui failed to meet ita burden
of making a showing that the 1UC’s valid decision to deny the
fui's motion for an order to show cause was clearly erroneous.
speéitically, Myers argued that the circuit court lacked subject
matter jurisdiction’ inasmich as there was no contested case
hearing from which an appeal could be taken. Moreover, Myers
contended that the Hui
nisinterpreted Condition No. 4, stating that condition No. 4
Goes not promibit, (her) from listing ber [property] for
SS oGorobo. fa fact, nothing in Condition Ino.) 4 prevents
the gale of the Midkift/Myers Parcel. Condition (No.1 4
Gely requires that Midkiff and Myers agree to offer their
Shegrest in the property to each cther if either desires to
sell ail or a portion of the property within 20 years of the
Tlovenber 1989 order]
on September 9, 2004, the Hui filed its reply brief
with the circuit court. The Hui contended that the circuit court
did not lack subject matter jurisdiction inasmuch as the January
2004 hearing was a contested case hearing.
court heard oral
on September 22, 2004, the circ
argument on the Hui’s appeal at which time the parties
essentially reiterated the argunents made in their briefings to
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the circuit court. At the conclusion of the partie
arguments,
the circuit court stated:
X need to look wore closely again at the single ‘eae that
was in sy mind before I cane in and that is voether on the
fotion for the (order to show cause] that ie a required
Contested case hearing, and definitely agree that it is
not required co be a contested case hearing unless thst is .
fo say by statute or rule and, therefore, the only basis for
it having to be {a} contested case is the conetitutional
Fights watch (ehe Mui's counsel) hag argued. And 07 need
fo think about that's bit more.
The circuit court, therefore, requested additional briefing on
the issue whether there was a constitutional right to a due
process hearing on the Hui’s motion for an order to show cause.
on October 6, 2004, the LUC filed its supplenental
menorandum, joined in by the Office of Planning, as requested by
the circuit court. The LUC argued that the issue before the
circuit court “does not involve the exercise of traditional or
customary rights by native Hawaiians on land that is subject to
the jurisdiction of the LUC." Rather, the LUC maintained that
the “only matter before [the circuit] court is the Luc’s ruling
that it did not believe there was sufficient information to
justify the issuance of an order to show cause that a violation
of conditions or representations in the original 1989 proceeding
had occurred justifying a reversion of the land (the
Midkite/Myere and Shigekane Parcels) to the prior conservation
classification.”
Also on October 6, 2004, the Hui filed its supplemental
memorandum as requested by the circuit court. The Hui argued
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that it ‘voice[d] its concerns regarding the effects of (Myers’]
failure to perform a condition, representation, or commitment
relat [ing] to the [Novenber 1989 order) grant [ing] her petition
for reclassification on native Hawaiian’s constituticnally-
protected customary and traditional rights[] practiced on the
property abutting [Myers’] property.“
Aso on the same day, Myers filed her supplemental
memorandum as requested by the circuit court.’ Myers maintained
that “[a] contested case hearing . . . is only constitutionally
required if there may be 2 ‘governmental deprivation of =
specific property interest.’* “Myers argued that the Hui “is not
threatened with any governmental deprivation of any specific
benefit that it already possesses. In fact, at oral argument,
[the Hui] claimed that the ‘governmental deprivation’ at issue
was the threat to Myers of reclassification of her land from
urban to conservation. [The Hui,] however, cannot assert an
alleged deprivation of Myers’ interests.” Moreover, Myers
contended that the fact “[t]hat an individual or group has
standing as an aggrieved party under HRS § 91-14 does not mean
that he, she, or it has a property interest under the due process
clause of the [clonstitution.” Stated differently, Myers
essentially contended that the Hui w.
impermissibly equating
+ the record does not indicate that Midkiff Joined in Myers’
supplemental nemoranéun.
wis.
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wstanding” with ‘a property inti
‘est under the due process clause
of the constitution.”
on Novenber 5, 2004, the circuit court entered its
order dismissing the Hui's appeal for lack of subject matter
jurisdiction. The circuit court stated!
‘The (clourt finds that the [LUC) did not hold a
contested case hearing. The hearing that vas held was an
gency hearing consistent with {HAR] § 15-15-70 governing
Sotions practice and does not mean that a motion filed
ureuant to (HAR) § 15-15-93(a) by [the Wui} as an
“interested party” or by any party requesting an order to
‘ov cause if a contested case hearing. if the notion for
an order to show cause had been granted, then a contested
Gaze Hearing wold nave been requires. The court reject:
{the Mui's} attenpe to characterize the motion for an order
£0 show cause as petition for boundary anendeent or the
equivalent of a petition for boundary amendnent, requiring a
Contested case hearing, (See gupra note 8)
‘The court concludes that the requirement in (HRs)
5 91-14 that the order appealed from arise from a contested
Zate hearing, hae not been met. As such, this court. lacks
Suriediceion to reach the Leeue of whether a contested case
hearing wae required. fee Pele Defense Fund v. puna
‘venture, 77 Hawai 64, 69 0-10, 881 P-28 1210,
$215 a10 (ise), Tale court can only dismiss the appeal
and therefore doce 0
Also on Novenber 5, 2004, the circuit court entered final
judgment in favor of Appellees. The Hui timely appealed to this
court on December 3, 2004.
IT. STANDARD OF REVIEW
~The existence of subject matter jurisdiction ie a
question of law that is reviewable de novo under the right/wrong
standard.” Aanes Funding Corp. v. Mores, 107 Hawai'i 95, 98, 110
P.34 1042, 1045 (2005) (internal quotation marks, brackets, and
citations omitted). *If a court lacks jurisdiction over the
subject matter of a proceeding, any judgment rendered in that
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a
proceeding is invalid, Therefore, such a question is valid at
any stage of the case, and though a [circuit] court is found to
have lacked jurisdiction, we have jurisdiction here on appeal,
not of the merits, but for the purpose of correcting an error in
jurisdiction." Bush v. Hawaiian Homes Comm'n, 76 Hawai'i 128,
133, 870 P.24 1272, 1277 (1994) (internal quotation marks,
brackets, and citation omitted)
III. DISCUSSION
Subject Matter Jurisdiction
The Hui contends that the circuit court erred in
concluding that the January 2004 hearing was not a contested case
hearing, The Hui argues that the January 2004 hearing met all
the requisite elenents in order to constitute a contested case
hearing pursuant to HRS § 91-14, and, thus, the Hui was entitled
to judicial review of the LUC's decision denying the Hui’s motion
for an order to show cause. Myers contends that the circuit
court correctly determined that it lacked subject matter
jurisdiction. Myers argues that the January 2004 hearing did
not constitute a contested case and that, therefore, the Hui has
no right to judicial review. similarly, the LUC contends that
its order “denying [the Hui‘s] motion for an order to show cause
he record does not indicate that Midkiff filed a
or joined in wyers’ answering brief.
answering brief
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was not a final decision and order in a ‘contested case:
required by HRS § 91-14
CHRS § 91-14(a) provides the means by which judicial
review of administrative conti
ted cases can be obtained. Among
its prerequisites, the section requires that a contested case
must have occurred before appellate jurisdictign may be
exercised." pele Defense Fund v, Puna Geothermal Venture, 77
Hawai'i 64, 67, 681 P.2d 1210, 1213 (1994) (citation omitted).
HRS § 91-1(5) (1993) defines a “contested case” as "a proceeding
in which the legal rights, duties, or privileges of specific
parties are required by law to be determined after an opportunity
for agency hearing." HRS § 91-1(6) (1993), in turn, defines an
“agency hearing" as “such hearing held by an agency inmediately
prior to @ judicial review of = contested case as provided in
section 91-14." Thus, “[a] contested case is an agency hearing
that 1) is required by law and 2) determines the rights, duties,
or privileges of specific parties." Bub, Access Shoreline
Hawai'i v. Hawai'i County Planning Comm'n, 79 Hawai'i 425, 431,
903 P.2d 1246, 1252 (1995) (internal quotation marke and citation
omitted) (emphasis added) [hereinafter, PASH] .
2% the Office of Planning filed a joinder in the Wc
fon June 2, 2008.
anevering brief
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es
Required by Law"
In order for an agency hearing to be "required by law,"
it may be required by (1) agency rule, (2) statute, ‘or
(3) constitutional due process. Id. Accordingly, we first
address whether the January 2004 hearing was required by agency
rule, statute, or constitutional due process.
‘The Hui contends that the January 2004 hearing was
required by the HAR. Specifically, the Hui argues that HAR § 15-
15-70 mandated the January 2004 hearing. Myers contends that. HAR
§ 15-15-70 “does not authorize a contested case hedring on a
motion for an order to show cause.” Moreover, Myers argues that
sa] hearing is required only if the order to show cause is
granted, see [HAR] § 15-15-93(c), (*] but there is no statutory
or administrative rule requiring a hearing on the motion for an
iseuance of an order to show cause."
‘his court has stated that, *{iJf the .. . rule
governing the activity in question does not mandate a hearing
prior to the administrative agency's decision-making, the actions
of the administrative agency are not ‘required by law’ and do not
amount to “final decision or order in a contested case’ from
2 HAR § 15-15-93 (6) provi
‘The [LUC] shall conduct & hearing on an order to show
je in accordance with che requirenents of subchapter 7,
wore applicatle. Any procedure in an order to show cause
saring may be modified or waived by stipulation of the
Bereics and informal disposition may be made in any case by
GElpulation, agreed settlenent, consent order, oF default
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SS
which a direct appeal to circuit court is possible.” Bush, 76
Hawai'i at 134, 870 P.2d at 1278 (citations omitted) (emphasis in
original). As previously stated, the Hui brought: its motion for
an order to show cause pursuant to, inter alia, HAR § 15-15-70.
HAR § 15-15-70, dealing with motions in‘general, provides in
relevant part:
(c) Every motion, except one entitled to be heard ex
arte, shall indicate vhether a hearing ie requested on the
motion. Tf a motion requires the consideration of facts net
appearing of record, it shall be supported by an affidavit,
oF atfidavice.
a)” it 4 nearing te requested, the executive officer shall
fet a date and tine for hearing on the motion.
G) Tf @ hearing on the motion ie not requested, the {LX}
say decide the matter upon the pleadiags, memoranda, and
other documents filed with the (ise).
(Bold emphases added.) HAR § 15-15-70(4) plainly states that,
once a hearing is requested, the executive officer mst set a
date and time for the hearing on the motion. In other words, if
a motion is accompanied by a request for a hearing, the tC must
the LUC does not
conduct a hearing on the motion. Inasmuch
have any discretion to determine whether to hold a hearing once a
hearing is requested and the Hui did request a hearing on its
motion, the January 2004 hearing was required by HAR § 15-15-70.
CL. Lingle v. Hawai'i Gov't Employees Ass'n, APSCME, Local 152,
107 Hawai'i 178, 184, 111 P.3d $87, 593 (2005) (stating that
“discretionary hearings are not contested cases because they are
not required by law*). Thus, the January 2004 hearing was
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a
srequired by law." However, as previously stated, ‘to
constitute a contested case, an agency hearing must be required
by law and determine the rights, duties, or privileges of
specific parties. PASH, 79 Hawai'i at 431, 903 Pi2d at 1252.
Accordingly, we next address whether the January 2004 hearing
determined the rights, duties, or privileges of specific
parties.
Determination of the Rights, Duties, or Privileges of
Specific Partie
‘The Hui contends that “the January 2004 hearing
determined the righta, duties, and privileges of specific
parties. (Capital letters altered.) Specifically, the Hui
argues that the January 2004 hearing “determined the Huis
members’ right and privilege to protect their [nJative Hawaiian
cultural and traditional practices from the activities on
IMidkiff’s and Myers’] neighboring property, and their right and
privilege to protect the historical ruins of Kaniakapupu.” The
Hui also argues that the January 2004 hearing determined
[widkife’s and Myers’) duty to use their property consistent with
their representations and conmitments made in 1989 with the
although Myers Je correct that HAR § 15~15-93(c) mandates = hearing
on an order to show cause, WA § 15-15-93 is eilent on whether a_motion for an
sem oe eehu cause requires « hearing. However, a6 discussed gupra, HAR
PF oeliscre, governing the general practice of motions, is applicable in
S.ch:2hiing Gkceher the Lue ie required to hold « hearing on a motion.
M secause the Mul's motion for an order to show cause requested
pearing ani there is @ regulatory mandate that the UC hold @
pearing $24 tquested, we feed not address whether the January 2004 hearing was
Ridacza by statute or constitutional due process,
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conditions the LUC imposed on [Midkiff and Myers] in 1989."
Furthermore, the Hui Claims that the January 2004 hearing
“determined (Midkiff’s and Myers’) right to maintain their
property as an (urban district], rather than having it revert to
[conservation district.]* Myers contends that, *[cJontrary to
[the Hui’s] bald assertion(,]* the January 2004 hearing did not
determine the rights, duties, and privileges of ‘specific parties.
Instead, Myers asserts that “(alt issue at the January [2004]
hearing on [the Hui's motion for an order to show cause] was
whether [the Hui] had met its burden of demonstrating that
- [Myers] failed to perform a condition, representation, or
commitment. Even if the [LUC] had found that [the Hui] had made
a sufficient showing, the [LUC], at most, could have issued an
order to show cause.”
In the instant case, the subject matter of the January
2004 hearing was Myers’ compliance or non-compliance with her
representations or commitments made during the proceeding
involving the 1989 boundary amendment petition and the condition
imposed by the November 1989 order. If the LUC had determined
that it *ha[d] reason to believe that there had been a failure to
perform according to the conditions imposed, or the
representations and commitments made by (Myers]," then the LUC
would have issued an "order to show cause why the property should
not revert to its former land use classification or be changed to
@ more appropriate classification[]* to Myers. HAR
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§ 15-15-93(b). In other words, the only determination the LUC
was required to make when hearing the instant motion for an order
to show cause was whether it had reason to believe that Myers had
failed to perform (1) according to the conditions ‘imposed by the
Novenber 1989 order or (2) any representations or commitments
made that led to the Novenber 1989 order. As such, the LUC was
not. required to -- and, therefore, did not -- determine the Hui’s
rights and privileges to protect their native Hawaiian cultural
and traditional practices at Kaniakapupu
Moreover, the possible reversion of Myers’ property to
conservation district was not at stake in the instant motion for
an order to show cause inasmuch as the LUC could not revert
Myers’ property to its former land use classification; ices,
conservation district, on a motion for an order to show cause.
only if the LUC had granted the motion would the LUC have issued
to Myers “an order to show cause why the property should not
revert to ite former land use cl.
ification or be changed to a
more appropriate classification.” HAR § 15-15-93(b). Stated
differently, the Hui’s motion for an order to show cause was
essentially a threshold motion or procedural vehicle to obtain a
show cause hearing in order for the LUC to determine the rights,
duties, or privileges of specific parties. Furthermore, the LUC
did not determine Myers’ and Midkiff’s “duty to use their
property consistent with their representations and commitments
nade in 1989" at the January 2004 hearing on the motion for order
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to show cause. Rather, the November 1989 order, wherein the LUC
granted the 1989 boundary amendment petition, “determined” myers’
and Midkiff’s “duty” to use their property consistent with the
representations and commitments that they made during the hearing
on the 1989 boundary amendment petition. In other words, the
most the LUC determined at the January 2004 hearing was that
Myers and Midkiff did not breach their duties set forth in the
November 1989 order. Consequently, the purpose of the January
2004 hearing was clearly not to determine the rights, duties, or
privileges of specific parties. Cf. Ko'olau Agric. Co. v. Comm'n
on Water Res, Mamt,., 83 Hawai'i 484, 493 & 496, 927 P.2d 1367,
1376 & 1379 (1996) (holding that, designation of water management
area, unlike water use permitting, does not determine the legal
rights, duties, or privileges of specific parties because, inter
alia, respective rights of water users are not required to be
determined). Thus, the January 2004 hearing did not constitute a
contested case for the purposes of obtaining judicial review
pursuant to HRS § 91-14(a). Accordingly, we hold that the
circuit court did not err in dismissing the Hui's appeal for lack
of subject matter jurisdiction."
® The Hui also raises on appeal that the circuit court erred in
concluding that it has jurisdiction only over orders arising from a “cont:
Gaze hearing.” The sui apparently argues that jurisdiction ie Limited to
final orders issued in contested gages, not contested case hearings. However,
ae discussed supra, “{al contested case is an agency hearing that 2) is
Fequired by law and 2) devernines the rights, duties, oF privileges of
specific partion." BAG. 79 Hawaii at 423, 903 Pad at 1082, (citation and
internal quotation marks omitted) (enphases added). As euch, the Huis
contention is without merit
ot
(continued...)
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ee
B. The Huis Rema: nti
1. ‘The Circuit Court’s Conclusion that it Lacked Subject
Matter Jurisdiction to Determine Whether the Hui was
Entitled to a Contested Case Hearing
‘The Hui maintains that the circuit court erred in
concluding that it did not have subject matter jurisdiction to
determine whether the Hui was entitled to a contested case
hearing. ‘The Hui argues that, “inasmuch as no contested case
hearing was held, it mst be decided whether a contested case
hearing should have been held." (Citation omitted.) In support
of its foregoing contention, the Hui relies on International
Brotherhood of Painters and Allied Trades v, Befitel, 104 Hawai'i
275, 88 P.3d 647 (2004) [hereinafter, International Brotherhood]
the Hui asserts that a contested case hearing should have been
held because the Hui ‘met its burden of showing that there [wals
a reason to believe that . . . Myers failed to perform according
to the conditions the LUC imposed and failed to perform the
representations or commitments she made to the Luc[.]* Stated
29(. continued)
pudisfaore, the ui contends that, inasmuch as its sotion for an order
to show cause vis'a part of” the 2989 boundary amendment petition, the LUC's
SoniROMEMES notion tor ga order to show cause "is a final decision and order
Se Alogteated case." (Citing HRS § $1-14(a).)_ For purposes of HRS
EPL SOUS Ehis"coure has defines “final order” to mean van order ending the
f22it4itgs, leaving nothing further to be accomplished. Consequently, an
proceedings: final Te che righta of a party involved remain undetermined or if
order fer is retained fer further action.” Gealon v. Keala, 60 Haw. £13,
eRe "EEC 20 Gli, e2e (2979) (citations omitted). in this case, the “final
$20; .288 Ena order inva contested case" is the Novenber 1989 order that
seeitifraeterained the 1989 boundary snenénent petition, not the Lic’s denial
Einady eit Tnotion fer an ofder to ehow cause, inasmuch as the Novenber 2989
of se Bet fothing further to be accomplished with respect to the 1589
Crder lett dcdment petitions The Hovenber 1909 order, however, is not at
boundary ‘Mevinstacr case. Consequently, the Hui's argument ie without merit.
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differently, the Hui e
ntially argues that its motion for an
order to show cause should have been granted, and, thus, a
contested case hearing should have been held thereon.
Myers asserts that “lalppellate courts, upon
determining that they lack jurisdiction'-- or that any other
courts previously considering the case lacked jurisdiction -.
shall not require anything other than a dismissal of the appeal
or action. (Citation omitted.) In support of her foregoing
contention, Myers relies on Pele Defense Fund v. Puna Geothermal
Venture, 77 Hawai'i 64, 69 n.10, 881 P.2d 1210, 1215 n.10 (1994).
Myers argued that Pele Defense Fund had criticized an earlier
decision by the Intermediate Court of Appeals (ICA), Simpson v.
Natural Resources, 8 Haw. App. 16, 791
P.2d 1267 (1990), that had remanded a case to an agency with
@irections to hold a contested case hearing when there was no
appellate jurisdiction in the first instance.
In Simpson, the ICA held that a public hearing required
by law is not a contested case where (1) the agency has properly
promilgated specific procedures for a contested case hearing and
(2) a party he
failed to follow such procedures. Id, at 24-25,
791 P.2d at 1273, The petitioner had applied for a mooring
permit from the Department of Land and Natural Resources (DLNR)
and participated in a public hearing required by law. Id, at 18,
791 P.2d at 1270. The petitioner, however, did not request a
contested case hearing. Id. at 19, 791 P.2d at 1271. After the
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Board of Land and Natural Resources denied the petitioner's
application for a mooring permit, the petitioner tiled a notice
of appeal to the circuit court. Id. The circuit court dismissed
the appeal on the ground that it lacked subject matter
jurisdiction inasmuch as there was no final decision from a
contested case. Id, at 19-20, 791 P.2d at 1271.
on appeal, the ICA agreed with the circuit court that
the petitioner's appeal was not fron a contested case. Id. at
3a, 791 P.2d at 1270. However, the ICA reversed and remanded to
the circuit court with a direction to remand to the DLNR for a>
contested case hearing because “the minimun requirenents of
fairness required the DLNR to inform [the petitioner] that
| he had a right to request 2 ‘contested case hearing.‘* Id.
Four years later, this court in Bele Defense Fund
criticized the decision of the court in Simpson to reverse and
remand to the circuit court. This court stated in a footnote:
Although the TCA found that the circuit court lacked
jurisdiction because (the petitioner] did not participate in
2'fontested case, it nonetheless reversed the dismissal of
{che petitioner's) claim and remanded with direction to
fener the matter to the DuNR for a contested case hearing.
IGkise the -sepesl. “Requiring a remand to the DUNE with
{netractions £0 provide a contested case hearing directly
contradicts the proper finding of a lack of Juriediction in
Simson. Jurisdiction is the base requirenent for any court
‘Soubigering and resolving an appeal or original action.
our cer they 1ack
‘Suriediction =- Gr that_amy ether courte previously
oteidering the esse Iacked iurisdiction =~ shall not
Eeduire anythine other than dismissal of the appeal or
ERR Sitthour surisdiceion a court Ts not Ina position
Eo-coniider the case turther.
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77 Hawai"i at 69 n.10, 661 P.2d at 1215 n.10 (citation and
internal quotation marks onitted) (emphases added); see Bush, 76
Hawai'i at 136, 670 P.2d at 1280 (holding that judicial review by
the circuit court of the agency's denial of the appellants’
request for a contested case hearing as well as review of the
merits of the agency's decision "is unattainable due to a lack of
subject matter jurisdiction").
in the instant case, the #ui essentially argues that it
is entitled to a contested case hearing because its motion for an
order to show cause should have been granted, not denied. As
euch, the Hui essentially requests this court to review the LuC’s
order denying the Hui's motion for an order to show cause and
determine that the LUC erred in denying the Hui's motion. Such a
request, however, “is unattainable due to a lack of subject
matter jurisdiction." Bush, 76 Hawai'i at 136, 870 P.2d at 1280.
As discussed gupra, the January 2004 hearing was not a contested
case hearing for the purpose of obtaining judicial review
pursuant to HRS § 91-14(a) because it did not determine the
rights, duties, or privileges of specific parties. Consequently,
the circuit court correctly dismi
ed the Hui’s appeal for lack
of subject matter jurisdiction, and, “[1lacking jurisdiction, the
circuit court could do nothing but dismiss the appeal.” Pele
4 the WUC concedes that, *(olnly {f the LUC grante « motion and is
an order to show cause would s contested case be conducted." See Lanai Co. ¥.
[and Use Somn'n, 105 Hawai'i 296, 97 P.3d 372 (2004). (reviewing an agency
sane sron an ue decision arising from an order to show cause)
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Oe
Defense Fund, 77 Hawai'i at 69 n.10, 861 P.2d at 1215 n.10
Accordingly, we overrule Simpson to the extent that it required a
remand to the DINR with instructions to provide a contested case
hearing when it lacked jurisdiction to do so.
Moreover, the Hui’s reliance on International
Brotherhood is misplaced. In International Brotherhood, this
court held that the circuit court lacked subject matter
jurisdiction inasmich as a contested case hearing was not
required in the determination by the director of the Department
of Labor and Industrial Relations (DLIR) to register an
apprenticeship program pursuant to HRS § 272-4 (1993) (relating
to the establishnent of an apprenticeship counsel which shall sit
in an advisory capacity to the director on matters within the
jurisdiction of the DLIR dealing with apprenticeship programs) .
od Hawai'i at 276, 88 P.3d at 648, This court determined that a
contested case hearing was not required because, inter alia,
approval of the registration request by the director did not
require a constitutionally mandated due process hearing. Id. at
284, 98 P.34 at 656. Inasmuch as thie court concluded that the
circuit court lacked subject matter jurisdiction to entertain the
appeal, this court did not review the merits of the director's
decision approving the registration request. Id, at 260-82, 88
p.ad at 652-52 (stating that the appellants’ first point of error
that “the circuit court erred in concluding that it had subject
matter jurisdiction pureuant to HRS chapter 91 when the agency
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did not hold a contested case hearing and where none was
required” was dispositive). Ae auch, 2 1004
is consistent with this court's prior holdings in.Pele Defense
Bund and Bush relating to subject matter jurisdiction and,
therefore, does not support the Hui’s contention that the circuit
court erred in concluding that it did not have jurisdiction to
determine whether the Hui was entitled to a contested case
hearing. In other words, International Brotherhood does not
support the proposition that a circuit court may review the
merits of the agency's decision when the circuit court lacks
subject matter jurisdiction to hear the appeal pursuant to HRS
§ 91-14(a).*” Thus, we hold that the circuit court did not err
in concluding that it did not have jurisdiction to determine
whether the Hui was entitled to a contested case hearing.
wy ime Hui alo cites to Mortensen v. Board of Trustees of Emplovess’
Retirement System, 52 Haw. 212, 473 P-24-B66 (1970), apparently Tn support of
its argunent that the circuit court erred in concluding that it aid net have
Juriediction £0 determine whether it was entitied to a contested case hearing
Im Mortensen, this court held that applicants for accidental disability
Fetirenent Denefits from the Baployees’ Retiresent sytem of the state of
Hawai'i (285) were entitled to trisl-type bearinge at some point an the
administrative process. Although not clearly stated in Mostansan, thie court
Tater noted that
t ce wi eras
ce conn apilis fits
“contested caseg" within the weaning of the Naval T
Hdministrative Procedure Act, HRS ch. 92" (985). gee
generally (, 52 Haw, at 212, 473 7.24 at 806). As
such, an aggrieved ERS menber has a right to judicis! review
by the circuic court of a final decielen and order of tne
Bis. id. at 215, 473 .2d at #69; gee algo MRS 8 91-18
(2385)
Sitsaalos v. Bd. of Levees" » 74 Maw. 161, 186-87 2.4, 840
P.ad 369 2.4 (1992), Thaemuch ae the January 2004 hearing did gat constituee
2 Contested case, Mortensen is distinguishable from thie cas
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a
2. Alleged Lack of Judicial Review
Lastly, the Hui argues that, *[i]f the [e]ircuit
[clourt has no jurisdiction to determine if an appellant were
entitled to @ contested case hearing after having requested one,
any agency could arbitrarily and capriciously deny anyone a
hearing at any time, regardless of whether such hearing were
required by law, and the aggrieved party could never obtain
judicial review of such denial.” However, in this case, the Hui
did not request a contested case hearing, Indeed, the Hut
concedes that “there is no procedural vehicle for ‘[a]ny party or
interested person’ to obtain a contested case hearing on whether
a petitioner has failed to perform according to the conditions
imposed or has failed to perform according to the representations
or commitments she made[.]" Consequently, the Hui'e assertion is
without merit.
TV. CONCLUSION
Based on the foregoing, we affirm the circuit court's
Novenber 5, 2004 judgment
on the brief
Gerard A. Jervis and
Lissa D. shulte (and
Michael R. Cruise, with
them on the reply briefs),
for appellant-appellant
Diane Brickson and
Russell A. Suzuki,
Deputy Attorneys General,
for appellee-appellee
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in West's Hawai'i Reporter or the Pacific Reporter
Comm'n, State
of Hawai'i
Deborah Day Bmerson and
John W. K. Chang,
Deputy Attorneys General,
for appellee-appellee
office of Planning
Donna Y.-L. Leong and
Stacey Kawasaki Djou
(of Cades Schutte LLP) ,
for appellee-appellee
Elizabeth Midkiff myers
No, 26964 Aha Hui Malama © Kaniakapupu v, Land Use
Commission -- Opinion of the Court by Moon, C.J.
-32-
|
e83ffdd1-1e7a-4c78-9c20-27b50d222e8f | House of Finance, Inc. v. Financial Solutions Insurance Services, Inc. | hawaii | Hawaii Supreme Court | NOT FOR PUBLICATION ***
No. 25292
aatd
IN THE SUPREME COURT OF THE STATE OF HANA!
3
HOUSE OF FINANCE, INC., a Hawai'i corporation]
Plaintiff-Appellant,
S26)W¥ €1 Tor sone
vs.
FINANCIAL SOLUTIONS INSURANCE SERVICES, INC., dba BANKERS
INSURANCE SERVICE, an Underwriter at Lloyd’s, London on Behalf of
Itself and All Those Other Lioyd’s Underwriters Subscribing to
Mortgage Bankers Bond No. MBB-97-00355; GULF UNDERWRITERS
INSURANCE COMPANY; on Behalf of Itself and All Those Other
Lloyd’s Underwriters Subscribing to Mortgage Bankers Bond No.
MBB-97~00355, Defendants-Appellees,
and
PARTNERSHIPS 1-10; DOE
JOHN DOES 1-10; JANE DOES 1-10;
Defendants.
CORPORATIONS 1-10; and DOE ENTITIES 1-10,
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 01-1-0723)
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Plaintiff-Appellant House of Finance, Inc. (“House of
Finance”) appeals from the Findings of Fact, Conclusions of Law
nd Order, and Judgment of the Circuit Court of the First Circuit
(“circuit court”) filed August 1, 2002, following the granting of
summary judgment in favor of the above-named defendants
("Underwriters”).' Following cross-motions for summary judgment,
the circuit court found that the plain language of the insurance
policy between insurer Underwriters and insured House of Finance
“must be construed according to its terms,” such that House of
5 the Honorable Sabrina 8, McKenna presided.
*** NOT FOR PUBLICATION
Finance was precluded from indennification thereunder as a matter
of law, where (1) the liability policy had a $15,000 deductible,
(2) House of Finance had settled the underlying action from which
indemnity was sought for only $3,500, (3) “defense fees and costs
cannot be included as part of [the “loss”] based on the
applicable law as well as the contract,” and (4) “there can be no
claim for ‘{insurer] bad faith’ based on legitimate
interpretations of an insurance contract.” In the same ruling,
the circuit court also denied House of Finance’s motion to compel.
answers to interrogatories and production of documents from
Underwriters, finding that the motion “does not request any
information that would in any way alter the court’s legal |
conclusions.”
on appeal, House of Finance argues, in substance, that
the circuit court erred inasmuch as: (1) given (a) the applicable
“rule” of Hawai'i law that House of Finance need only show
potential liability for the underlying claim under the particular
circumstances of the instant case, (b) the complaint from
underlying claim allegedly giving rise to indemnity coverage, (c)
the $82,826.85 in attorney's fees and court costs House of
Finance expended in its own defense and ultimate settlement of
the underlying claim, and (d) a $2,500 payment from House of
Finance to a different third party in connection with the
underlying claim (in addition to the $3,500 settlement), there
was a compensable loss in excess of $15,000 as per the plain
language of the liability policy such that coverage was due
(subject to the deductible); (2) alternatively, the relevant
policy terms were ambiguous and must be construed in favor of
2
*** NOT FOR PUBLICATION ***
coverage; (3) Underwriters’ plain language interpretation of the
policy violates public policy: and (4) there were numerous
genuine issues of material fact as to whether Underwriters
committed insurer bad faith.
At issue is Insuring Clause Al of the policy, which is
subject to a $15,000 deductible and. provides coverage for
alizect Linenciel loss sustained by the Assured at any tine and
Giscovered by the Assured during the Bond Period by reason of and directly
caused by
‘any cther dishonest acts by any Eaployee of the
Assured, whether committed alone or in collusion with
cthers, ‘conmitted by raid Eeployee with the manifest intent
to obtain Inproper Personal Financial Cain for said
Loyee, or for any other person oF entity intended by the
Esployee to receive such Improper Personal Financial Gaia
Upon carefully reviewing the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we hold as follows:
(2) The language of insurance policy at issue is
unambiguous, and its plain terms must be given effect. See Dairy
Boad Partners v. Island Ins. Co., Ltd., 92 Hawai'i 398, 411-12,
992 P.2d 93, 106-07 (2000), and Barabin v. AIG Hawai‘! Ins. Cou
Ince, 82 Hawai'i 258, 263, 921 P.2d 732, 737 (1996). Although
the policy may be somewhat detailed and might require a more-
than-cursory reading, the mere fact that a policy is complex does
te ambiguity. See Barabin, 62 Hawai'i at 263, 921 P.2d
at 737. As per the policy’s plain language, court costs and
not eri
attorney's fees are clearly separate from “direct financial loss”
under Insuring Clause Al, and holding otherwise would effectively
result in re-writing the insurance policy, which this court
3
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cannot do. See Fortune v. Wong, 68 Haw. 1, 11, 702 P.2d 299, 306
(2985). Thus, in order for House of Finance to be entitled to
any indemnification, it must show a “direct financial loss” in
excess of $15,000 separate and apart from court costs and
attorney's fees. However, assuming arquendo that House of
Finance has suffered a qualifying “direct financial loss” under
Insuring Clause Al, this loss is no more than $6,000 as per House
of Finance’s own Opening Brief.
Even assuming that this court were to follow the “rule
of potential, not actual liability” when determining whether
Underwriters has a duty to indemnify, as purportedly set forth in
Hawaiian Ins, @ Guar, Cou, Ltd. v. Higashi, 4 Haw. App. 608, 610,
672 P.2d 556, 558 (1983), rev'd, 67 Haw. 12, 675 P.2d 767 (1984),
the “rule” states in pertinent part: “In cases involving a
written indemnity agreement, the ultimate decision turns upon the
anguage of the contractual undertaking.” (Emphasis added.)
Thus, assuming that the “rule” advanced by House of Finance
survived our reversal of the ICA’s opinion in Higashi, it appears
to be in accord with Hawaii's insurance law, in that “[a) court
must respect the plain terms of the policy and not create
ambiguity where none exists.” Barabin, 82 Hawai'i at 263, 921
P.2d at 737. ‘Thus, the circuit court did not err in ruling that
House of Finance could not recover under the policy.
(2) No public policy concerns exist in the present
case. First, contrary to House of Finance's suggestion, the
cirewit court’s ruling and the plain language of the insurance
policy do not operate to impose a “double application” of the
$15,000 deductible. Second, while House of Finance correctly
*** NOT FOR PUBLICATION ***
points out that Hawai'i has a public policy favoring settienent,?
it 4s inapposite to the instant case. Any duty to mitigate
damages under an insurance policy exists separate and apart from
the insured’s balancing of a lower insurance premium against
higher deductible (or vice versa) at the time thie policy is
obtained. Taking on a deductible necessarily means that certain
otherwise insurable losses may sometimes go uncovered. Beniamin
Moore v. Aetna Cas. & Sur. Co,, 843 A.2d 1094, 1108 (N.J. 2004).
Since House of Finance does not contend that the $15,000
deductible was forced upon them by Underwriters, or that its
premiums were unreasonably high, we see no reason to disturb the
plain language of the insurance policy and perceive no dilenma
arising from the deductible’s existence. Because there are no
public policy viclations arising from the instant appeal, House
of Finance's azgunent in this regard is without merit.
(3) There aze no genuine issues of material fact
precluding sunmary judgment in favor of Underwriters as to House
of Finance's bad faith claim. With respect to insurer bad faith,
this court hae explicitly held tht
there $e a legal duty, smplied ina fizst-and third-party
{nsurance contract, that the insurer must act in good faith in
SieeatZite'to'an inseperdent tore cause of action.” The Breech of
Ene eaprese covenant fo gay clains, however, ie not the sine gua
hon for an action for breach of the Inplied covenant of good faith
Ghd fair Geelings the implied covenant is Breached, smether the
Cerrier pays the claim or not, when its conduct damages the very
protection or security which the insured sought to gain by buying
The Best Place, Inc. v. Penn America Ins, Co., 82 Hawai'i 120,
* see e.g, cos y,
Resources, 110 Hawat's 419, 439, 154 P34 $85, 605 (2006) this court has
Scknowiedjed the strong public policy in favor of settlement of claime”
{citing cases) )=
*** NOT FOR PUBLICATION ***
132, 920 P.2d 334, 346 (1996). This court has further explained
that in the context of a first-party bad faith claim,
the ingured need not chow a conscious awareness of wrongdoing oF
Unjustifisble conduct, nor an evil motive or intent to harm the
Unnured, An unreasonsble delay in payment of benefits will
werrant recovery fer compensatory danages (-] However, conduct
not const Tn eadition, an
Erroneous decision not to pay a claim for benefits due under a
Policy does not by Stself Justify an award of compensatory
Etnagea. Rather, the decision not to pay a claim must be in “bad
faith.
Id. at 133, $20 P.2d at 347 (emphasis added). As Underwriters
demonstrated in their motion for summary judgment, a “plain
language” reading of the policy at issue is reasonable because
the relevant policy terms are unambiguous. The burden of
production therefore shifted from Underwriters to House of
Finance. However, House of Finance merely advanced unsupported
allegations, almost exactly as it now does on appeal, that
the record in this case enbraces numerous questions of fact on
whether the Underwriters (a) unreasonably interpreted the
frovisions of the folicy: (b) nade “unreasonably low settlement
Séfers": (c) engaged in unreasonable conduct after the £1ling of
this complaint in thie bad faith action” [sic]; (a) negligently
Investigeted the House ef Finance's claim? (e) failed to promptly
determine its position on coverage; (f) failed "to effectuate
prompt settlenent”; (g) compelled the House of Finance to initiate
Eleigacion in erder to recover Benefits under the Policy? and (h)
viclated any of the provisions of HRS § ¢3113-103(a).. The
Gxistence of such genuine issues of material fact preclude the
Granting of sonnary judgment in favor of Defendants on the House
Of Finance's claim of bad faith.
(footnote omitted.) (Emphasis added.) House of Finance had the
burden of producing specific facts in order to defeat sunmary
judgment. Hawai'i Rules of Civil Procedure ("HRCP”) Rule 56(e)
(2000); see also Lee v. Puamana Community Ass'n, 109 Hawai'i 561,
567, 128 P.3d 874, 880 (2006) (quoting French v, Hawai'i Pizza
Hut, Inc., 105 Hawai'i 462, 99 P.3d 1046 (2004). However, House
of Finance’s memorandum in opposition to Underwriters’ motion for
NOT FOR PUBLICATION ***
summary judgment as to the bad faith issue is comprised entirely
of conclusory statements and legal argument and is devoid of a
single factual assertion or record reference to any matter within
the 558-page volume of “Stipulated Facts” prepared by the
parties. The same can be said of House of Finance’s Opening
Brief on this issue. As such, House of Finance’s argument on
appeal as to bad faith is in violation of HRAP 28(b) (7) (2004)
(operative text unchanged from 2000 version),® and we decline to
review this point on appeal. See Citicorp Nortaage, Inc. vs
Bartolome, 94 Hawai'i 422, 433, 16 P.3d 827, 838 (App. 2000)
(*laln appellate court does not have to address matters for which
the appellant has failed to present discernible argument”
(citations omitted)); see also Int’) Brotherhood of Elec.
Workers, Local 1357 v, Hawaiian Telephone Co., 68 Haw. 316, 322
n.7, 713 P.2d 943, 950 n.7 (1986) ("Counsel has no right to cast
upon the court the burden of searching through a voluminous
record to find the ground of an objection” (citation omitted)).
In any event, upon careful review of the record, there
is no evidence that Underwriters acted in bad faith. In its
correspondence with House of Finance, Underwriters reasonably
interpreted their insurance contract and correctly determined
that there was no indemnification coverage because House of
Finance's clained “direct financial loss” of $6,000 did not
exceed the $15,000 deductible. Consequently, the circuit court
» RAP 28(b) (7) provides in pertinent part: “(T]he appellant shall
file an opening brief, containing .- - - [t]he argunent, containing the
Contentions of the appellant on the points presented and the reasons therefor,
With citations to the authorities,
Pointe not argued may be deened waived.” (Snphacis added.)
7
*** NOT FOR PUBLICATION ***
properly granted summary judgment for Underwriters on the issue
of bad faith.
(4) As to House of Finance’s breach of contract claim,
insofar as (a) Underwriters’ policy was unambiguous and (b)
underwriters properly interpreted its own policy, Underwriters
did not breach its contract with House of Finance, such that
summary judgment thereon was properly granted for Underwriters.
(5) Similarly, with respect to House of Finance's
motion to compel answers to interrogatories and production of
documents, because there already was an adequate record upon
which to decide Underwriters’ motion for summary judgment below,
we hold that any additional discovery sought by House of Finance
would not affect the outcome of this case, as the circuit court
ruled, such that the motion was properly denied.
‘Therefore,
I IS HEREBY ORDERED that the judgment from which the
appeal is taken is affirmed.
DATED: Honolulu, Hawai'i, July 13, 2006.
on the briefs:
craig T. Kugisaki,
Dennis M. Klein, and 24
Camille N. Sirivattha
for Plaintiff-Appellant
House of Finance Rit
Jeffrey Daniel Lau, and
Kurt K. Leong, Esq. Naceiee Corte ren
(of Oliver, Lau, Lawhn,
Ogawa & Nakamura) for
Defendants-Appellees ay
|
b40a6089-570c-430c-aed1-a40c06b6d116 | Bischoff v. Ching | hawaii | Hawaii Supreme Court | LAW LIBRARY
*** NOTFOR PUBLICATION ***
Wo. 27717
IN THE SUPREME COURT OF THE STATE OF HAWAT'E
CAROLINE BISCHOFF and BETTY K. LEE,
Plaintiffs-Appellees
DANIEL K. CHING, PATRICIA Y. CHING, — @
and GERTRUDE C. YEE, Defendants-Appellants
eee
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(ct. No. ancos-1-2605)
(oy batty Ofer the cout)
upon review of the motion to dismiss appeal, the papers
in support and in opposition and the record, it appears that the
Litigation Civii No, 18¢05-1-2605 has not ended inasmuch as the
plaintifts’ claim for danages has sot been adjudicated. Absent
entry of judgnent on the claim for danages, the appeal of the
judgment of possession and the adjudication of the counterclaim
ss prenature and we lack jurisdiction. Sea HRS § 641-1(a);
Casumpang v. Il, Local 142, 91 Howai's 425, 427, 984 P.24 1252,
1259 (1999) (2 district court judgment or order is final and
sppeslable under HRS § 641-1(a) if St ends the Litigation by
fully deciding the rights and Liabilities of al1 parties and
leaves nothing further to be adjudicated.); Ciesla v, Reddish,
‘considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy,
a.
*** NOT FOR PUBLICATION ***
78 Hawai'i 18, 889 P.2d 702 (1995) (a district court summary
possession case is app.
lable within thirty days after entry of a
judgment for possession and/or after entry of an order finally
determining all claims). Therefore,
IT IS HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
DATED: Honolulu, Hawai'l, June 21, 2006.
FOR THE CouRT:
Wom 6. Radia
Associate Justice
|
35662cdd-e297-4699-b428-60972df56982 | Kirks v. Myers | hawaii | Hawaii Supreme Court |
*** NOT FOR PUBLICATION
No. 27348
900d
IN THE SUPREME COURT OF THE STATE OF HAWAIS:
WILLIAM EUGENE KIRKS, Plaintiff-appellane |? HF
vs. = c
LEE MYERS, Defendant-Appellee | z
and
DUANE M. ENCKS, JOHN DOES 1-10; JANE DOBS 1-10; DOE CORPORATIONS
1-10; and DOE PARTNERSHIPS 1-10, DOE FOREIGN CORPORATIONS 1-50,
DOE FOREIGN PARTNERSHIPS 1-50, and DOE GOVERNMENTAL ENTITIES 1~
‘50; DOE GOVERNMENTAL AGENCIES 1-50, Defendants
APPEAL FROM THE FIRST CIRCUIT COURT
(crv. NO. 00-1-3581)
‘ORDER DISMISSING APPEAL
: Nakayama, J., for the court*)
pon review of the record, it appears that this court
tnforned Appellant by letter dated April 21, 2006, that the tine
for {ling the opening brief expired on April 7, 2006, and that,
pursuant to Rule 30 of the Hawai'i Rules of Appellate Procedure,
the matter would be called to the attention of the court for such
action as the court deened proper including dismissal of the
appeal. Appellant having failed to respond to said letter or to
otherviee oppose dismissal,
IT 15 HEREBY ORDERED that the appeal is dismissed.
DATED: Honolulu, Hawai'i, dune 15, 2006. —
FOR THE COURT: FFD
Dane Corel are |
Associate Justice
land putty, 39.
Aeonsidered by: Moon, C.J., Levingen, Naka:
|
7d1e5578-6207-49c1-bcbc-0fd17e7baeac | First Insurance Company of Hawaii, Ltd. v. Safeway, Inc. | hawaii | Hawaii Supreme Court | LAW LIBRARY
*** NOT FOR PUBLICATION ***
No, 27753
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
See
FIRST INSURANCE COMPANY OF HAWAII, LTD., Plaintiff-Appellee
SAFEWAY INC.; SOSEFO MAHONT; HBS LIMITED PARTNERSHIP; JOHN DOES
1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; DOE PARTNERSHIPS 2-
10; DOE NON-PROFIT ENTITIES 1-10; and DOE GOVERNMENTAL ENTITJES
1-10; Defendants-Appellees gi
8)
and Bi
Sez
JOHN CORYEA, Applicant for Intervent ion-Appepiaat
HAY Sz Av 9m
aa
APPEAL FROM THE SECOND CIRCUIT COURT
(CIV. NO. 4-1-0364)
ORDER DISMISSING APPEAL
Nakayama, J., for the court)
u
upon review of the record, it appears that (1) the
Supreme Court Clerk’s Office informed Appellant, by letter dated
April 13, 2006, that the record on appeal cannot be filed without
payment of the filing fee pursuant to Rule 3(f) of the Hawai'i
Rules of Appellate Procedure (HRAP) or an executed motion to
proceed in forma pauperis pursuant to HRAP Rule 24 and that the
matter would be called to the attention of the court for such
action as the court deemed proper pursuant to HRAP Rule 11(a),
including dismissal of the appeal, and (2) Appellant failed to
pay the filing fee or submit a motion to proceed in forma
pauperis. Therefore,
IT IS HEREBY ORDERED that the appeal is dismissed.
DATED: Honolulu, Hawai'i, May 25, 2006.
FOR THE COURT:
Associate Justice
1 Reoba, and Ouffy, 23.
Yeonsidered by: Moon, C.J, Levinson, Nake:
|
1e965d53-828d-426d-b170-bc196be8c3e2 | Althouse v. State. | hawaii | Hawaii Supreme Court | *** FOR PUBLICATION ***
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
---000---
RAYMOND IRA ALTHOUSE, Petitioner-Appellant.
STATE OF HAWAI'I, Respondent~Appellee
i 9002
No. 25168
APPEAL FROM THE THIRD CIRCUIT COURT
(8.2.P. NO, 98-01) al
JUNE 16, 2006
MOON, C.J., LEVINSON, NAKAYAMA, AND ACOBA, JJ.
BND INTERMEDIATE COURT OF APPEALS JUDGE FOLEY,
ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY NAKAYAMA, J.
Defendant-Appellant Raymond Ira Althouse (hereinafter
“althouse”] appeals from the third circuit court's! June 10, 2002
order partially granting and partially denying his Hawai'i Rules
of Penal Procedure [hereinafter "HRPP”) Rule 40 petition. on
appeal, Althouse argues that: (2) the circuit court erred by
failing to grant that portion of his HREP Rule 40 petition
requesting @ declaration that any minimum term hearing be held
after the expiration of the fifteen-year mandatory minimum
sentence of incarceration entered pursuant to Hawai'i Revised
Statutes [hereinafter HRS") § 706-6601 (1993); and (2) the
) the Honorable Greg K. Nakamura presided.
*** FOR PUBLICATION ***
circuit court erred by failing to grant his motion for an order
staying any minimum term hearing pending resolution of the
present appeal.
Based upon the following analysis, we affirm the third
circuit court's June 10, 2002 order.
1. BACKGROUND
on February 5, 1997, the third circuit court filed a
judgment convicting Althouse of the offense of second degree
murder and sentencing him to life imprisonment with a mandatory
minimum term of fifteen years, pursuant to HRS $ 706-660.1.
on June 13, 1997, the Hawai's Paroling Authority
(hereinafter “HPA”] conducted a hearing at which the murder
victim's parents provided testimony. At the hearing Althouse vas
not represented by counsel because his court-appointed attorney
failed to attend. Accordingly, the witnesses were not subjected
to cross-examination. Althouse protested by refusing to
participate in the hearing without the aid of counsel. The HPA
thereafter tacked an additional fifteen-year minimum term of
incarceration onto the circuit court’s fifteen-year mandatory
minimum sentence.
on March 8, 1999, Althouse filed an HRPP Rule 40
petition, in forma pauperis, arguing that: (1) he was illegally
being held in custody based on the HPA’s lack of jurisdiction in
Light of the third circuit court's imposition of a fifteen-year
mandatory minimum sentence of incarceration, pursuant to HRS §
706-660.
(2) the HPA had no jurisdiction to fix a minimum term
*** FOR PUBLICATION ***
of imprisonment while he was subject to the third circuit court's
fifteen-year mandatory minimum sentence based on Hawai'i
Administrative Rules § 23-700-21; and (3) the HPA improperly and
illegally allowed the taking of witness testimony on June 13,
1997, despite the fact that he had requested legal counsel to
assist him at the hearing and that legal counsel did not attend
the hearing.
At a hearing held on July 7, 2000, the court indicated
that it was “concerned about the lack of a record with respect to
what occurred before the Hawaii Paroling Authority(.]" The court
thereafter suggested 2 continuance in order to facilitate a more
complete record. It was subsequently revealed that the lack of
an adequate record regarding the HPA proceedings was caused by a
defect in the audio tapes used to record those proceedings.
transcripts of the June 13, 1997 hearing were thus unavailable
because the audiotape recording of the hearing did not contain
any sound.
on December 18, 2001, Althouse filed a motion
requesting that the circuit court invalidate the HPA’s minimum
term of incarceration and order @ new minimum term hearing.
on April 12, 2002, the court partially granted
Althouse’s motion agreeing that he was entitied to representation
at the June 13, 1997 hearing. The court thus invalidated the
minimum term of incarceration imposed by the HPA and ordered the
HPA to conduct a new minimum term hearing. However, the court
denied Althouse’s motion with respect to his assertion that HRS §
*** FOR PUBLICATION
706-660.1 precluded the conmencenent of the new minimum term
hearing pricr te the expiration of the minimum sentence entered
by the circuit court. The court concluded that HRS § 706-660:1
“does not require that the mandatory minimum term expires first
before the paroling authority proceeds to set a minimum term of
imprisonment {.1"
on June 3, 2002, Althouse filed a motion requesting
that the court order a stay on the new minimum term hearing
pending appeal. He then filed a timely notice of appeal on June
17, 2002.
on June 26, 2002, the circuit court filed an order
denying Althouse’'s motion for stay.
HT, STANDARD OF REVIEW
We have previously set forth the following principles
With respect to questions involving statutory interpretation:
*(Z)he interpretation of @ statute... is @ question of
reviewable de nove.” gxate'v, Arete, 4 liawai't 1, 10, 528
852 (2896) (quoting State v Camara, #1 Hawai's 324,
826.24 1225, 1240 (1996) (citations omitted) }
‘ee
Sate vs Tovemura, "80 Hawai't 6, 18, 804 P.2a 893, 903 (199s)
Wiaa, 73 Hawai'i 1, 3, 897'P.24 $38, 930" (1995); State w
‘Srace via,
Rakata, Fe Hawai'i 360, 365, 878 P.2a'699, Tbe (2994)
2 + 84 Hawas"t 138, 144, 931 P.20 $80,
BBG (1997). (some brackets aaded and sone in original) (; s]ee alga State
Ex Sote, 8 Hawes's 229, 236, 933 F.2d 66, 73 (2957). Purthecwore, cue
‘statutory construction is guided by established rules:
When construing # statute, our forenost obligation ie to ascertain
and give effect to the intention of the legisiature, which ss te
be obtained primarily from the language contained in the statute
Atself. ‘And! we mst read statutory language in the context of the
entire statute and construe it in a manner consistent with if3
porpose
When there is doubt, doubleness of meaning, or
indistinctiveness or uncertainty of an expression used in a
statute, an ambiguity existe...
Th conetruing an ambiguous statute, “[tJhe meaning of the
4
** FOR PUBLICATION *#*
lanbiguous words may be sought by examining the context, with which
the anbiguous words, phrases, and sentences may be compared, in
order to ascertain their true meaning.” HRS § 1-15(1), {{1993)]
Moreover, the courts may Fesort to extrinsic aids in determining
Tegislative intent. One avenue Ss the use of degislarive nistory
as'an interpretive tool.
Mawai'i at 148, 931.24 at $90 (quoting State v. Tovonura, 60
Hawai's' 8, 18-19, 904 P.2a 893, 903-0¢ (1995]] (Brackets and eilipses
points in original) (fcotnate omitted). This court may alse consider
Ritjne reason and spirit of the law, ond the couse which induced the
legislature to enact it to discover its true meaning.” HRS § I~
3512) ‘stave in pari materia, or upon the sane subject matter,
ahail be construed with reference to each other. ‘What ie clear in one
Statute may ue called upon in aid to explain wnat is douseful in
another." HRS § 1-16 (1983)
State v. White, 110 Hawai'i 79, 83, 129 P.3d 1107, 1111 (2006)
(citations omitted) (alterations in original) (ellipses points in
original).
XII, pIscussrow
Althouse initially contends that the trial court erred
When it failed to grant his motion requesting that any minimum
term hearing be conducted after the expiration of the fifteen-
year mandatory minimum sentence imposed by the circuit court. He
specifically argues that, pursuant to the plain language of HRS §
706-660.1, the HPA was jurisdictionally barred from conducting
HRS § 706-669 proceedings to determine a minimum term of
imprisonment until after the expiration of the fifteen-year
mandatory minimum sentence entered by the circuit court.
HRS § 706-660.1 provides, in relevant part, the
following:
$706-660.1 Sentence of seprisonnent for use of a fireara,
seniautouatic firears, or automatic firears ina felony. il) h
Person convicted of # felony, nhere the person had'e firentm in
the person’ s possession or threatened ite use or used the firearm
nile engaged in the commission of the felony, whether the firearm
*** FOR PUBLICATION ***
was loaded or not, and whether operable or not, may in addition to
the indeterninate tern of imprisonment provided for the grade of
Offense be sentenced to a mandatory minimum tora of inprisenment
without posesbiiity of parole ex probation the Length of which
Shall be as. follow
is)" for murder in the second degree and attempted murder
un the second degree-up to fifteen
wo)
fe)
(3) _ For a class C felony-up to three years.
‘The sentence of Imprisonment for a felony involving the use of a
Pitusa as provided tn this tubscetion shall not -be-subiecs tothe
Procedure for determining sinimun term of imprisonment prescribed
der section 106-669; provided Jarther that a pereen apo is
impiisoned ine correctional institution os provided in this
a hi
spuaieiee! oe
(Emphases added.)
Althouse’s point of error is premised upon a mistaken
construction of the afore-emphasized language contained in HRS §
706-660.1.
Referring to other statutory provisions in pari
materia,’ we note that the plain language of HRS $ 706-669(1)
(1993) requires that “the Hawaii paroling authority shall, as
soon as practicable but no later than six months after commitment:
ko the custody of the director of the department of {public
safety] hold a hearing, and on the basis of the hearing make an
order fixing the minimum term of imprisonment to be served before
the priscner shall become eligible for parole.” (Emphases
added.) (Brackets in original.) The HPA was thus statutorily
required to conduct @ minimum term hearing prior to the
+ Seg White, 110 Hawas's at 83, 129 P.36 at 1112 ("Lawe da park
uateria, or Spon the gone subject matter, shall be construed with reference to
each other."]" (Quotation marks omitted.) (Citation omitted.)
6
** FOR PUBLICATION ***
expiration of the court's mandatory minimum sentence.
Althouse attempts to avoid the dispositive effect of
the foregoing provision by asserting that “[ulnder the express,
language of Haw. Rev. Stat. § 706-660.1, Appellant is not subject
to the authority, jurisdiction or procedures of the HPA to set a
minimum term within six months after the conmitment to’ the
custody of the director of the department of public safety.”
However, Althouse misreads the plain language of the statute.
RS § 706-660. provides that it is the “sentence of
imprisonment” (emphasis added) -- not Althouse -- that is exenpt
from “the procedure for determining minimum term of imprisonment
prescribed under section 706-669."
Reinserting the appropriate subject component of the
statutory provision, it is clear that, rather than imposing 4
jurisdictional bar on the HPA, the foregoing language merely
clarifies that the sentencing court's imposition of a mandatory
minimum term of imprisonment for a criminal defendant who uses 2
firearm in the commission of a felony is @ procedure separate and
distinct from the HPA's determination of a minimum term of
incarceration. In other words, HRS § 706-660.1(1) instructs the
sentencing court to impose a mandatory minimum term of
incarceration where a criminal defendant used a firearm in the
connission of a felony, and the sentencing court, in imposing the
mandatory minimum tern, is not “subject to the procedure for
determining minimum tezm of imprisonment prescribed under section
706-669," which governs the HPA's imposition of a minimum term of
*** FOR PUBLICATION ***
incarceration.
That interpretation is further buttressed by the
relevant, concomitant legislative history. HRS § 706-660.1 was
originally proposed as House Bill No. 3196-76 and subsequently
enacted as part of Act 204 in 1976. 1976 Haw. Sess. L. Act 204,
§ 3 at 493-94, In a conmittee report on House Bill No. 3196-76,
the legislature spoke in terms of an exemption from the procedire
of the board of paroles and pardons,’ as opposed to a
jurisdictional bar:
tn addition, your Committee recommends an enendnent that the
Eiteae be afenutad fron the proceaure. for ceteenining minimum
fern cf inprisomert and that" the convicted Gefencant small become
Subject to the parole procedure upon the expiration of the above=
Stated minimum tern of imprisonment.
Hse. Stand. Comm, Rep. No. 492-76, in 1976 House Journal, at 1490
(emphasis added) .
Additionally, the statutory instruction that “a person
who is imprisoned in a correctional institution . . . shall
become subject to the parole procedure as prescribed in section
706-670 only upon the expiration of the term of mandatory
imprisonment,” HRS § 706-660.1(2), does not support Althouse’ s
argument. To the contrary, the foregoing provision merely
explains that the HPA has no authority to grant parole prior to
the expiration of the mandatory minimum sentence imposed by the
circuit court. In that regard, we have previously commented as
follows:
>the board of paroles and pardons war reconstituted as the HPA in
1976, Sag 1976 Haw. Sete, L. Act 92, §§ 1-10 at 145-49,
®
+ FOR PUBLICATION ***
Seer eins Ce SL METER HLS hb cs
Fea Nera nae wr
pera
face eda, #7 How’ 1, 11, 980 0.26 1201, 1201 (88
(emphasis added), overruled on other grounds by State v.
Brantley, 99 Hawai'i 463, 56 P.3d 1252 (2002).
the custody of the director of the department of [public
intends to require che court in cesses of felonies where © firearm
was used to Impose 5 mandatory minimum term of imprisonment.
Sen. Conf. Conm. Rep. No. 34-76, in 1976 Senate Journal, at 684
(emphasis added). That statement logically implies that the
legislature contemplated concurrent impositions of minimum terms
of incarceration by both the circuit court and the HPA, the
lengths of which may differ. Although we have previously made
9
** FOR PUBLICATION ***
clear that the HPA may not give effect to a minimum term of
incarceration that is shorter than a mandatory minimum sentence
Amposed by the sentencing court, the legislative history
indicates that the HPA is not precluded from imposing a minimum
term that is longer. ‘Thus, in cases where the HPA imposes a
minimum term longer than the mandatory minimum term imposed by
the sentencing court, the HRS § 706-669 hearing must necessarily
take place prior to the expiration of the sentencing court's
mandatory minimum term insofar as the hearing must, by statutory
mandate, be held within six months of the defendant's commitment
to the custody of the director of the department of public
safety.
Therefore, we hold that (1) HRS § 706-669 required the
HPA to conduct its minimum term hearing within six months of
Althouse’s commitment to the custody of the director of the
department of public safety, and (2) that the HPA was not
jurisdictionally barred by HRS § 706-660.1(1) from fulfilling its
statutorily imposed duty.
‘That conclusion also disposes of Althouse’ s second
point of error.‘ Therein, he argues that the circuit court erred
+ We note that Althouse’s notice of appeal is technically defective
with respect to'his second point of error. In perticular, Althouse’s notice
Of appeal does not identify the court’ s “Order Denying Petitioner's Motion For
Of New Minimum Term Hearing Pending Appeal Of Courts Decision” as a
'e from which his second point of error is derived. Indeed, Althouse’ s
Rotice of appeal could not have identified the court's order denying his
motion for stay inasmuch as the aforesais order was filed after Althouse’ ¢
Rotice of appeal
Hawai'i Rules of Appellate Procedure (hereinafter “HRAP") Rule
1c) (2) (20021 "unambiguously states that [t]he notice of appeal shall
designate the juagnent, order, or part thereof and the court er agency
(Sent ined...)
10
'** FOR PUBLICATION ***
by denying his motion to stay the HPA's minimum texm hearing
pending appeal, as follows:
‘The arguments raised by Appellant in the previous
section of this Opening Brief are jurisdictional in nature. In
SESEAED Rbpetiant argues that the HPA lacks jurisdiction to
cesence BPEChinun term Rearing until the expiration of the
Sendatory minimum term of imprisonment
‘BARobion te Seay should have been granted besed on
the points and authorities set forth in the previous section.
s(.ssconténued)
appeaied ftom. h copy of the judgnent or order, shall be attached 29 an
septate tre pithcuse foiled to designate the order denying his motion for
see iSo’failed co attach that order a= an exhibit. Consequently,
stays. be 2lfSu'to comply with WRAP Rule 3(c) (2) with respect to his second
point of error on appeal
seyeneeebeas, HRAP Rule 3(a} states that che “{fJailure of an
appellant toltate any seep other than the timely filing of a notice of apes!
appellant Gece the valisity of the appeal, but is ground only for such action
Coes net ane TSte Rourt dene sppropriate, and may include dismissal of the
Speci. Pfurthermore, we have previously stated that
the requirement that the notice of appeal designate the judgment
tee TP LEereoe appealed from is not jurisdictsensl. Yoshiseki w
GESSeptsai so sow. 2, 2, 427 P20 845, 946 (196717 Credit.
Hide Heine eiliians, $1 Haw. 325, 328, 460 F.2d 762, 760
Be eae ccotes chat "a mistake in designating the
[igonone, or in-designating the part appealed from if only a part
judgment oka: Mancuig not result in loss of the appeal as long as
be OUStSPetSG’ appeal from a specific Judgment can be fairly
{hetied' trom the notice and the appellee is not misled by the
seers ee cone’ Process Pcrice 1203.18 (2975). In the
meeeeASances ef this case no single order embraces all of the
SHESSEEE"Ehe pareses, and the final judgment must be viewed 202
seeeee eS Ge the several orders which became final and appealabie
Beene entry of the judgment and order of condemnation on
SESay er tbre. the notice of appeal filed by appellant, on
Zebrusty' 18, 1976 faitay infers an intent to appeal from that
seereet ye ok orders. There st no showing of any misleading of the
SCREe Eateiee to their detriment. Me conclude thet wo should
Giereghed tne Gate by which the judgment appealed from is
SeeEgeatea'Th the notice of appeal. The notice is sufficient in
$eE28cag cinely filed te bring the appeal before us.
coun Lulu v. Midkitt, 57 Raw. 273, 275-76, 554 F.2d 293, 235
tise
‘herefore, although we perceive @ technical lack of compliance
with RAP Rule Ste] ia), we decline to excise Alenouse's second point of error
TEERIEA? Ethie notice cf appeal mat timely filed and there is no indication
that any party suffered prejudice.
a
*** FOR PUBLICATION ***
Insofar as we have concluded that Althouse’s first point of error
is without merit, his second point of error is equally
unavailing.
IV. CONCLUSION
Based upon the foregoing analysis, we affirm the third
circuit court’s June 10, 2002 order.
On the briefs:
Darien W. L. Ching, Mia Heaamenn
Deputy Prosecuting Attorney,
for Respondent-Appellee Sessa Ci o
State of Hawai'i
Lisa W. Teomaca, Deputy
Attorney General, fpr DI ON
Respondent-Appediee di: Ip Ei
State of hawt R.
|
3175f351-2503-4a6a-a1fa-53153c1cbbc5 | Great Seneca Financial Corp. v. Yamura | hawaii | Hawaii Supreme Court | ‘*** NOT FOR PUBLICATION *** .
No. 27803
91 ae song
IN THE SUPREME COURT OF THE STATE OF HAWAI‘T
F
a7
GREAT SENECA FINANCIAL CORP.,
Plaintiff/Counterclaim Defendant /Appelle
8
CURTIS M, YAMURA, Defendant /Counterclaim Plaintiff/Appellant.
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CIV. CASE NO. 1RC 05-1-4314)
ORDER DISMISSING APPEAL
(By: Nakayama, J., for the court!)
upon review of the record, it appears that we do not
have jurisdiction over Defendant/Counterclaim Plaintiff/Appellant
Curtis M. Yamura’s (Appellant Yamura) appeal from the district
court's (1) order granting Plaintiff/Counterclaim
Defendant/Appellee Great Seneca Financial Corp.'s (Appellee Great
Seneca Financial) motion for summary judgment on Appellee Great
Seneca Financial’s complaint and (2) the order denying Appellant
Yamura’s motion to reconsider the order granting Appellee Great
Seneca Financial’s motion for summary judgment.
Pursuant to BRS § 641-1(a) (1993), appeals are
allowed in civil matters from all final judgments,
orders, or decrees of circuit and district courts.
district court cases, a judgment includes any order
from which an appeal’ lies.
ceding, leaving nothing furthe:
be_accomplished. When a written judgment, order, or
decree ends the litigation by fully deciding all’ rights
and liabilities of all parties, leaving nothing further
to be adjudicated, the judgment, order, or decree is
final and appealable
In
considered by: Moon, C.J-, Levinson, Nakayama, Acobs, and buffy, JJ
*** NOT FOR PUBLICATION ***
Casumpang v. IL, Local 142, 91 Hawai'i 425, 426, 984 P.2d 1251,
1252 (1999) (citations, internal quotation marks, and footnote
omitted) (emphasis added).
The district court, the Honorable Hilary B. Gangnes _
presiding, has not yet entered a final written order that
resolves Appellant Yamura’s counterclaim, and, thus, ends the
proceeding, leaving nothing further to be adjudicated. See HRS
§ 641-1(a) (1993); Haw. Dist. Ct. R. Civ. P. 587 Haw. R. App. P.
4(a) (5). Therefore, Appellant Yamura’s appeal is premature and
we lack appellate jurisdiction. Accordingly,
If IS HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
DATED: Honolulu, Hawai'i, June 16, 2006.
FOR THE COURT:
decease CT ela one
Associate Justice
|
af34ea6f-f315-4816-997c-27b7463a3d5f | In re K.D. | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION *** =
Wo. 27663
IN THE SUPREME COURT OF THE STATE OF HAWAS‘E
aad
2g Of AVK 9002
In the Interest of K.D.
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(Fe-S No. 01-07576)
ORDER DISMISSING MOTHER APPELLANT’ S APPEAL
(By: Nakayama, J., for the court!)
Upon review of the record, it appears that mother~
appellant’s parental and custodial rights and duties were
divested by the November 1, 2005 order awarding permanent
custody. The right to appeal the November 1, 2005 order was
conditioned upon the filing of a motion for reconsideration of
the order within twenty days after the order was entered. See
HRS § 571-54; In the Interest of Jane Doe, 77 Hawai'i 109, 113,
863 P.2d 30, 34 (1994); In the Interest of Jane Doe, 3 Haw. App.
391, 394, 651 P.2d 492, 494 (1982). Mother-appellant’s motion
for reconsideration was filed on November 28, 2005, twenty-seven
days after entry of the Novenber 1, 2005 order. The twenty-day
statutory deadline of HRS § 571-54 could not be waived. See HRAP
26(b). Thus, the jurisdictional requirement for appealing the
November 1, 2005 order was not met by mother-appellant and we
lack jurisdiction over mother-appellant’s appeal. Therefore,
IT IS HEREBY ORDERED that mother-appellant’s appeal is
dismissed for lack of appellate jurisdiction.
DATED: Honolulu, Hawai'i, May 30, 2006. x
FOR THE COURT:
Dest Crminniaren | SEAL .
Associate Justice
‘considered by: Moon, C.J. Levinson, Nakayama, Acoba, and Duffy, 22
|
6061abc6-1606-4ffb-ba01-15d59ae53497 | Douglass v. Pflueger Hawaii, Inc. | hawaii | Hawaii Supreme Court | No. 26363
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
ADRIAN D, DOUGLASS, Plaintiff-Appellant,
v. z
PPLUEGER HAWAZE, INC. dba peLUEcER acuRA,SES |
Defendant Appellee. g: OS
3 2
APPEAL FROM THE FIRST CIRCUIT COURT 2
(Gav. NO. 2-1-2938), s
oRDER OF CORRECTION
(ys Noon, Codvy fOr the court!)
saa on
Tt appearing that the reference number of footnote
page 32 of this court’s opinion, filed May 25, 2006, ii
misnunbered,
IT 18 HEREBY ORDERED that footnote 14 is corrected to read
footnote 13.
The Clerk of the Court is directed to incorporate the
foregoing correction in the original opinion and take all
necessary steps to notity the publishing agencies of these
changea
DATED: Honolulu, Hawai'i, May 30, 2006.
FOR THE COURT:
Lip
fet dustice
» Considered by: Moon, C.J., Levinson, Nakayama, Acoba,
and Duffy, 33.
aa
|
742cc2a3-2566-4cdb-8019-ccb31660a47e | State v. Jim | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION ***
No. 25318 5
HY 1 ve sooe
ase
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
as
STATE OF HAWAT'I, Plaintiff-Appellee/Cross-Appeilant
"
HAROLD JIM, Defendant-Appellant /Cross-Appellee
APPEAL FROM THE THIRD CIRCUIT COURT
(CR. NO. 02-1-0004)
‘SUMMARY DISPOSITION ORDER
yyama, Acoba, and Duffy, JJ.)
Levinson, Nal
(By: Moon, C.3.,
Defendant-Appellant/Cross-Appellee Harold Jim (“Jim”)
appeals from the judgment of the Circuit Court of the Third
(“circuit court”) filed on August 14, 2002. At trial,
driving without a license in
1999),7 (2) failure to
Circuit!
Jim was found guilty of (1)
violation of HRS § 286-102(a) (Supp.
possess no-fault motor vehicle insurance coverage in violation of
HRS § 431:10C-104(a) (Supp. 1997),? (3) failure to display state~
1 the Honorable Riki May Amano presided.
+ nas § 286-102(a) (Supp. 1999) (the version of the statute that was
in effect at the time the prosecution's complaint was filed) provides that
1p0 person, + one who
holds an instruction permit under section 286-110, one who holds a
Connercial driver's license issued under section 206-239, or =
Sonmercial driver's license instruction permit ieaued under
Section 286-236, shall operate any category cf motor vehicles
listed in this Section without first being appropriately examined
and duly licensed asa qualified driver of that category of moter
venicles.
(emphasis added.)
>was § 431:10c~104(a) provides in pertinent part:
= + no person shall operate or use a motor vehicle upon
any public street, road, or highway of this State at any tine
nless such motor vehicie is insured at ail times under a motor
venicle insurance policy.
‘*** NOT FOR PUBLICATION ***
issued motor vehicle nunber plates under HRS § 249-7(b) (1993),
and (4) failure to possess and exhibit a motor vehicle
certificate of registration under HRS § 286-47(3) (A) (Supp.
1998) .*
On appeal, Jim argues that:
(1) The circuit court lacked jurisdiction to hear
Plaintiff-Appellee State of Hawaii's case (Plaintiff-Appellee is
hereafter referred to as “the prosecution”), insofar as the State
of Hawai‘ (via, inter alia, the prosecution) breached its
trustee obligation to Jim, a native Hawaiian and therefore a
beneficiary of the Hawaiian Homes Commission Act, by arresting
Jim and applying Hawai‘ state law against him while Jim was
returning to Hawaiian homestead land:
(2) there was no substantial evidence on the record to
establish that Jim was driving without a license in violation of
HRS § 286-102(a), inasmuch as there was no substantial evidence
‘uns $ 249-7(b) provides in pertinent part
Upon the issuance of a new series of number plates... . (tihe
ouner shall securely fasten che nunber plates on che vehicle, one
fon the front and the other on the rear, at a location provided by
the manufacturer or in the absence of such a location upon the
Dunpers of the vehicle and in conformance with section 291-31, in
such a manner as to prevent the plates from swinging snd at #
ininum of twelve inches from the ground. Nusber plates
fll times be displayed entirely unobscured and be kept
Clean.
+ aRS $ 266-47(3) A) provides in pertinent part:
Every owner shall keep the certificate of registration within the
yohicle for which it is registered and shall present the sane at
the request Of a police officer, or in the event the
vehicle is a motorcycle, shail carry such certificate in a
Convenient receptacle attached to the vehicle and which shell be
presented at the request of = police officer.
+ insofar as Jim does not “specifically” appeal his HRS § 431:20C-
106 no no-fault insurance and IRS § 286-47(3) (A) no certificate of
registration convictions, thelr affirnance or reversal therefore hinges on the
Fesolution of the jurisdiction iseve, see Anica.
2
*#* NOT FOR PUBLICATION ***
to disprove that Jim failed to qualify under one or more of the
HRS § 266-105 (Supp. 1997)? exemptions to the HRS § 286-102 (a)
atatutes
(3) the circuit court's jury instructions as to the
HRS § 286-102 driving without a license charge were
“prejudicially insufficient and misleading”;
(4) the circuit court erred in granting the
prosecution's motion to impose a one-year imprisonment sentence
upon Jim pursuant to HRS § 286-136(b)* on account of his three
prior HRS § 286-102 no driver's license convictions, inasmuch as
> ns § 286-105 provides in pertinent pert:
‘the following persons are exempt from Licens
(2) Any person while driving or operating a motor vehicle in the
Setvice br employ of any branch or agency of the federal
Government provided that the person has received a license or
Reteie from the branch or agency to operate and drive the motor
Senicle;
(3) Any person who 42 at least eighteen years of age and who has
fn’ the person's possession @ valia driver's license to drive the
Edeegories of motor vehicles listed in section 286-102(D), except
Section 286-102(b) (4), that is equivalent to a driver's license
TSsued in this Seate Sut was issued to the person in another st
of the United States, the Commonsealtn of Puerto Rico, United
States Virgin Islands, Anerican Samoa, Guan, a province of the
Dominion of Canada, ef the Commonwealth of the Northern Mariana
Telands for that category of motor vehicle which the person is
operating.
+ aRS § 206-136(b) reads in pertinent part
Any person who is convicted of violating (HRS $6) 286-202,
2eG-i22,, 286-120, 286-151, 286-132, 286"133, oF 286-194 shall be
Subject to's minimum fine of $500 and a naxinum fine of $1,000, or
imprisoned not more than one year, or both,
nore ssLetier he sane ie
‘Hivesvear periad:
(onphases saded.)
*** NOT FOR PUBLICATION ***
the prosecution failed to provide the “competent proof” of such
convictions necessary to make Jim “eligible” for enhanced
sentencing; and
(5) no substantial evidence existed to support Jin’s
conviction of failure to display state-issued motor vehicle
number plates under HRS § 249-7(b), in that Jim did not have
State of Hawai'i license plates on the vehicle he was driving at
the time of the traffic stop, such that Jim by definition cannot
be properly convicted of this offense.
‘The prosecution cross-appeals from various adverse
evidentiary and jury instruction rulings.
Upon carefully reviewing the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we hold as follows:
(1) The State of Hawai'i (in this case, the Hawai'i
County Police Department and the circuit court) clearly possessed
jurisdiction over Jim. We have made clear that (a) the State of
Hawai'i may validly exercise its police powers (i.e., enforce all
laws not significantly affecting Hawaiian home lands) upon
Hawaiian home lands, and (b) by necessary implication, Hawai'i
courts may properly try cases arising from the State's
enforcement of such laws. Kepo‘o v, Watson, 87 Hawai'i 91, 99,
952 P.2d 379, 387 (1998) ("under (State v. Jim, 80 Hawai'i 168,
171-72, 907 P.2d 754, 757-58 (1995)], police power regulations
apply to Hawaiian home lands, and executive officials may enforce
them, as long as these regulations do not significantly affect
the land(]"); see also Kepo'o v. Kane, 106 Hawai"i 270, 291, 103
P.3d 939, 960 (2005) (quoting with approval Kepo‘o v. Watson
analysis of Jim). & fortiori, Jim candidly admits that he was
not on Hawaiian home lands at the time of his traffic stop and
arrest; therefore, Jim's argument must fail. Thus, insofar as
*** NOT FOR PUBLICATION ***
gim only appeals his HRS § 431:10C-104 no no-fault insurance
coverage and HRS § 286-47(3) (A) no certificate of registration
convictions on the basis of jurisdiction, these convictions are
affirmed.
(2) The prosecution failed to adduce substantial
evidence to support Jim's conviction under HRS § 286-102.
Initially, we note that the prosecution bore the burden of
disproving, prima facie, that Jim was exempted from licensure
under HRS § 286-105, as evidenced by the prosecution’s own jury
instructions. See also State v. Matautia, @1 Hawai'i 76, 83, 912
P.2d 573, 580 (App. 1996) (listing failure to meet the HRS § 286-
102 statutory exceptions as an element of HRS § 286-102 offense).
After a sedulous review, though we readily find a wealth of
evidence showing that Jim did not possess a valid Hawai'i
driver's license, we cannot find even a scintilla of evidence to
affirmatively disprove that Jim was exempted from licensure under
HRS § 286-105. As the prosecution failed to prove an essential
elenent of the HRS § 286-102 offense, Jim’s HRS $ 286-102
conviction is reversed.
Because Jin’s HRS § 286-102 conviction and sentence
must be reversed on this basis, we do not reach Jim's remaining
points of error as to prejudicially insufficient and/or
misleading jury instructions as to HRS § 286-102 and improperly
enhanced sentencing under HRS § 286-136(b) .
(3) Jim's contention that HRS § 249-7 cannot be used
to charge him with failure to display state license number plates
is meritless. Under HRS § 249-2 (1993), all motor vehicles
(including Jin’s “self-propelled” truck, see HRS § 249-1 (Supp.
1996)) are subject to an annual weight tax which must be paid by
April 1 each year. “Upon receipt of the tax the director of
finance . . . . shall furnish the owner, upon the original
NOT FOR PUBLICATION ***
registration of the vehicle, two x plates for the v
HRS § 249-7(a) (emphasis added). Thereafter, “{tlhe owner shall.
securely fasten the number plates on the vehicle, one on the
£ront_and the other on the rear, at a location provided by the
manufacturer or. . . . in such a manner as to prevent the plates
from swinging and at a minimum of twelve inches from the ground.”
HRS § 249-7(b). Thus, the number plates statute makes plain that
state license number plates must be properly attached to the
vehicle at all times.
Jim's argument that “did not have state-issued plates
0 it would have been impossible for him to improperly display
plates that he never possessed” is clearly flawed. Number plates
are issued to all originally registered cars, see HRS § 249-7(a),
and Jim does not assert that his truck was unregistered or
stolen. Even assuming arquendo that HRS § 249-7 was somehow
ambiguous, under Jim's interpretation of the statute, all
automobile owners could effectively subvert their duty to pay the
annual weight tax simply by removing their license plates. This
is an absurdity which we must reject. “(T]he legislature is
presumed not to intend an absurd result, and legislation will be
construed to avoid, if possible, inconsistency, contradiction,
and illogicality.” Zanakis-Pico v, Cutter Dodge, Inc., 98
Hawai'i 309, 316, 47 P.3d 1222, 1229 (citation omitted); see also
HRS § 1-15(3) (1993) (“Where the words of a law are ambiguous .
[elvery construction which leads to an absurdity shall be
rejected.").
When considering the evidence in the strongest light
for the prosecution, Jin’s repeated admissions that he did not
possess state license number plates for his truck constituted
credible evidence of sufficient quality and probative value to
enable a person of reasonable caution to find that Jim failed to
‘*** NOT FOR PUBLICATION ***
display License nunber plates under HRS § 249-7. See State ve
Maldonado, 108 Hawai'i 436, 442, 121 P.3d 901, 907 (2005). Thus,
Jim's HRS § 249-7 conviction is affirmed.
(4) The prosecution's cross-appeal is moot. We first
note that the cross-appeal is plainly moot to the extent that ve
affirm Jim's convictions. State v. Okuda, 71 Haw. 434, 456, 795
P.2d 1, 13 (1990) (noting that because all of the defendant’ s
convictions were affirmed, and that “[nothing is being remanded
for retrial”, the prosecution’s cross-appeal is moot). The only
difference between the situation in Okuda and that of the present
case is that one of Jim's convictions is reversed. The sole
question possibly remaining, then, is whether there is a live
case or controversy arising from a reversal of Jim's HRS § 286~-
102 conviction. The answer is clearly no.
Briefly, the prosecution relevantly argues on cross-
appeal that the circuit court abused its discretion in denying
evidence of Jim's prior driving-related convictions, firat in an
order denying the proposed introduction of such evidence, and
subsequently in an oral order striking said exhibits without
prejudice when the prosecution listed such convictions “for
notice” to Jim in case he “opened the door” during trial. ‘The
cireuit court specifically stated that despite its order to
strike the exhibits, in the event Jim did assert a mistake of law
“or something to that effect, then I think that the prior
convictions would be relevant at that point.” (Emphasis added.)
Yet, the prosecution adnits on cross-appeal that “. . . .such
exhibits vere ved ." (Emphasis added.)
Clearly, the prosecution's arguments are moot inasmuch as the
prosecution never actually proffered the exhibits at trial, but
merely meant for their listing on the exhibit list to serve es
“fair notice” and a warning to Jim. Accordingly, as the
*** NOT FOR PUBLICATION ***
prosecution's remaining points of error on cross-appeal are moot,
the entire cross-appeal is moot, there being no real controversy
left to decide. AIG Hawai'i Insurance Co., Inc. v. Bateman, €2
Hawai'i 453, 458-459, 923 P.2d 395, 400-401 (1996). Therefore,
IT IS HEREBY ORDERED that (1) Jims HRS § 431:10C~104,
HRS § 286-47(3) (A), and HRS § 249-7 convictions are affirmed, (2)
Jim’s HRS § 286-102 conviction and sentence are reversed, and (3)
the prosecution’s cross-appeal is dismissed.
DATED: Honolulu, Hawai", dune 14, 2006.
On the briefs:
Iw
Jon N. Ikenaga, deputy v
public defender, ,
for Defendant~Appellant / hiaGflamenn
Cross~Appeliee
Harold Unane Jim &
sseise Lt LO
Darien W. L. Ching,
deputy prosecuting’ attorney, aut AC
for Plaintiff-Appellee/ D—
Cross-Appellant.
State of Hawai'i Yancey
|
58983a61-e595-4c7c-b926-4e3e4e57a9ab | State, ex rel, Knapp v. The Aes Corporation | hawaii | Hawaii Supreme Court | *** NOTFOR PUBLICATION ***
No. 26151
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
STATE OF HAWAI'I, ex rel, BRUCE R. KNAPP,
Qui Tam Plaintiff /Cross-Appell
and
BEVERLY J. PERRY, on behalf of herself and all
others similarly situated, Class Action Plainbiff-
Appellant /Cross-Appelee,
gawd
‘THE AES CORPORATION and AES HAWAII, INC 3
Defendant s-Appellees/Cross-Appellants,
geo Nd LE AVR SOUL
and
HAWAIIAN ELECTRIC COMPANY, INC. and HAWATIAN
ELECTRIC INDUSTRIES, INC., Defendants-
‘Appellees /Cross -Appel lees.
APPEAL FROM THE FIRST CIRCUIT COURT
(cIv. NO. 01-1-3487-22)
SUMMARY DISPOSITION ORDER
Levingon, Acoba, and Duffy, JJ.; Circuit
Judge’ Cardoza, in place of Nakayama, J., recused)
(By: Moon, C.J.,
‘The instant case arises out of the alleged misconduct
between a regulated public utility supplying electricity and an
independent electric power producer that resulted in the
construction of an “unnecessary” and “costly” electricity
generating plant. As a result of the construction of the
electricity generating plant, consumers on the island of O'ahu,
including the State of Hawai'i (state), allegedly pay
‘unneceseary” and “inflated” prices for electricity, A complaint
mE
waa Eiled by Bruce R. Knapp,’ as a gui tam plaintiff, asserting a
claim for violations of the State False Claims Act, HRS § 661-21,
et nea., against defendants-appellees Hawaiian Electric Company,
tne, (HBCO) and Hawaiian Electric Industries, Inc- (apr) and
detendants-appeliees/cross-appeliants ABS Hawaii, Tne (ags-HI)
and The AES Corporation (ABS) [hereinafter, collectively,
appellees). Subsequentiy, plaints tf-appeliant Beverly J. Perry,
a consuner of electricity, on behalf of herself and all others
similarly eituated, along with Knapp, filed first amended
complaint against Appeliees. Therein, Perry asserted the
following three claima: (1) violations of HRS § 450-2 (1993)
(relating to unfair and deceptive acts and practices); (2) unjust
enrichment /restitution; and (3) fraud. Sometime thereafter, HECO
and usr filed a motion to dismiss the first amended complaint
ot Circuit, the Honorable Eden
qhe Circuit Court of the
piizabeth Hifo presiding, entered an order, dieniesing Perry's
three elaine on the basis that they were barred by the applicable
statutes of limitations.
perry appeals from the cizeuit court’s September 27+
2003 judgnent entered in favor of Appeliecs, OF appeal, Perry
argues that the circuit court erred in dismissing the first
amended complaint based on the stature of Limiratione and the
aoctrine of primary jurisdiction. AES and AFS-HE cross-appeal,
challenging the cireuit court's denial of their motion £0 diemios
_
not a party to the instai
» Knapp
the firet amended complaint. Eesentially, AES and AES-HI contend
that there are two additional bases to affirm the circuit court's
judgment .
upon carefully reviewing the record and the briefs
submitted and having given due consideration to the arguments
advanced and the issues raised by the parties, we resolve the
parties’ contentions as follows.
(a) Perry contends that the circuit court erred in
dismissing her HRS § 480-2 claim based on the applicable statute
of limitations.’ Perry argues -- allegedly for the first time on
appeal -- that the circuit court failed to consider the policies
underlying an HRS § 480-2 claim. Perry also asserts that the
circuit court erred in not applying “the clear language, context,
and intent” of HRS §§ 480-2, -3.1 (1993), and -24(a).
Specifically, Perry apparently “argues” that both HRS §§ 480-3.1
and -24(a) contain essentially similar language, ie., that
violation of HRS § 480-2 continues daily until corrected.”
HECO and HET point out that Perry's contention that the
circuit court should have considered the policies underlying an
ERS § 460-2 claim is raised for the first time on appeal.”
Nevertheless, HECO and HET argue that “the plain and unambiguous
statute of limitations provisions in HRS § 480-24(a) cannot be
@isregarded in favor of policy considerations underlying an HRS
2 on appeal, Perry does not challenge the circuit court's dismissal of
her unjust enrichnent/restitution and fraud cl
> on March 19, 2004, AKS-HI and ARS filed a joiner in MECO and HEI'®
opening briet
§ 480-2 claim." In addition, HECO and HEI contend that Perry
reliance on HRS § 480-3.1 -- also raised for the first time on
appeal -- is misplaced because section 480-3.1 governs the “civil
penalty" that may only be imposed “in a civil action brought by
the attorney general or the director of the office of consumer
Protection on behalf of the state." As such, HECO and HET argue
that Perry “lacks standing to enforce the remedies provided in
HRS § 480-3.1."
Ordinarily, “failure to raise or properly preserve
issues at the trial level would be deemed waived.” av. AIG
Hawai'i Ine. Co., 109 Hawai'i $37, 546, 128 P.3d 850, 859 (2006)
(internal quotation marks and citation omitted). As previously
stated, HECO and HEI maintain that Perry never raised her “HRS
§ 480-2 policy argument” and “HRS § 480-3.1 argument” at the
trial level. In opposition to HECO and HEI’s motion to dismiss,
Perry primarily argued that the “continuing violation exception?
contained in HRS § 480-24 applies to the facts of this case.
Perry also contended that *[wlell-established and fully-juetified
public policy will not permit claims arising from [Appellees’]
Continuous unlawful conduct to be time-barred." Perry does not
a her
respond to HECO and HEI’s contention that she rail
arguments for the first time on appeal.
It is clear that Perry did not raise her ‘HRS § 480-2
policy argument” and “HRS § 480-3.1 argument” at the trial level.
However, we have previously stated that, “[a]lthough we are not
required to consider [an appellant's] contention made for the
first tine on appeal, we will briefly address this issue to
negate any belief that a meritorious claim existe against [the
appellee]." Coll v. McCarthy, 72 Haw. 20, 26, 804 P.2d 981, #86
(2992), As such, we briefly address Perry's contentions to
negate any belief that a meritorious argunent existe.
-2(b), the
Perry contends that, “pursuant to HRS §
appellate courts are directed to give due consideration to
decisions of the federal courte in interpreting HRS § 480-2."
Perry cites to Eederal Trade Commission v. Algoma Lumber Co., 291
U.S. 67 (1934), for the proposition that, in interpreting the
federal counterpart to HRS § 480-2, i.e., 15 U.S.C. § 45,
Congress intended that proceedings in the public interest be
” HEC
actionable “without regard to any statute of limitation:
and HEI contend that Perry “fails to note that 15 U.S.C. § 45,
the federal counterpart to HRS § 480-2, does not contain a
statute of limitations provieion similar to that found in HRS
§ 480-24(a).* In response, Perry concedes that *[t]he FICA [(15
U.S.C. § 45)] does not have a statute of limitation provision
comparable to HRS § 480-24(a)(.]* Consequently, inasmuch as
“there is no federal counterpart to section 480-24(a)," Anzai v
Chevron Corp., 168 FP. Supp. 24 1180, 1185 (D. Haw. 2001), Perry's
reliance on Algona Lumber Co. is misplaced. Thus, Perry’s “HRS
§ 480-2 policy argunent” is without merit.
Perry appears to argue that, pursuant to the latter
part of HRS § 480-3.1, ise,, “[elach day that a violation of
section 480-2 occurs shall be a separate violation[,]* the
statute of limitations was tolled under the circumstances of this
case. By ite plain language, HRS § 480-3.1 governs the civil
penalty that “shall be collected in a civil action brought by the
attorney general or the director of the office of consumer
Protection on behalf of the state.” Inasmuch as Perry is not the
attorney general nor the director of the office of consumer
Protection, section 480-3.1 is simply inapplicable to Perry. As
such, Perry's “HRS § 480-3.1 argument’ ie without merit.
Because Perry faile to present any other argument with
pect to the circuit court’s dismissal of her HRS § 480-2
claim,‘ we hold that the circuit court did not err in dismissing
Perry's HRS § 480-2 based on the four-year statute of limitations
contained in HRS § 480-24(a).
(2) Perzy next contends that the circuit court erred
in dismissing the claims contained in the first amended complaint
based on the doctrine of primary jurisdiction. Perry argues that
+ Perry fails to present any argument with respect to the eireuit
8 rejection of the applicability of the “continuing violation” exception
Contained in WRS § 480-24(a) and the connon law continuing tort doctrine to
Chis cage. "As such, Perry's contention with respect to the continuing
violation exception contained in HRS § 480-24{a) and the commen lew continuing
tort doctrine iv Geened waived.” ge HRAP Rule 28(5)(7) (2003) (*Podnee not
argued may be deemed waived.") |
Furthermore, Perry does not present any argument with respect to the
Gates utilized by'KECO and MEI in their menorandim in support of their sotion
Eo dismiss in order to conclude that Perry "knew or should have. known of the
operative facts underlying (her) current claims anywhere from 1986 to 1998, oF
(seven to thirteen) years before (she) cormenced the instant action.”
Presumably, the circuit court used these dates in order to rule that the four-
year statute of limitations contained in HRS § 400-24 (a) barred Perty'e HRS
§ 490-2/claim. In her reply Brief, Perry simply conclodes that the *{elireait
{elourt erroneously construed the four year period of limitations from the
vecord and files at thst tine.” However, even in her reply brief, ferry faile
to present any argunent a to why her HRS § 490-2 claim te not barred by the
four-year statute of limitations. Aa such, Perry's contention that the
circuit court “erroneously construed" HRS § 460-2 “from the record and files
fat that time" is deemed waived. Gee HRAP Rule 28 (b) (9)
her HRS § 480-2 claim "is outside the scope of authority and
jurisdiction of the PUC.” HECO and HET contend that the circuit
court did not dismiss Perry’s HRS § 480-2 claim based on the
doctrine of primary jurisdiction, but rather, the circuit court
jed her HRS § 480-2 claim, as well as her other claims,
diomi:
based solely on the applicable statute of limitations, HECO and
HEI point out that the circuit court dismissed only knapp's
remaining gui tam claims based on the doctrine of primary
jurisdiction, and, therefore, Perry was not aggrieved by the
circuit court's ruling. As such, HECO and HET maintain that
Perry lacks standing to challenge the circuit court’s ruling
based on the doctrine of primary jurisdiction.
“Generally, the requirements of standing to appeal are:
(2) the person mst first have been a party to the action; (2)
the person seeking modification of the order or judgment must
have had standing to oppose it in the trial court; and (3) such
person mist be aggrieved by the ruling, i.e., the person must be
one who is affected or prejudiced by the appealable order.”
Kepo'o v. Watson, 87 Hawai'i 91, 95, 952 P.24 379, 383 (1998)
(citing Waikiki Malia Hotel, Inc. v. Kinkai Prop., Ltd. p’ship,
75 Haw. 370, 393, 862 P.24 1048, 1061 (1993)) (internal quotation
marks and brackets omitted) .
In the instant case, although Perry was a party to the
action, she did not have standing in the circuit court to oppose
mining that the doctrine of primary
the May 16, 2003 order d
jurisdiction applied to Knapp’s gui tam claims nor was she
affected or prejudiced by that order. As previously stated,
Perry asserted only three claims in the firet amended complaint:
(2) violations of HRS § 480-2; (2) unjust enrichment /restitution;
and (3) fraud. On February 20, 2003, the circuit court orally
don the applicable
ismissed all three of Perry’a claims bi
statutes of limitations. The circuit court subsequently entered
ite written order on April 22, 2003, dismissing all three of
Perry's claims based on the applicable statutes of limitations
As such, Perry no longer had any viable claims in the instant
action. Approximately one month later, on May 16, 2003, the
circuit court entered an order, ruling that the doctrine of
primary jurisdiction applies to Knapp’s remaining qui tam clains.
Because the circuit court had already dienissed Perry's clains,
Perry did not have standing to oppose the circuit court’s ruling
on May 16, 2003. Moreover, Perry was not aggrieved by the May
16, 2003 ruling inasmuch as the circuit court did not consider
whether the doctrine of primary jurisdiction applied to Perry's
HRS § 480-2 claim. Accordingly, we hold that Perry lacks
standing to challenge the circuit court’s ruling regarding the
doctrine of primary jurisdiction
(3) On cross appeal, AES-HI and AES contend that there
are two additional grounds to affirm the circuit court's
judgment. Specifically, AES-HI and ABS allege that the circuit
court's judgment can also be affirmed on the bases of preemption
and exhaustion, However, ABS-HI and AES state that, *[i]£ the
circuit court’s dismissal based on statute of limitations and
*** NOTFOR PUB!
appeal is
primary jurisdiction is affirmed, then this cros
appeal is
unnecessary.” Based on the above discussion, the cros
essentially moot. We, therefore, need not address the issues
raised in AES-HI and AES’s cross appeal. Therefore,
IT IS HEREBY ORDERED that the circuit court's Septerber
17, 2003 judgment ie affirmed.
DATED: Honolulu, Hawai", may 31, 2006.
on the briefs:
Loyd ¥. Asato, for class
action plaintift-appellant/
crose-appellee Beverly 3. .
Perry, on behalf of herself ite Hillcmson
and ail other similarly
situated Poo
Peter W. Olson (of Cades « .
Schutte) and Rick Richmond, Vere ones:
pro hae vice (of Kirkland
Pintle, ‘ios Angeles, @2), 6. OnLy?
for defendanta-appeliees/ We
cross appellonce the AES
Corporation and AES Hawai,
Shee
James Kawashima, J. Douglas
Ing, Gregory Y.'P. Tom, and
Brian A. Kang (of Watahabe Ing
Kawashima & Komeiji), for
defendant s-appellees/cross-
appellees Hawaiian Electric
Company, Inc. and Hawaiian
Blectrié Industries, Inc.
|
81a75f39-f100-4fec-97f4-6a7be9ba91ad | State v. Mikasa. ICA Opinion, filed 04/07/2006 [pdf], 110 Haw. 441. Consolidated with Nos. 25777 and 25778. S.Ct. Order Granting Application for Writ of Certiorari, filed 05/04/2006 [pdf], 110 Haw. 546. | hawaii | Hawaii Supreme Court | LIBRARY
*##FOR PUBLICATION***
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
~00---
STATE OF HAWAI'I, Respondent/Plaintiff-Appellee
(No. 25776 (CR. NO. 02-1-0090))
gl
SCOTT MIKASA, Petitioner /Defendant-Appe? Lage
00 zie S- Nr s002
STATE OF HAWAI'I, Respondent/Plaintiff-Appellt
SCOTT MIKASA, Petitioner/Defendant-Appellant
(No. 25777 (CR. NO. 02-1-0498))
STATE OF HAWAI'I, Respondent/Plaintiff-Appellee
SCOTT S. MIKASA, also known as “SQUIRRELY,”
Pet itioner/Defendant-Appel lant
(No. 25778 (CR. NO. 03-1-0036))
No. 25776
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
JUNE 5, 2006
MOON, C.J, LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY ACOBA, J.
We granted certiorari herein to clarity the application
by the Intermediate Court of Appeals (the ICA) of the law
aan
‘***FOR PUBLICATION***
relevant to a defendant’s claim that @ sentencing court relied on
an uncharged crime in imposing sentence. Petitioner/Defendant~
Appellant Scott Mikasa (Petitioner) filed an application for writ
of certiorari’ on April 28, 2006 (application), requesting that
this court review the published opinion of the ICA,* affirming
the March 24, 2003 amended judgments of conviction and sentences
of the second circuit court (the court)? entered in Cr. Nos. 02
1-0090(3) (Case 090), 02-1-0498(3) (Case 498), and 03-1-0036(3)
(Case 036). See State v. Mikasa, No. 25776, slip op. at 11-12,
17 (App. Apr. 7, 2006).
1
‘The relevant facts follow.
on February 22, 2002, Petitioner was charged by
indictment, as a principal or accomplice, in Case 090, with
(1) Promoting a Dangerous Drug in the First Degree under Hawai'i
Revised Statutes (HRS) § 712-1241(1) (a) (i) (2003) (Count 1),
Pursuant to Hawal's Revised Statutes (HRS) § 602-59 (Supp. 2005),
a party may appeal the decision of the Intermediate Court of Appeals (ICA)
Coly by an application to this court for a writ of certiorari.” gee HRS $ 602~
£3(a).. In determining whether to accept or reject the application for writ of
srtiorari, this coure reviews the Ick decision for:
(1) grave errors of Lew oF of fact, oF (2) obvious
insonsistencies in the decision of the intermediate
‘appellate court with that of the suprene court, federal
Gecisions, oF its oun decision, and the magnitude of such
rors or inconsistencies dictating the need for ferther
appeal.
HAS § 602-59(b). The grant or denial of @ petition for certiorari is
jssceetionary with this court. See ARS § 602-59 (8)
‘The opinion was authored by Associate Judge John $.W. Lim and was
aoines by Chief Judge Janes &. urns and Associate Judge Corinne K.A.
‘The Honorable Joseph E. Cardoza presided.
2
‘**#FOR PUBLICATION***
(2) Prohibited Acts Related to Drug Paraphernalia in violation of
HRS § 329-43.5(a) (1993) (Count II), (3) Attempted Promoting a
Dangerous Drug in the First Degree under HRS $§ 705-500 (1993)
and 712-1241 (a) (b) (44) (A) (2003) (Count 12), (4) two counts for
the offense of Promoting @ Detrimental Drug in the Third Degree
in violation of HRS § 712-1249(1) (4) (1993) (Counts IV and v),
and (5) Promoting 2 Controlled Substance, In, On, or Near Schools
in violation of HRS § 712-1249.6(1) (b) (2003) (Count VIII).
(Emphasis added.) Petitioner was also charged with Promoting @
Dangerous Drug in the First Degree under HRS § 712-1241(1) (d)
(2003) (Count VI), two counts of the offense of Prohibited Acts
Related to Drug Paraphernalia under HRS § 329-43.5(a) (Count VII
and X), and Promoting a Dangerous Drug in the Third begree in
violation of HRS § 712-1243(2) (2003) (Count IX).
On September 16, 2002, in Case 498, Petitioner was
charged by indictment with Promoting a Dangerous Drug in the
‘Third Degree in violation of HRS § 712-1243(1) (count 1),
Prohibited Acts Related to Drug Paraphernalia under HRS § 329-
43.5(a) (Count II), and Promoting a Detrimental Drug in the Third
Degree in violation of HRS § 712-1249(1) (Count 111).
On January 21, 2003, in Case 036, Petitioner was
charged by complaint with Promoting s Dangerous Drug in the First
Degree under HRS § 712-1241(2) (a) (I) (Count 1), and Prohibited
Acts Related to Drug Paraphernalia under HRS § 329-43.5(2) (Count
m.
‘***POR PUBLICATION*#+ .
on January 21, 2003, Respondent /Plaintiff-Appellee
State of Hawai'i (the prosecution) sent a plea offer to
Petitioner's counsel. The plea offer encompassed Cases 090, 498,
and 036 and discussed the sentence that could be imposed upon
petitioner. In relevant part, it stated:
4. The naninum tere the State nav argue for is tus
with a recommendation for &
Randatory mininon of fave (5) years prison:
St” Telel There are no other general or specific
agreenents a2 to sentencing;
Tr (Sica peesentence report will be requested.
He'43 nderstood that the above constitutes the full
and complete plea offer in this matter and that said plea
offer affects only those matters referenced above. No
Sasitional pronises, agreesents, or conditions, either
Gapressed of implied, nave been entered into other than
those set foren above
i'.2 "further understood that the sentence to be
Amposed upon the defendant if within the sole discretion of
the sentencing Judge, and that this department does not make
any promise of fepregentation as to what sentence the
Sefenaant will actually rece!
(Emphasis added.) On January 23, 2003, Petitioner entered his No
contest Plea. The No Contest Plea incorporated the plea offer
and provided in relevant part
6. Lunderstand that the court may impose anv of the
the maximum term of inprisonnent, any extended term of
Sxprlesamene, sey senditory mininun term of inprisornent
Li "testitution? 2 finey a fee and/or
Seserenent? community service? probation with up to one year
Of imprisonment and other cerns and conditions
@." [have not been promised any kind of deal or tavor of
hey by anvone Tor ay Dies, ss
‘Mua the covernment has screed as follow (Gf none, unite
ga
Sse com of January 214 2003 letter from carson Tani
‘The court nas sqreed to follow the oles
wseentge pursuant to-RuE 1
Exocegure.
(Emphases added. }
‘***FOR PUBLICATION*#*
‘The Pre-sentence Investigation Report (PIR) stated in
relevant part:
(Emphasis
‘The court
(ce. No. 02-1-0090(3)
‘tne police investigation reveals that on February 14, 2002,
Search Warrant #2002"36 was executed at 37 Kono Plact
Kehuius, 2 residence being occupied by (Appellant], Peter
Kenalii'[(Kanalit}], Jonathan Suesa [(Buesa)), Jason Bio and
Patrick Racadio, Search Narrant 2002-37 was executed upon
Scott Mikasa’s person st the seid location.
‘siche followings
Team #1: Twenty (20) 2iplock packets possessing crystal
ethamphetamine with the combined net weight of 2.20 ounces
Item #2: 29 grams of Marijuana
Iten $3: Nonezous clear plastic packets
Isentification of Mikasa and Ranalii were recovered from the
black bag.
A Search within a black bag that was next to Buesa resulted
in the recovery of the following
Item #1: Two (2) ziplock packets possessing suspected
cryatal methamphetamine with the combined net weight of 4,68
grams.
Teen #2: 08 net grams of marijuana
Item #3: Numerous clear plastia packets
Digital scales
51,280 in U.S. Currency
Ioentiication of Suess were recovered from within said bag.
ie’ a'régute of Search arrant_#2002-37, Mikase’s person was
Search. (8ic] 2:00 in cash, identification
of Mikass, ane
from his shorts pocket
added.)
The sentencing hearing took place on March 20, 2003.
acknowledged that it was aware of the plea agreement
and was in receipt of the PIR and a letter from Petitioner. In
part an undated letter from Petitioner that was addressed to the
court related the following:
My Grug addiction is the real reason that 1m hei
today. It’s true that I’m responsible for everything I'm
Charges with, but there are other facts to this case that I
Nould like £6 present before you pass sentence.
Crystal Bethanphetanine is my addiction. 1 am totally
addicted to this drug, and this drug alone. i don’t drink,
Snoke, or Go any other drug but ice
Everyday, all day. 2/7. T didn't have
Life. t08
‘***FOR PUBLICATION*#*
ee
wos my Life. Iwas powerless. I was not the type of “érug
Gea1et” that nost people would refer to as a “dealer,”
Betause what I did was the best way I knew for me to’ support
by drug hebit. I never did it for the money, or the girls,
the cage jewelry, oF anytning else. Iwas just an errend
boy. f picked up and I'delivered drugs and cash in retern
fet my onn peraonal supply. Aed as long as Thad my dope 7
es happy." dian'e make any soney for myself because 1
Gian'e want any. {Just wanted my dope. T've been in car
Gecidents becadse { fell asleep while driving because 1 was
Sp for days with no sleep. T'didn’t est, didn’t sleep, and
viet of tines T didn't even take a bath, Just noreal
Gveryeay things were non-existent. T didn't have friends
"Gide have a girlfriend. Ice was my girlfriend, my
feiend, my eneayy my mom, ny dad, ay everything.
ewes sickening. And T'couldn't stop. i knew it
wasn't good for me and that it would eventually destroy me,
bor 1 still couldn't stop. Ice had tetal control of the
ram's drug addict and 1 need help.
This iss very powerful and deadly drug.” If T'was released
Fight now T'would still proke ice. ‘eg how mich power it
hat on'ne-. I'm sorry for the things I've done, and, the
People I've hurt, I didn't mean to hurt anyone. I've been
Boing some soul-searching, but it’s still « little confusing
and unclear. There are a lot of things T can’t renenber
Ail T'tnow now is that even with the reality of facing
prison, ? still erave fer ice. T just can’t understand it
Petitioner’s counsel discussed Petitioner's struggles
with drug addiction and asked that any sentences imposed upon
Petitioner be served concurrently. The prosecution then argued
that Petitioner was “dealing” drugs to support his own drug habit
and had committed additional offenses while released on bail on
case 090:
[z)t's just too bed that the use by this defendant, 1 guess,
Inevitably escalated to dealing, because, as the court
keows, the only real way to support a abit Like
TFetitioner’s] ie to deal. Because, you knom, there is no
way you can come up with the ancunt of money that you need.
‘The probien with the dealing, your Honor, is that
dealing effects [sic] pretty much everybody in’ our
Senmunity, because shen you deal large amounts of
fmethasphetamine, coviously that promotes more drug use by
the users.
And hen [Petitioner was arrested, ne was released on
sil, “And then he commits another charge of Promoting =
Dangerous Drug in the Third Degree, but that's just @
Fesidue amount. And then while he’s still awaiting trial on
the initial coge in 0090, he’s arrested again with an even
Jaeger amount of methamphetamine, about 94- - a little over
96 grams of methamphetamine.
6
‘+**P0R PUBLICATION*+*
We are talking three and a half ounces of
wmetharphetamine, your Honor. Me’s also got about $8700 in
his pocket
‘Soul think it’s clear what [Petitioner] was doing in
0090, and 9036, which is, you know, just by the large
seounts [sic] of cash that was found on his and the larse
Snounts of methamphetamine that was found on his, ‘that it
Mes for distribution, your Honor”
The prosecution requested that the court sentence Petitioner to
two consecutive twenty year sentences.
The court discussed the allegations of dealing with the
prosecutior
‘THE COURT: If I'm reading [Petitioner's] letter, it
would Sppear that he is ~~ if I'm reading it correctly,
he’s conceded that he was dealing.
ine GobRT: . . . So sounds 1ike he is not taking seve
with that. I guess T'just coment on that because your
Drgument may suggest that there t¢ an issue about chat, but
{Oeounds ike that's not being ~~
TPROSECUTOR] No, your Honor. I didn't mean that to be
an isaues
‘THE COURT: ALL right.
Petitioner made a brief statement in which he stated that he
needed help to overcome his drug addiction.
‘The court then proceeded to address Petitioner and to
impose sentence. The court first stated that a term of
imprisonment would be imposed and then noted the “troubling”
nature of the facts of the case:
All right, [Petitioner], in looking at the facts of
this case, and considering the factors that the court must
consicer in = - that are set forth in Chapter 106 of the
{HRS}, it’s clear that the court should impose a ~ = a term
of imprisonment here. 50 that, in the coure’s view, iss
given he
But when I start to take @ hard look at the facts of
the case, this set of facts becones quite troubling
The court observed that the amount of drugs recovered from
Petitioner, when parceled out, could amount to over a thousand
uses of drugs by members of the community:
?
‘+*4FOR PUBLICATION*#*
OO
I've nad quite a few individuals cone into this courtroos
Who use crystal methamphetamine, and they will often say
that they dee, for example, a tenth of a gran to get high
‘and I don't know if you've thought about itvin these
terms, but if that's correct > = and 7 have heard enough
people say that to me with 58 grams, actually, more then
Phat, 2:2 ounces, nore than SB grans in one instance, and
Sone’ 0-plus grams in another instance ~~ I don't know if
you bave thought about it, but your actions in this
Zommunity have suggested that you put cut « lot of al
Seu spread a lot ef misery throughout this community.
‘Ldn’ know if you have chouaht about that put iust
‘that sasust alone, if vou conslaer it ip tenths of a gram
ou ino. that's cera thousand uses of-crvstal
ry
That's a lot of pein for one community to sbsorb.
(Emphasis added.) The court then expounded on the cost to
society of drug use:
‘the cost to soctety here goes beyond those that are
busing, Because you not only have those that are using, but -
wereSee it ail the tame shen we look at children who suffer
Gea result of parente and loved ones being addicted to
Sfuge. so it goes well beyond those that are actually using
the erug. It’s those who are around that person as well.
Aad in any community where people think that it only
[Rvolves the users and their loved ones, individuals that
are addicted to drugs like crystal methanphetamine commit
any, mony, many crimes, and #0 1¢ has an impact on everyone
fsise’ in the community.
Appellant's alleged involvement in “dealing” was then
further discussed by the court:
And, T mean, 1 have to tell you this in very frank
teens, and that is if you axe sn the supply side of
this equation, ang you're supplying people with the
Glugss ‘the price tnat people pay to you for those
Grugs 4s going to be very, very smell compared to the
Price the people are going to pay in this courtroon
Shen it comes tine tovanewer [for} that kind of
Conduct.
‘The court hes seen 20 much pain inflicted and so
much misery inflicted by this drug thet, you know, my
feeling is all I can say to you and to others that
Choose to apread this king of misery around is a
Sonetines is said ca the street, is “Enough alr
‘The court also expressed its frustration with
Petitioner's post-charge conduct:
You were picked up, You went out, got out on bait
You got involved again, got ovt om bail. “You went out and
came back again with even more of the drug, and here you
8
‘***FOR PUBLICATION*#*
ees
. ok sche yt to mals
od on our Lav es that alse
* fashion ast eeich't th
Eolerated
(Emphasis added.) As part of its sentence the court imposed two
consecutive sentences of twenty years on Petitioner.‘
After imposing sentence, the court opined that
Petitioner was involved in a conspiracy:
And, of course, you knox, T want others to understand,
Iretitiones], because f know they will have contact with you
ane they are’ going to want co know whet nappened. Clearly,
You are involved in ~~ Welly 1 shoulan’t say clearly, bot
‘ceresiniv sopears fron the record that there ic, based on
DAL vou have $040 ne, a conapicacy to distribute drugs hese
Sther_individesls that think about coming to this community
and distributing drugs or possessing drugs of this nature
MILL Likewise be interested.
(Emphasis added.)
«the court sentences Petitioner on the cases as follows.
case 090: iuenty vears’ inorisonment for promoting a
(Count T)y attempted
Pronoting s dangerous drug in the first degree (Count 121),
fang pronoting 2 dangerous drug in the first degree (Count
Vil, ‘to be served concurrently, with » mandatory minimum
tern of five years, each
Case 496; five years’ imprisonment for promoting
Gangerous drug in the third degree (Count 1) and unlawfs
Use of deug paraphernalia (Count It); and thirty days" jail
Eine for promoting ¢ detrimental drug in the third degre
(Count IIT], to be served concurrently; with 3 mandstery
Binimun term of tworand-achalf years in Count
Case 036: susnty years’ incristnment for promoting
dangerous drug in the first degree (Count I) and fave years’
inpeisonnent for unlawful poseession of avug paraphernalia
(count 11), 80 ved concurrently? said terms to be
ed consecutively tothe te: and
Frere
(emphases added.) See State v. Mikesa, No. 25776, slip op. at 1-12 Ip.
Kore 7, 2006)
‘*#FOR PUBLICATION*+*
m.
On appeal Petitioner argued in part that the court
abused its discretion in relying upon an uncharged conspiracy in
fashioning its sentence. In addressing this point the ICA
indicated the court did not abuse “its ‘discretion in fitting the
punishment to the crime(,]’” slip op. at 16 (quoting State v,
Vellina, 106 Hawai'i 441, 449, 106 P.3¢ 364, 372 (2005) (citation
and internal quotation marks onitted)), because “the (PIR)
strongly suggested [Petitioner’s] involvement in large-scale ¢rug
Gistribution() . . . [and Petitioner's] own letter .
described him as an ‘errand boy’ in a drug dealing enterprise{,]”
id. The ICA concluded that *‘[a] sentencing court may consider
any and all accurate information that reasonably might bear on
the proper sentence for the particular defendant, given the crime
committed(,1’" slip op. at 17 (emphasis in original) (quoting
Shate vs Vinge, €1 Hawai'i 309, 323, 916 P.2d 1210, 1224 (1996)
(emphasis added; original emphasis, citation and internal
quotation marks omitted), and, therefore, the court “did not
abuse its discreiton in sentencing (Petitioner,]” id. The ICA
thus affirmed the court’s sentence.
In his application for a writ of certiorari from the
ICA's decision, Petitioner poses the following question:
1s the sentencing judge allowed to fashion # sentence, after
a plea agreement, in part on an alleges conspiracy when:
Ay"defendant has not pled to such a conspiracy:
B) information about the conspiracy appears to be gleaned
from:
10
‘+#*POR PUBLICATION***
1) the presentence report, which relies heavily on
police Feports which are not admissible in evidence)
ind
Zia letter from the defendant written to the judge
prior to senteneing(?)
Wie construe Petitioner's question as essentially objecting to the
court's reference to a conspiracy in imposing sentence.
We note that in Case 090, Petitioner was charged as a
principal or accomplice. In the other cases Petitioner was
apparently charged as a principal. A principal is the person
that commits the crime. State v. Fukusaku, 85 Hawai'i 462, 488,
946 .2d 32, $8 (1997) (defining principal as “the one who
actually conmits a crime” (quoting Black's Law Dictionary 1192
(6th ed. 1990))). HRS § 702-222 (1993) defines accomplice
Liability as follows:
Liability for conduct of another; complicity. A
person is an accomplice of another person an the commission
bf an offense ite
(i) Mth the intention of promoting or facilitating
tthe commission of the offense, the person:
(a). Solicits the other person to commit it; or
©) ‘OF attempts to aid the other
ining or conmiteing 1t7 oF
te) Having a legal dury to prevent the comission of
the offense, fails to make reasonable effort so
to dor or
(2) The person’ s conduct ts expressly declared by law
to establish the person's complicity.
‘The Commentary states that this section avoids the concept of
“conspiracy” in determining accomplice liability, explaining
that:
‘The Code avoids the vague concept of conspiracy in basing
Penal Liability on the conduct of another, and focus
Snstead on she conduct of the accused wnich is sufficient to
establish the accused's complicity... « Although the
Statutory law did not resort to the term’ “conspiracy” te
n
‘***FOR PUBLICATION***
establish complicity, the court has. (*) This should be
Gvolded because in some instances, where the chain of
Conspiraters Aaa become attenuated, imposition of 1iabiliey,
Gn the basis of complicity, for acts of renote conspirators
might be of questionable wisdom.
Commentary to HRS § 702-222 (footnote omitted).
on the other hand, conspiracy is a crime separate from
the crimes Petitioner was charged with and is defined in HRS §
708-820 (1993):
Criminal Conspiracy. A person is guilty of criminal
Conspiracy if; with intent to prosste oF facilitate the
Commission ofa erin
(a"ue egress with one or more perscns that they or
fone or more of thes will engage in or solicit the conduct or
wli°tause of solicit the result specified by the definition
Se the offense; ans
(2) He ex another person with whom he conspired
commits an overt act sn pursuance of the conspiracy,
This court has recognized that a defendant can be charged and
convicted of @ substantive crime as well as 2 separate
conspiracy. State v. Okumura, 78 Hawai'i 383, 411, 894 P.20 80,
208 (1995) (concluding that the jury should only consider the
conspiracy charge after reaching verdicts on al substantive
burglary charges and that the defendant could be found guilty of
conspiracy, separate from the substantive burglary charges, if
the jury found that the objective of the conspiracy was the
commission of burglaries other than those the defendant was to be
found guilty of and that an overt act in furtherance of that
burglary had been connitted by the defendant or one of his co-
conspirators). As is apparent from the facts, Petitioner was not
charged with conspiracy in any of the cases.
The Commentary refers to gate ta Yoshing, {5 Haw, 640, 372 F.2d
20s 1362), ond Gentes. Youhigas 8 awSes Set foe tose visel)
12
‘+**F0R PUBLICATION*+*
With respect to the court’s reference to a
“conspiracy,” the prosecution contended on appeal in part,' that
“the [court] did not abuse its discretion in sentencing
(Betitioner] to consecutive terms of imprisonment where the court
alluded to [Petitioner's] involvement in a drug distribution
conspiracy after imposing its sentence,” (emphasis in original),
because “it appears that the sentencing court arguably may not
have even relied on [Petitioner’s] involvement in a drug
distribution conspiracy as an ‘aggregating factor’ in imposing a
consecutive sentencing [sic] in this case,” inasmuch as (a) the
court focused on the Petitioner’s “blatant repetitive illegal
conduct," and (b) the court recognized the “pain” Petitioner had
caused the community “based on the large dealership amounts of
methamphetamine possessed by [Petitioner].”
qr.
We observe, first, that it is established in this
< the prosecution also argued that (1) @ sentencing judge hae brood
discretion in sentencing a defendant snd therefore must be provided with
Complete information about the defendant, (2) the court considered the factors
fo be considered in imposing @ sentence, ag set forth in HRS § 706-606 (1993),
in determining whether Petitioner's prison terme should run consecutively or
Concurrently, (3) “HRS $ 706-668.5 (1993) permits consecutive sentencing Lf
multiple terms of imprisonment are inposed on a criminal defendant at the
Eine,” (4) the court hed information Before it from the court record in case
090 that Petitioner wae involved ina conspiracy to sell drugs, insofar oe
(a) Petitioner argued in his Menorandur in Opposition te State's Hotion €o
Consoligate in that case thet the druge and erug paraphernalia found in one of
the black bags belonges to Fanelii, (bp) Petitioner and Fanalsi were arrested
for several identical offenses, (c) Petitioner and Famalil were both charged
as a "principal and/or an accomplice” in their respective indictments, and
(a) Petitioner and Kanalii "were indicted pursuant to a single grand jury
presentation,” and (3) the court could nave concluded that Petitioner was
Envolvea in @ conspiracy to sell drugs based on his letter to the court
Because “it fe clesr from the context of the sentencing court's comments that
(Petitioner) adnitted there was sone type of conspiracy.” in light of the
Gisposition herein, further mention of these argunents is unnecessary.
13
‘+##F0R PUBLICATION**#*
jurisdiction that although a court has broad discretion in
sentencing, it cannot rely on any uncharged crime in exercising
that discretion.
While e court has broad discretion in imposing 2 sentence,
ard can consider the candor, conduct, remorse and background
Of the defendant as well as the circumstances of the crime
Gnd many cther factors, a judge cannot punsch 2 defendant
fer an Uncharged crime in the belief that it too deserves
ponishment
‘State v. Nunes, 72 Haw. 521, $26, 824 P.2d 837, 840 (1992). Thus
a palpable clain of error arises when 2 sentencing court cites an
uncharged crime as a factor in its sentencing decision. It is
not accurate, then, to rest disposition of such a claim on
whether the court had information sufficient to support its
exercise of discretion. For in Nunes the presence of such
information did not justify “punishiment] . . . for an uncharged
crime in the belief that it too deserves punishment.” Id.
As said before, Petitioner was not charged with
conspiracy. Despite this, the ICA concluded that assuming that
the court “indicated its reliance on [the existence of a
conspiracy] in fashioning its sentence,” slip op at 16 (emphasis
added), the court did not abuse its discretion because it in
effect “fit{] the punishment to the crime(,]” id, (quoting
Wellina, 106 Hawai'i at 449, 106 P.3d at 372 (citation and
internal quotation marks omitted). But if the court did in fact
rely on the uncharged crime of a conspiracy in “setting its
sentence,” its sentence must be vacated under Nunes, 712 Haw. at
526, 824 P.2d at 840 (observing that, except for the fact that
uM
‘**#FOR PUBLICATION*#*
the victim made inconsistent statements, trial judge’s belief
that victim “lied for the defendant,” was unsupported in the
record, and holding that while a court has “broad discretion in
imposing a sentence, . . . a judge cannot punish a defendant for
an uncharged crime in the belief that it too deserves
punishment”), Vellina, 106 Hawai'i at 449-50, 106 P.3d at 372-73
(holding that trial court abused its discretion when it sentenced
defendant to consecutive terms of imprisonment after considering
an uncharged crime that was unsupported by the record), and
Minge, @1 Hawai'i at 321-25, 916 P,2d at 1222-25 (concluding that
defendant was given “adequate notice of the possibility of
receiving a sentence of consecutive terms of imprisonment” but
that the trial court exceeded its authority in imposing
consecutive sentences when it relied on insufficient evidence of
defendant's membership in a gang as an aggravating factor in
imposing the sentence).
Wie observe that in consonance with one of the
prosecution’s arguments on appeal, the ICA characterized the
court's reference to @ conspiracy as being a “post sentence
statement{].” Slip op at 15. Tt is arguable based upon the
context in which the court’s remarks were made that the reference
to a conspiracy was necessarily divorced from the court's
preceding comments. However, the court did enumerate grounds
independent of the reference to @ conspiracy that would support
its consecutive sentence disposition as being within the scope of
as
‘***FOR PUBLICATION***
discretion traditionally accorded @ sentencing court. Cf. State
ve Ta , 96 Hawai'i 195, 199, 29 P.3d 914, 918 (2002)
(noting that “discretionary use of consecutive sentences is
properly imposed in order to deter future criminal behavior of
the defendant, to insure public safety, and to assure just
punishment for the crimes committed”).
That fact alone, however, would not conclusively
sanitize the court's sentence. In Vinge, this court stated that
other factors would not support consecutive sentences if the
court's remarks “clearly indicate(d]” that an improper ground was
an “aggravating factor” in the sentencing decision:
nile Vinge’s past criminal record and che egr!
facts surrounding the Honsport robbery may independently
jpport.@ sentence of consecutive terms
ntencing court's remarks during Vinge’ s
EXeatly Snaicste enat Vinge's essociation
Hone Soys, i.e, ns “gang-related activity,” was an
aggravating factor in the sentencing court's decision to
Expose consecutive sentences
Vinge, 61 Hawai'i at 324, 916 P.2d at 1225. Thus, as stated
supra, in Vinge this court concluded that the trial court
improperly considered evidence of gang association in imposing
sentence. Id.
In this case, before it imposed sentence and
subsequently referred to a “conspiracy,” the court was presented
with and set forth a multiplicity of circumstances that would
support an exercise of discretion in favor of consecutive
sentences, This included information of Petitioner's continued
drug offenses while awaiting disposition of his cases, his
“dealing” of drugs, the impact of his conduct on the community,
16
‘***F0R PUBLICATION*#*
and the need for deterrence of other persons involved in drug
offenses. In this context, the remarks of the court did not
“clearly indicate” that an “aggravating factor” in the court’s
sentence rested on the uncharged crime of a conspiracy. On this
basis we conclude the ICA's analysis was incorrect but that its
ultimate decision on this issue does not require reversal and is
therefore affirmed.
Josette Anne Wallace,
fon the application for
petitioner /defendant~ :
appelii Mixa Fplinnse~
v
|
a6aef30e-c556-4a1b-94ab-9aed3bc5d7c8 | Schmidt v. Pacific Benefit Services, Inc. S.Ct. Order of Correction, filed 07/06/2006 [pdf]. S.Ct. Order Denying Defendant-Appellant Pacific Benefit Services, Inc.s Motion for Reconsideration, filed 07/06/2006 [pdf], 111 Haw. 114. S.Ct. Order Denying Appellee's Motion to Dismiss Appellant's Notice of Appeal for Lack of Appellate Jurisdiction and for an Award of Reasonable Attorney's Fees and Costs, filed 04/30/2003 [pdf]. S.Ct.Order Denying Appellee's Motion to Dismiss Appellant's Notice for Lack of Appellate Jurisdiction and for an Award of Reasonable Attorney's Fees and Costs, filed 07/03/2003 [pdf]. | hawaii | Hawaii Supreme Court | *** FOR PUBLICATION *** y
a
J.P. SCHMIDT, in his capacity as Liquidator and
Trustee of the Pacific Group Medical Association
Liguidating Trust, Plaintiff-Appellee,
PACIFIC BENEFIT SERVICES, INC., Defendant-Appellant,
and
HENRY AKIU, JR. ; RANDOLPH KO; BRYON GRAVES, JR. ;
EDWIN RAMOS; WILLIAM A. WILLIAMS (also known as William
0. Williams or Billy Williams); RICHARD STILES; MARK
HOPKINS; HAROLD Y. KUWAHARA; JUAN MARTIN GONZALES; MIKE
CLEARE; WATSON WYATT & COMPANY; WIKOFF COMBS & CO., CPA’S;
FOUR WINDS RSK, INC.; AULI'I, INC.; TORAL-VAHEY & ASSOCIATE:
BRIDGEPORT BENEFITS, INC., a foreign corporation;
NEVADA EQUITY & GROWTH MANAGEMENT, a foreign corporation;
PGMA, INC., a Hawai'i corporation; WAYNE BLASMAN;
DOUG ROLEFSON; TERRY CONLAN; LEE ANN KIM;
DONALD WAKEMAN; JAMES R. LINDSEY; JOHN DORS 1-50;
JANE DOES 1-50; DOE CORPORATIONS 1-50; DOE PARTNERSHIPS
1-50, AND DOE ENTITIES 1-50, Defendants.
and
HENRY AKIU, JR. and EDWIN RAMOS, Third-Party Plaintiffe,
PACIFIC BENEFITS SERVICES, INC., a Hawai'i corporation,
‘Third-Party Defendant-Appellant,
and
PETER PO SING WONG; SUSAN WONG; LING FONG WONG; GEORGE
MINGO; BRENDA MINGO; PACIFIC EQUITY GROWTH & MANAGEMENT,
INC., a Hawai'i corporation; PACIFIC EQUITY FACTORS, INC.,
‘a Hawai'i corporation; PACIFIC EMPLOYEE LEASING, INC.,
a Hawai'i corporation; HAWAII DENTAL PLAN, INC., a Hawai'i
corporation; P.S. WONG, LTD., a Hawai'i corporation;
PO SANG CORP., a foreign corporation; NISHTHAMA & KISHIDA,
PA'S, INC., a Hawai'i corporation; JOHN J. D'AMATO;
D’AMATO & MALONEY, a Hawai'i law partnership; JOHN DOES
qa
*** FOR PUBLICATION ***
Se
1-10; JANE DOES 1-10; and DOE CORPORATIONS 1-10,
‘Third-Party Defendants.
Civ, No. 99-4504
J.P. SCHMIDT, in his capacity as Liquidator and
Trustee of the Pacific Group Medical Association
Liquidating Trust, Plaintiff-Appellee,
PACIFIC BENEFIT SERVICES, INC,, Defendant-Appellant,
and
PETER PO SING WONG; WATSON WYATT WORLDWIDE; WATSON WYATT
& COMPANY; THE WYATT COMPANY; WIKOFF COMBS & CO. CPA'S,
INC. ; NISHIHAMA & KISHIDA, CPA'S, INC., a Hawai'i corporation;
PACIFIC EQUITY GROWTH & MANAGEMENT, INC., a Hawai'i corporation;
PO SANG CORP., a foreign corporation; HAWAII DENTAL HEALTH
PLAN, INC. (also known as Hawai'i Dental Plan, Inc.), a Hawai‘
corporation; FOUR WINDS RSK, INC., a Hawai'i corporation;
TORAL-VAHEY & ASSOCIATES; WAYNE BLASMAN; DOUG ROLEFSON;
BRIDGEPORT BENEFITS, INC., a foreign corporation; NEVADA
EQUITY & GROWTH MANAGEMENT, 4 foreign corporation; SUSAN WONG;
LING FONG WONG; P.S. WONG, LTD,, a Hawai'i corporation,
PACIFIC EMPLOYEE LEASING, INC., a Hawai'i corporation;
PACIFIC EQUITY FACTORS, 'INC.,'a Hawai'i corporation;
PGMA, INC., a Hawai'i corporation; PGMA DENTAL, a Hawai‘i
corporation; TERRY CONLAN; LEE ANN KIM; DONALD WAKEMAN;
JAMES R. LINDSEY; JOHN DOES 1-50; JANE DOES 1-50; DOE
CORPORATIONS 1-50; DOE PARTNERSHIPS 1-50, AND
DOE ENTITIES 1-50, Defendants.
SS
No. 25755
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 97-5273-12 RWP & 99-4504-12 RWB)
MAY 32, 2006
MOON, C.J., LEVINSON, NAKAYAMA, AND ACOBA, JJ. ;
CIRCUIT JUDGE AUGUST, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY MOON, C.J.
*** FOR PUBLICATION ***
‘The instant appeal involves an arbitration award issued
on November 25, 2002 (Award) in favor of plaintiff-appellee J.P.
Schmidt, in his capacity as Liquidator and Trustee of the Pacific
Group Medical Association Liguidating Trust! (hereinafter,
Schmidt] and against defendant-appellant Pacific Benefit Services
(PBS). PAS appeals from the Circuit Court of the First
Circuit's combined order, filed on March 10, 2003, (1) denying
PES‘s Motion to Vacate Arbitration Award (notion to vacate),
(2) granting Schnidt’s Motion for Order Confirming Arbitration
Decision and Award (motion to confirm), and (3) dismissing
Schmidt’s Motion to Strike PBS's Motion to Vacate Arbitration
Award (motion to strike) .
on appeal, PBS asserts that the circuit court
erroneously concluded that its motion to vacate was untimely and,
therefore, erred in confirming the Award in total disregard of
the merits of ita motion to vacate. Specifically, PBS contends
that the Award did not conform to the statutory requirements
+ the case was originally brought under the name of the previous
Insurance Commissioner, Wayne C. Metcalf, IIT, in his capacity as Liquidator
land Trustee of the Pacific Group Medical Association Liquidating Trust. J.P
Schaide, Zeq. succeeded Metcalf ae the Insurance Comissioner and was
substituted ae plaintife pursuant to Haval't Revised statutes (HRS) § 432:25-
309(a) (1993). Section 431:15-307 a) provides in pertinent part:
An order to Liguidate the business of a domestic
ineurer Niseioner and the
somissioner-a guccesiors in office Liquidator, and hall
Girect the liquidator forthwith to take possession of the
Astete of the ingurer and to administer then under the
General supervision of the court
(Emphasis added.)
+ the Honorable Richard ¥. Pollack presided over the instant case.
*** FOR PUBLICATION ***
under HRS § 658-8 (1993), quoted infra. Based on the following,
we affirm the circuit court’s march 10, 2003 order confirming the
Award.
1. BACKGROUND
On June 8, 2002, Metcalf, in his capacity as then-
Liquidator and trustee of the PGMA Trust [hereinafter, Schmidt,
see supra note 1] filed his Second Amended Complaint against,
Anter alia, PBS.’ Schmidt and PBS reached a settlement in which
they agreed to submit Schmidt’s claims against PBS, as alleged in
the second amended complaint, to binding arbitration to be
conducted by James F. Ventura, Esq. The parties agreed that the
sum of one hundred thousand dollars ($100,000), less the
arbitrator's fees, was to be awarded to the prevailing party.‘
The arbitration hearing took place on November 6, 2002. On
Novenber 25, 2002, the arbitrator issued his decision as set
forth in the Award. In a letter accompanying the Award, the
arbitrator stated in pertinent part:
® the Second Anended Complaint named nunerous defendants and requested
Chat the court hold them jointly and severally liable for damages relating to
unpaid insurance clains ana debts reeuiving from eighty-one different couse,
alleging, inter alia, unfair and deceptive trade acte cr pract ic
hegligence, unjust enrichment, negligent msrepreseatation, breach of
Fiduciary duties, and tortious conduct. Schmict eertied his claims againet
the other defendants, Therefore, the inetant suit involves only the claims
against Pas
“Schmidt notes in his answering brief that $100,000 represents the
amount in iapute between the parties. Schmidt also notes that wthe amount ie
Currently held in an escrow account and resulted fron the auction of cestaia
office equipment in the liquidation special proceeding.”
*** FOR PUBLICATION ***
melosed ie my decision and award in this matter. T
have not declared before @ notary that this ie my decision.
fand that this ig no longer required, If you need a
My bill for this arbitration is
240.00 or a total of $6,240.00.
In the Award, the arbitrator stated in pertinent part that:
I have reviewed all briefe subsitted between the parties,
Listened to the ive testimony and reviewed all of the
extibits submitted. Based on all of the abovel,] the
following is my deciaion and award... Thereby find
that [schmidt] is entitled to the sun of $100,000 minus my
arbitration fees, 1 therefore award to the Liquidator the
$100, 000 minus my arbitration fee
on December 10, 2002, Schmidt filed his motion to
confirm the Award. The Award, as well as the arbitrator's
accompanying letter, was attached as Exhibit “B" to the motion to
confirm. The declaration of Schmidt’s counsel stated that,
“[alttached hereto as Exhibit ‘B’ is a true and correct copy of
the Arbitrator’s Decision And Award. The Arbitrator’s Decision
and Award wae served on [Schmidt] on November 26, 2002." on
January 15, 2003, PBS submitted a memorandum opposing the
confirmation of the Award, asserting that the Award failed to
conform to the formal requirements of HRS § 658-8, which provides
in pertinent part:
‘The avard shall be in writing and acknowledaed or
ivered £9 ene. aries oF the party's
axtorney Ae any tina within one-year after the
ward ie nade and served, any party to the arbitration may
apply... for an order confirming the award. Thereupon’
the Gout ghali grant such an order, unless the award ie
Vacated, nodified, oF corrected, as prescribed in sections
50-9. and €50-10
(gmphases added.) Specifically, PBS contended that,
[senmide'e motion to confirm) {8 predicated on an unverified
writing (and, u]nder ehe statute in effect and
Governing the arbitration in this instance, an award
Sheolutely mist be acknowledged or proved “in like manner 2
a deed for the conveyance of real estate.” (HRS) § 656:
*** FOR PUBLICATION ***
SS
PRS further contended that the requirement that the Award be
acknowledged “goes to the heart of what went terribly wrong with
the proceedings conducted by the arbitrator.’ In its memorandum,
PBS criticized the arbitrator for not taking his duties seriously
and for dismissing PaS’s contention that one of Schnidt's
witnesses had presented misleading testimony.
on January 17, 2003, in response to PBS's opposition,
the arbitrator notarized a copy of the Award. Later that sane
day, Schmidt filed a reply memorandum in support of his motion to
confirm, stating that “[t]he Award issued by the [alrbitrator has
been acknowledged and is no longer in technical violation of HRS
[8] 658-8." According to Schmidt’s reply memorandum, PBS's “sole
argument" was rendered moot by the notarization. Schmidt also
argued that PBS’s arguments regarding misconduct were barred by
HRS §§ 658-9, -10, and -11 (1993), quoted infra, because PBS did
not file a motion to vacate, modify, or correct the award within
10 days after it was “made and served.”
On January 22, 2003, PBS filed its motion to vacate,
Pursuant to HRS § 658-9, arguing that the decision “exceeded the
authority of the arbitrator, which wai
Limited to claims against
PBS in the Second Amended Complaint, and/or as having been
Procured by corruption, fraud, and/or undue means.” On the same
day, Schmidt moved to strike PBS’s motion to vacate.
As previously indicated, on March 10, 2003, the circuit
court entered its order (1) denying PBS’s motion to vacate, (2)
*** FOR PUBLICATION ***
granting Schnidt’s motion to confirm, and (3) dismissing
Schmidt's motion to atrike as moot. Therein, the circuit court
stated that:
Here, the ten days (allowing for a motion to vacatel began
Tunning upon the date counsel for PBS received the award
that had Been forwarded to him with Mr. Ventura’s letter of
Novenber 25, 2002. Ae the coure has stated, there is
othing before the court to indicate that counsel for PBS
Gig noe recelve this letter in the tine frame of normal
Gelivery. (Schmidt's) counsel indicates that he received
Ehe letter on Novenber 26, 2002- In Light of the fact that
There is no contrary evidence before the court, the court
Wil assume counsel for PRE received the avard on or about
the sane date ae [Schmidt's] counsel. Accordingly, the
motion to vacate was required to be filed before Decenber 9,
2oo2 at the latest. Instead the motion was not filed until
Sanuary 22, 2003.
For the foregoing reasons, the court finds that the
tine to file a motion to vacate the arbitrat: ed
Gapited before PRE filed their motion. Beca @ motion
ESrvacate the arbitration award was untimely filed, it is
Genied. Accordingly, the Court does not look to the merite
Sf [Sehmide's] arguments on vacating the award. [Schmide’s)
Motion to confirm the arbitration avard is granted.
Tsehnidt's) motion to strike [P85)"s motion to vacate
arbitration filed January 22, 2003 is moot in light of the
Gourt' denial of the motion to vacate for untinelin
(capital letters altered.) PBS filed its Notice of Appeal on
April 8, 2003.
on April 24, 2003, prior to the transmission of the
record on appeal to thie court, Schmidt moved to dismiss PBS's
appeal for lack of appellate jurisdiction and also requested an
award of reasonable attorney's fees and costs (motion to
dismiss). Schmidt argued that this court lacked jurisdiction
(2) appeals may not be taken from a
over the appeal because:
denial of a notion to vacate an arbitration avard, but only from
(a) an order vacating an award, or (b) from a judgment entered
upon an award, @.g., a confirmation of an award; and (2) a party
may not appeal the confirmation of an award unless the party has
*** FOR PUBLICATION ***
eee
previously filed a timely motion under HRS § 658-9 (grounds for
vacating an award) or § 658-10 (grounds for modifying or
correcting an award). On April 30, 2003, this court denied the
motion to dismiss “without prejudice to [Schmidt] filing a
statement contesting jurisdiction in accordance with (Hawai'i
Rules of Appellate Procedure] Rule 12.1 (2003)! or a subsequent
motion to dismiss after the record on appeal is transmitted.*
‘The record on appeal was thereafter filed on June 9, 2003. on
une 12, 2003, Schmidt filed his second motion to dismiss PBS's
appeal for lack of appellate jurisdiction and again for an award
of reasonable attorney's fees and costs. On June 19, 2003, PES
filed its memorandum in opposition to Schmidt‘s second notion to
dismiss. Therein, PBS contended that it was entitled to appeal
the confirmation of the Award because the circuit court erred in
confirming the Award based on an erroneous conclusion that its
motion to vacate was untimely. On July 3, 2003, this court
denied Schmidt’s second motion to dismiss “without prejudice to
(schmidt] presenting any argument in the answering brief.”
Ir, STANDARDS OF REVIEW
A. Review of an Arbitration Award
Judicial review of an arbitration award is limited by
the following precepte:
sWithin 10 days after the record on appeal
is filed each app appellant shail file a statenent of
Jurindiction. Any appellee contesting jurisdiction aay file a eeatenent
Contesting jurisdiction within the sane period.
*** FOR PUBLICATION ***
Firat, beca
arbitration and thereby discourage litigation,
have broad discretion in resolving the dispute. Upon
mubmiseion of an issue, the arbitrator has authority to
Getermine the entire question, including the legal
Construction of terme of a contract or lease, as well as the
Gieputes facts. In fact, where the parties agree to
arbitrate, they thereby assume all the hazards of the
arbitration process, including the risk that the arbitrators
‘nay take mistakes in the application of lav and in their
findings of fact
Second, correlatively, judicial review of an
avbitration avard is confined to the strictest possible
Limite. An arbitration award may be vacated onty on the
four grounda specified in HAS § 658-9 and modified and
corrected only on the three grounds specified in HRS § 658-
fo. Moreover, the courts have no butiness weighing the
merits of the award.
‘Third, HRS G5 658-9 and -10 algo restrict the
authority of appellate courte to review jucgnents entered by
Circuit courte confirming or vacating the arbitration
awards:
e of the legislative policy to encourage
arbitrators
a: ii Real Eotate 103 Hawai'i 325,
336, 82 P.3d 411, 422 (2003) (internal quotation marks, brackets,
ellipses points, and citations omitted).
Findings of Fact and Conclusions of Law
(This coure} review(s] a trial court’s findings of
fact under the clearly erroneous standard. A finding of
fact le clearly erroneous wien, despite evidence to support
the finding, the appellate court is left with the definite
and firm conviction in reviewing the entire evidence that «
ihletake hse been comitres
Hawai'i appellate courte’ review conclusions of law de
nove, Under the right/wong standard. Under the right/weong
Standard, this court examines the facts and answers the
question without being required to give any weight to the
Geial court's answer to ie.
Id. at 337, 82 P.2d at 423 (brackets, internal quotation marks,
and citations omitted) .
III. DISCUSSION
A, Jurisdiction
1. Whether PBS May Appeal the Denial of its Motion to
vacate the Avard
HRS § 658-15 (1993) provide:
*** FOR PUBLICATION ***
Uniese the agreenent for award provides that no appeal
may be taken(,] an appeal may be taken from an order
Yacating an avard, or from a judgment entered upon an award,
a5 fron an order or judgment in an action, otherwiee no
Schmidt contends that HRS § 658-15 precludes an appeal from an
order denying a motion to vacate an arbitration award because it
only allows for appeals from (1) an order vacating an award or
(2) judgment upon the award, ije., a confirmation. PBS
counters that the intent of HRS § 658-15 is to avoid pieceneal
appeals and that “the [clircuit [c]ourt’s decision to deny
vacating the (Alward was an integral step in the proce:
leading
to the confirmation" of the Award. PBS further posits that, once
there is a final order confirming the Award, the correctness of
the underlying order denying the motion to vacate may be
addressed on appeal according to the very case cited by Schmidt
for the opposite contention. We agree with PBs.
“othe right of appeal is purely statutory and exists
only when given by sone [c]onstitutional or statutory
provision.’* Salud v. Fin, Sec. Ins. Co., 69 Haw. 427, 423, 745
P.2d 290, 292 (1987) (quoting Chambers v. Leavey, 60 Haw. 52, 57,
587 P.2d 807, 810 (1978)). Under HRS § 641-1(a) (1993), “appeals
[shall be] allowed in civil matters from all final judgments,
orders, or decrees of circuit . . . courts . . . to the suprene
court or to the intermediate appellate court, except as otherwise
Provided by law[.J* As previously stated, HRS § 658-8 permits
any party to an arbitration *[alt any time within one year after
the award is made and served, . . . [to] apply to the circuit
-10-
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court . . . for an order confirming the award. Thereupon{,] the
court shall grant such an order, unless the award is vacated,
modified, or corrected, as prescribed in sections 658-9[*] and
658-10["]." A party seeking to vacate, modify, or correct
+ wes § 658-9 provides:
in any of the following cases, the court may make an
order vacating the award, upon the application of any party
fo the arbitration:
(Gy Vnere ‘the award was procured by corruption,
fraud, oF undue means;
(2) Where’ there was evident partiality or corruption
In the arbicrators, or any of them
(2) here the arbitrators were guilty of misconduct,
In refusing to postpone the hearing, upon
aueficient cause shown, or in refusing to hear
idence, pertinent and material to the
controversy; or Of any other misbehavior, by
hich the Fights of any party have been
prejudicea:
(4) fihere the arbitrators exceeded their povers, oF
0 imperfectly executed then, that a mutual,
final, and definite award, upon the eubject
water subaitted, was not made.
where an award is vacated and the tine, within which
tthe agreement required the award to be made, ‘has not
expired, the court may in ite discretion direct a rehearing
by the arbitrators
> ars § 651
-10 provides:
In any of the following cases, the court may make an
order sodifying or correcting ene avard, upon the
application of any party to the arsitraticn
(2) Where there was an evident miscalculation of
figures, or an evident mistake in the
description of any person, thing, or property,
Feferred to in the awards
(2) here the arbitrators have awarded upon a matter
ot submitted to them, unless it ie a matter not
affecting the merits of the decision upon the
snatters submitted;
(2) there the avaré 18 imperfect in a matter of
form, not affecting the merits of the
controversy
(continued...)
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an award must serve notice upon the adverse party or the party's
attorney “within ten days after the award is made and served.
RS § 658-11 (1993).
In Salud, this court was presented with the question
whether an appeal may be taken from an order denying a motion to
vacate an award. In ruling that there was no such right, this
court stated that:
When van order confirming, modifying, or correcting an
award is granted, the relevant statute directs that "the
Same shall be filed in the office of the clerk of the
circuit court and this shall constitute the entry of
Judgment." RSS 658-12, And "an appeal nay be’ ta
Such judgeent as set forth thereafter in chapter £5
But nothing wet forth thereafter allows an appeal. trom an
order denving a motion to vacate an award; HRS § €50°15
proclaims instead in unmistakable teres that ‘an appeal may
be taken from an order vacating an award, or from a judgnent
entered upon an avard, otherwise no appeal may be had.”
‘Still, thie does not mean that the denial of a motion
to vacate ah award by the circuit court neceseariiy
forecloses an appeal sanctioned by MRS § 658-15. the
unsuccessful novant’s recourse would then be a motion co
Confirm the avard. Since the circuit court has already
Feviewed the award and decided no grounds exist for vacating
it, a confirmation shoula follow. The movant could then
perfect an appeal and obtain appellate review of the order
confirming the award.
‘The foregoing procedure would also make it possible
for soneone whose sation for modification or correction of
fan arbitrator's award has been denied to seck appellate
Feview of the circuit court's ruling. And where
confirmation of the avard is sought to facilitate an appeal
in either situation, the movant would not, of couree, be
estopped from urging the vacation, modification, cr
Correction of the award on appeal.
im from
Id, at 430-31, 745 P.2d at 292-93 (brackets, footnotes, and
ellipses points omitted) (emphases in original).* Further, in
*(..-continuea)
‘The order may modify and correct the award, so as to
effect the intent thereof, and pronote justice between the
parties
Excelsior Ledse Number one. Independent Order of odd Fellows ve
174 Haw. 210, 847 p.2a 652 (1992) (hereinafter, Bxceleior iadse) ,
this court made a contrary statement in a footnote, that
(continued...)
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nheimer v. AIG Hawai'i Insuranc | 77 Hawai'i 88, 881 P.2d
1234 (1994), this court discussed the holding in Salud, stating
that:
Because the statutory provisions governing judicial review
Of arbitration awards precluded an appeal from an order
Genving a notion to vacate an arbitration avard, we held in
Gaiud that this court lacked jurisdiction. However,
{mplicie in our ruling in galud is that, by virtue of mrs
s'e5ei2, an order confirming an arbitration avard is a
Exnal judgeent from which an appeal may be taken. Salud, 69
Baws ag 401, 745 P.2d at 293.
Id. at 92, 061 P.2d at 1237 (footnote omitted) (emphasis added).
Thus, an order denying a motion to vacate an arbitration award is
not a final judgment that may be directly appealed.
Here, the award was confirmed in the same order that
denied P8S's motion to vacate. As such, there is no issue of
finality here. However, inasmuch as HRS § 658-15 directs that
the circuit court “shall” confirm an order that is not vacated
prior to confirmation, we now examine the circumstances under
which a party may urge vacation of an award at confirmation and
on appeal.
"Cs continued)
RS § 658-25 will continue to be available to partie
tho have previously brought (motions under HRS $§ 658-9 and
Gee-10). "these parties will have the option of either
Sor ese: on or af pga trial couse’ =
fubssqusnt confixmation order, though that appeal will be
{aited toa consideration of the seven specific grounds
Einely railed under HRS §§ 658-3 and 658-10.
a. at 227 n.16, 847 P.2d at 660 n-16 (emphases added). Inasmuch as the issue
Before the court was the scope of an appeal of a confirmation award, and not
tbe appeal of « denial of s motion to vacate, sadify, or correct an award, the
Statement wes not essential to the holding in that case and, based on the
Subsequent case law, was not intended eo overrule Salud.
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eS
2, Whether PBS has the Right to Appeal the Confirmation of
the Award under HRS § 658-15
In Excelsior Lodge, this court expressly held that an
appeal under HRS § 658-15 from a confirmation of an arbitration
award is restricted to the grounds set forth in a timely motion
to vacate, modify, or correct an award under HRS §§ 658-9 and
658-10, Id, at 227, 647 P.2d at 660. In reaching its
conclusion, this court summarized the policies underlying HRS
chapter 658:
Tt i generally considered that parties resort to
arbitration to settle disputes more expeditiously and
inexpensively than by 2 court action, it must be deemed
Phat! the primary purpose of arbitration ie to avoid
Litigation
In furtherance of this objective, our legislature
enacted the Arbitration and Awarde Statute, MRS Ch. 653.
‘This court has decided to confine judicial review of
awards under the statute to the stricte
legislative cbject ive
Sm the enactment of the Arbitration and Awards statuce,
Id, at 225-26, 647 P.24 at 659-60 (quoting Mare Constructors.
Inc. _v. Tropical Enters.. Ltd., $1 Haw. 332, 334-35, 460 P.2d
327, 218-19 (1969) (brackets, ellipses points and block quote
format omitted). This court further noted that its holding was
based on the principle that “allow[ing) a party a second chance
at Litigation after it has conspicuously failed to comply with
the specific statutory provisions available for challenging an
award would frustrate the clear policy of facilitating the
legislative objectives behind the arbitration and award statute.”
Ed, at 227, 847 P.2d at 660. Therefore, PBS would be entitled to
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appeal the circuit court’s March 10, 2003 order only if its
motion te vacate was timely filed.
a. whether PRS’s motion to vacate was timely
As previously noted, HRS § 658-11 requires a party
seeking the vacation of an arbitration award to file notice of
such motion “within ten days after the award is made and served.”
PBS contends that the ten-day provision does not begin to run
until an arbitration award is made and served in compliance with
the statutory requirements under HRS § 658-8. Schmidt argues
that the award did conform to the requirements under HRS § 658-8
and that PBS’s motion to vacate was, therefore, untimely.
Schmidt argues in the alternative that an award need not comply
with all the statutory requirements in order to be final.
HRS § 658-8 states that an award “shall be in writing
and acknowledged or proved in like manner as a deed for the
conveyance of real estate, and delivered to one of the parties or
the party’s attorney.” (Emphasis added.) Here, the award was
signed by the arbitrator and sent by ordinary mail. It is
undisputed that the award was not “acknowledged” at the time it
was firet issued. Thus, the question is whether it was “proved
in like manner as a deed."
HRS § 502-S0(a) (1993) dé
jcribes the manner of proving
an unacknowledged deed for recordation in the bureau of
conveyances.
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Except as otherwise provided, to entitle any conveyance or
‘other instrunent to be recorded, it ghall be acknowledged by
the person or persons executing the same, before .
notary public Of the State. If .. . for any reason either
Proper certification nor = new acknowledgeent can be
Secured, the instrument nay be entered as of record on proof
of ite éxecution ub ne bei
. If all the subscribing witnesses to the
Conveyance or other instrusent are dead or our of the state,
‘roving the handwriting of the person execiting the sane and
anvaubscribing witness... -
(Bmphases added). The language above indicates that the time for
proving a deed occurs at the time the deed is recorded. as
indicated in Markham v, Markham, 80 Hawai‘i 274, 909 P.2d 602
(app. 1996), an unacknowledged deed is valid as between the
parties and affects only its ability to be recorded. tn Markham,
the Intermediate Court of Appeals (ICA) held such an award valid
between the parties and set forth the purpose behind the
acknowledgment requirement, noting that:
Bach instrument presented for recording mst contain «
certificate of acknowiedgeent verifying the identity of the
person executing the instrument. HRS § 502-41 (1993). “Zhe
a fas ne ard
vas Bxecuting & deed
that it is executes for the uses and purposes. it
« yo i8 Haw.
expresses.
258, 300 (2908)
it has also been held that even without recordation,
“* [a] eed apparentiy valid upon its face carries with ie a
presumption of validity’" aa between the parties toa decd,
Chew wun Chew Kee, 49 Haw. 62, 71, 422° 7.20
326, 332 (i966) (quoting McElxcy v. Calhoun, 177 Okla. 38
57 B.2a 827, 828 (2936))-" “Even if the deed had no
facknowledgeent, or ite equivalent, at all, it would still be
Good between the parties. As Detueen the parties
acknowledgnent of a deed ic not necessary.” Meheula va
1, 37 Maw. 56, 50 (1908) (citing Laasaiv,
Buchu, 2 Faw. 181 (1859)). See algo 2 6 Faw.
Gos, 620 (1923); Aiauv. Kupau, 4 waw. 84, 385 (ie61)
(holding that recording Is sotice to one bound to search the
record):
Ad, at 281-82, 909 P.2d at 609-10 (some brackets omitted)
(emphasis added). ‘Thus, an award need not be acknowledged to be
ois.
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valid and may be proved at the time of confirmation "in like
manner as a deed.” An unacknowledged award is, therefore, valid
and not a “nullity” for purposes of triggering the time to file a
motion to vacate the award.
Here, the Award was in writing and signed by the
arbitrator at the time it was issued on November 25, 2003.
Moreover, PBS never questioned the authenticity of the Award or
the arbitrator’s signature upon it. Therefore, the lack of an
acknowledgment did not affect the validity of the Award as
between the parties and did not affect the ten day time period in
which PBS was required to file its motion to vacate the award.
Even assuming arguendo that an unacknowledged award is
not in final form, the relevant case law supports the conclusion
that such a defect is not fatal to the award. Although PBS cites
to Ockrant v. Railway Supply and Manufacturing Co., 160 N.5.2¢
435 (Ohio Ct. Com. Pleas 1959), and Goeller v. Liberty Mutual
Insurance Co,., 568 A.2d 176 (Pa. 1990), in which those courts
held an award invalid for failure to strictly comply with the
formal statutory requirements, such cases are distinguishable.
held that it
In Ockxant, the Ohio Court of Common Pl
Aid not have jurisdiction to confirm an arbitration award because
the applicable statute required, inter alia, that an award *muat
designate the county in which Je was made,” 160 N.E.2d at 435,
and the award did not so state. However, nine years later in
entice Funeral Loe: 82) 1 Union of
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Operating Engineers, 241 N.E.2d 285 (Ohio Ct. App. 1968), the
Court of Appeals of Ohio confirmed an award with the identical
defect -- failure to designate the county in which the award was
made -- because a letter attached to the award had indicated the
vequisite information. Id, at 287-88. In Prentice Puneral Home,
the court expressly rejected Ockrant as authority.
In Goeller, the Supreme Court of Pennsylvania declared
that an award that was signed by only one of the two arbitrators
joining the award, rather than both as required by the applicable
statute, was a “nullity." Id. at 545. However, the court went
on to hold that there was a more substantive reason that the
award was a nullity because one of the arbitrators was “denied
his opportunity to deliberate," in contravention of the principle
that, “[wJhen an arbitrator . . . is denied access to the
deliberations of the other arbitrators, their decision is not a
decision." Id, Moreover, the Court of Appeals of Oregon
addressed a similar award in Tendrella v. Kaiser Permanente, 921
P.2d 361 (Or. Ct. App. 1996), that was not signed by all the
joining arbitrators and held that the defect did not render the
award a nullity, noting that, in Goeller, *[tJhe (Pennsylvania
Suprene Court] treated the failure to allow full participation of
all arbitrators as a more fundamental defect in the award than
the missing signature." Id, at 362 n.1. In reaching its
decision, the court reasoned that:
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eee
Inleversal is not required under the circumstances of this
case. sere, there ig no question that the arbitrators held
Shearing, Considered the evidence, and reached a decision
There is no question that the 1992 (improperly signed
Gecision, svard, and additional findings} accurately state
their decision, Neither the statute nor, so far as we are
Sware, the arbitration agreement establishes any tine period
Within which the arbitrators must make their decision.
Plaintiffs, in fact, knew what the decision was shortly
After the arbitrators reached it; any delay in executing a
formal avara has not prejudiced them.
‘ne arbitrators, however, have already corrected the award by
Their affidavite to the court im response to plaintiff
Sxeeptions. That correction was before che court (even aseuming
thet it was not formally *filea") when it ruled on the exceptions
There ie, thus, no purpose in a remand to correct « technical
crror that has’ already been corrected. whether the trial court
Based ite ruling on the 1982 documents or on the 1994 [properly
iGned copy of the award] does not affect our decision; the record
iove that the arbitratore have made a proper award and that the
Guard supporta the trial court's Judgment.
Id, at 362 (footnote omitted).
‘The two cases cited by PBS involved the strict
application of the formal requirements of an award. However, the
statutes in Ockrant and Goeller did not provide an alternative
means of satisfying such a requirement, whereas, in the instant
case, either acknowledgment or proof is permitted. Moreover, as
Indicated, other courts have declined such strict application of
formal requirements. Although this court has not yet ruled
directly on the instant issues, this court’s ruling in Brennan v.
Stewarts’ Pharmacies, Ltd., 59 Haw. 207, 579 P.24 673 (1978),
coupled with the United States District Court for the District of
128 F.
Hawaii's application of that case in Brown v, Hyatt Corp.
Supp. 2d 697 (D. Haw. 2000), seem to support the elevation of
substance over form in upholding the validity of arbitration
awards.
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SSS
In Brennan, this court declined to address the
ity of formal acknowledgments, and instead focused on the
substantive requirement of finality of the arbitrator's decision.
In that case, this court det
mined that an unacknowledged award
was not a final award because the conduct of the arbitration
panel's chairman “led [appellant] to believe that the arbitration
in question was not (final]* until the issuance of 2 subsequent
award. 59 Haw. at 222, $79 P.2d 673 at 681. Brennan involved a
dispute over the lease rents for a shopping center. After a
hearing and discussions by the three-member arbitration panel,
the chairman of the panel drafted a memorandum with which one
other arbitrator concurred and signed. The third arbitrator,
however, wrote a concurrence to the decision, noting that he
disagreed with the memorandum but deferred to the majority Id.
at 218, 579 P.2d at 680. Thereafter, the chairman did not send a
copy of the memorandum of award to either party to the
arbitration, but sent it to the property manager and did not
include a copy of the concurrence. Id, Subsequently, the
chairman met with the shopping center's managing partner and
informed him of the conclusion reached by the panel. The
appellant alleged that the chairman then took the following
actions: (1) in respon:
to the manager's disagreement with the
memorandum, the chairman stated that “the matter was not final
and no decision had been made"; (2) he held a meeting with one of
the other arbitrators and representatives of the parties to
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discuss the interpretation of the 1 (3) at the parties’
suggestion, he met with an impartial attorney to discuss the
lease interpretation; (4) he later stated that he had decided to
reconvene the arbitration panel; and (5) he signed a final award
sent by one of the parties with 2 notice that the party would
thereafter move to confirm the award. Id, at 219-21, 579 P.2d at
660-81. In affirming the trial court’s ruling, this court stated
that:
‘The record contains sufficient evidence in support of
the trial court's finding that the conduct of [the panel
Chairman] Jed [appellant] to believe that the arbitration in
Guestion was not finalized until the May eward.
‘The lasue, therefore, 19 not whether formal
acknowledgrents are necessary oF not though i is
Sovious thet the January avard did not technically comply
With the provisions of HRS § 658-8 ‘The question
herein which was determined by the trial court is whether
the arbitrators had concluded their consideration of the
[esue submitted to them and reached a resolve by the
nenorandum of award of January of By the arbitration award
of May.
Id. at 222, 579 P.2d at 681 (footnote omitted). Concluding that
a majority of the arbitrators exceeded their powers and failed to
decide a question submitted to them and that the concurring
arbitrator failed the impartiality requirenent within the meaning
of HRS § 658-9, this court affirmed the trial court’s order
vacating the arbitration award. Id, at 223, 579 P.2d at 682.
As previously mentioned, the United States District
court for the District of Hawai'i relied on Brennan in Brown.
‘The district court's ruling in Brow is relevant to this
Aiscussion inasmich as it directly addressed the validity and
effect of an unacknowledged award. tn that case, as in the
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ee
instant case, the plaintiffs claimed that the ten-day period to
file a motion to vacate had not started to run because the
arbitration award did not conform to the requirements of
acknowledgment and delivery under HRS § 658-8. zd. at 701. The
@istrict court disagreed, stating that:
Plaintiffs’ claim that the ten day period has not yet
started to run because the arbitration award Goce not
Conform to the requirements of Hine § 450-8 ie
meritless. .\. . Defendant’s counsel{] stated in the
declaration he attached to the opposition chat he received
the arnitration award on Septenber 28, ite date of
issuance. Moreover, Plainei¢fi
copy of che arbiti
Seelaration wrote Buhibit "A ie @ true
fand correct copy of the arbitration award.” ‘The auard ie
signed by ail three arbitrate:
have been any confusion o impropriety about wien che award
was issued. Sea (Brennan, 59 Haw.
679-681]. tt is true that the signatures are nov notarized.
Yet, even in Brennan, the suprene Court of Hawai'i
Gowplayed the requiresant of an acknowledgment. The
Brennan court stated that “the issue... ia not whether
formal acknowledgnents are necessary or not,” but instead
is, "whether the arbitrators had concluded thei?
consideration of the ieue gubmitted to then and reached
resolve by the memorandum of award." “id, ae eel. “there fe
no serious contention that the arbitrators have not
Concluded their consideration of the iss The. (eloure
finds that the award of Septanber 23, 2000 wae sufficient
under Brennan:
Id. Although the federal court dismissed the formal requiremente
under HRS § 658-8 pursuant to thie court’s holding in Brennan, it
acknowledged that the holding in that case relied on an
alternative ground other than technical noncompliance with the
statutory requiremente of an award.
Although Brennan did not resolve the instant issue, the
proper focus of inquiry under Brennan is whether an award was
final; not whether formal acknowledgment had occurred. Moreover,
the statutory language under HRS § 658-2 and relevant case law
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i
indicate that formal acknowledgment or proof does not affect an
award’s validity as between the parties and may take place at any
time prior to or at confirmation. Furthermore, its subsequent
acknowledgment cured the defect prior to confirmation. Thus, the
proper focus of inguiry under Brennan is whether the award was
final.
b. whet Not 25 ward was
In the instant case, PSS’s counsel compared PBS's
situation to Brennan at the hearing on its motion to vacate the
Award, contending that the arbitrator’s letter accompanying the
Award gave him the impression that the Award was not final. In
the letter, the arbitrator noted, “[e]nclosed is my decision and
award in this matter, I have not declared before a notary that
this is my decision. 1 understand that is no longer required.
If you need a notary, please advise." PBS’s counsel argued that
the arbitrator's letter left him confused, similar to the parties
in Brennan, ae to when the award became final, stating:
[When 1 received that award, T focused immediately on the
Gover letter which said what it said. I understand this
fone required. Acknowledgnent isn't required. But if you
fC acknowledgaent, just tell m
it caly acknowledgment is required, and, I fully
expected that they would cone =~ (Schmidt ‘e] attorney would
Cone immediately to the arbityator and say you got to get
Enis acknovledged, Your Honor, it’s just so unfair to have
the contusion, co have any doubt as to when this award is
{o subject to the ten days running and hold that confusion
against a person. Tread that letter. 1 aid to
yeclf, of course, it's necessary. That will have to be
Gone. ‘When that's done, the time (to file a motion to
vacate) will start to run.
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Se
PBS’s counsel also declared that, “I took no action pending the
Arbitrator’s providing the acknowledgement [sic] he had offered
in his letter.”
As previously stated, under Brennan, an arbitration
award ig final when the arbitrator has concluded his
consideration of the issues and reached a resolution. 59 Haw. at
221, $79 P.2d at 681. Additionally,
[a) though es
fe {s no requirement that the avard be self-
executing, and although "it is not faulty seemuse litigation
je tn enforcing it," 6'CiJ.8. Arbitration § 2118
it should be “sufficiently definite thst caly
ial acts of the parties are needed to carry 1t into
effect," Mereury O12) # ‘ll worker
nt i, 187 F.2d 980, 982 (10th Cir, 1952); eee
Auge 6 C.J-8. arbitration § 115 (1975), and. “clear encughees
indicate ‘unequivocally what each party’ ie require co do,"
Martin Donke, racion § 28:04 (Rev.
Bd. 1364)" (Donke) =
Strickland v. Seiple, 5 Haw. App. 168, 171, 680 P.2d 533, 535
(1984). If the award is *‘incomplete, uncertain, and indefinite
it cannot be sustained.'* Id. at 173, 680 P.2d at 536 (quoting 5
Am. Jur. 2d Arbitration and Award § 141 at 622 (1962).
Unlike the situation in Brennan, the facts here do not
Support PES’s contention that the arbitrator's conduct was
misleading. Rather, the arbitrator's letter clearly states that
he had concluded his consideration of the issues and reached a
decision. He also included a bill for his services and stated
that, in his understanding, no further action would be necessary.
According to the letter, any further ministerial action to be
taken would only be at the request of the partie:
foregoing, it cannot be said that the arbitrator’s statement that
Based on the
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ee
he would acknowledge the Award at the request of the parties left
any doubt that the issues had been finally concluded. Therefore,
the Award was final
the ss on Sel
gxiggering the time limit for a motion to vacate
PBS contends that the Award was never “delivered”
within the meaning of the statute because it was not delivered
“personally or by registered or certified mail,” pursuant to the
requirements of HRS § 658-8. Schmidt contends that the statute
does not require such delivery and that the original Award was in
fact delivered to each of the parties.
RS § 658-8 states that, “(tlhe award shall be
delivered to one of the parties or the party's attorney. A copy
of the award shall be served by the arbitrators on each of the
ether parties to the arbitration, personally or by registered or
certified mail." (Emphases added.) Based on its plain language,
the statute clearly contemplates that only one original of the
avard is prepared and served upon one of the parties; all other
parties are served with a copy of the original award. the
atatute also clearly states that the arbitrator may serve copies
of the award “personally or by registered or certified mail.”
The statute, however, states only that “(t]he award [(i.e., the
original)] shall be . . . delivered to one of the parties or the
party's attorney.” Thus, if this court were to follow the
cirouit court's ruling that ordinary mailing constitutes
“delivery” under the statute, then the requirements for service
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eee
of the original would be less stringent than the requirements for
service of a copy, which is absurd. See AOAO of Maslaea Kai,
Inc. v. Stillgon, 108 Hawai'i 2, 27, 116 P.3d 644, 669 (2005)
(applying the rule that, "because the legislature is presumed not
to intend an absurd result, legislation should be construed to
avoid, if possible, inconsistency, contradiction, and
illogicality*) (citation omitted)). Consequently, the reference
to “delivered” can only mean “personal or hand delivery" of the
original of the award
Here, the record does not indicate whether the Award
that was mailed to PBS was an original or a copy. In either
case, ordinary mailing would not have satisfied the statutory
service requirenents. Nevertheless, the purpose of the statute
-> that is, to ensure that the parties actually receive the
arbitrator's written decision -- was met. At no time did PBS's
counsel claim that he did not receive the arbitrator's written
decision. In fact, he confirmed his receipt thereof at the
February 13, 2003 hearing, as evinced by the following portion of
the transcript:
{eps's Counsel}: okay. If the copy, 1 mean {f the
ayard, ‘the original of che award, presumably, the original,
if the original award ia delivered to me,
THE COURT: Mich it was.
(P8s's Counsel]: No, i wasn’t. It was nailed
THE COURT: ALL right.
Moreover, as previously noted, PBS's counsel declared that, when
he received the unacknowledged award, he did not take any action.
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_
thus, the record indicates that PBS and its counsel did, in fact,
receive either the original or a copy of the arbitrator's written
award; however, the date upon which service was perfected is
unclear.
As previously indicated, Schmidt’s counsel indicated
that he received the Award on November 26, 2002, the day after it
was issued. Thus, the circuit court assumed that PES received
the Award on the same day as Schmidt and concluded that the ten-
day statutory time to file a motion to vacate expired on Decenber
9, 2002.° The circuit court ruled that PES’s motion, filed on
January 22, 2003, was untimely.
ven assuming arguendo that PBS never received the
Award through ordinary mail service, it is undisputed that PBS
received a copy of the Award, at the latest, on December 9, 2002,
as evinced by the certificate of service attached to Schmidt's
motion to confirm, which was served on that date, and to which a
werue and correct” copy of the Award was attached as Exhibit °B.”
‘Thus, even if the circuit court had given the benefit of the
doubt to PBS and utilized December 9, 2002 as the triggering
date, PBS's motion would had to have been filed by December 19,
2002; PBS did not file ite motion to vacate until over one month
later on January 22, 2003. ‘Therefore, as the facts illustrate,
PBS did not take appropriate action to preserve its right to
+ qe should be noted that the circuit court, for reasons not explained,
excluded weekends. from the ten-day calculation. However, even if excluding
Scckends wes in error, such error was Beneficial to PES inasmuch as it
provided additional time
-27-
*** FOR PUBLICATION ***
Se
appeal. Had PBS's counsel immediately moved to vacate the Award
oF requested that the arbitrator acknowledge the Award rather
than waiting for Schmidt to do so, PBS could have preserved its
right to move to vacate the Award. Instead, PBS decided to take
ne action following receipt of the Award even though it assumed
that acknowledgment was required and did not question the
authenticity of the arbitrator’s signature on the Award.
Accordingly, we hold that the circuit court did not err in
concluding that PBS's motion to vacate filed on January 22, 2003,
was untimely, and that this court is without jurisdiction to
review the Award.
iV. CONCLUSION
Based on the foregoing, we affirm the circuit court’s
Gp
Charles S. Lotsof, PER Linwae—
for defendant appellant Pests Ceeynnee
Pacific Benefit Services,
Ine.
clistord K. tiga, wendert Be
J. Puji, Lanson &. Kupau, Ts
and Duane C. Seabolt (of Vek 6 Dagenet—
Kobayashi, Sugita & Goda),
for plaintiff-appellee
J.P. Schmidt, in his capacity
as Liquidator and Trustee of
the PGMA Liguidating Trust
March 10, 2003 order.
on the briefs
-28-
|
faf12f90-8047-4bd6-aa17-eb017aa940bd | Fisher v. Fisher | hawaii | Hawaii Supreme Court | No. 26935
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(FC-D No. 03-1-3145)
on ING APPLI: FOR wh TO)
(By: Moon, C.J., for the court")
Petitioner-plaintiff-appellant Marie Stella Martin Fisher's
application for writ of certiorari, filed May 19, 2006, is hereby
granted.
DATED: Honolulu, Hawai‘i, May 30, 2006,
Paul A. Tomar and FOR THE COURT:
Jill M. Hasegawa
(of Ashford ¢ Wriston) .
15 peticioner pielaesee- Gff~ Sa
appelliane Saket ssarieffP™ Oy
SEAL
Reon
3
* Considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, oF
aa
|
e56cca5a-baf2-4697-a226-93c353251660 | U.S. Bank National Association v. Mascitto | hawaii | Hawaii Supreme Court |
'* NOT FOR PUBLICATION
no. 27748
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
U.S. BANK NATIONAL ASSOCIATION, fka FIRST BANK NATIONAL
ASSOCIATION, AS TRUSTEE FOR NEW CENTURY HOME EQUITY LOAN TRBST,
SERIES 1997-NC6, Plaintiff-Appellee =
EDDY J. MASCITTO, Defendant~Appellant
qos
and
ee YS
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE
CORPORATIONS 1-10; DOE ENTITIES 1-10 and DOE GOVERNMENTAL UNITS
1-10, Defendants
APPEAL FROM THE FIRST CIRCUIT COURT
(cIv. No. 03-1-0946)
ORDER DISMISSING APPEAL
(By: Nakayama, J., for the court®)
Upon review of the record, it appears that this court
informed Appellant by letter dated May 26, 2006, that the time
for filing the statement of jurisdiction expired on April 14,
2006, and the time for filling the opening brief expired on
May 14, 2006, and that, pursuant to Rule 30 of the Hawaii Rules
of Appellate Procedure, the matter would be called to the
attention of the court for such action as the court deened proper
including dismissal of the appeal. Appellant having failed to
file the statement of jurisdiction and the opening brief,
IT IS HEREBY ORDERED that the appeal is dismissed.
DATED: Honolulu, Hawai'i, June 15, 2006.
FOR THE COURT:
Raa Grmaegie {*
Associate Justice
‘considered by! Moon, C.J, Levinson, Nakayama, Acoba, and Duffy, 32.
|
9f6091b9-74f1-4b6f-ba92-8309b270326c | Gillan v. Government Employees Insurance Company | hawaii | Hawaii Supreme Court | TAY Liprany
*** NOT FOR PUBLICATION ***
No. 27769
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
MARGRET GILLAN, HOWARD KELLER, M.D., Plaintiffs-Appellees
GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant~Appellant
and
JANE DOES 1-10; DOE CORPORATIONS 1-10; DOE
ROE NON-PROFIT CORPORATIONS 1-10; and ROE
Defendants
JOHN DOES 1-107
PARTNERSHIPS 1-10;
GOVERNMENTAL ENTITIES 1-10,
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 05-1-0650)
ORDER DISMISSING APPEAL
for the court!)
(py: Nakayama, J.,
Taw?
oss
=
a
2
upon review of the record, it appears that the =
February 27, 2006 judgment, the Honorable Sabrina S. McKenna,
presiding, was certified as a final judgment under HRCP 54(b),
but the judgment does not contain the language necessary for HRCP
See Jenkins v. Cades Schutte Flemina &
54(b) certification.
1338-39
Weight, 76 Hawai'i 115, 119-120, 869 P.24 1334,
(2994) ("[T}£ a Judgment purports to be the final judgment in a
case involving multiple clains or multiple parties . . . {and}
if the judgment resolves fever than all claims against all
‘an appeal may be taken only if the judgment
parties, . .
contains the language necessary for certification under HRCP
[T]he necessary finding of no just reason for delay
s4(b).
Nakayama, Acoba, and Duffy, 29
‘considered by! Moon, C.J.» Levinson,
*** NOT FOR PUBLICATION ***
++ Must be included in the judgment.”). Thus, this appeal is
premature and we lack jurisdiction. Therefore,
IT IS HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction
DATED: Honolulu, Hawai'i, May 25, 2006.
FOR THE COURT:
Pcsseas Cr caster
Associate Justice
|
347ca720-d735-4186-bbc6-4a21bc51f59c | Johnson v. Beaman | hawaii | Hawaii Supreme Court | LAW LIBRARY
*** NOT FOR PUBLICATION ***
No. 27739
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
NETTIE JOHNSON, Plaintiff-Appellant
vs.
JAMES BEAMAN and HAWAII DISABILITY RIGHTS CENTER fna PROTECTION
‘AND ADVOCACY OF HAWAII, Defendants-Appellees
APPEAL FROM THE FIRST CIRCUIT COURT
a to beanie) os
ORDER DISMISSING APPEAL r
ee the court!) Bb
upon review of the record, it appears that
January 26, 2006 judgment, the Honorable Karen $.S. Ahn,
presiding, was certified as a final judgment under HRCP 54(b),
but the judgment does not contain the language necessary for HRCP
54(b) certification. See Jenkins v. Cades Schutte Fleming &
Wright, 76 Hawai'i 115, 119-120, 869 P.2d 1334, 1338-39
(1994) ("(1]£ @ judgment purports to be the final judgment in a
case involving multiple claims or multiple parties . . . [and] .
Af the judgment resolves fewer than all claims against all
parties, . . . an appeal may be taken only if the judgment
contains the language necessary for certification under HRCP
S4(b). . . « [T]he necessary finding of no just reason for delay
«+s must be included in the judgment.”). ‘Thus, this appeal is
premature and we lack jurisdiction. Therefore,
IT IS HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
DATED: Honolulu, Hawai'i, May 25, 2006.
FOR THE COURT:
Peete Ge
Associate Justice
‘considered by: Moon, C.J., Levinson, Nakayama, Accba, and Duffy, 29.
|
6d21c3af-6cbc-44a2-86be-7b4712de39ad | Young v. State | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION **
No. 25350
IN THE SUPREME COURT OF THE STATE OF HAWAI‘T
see
MONTE LOUIS YOUNG, JR., Petitioner-Appellant
STATE OF HAWAI'I, Respondent-Appellee
APPEAL FROM THE FIRST CIRCUIT COURT ©
i
(8.P.P, NO. 01-1-0020 (CR. NO. 97-1194))4) =
su Is NOR
(By: Moon, C.J., Nakayama, and Duffy, JJ.
and Acoba, J., dissenting with whom Levinson, J., joins)
Petitioner-Appellant Monte Louis Young, Jr.
[hereinafter “Young”) appeals from the first circuit court's!
september 5, 2002 order denying his Hawai'i Rules of Penal
Procedure [hereinafter “HRPP"] Rule 40 petition for post~
conviction relief.
on appeal, Young essentially contends that the circuit
court committed reversible error when it denied his petition and
ruled that the Hawai'i Paroling Authority [hereinafter “HPA"] did
not deprive hin of his rights to due process by arbitrarily and
capriciously setting his minimum term of incarceration
{hereinafter “minimum term”) at one-hundred-years, inasmuch es
the minimum term (1) contravened the legislative intent behind,
and thus violated, Hawai'i Revised Statutes [hereinafter “HRS") §
706-657 (Supp. 1996),? and (2) violated the “law of the case”
1 the Honorable Victoria §. Marks presided.
2 BRS § 706-57 provides, in its entirety, as follows
§706-657 Enhanced sentence for second degree murder. The
(continued,
aa
*** NOT FOR PUBLICATION ***
doctrine.
upon carefully reviewing the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we hold that:
(1) The HPA‘s one-hundred~year minimum term violated
neither the letter nor the spirit of HRS § 706-657, inasmuch as
HRS § 706-657 governs the circuit court's imposition of an
enhanced sentence and not the HPA’s determination of a minimum
term. See HRS § 706-657 (Supp. 1996); State v. Kalama, 94
Hawai'i 60, 64, 8 P.3d 1224, 1228 (2000) (**{WJe do not resort to
legislative history to cloud a statutory text that is clear.’")
(Quoting Ratzlaf v. United States, 510 U.S. 135, 147-48 (1994)
2(.. ,eontinued)
Court may sentence 4 person who has been convicted of murder in
the second degree to life inprisonment without possibility of
parole under section 106-656 sf the court finds hat the murder
Soe especially heinous, atrocious, or cruel, manifesting
‘exceptional depravity or that the person wae previously convicted
Sf the offense of mutder in the first degree or murder in the
Second degree in this State or was previcusly convicted in ancther
Jurisdiction of an offense chat would constitute surder in the
Eiret degree or murder in the second degree in this State. AS
din this section, the phrase “especially heinous, atrocious,
(cruel, manifesting exceptional depravity” means a
Conscienceless of pitiless crime which is unnecessarily torturous
fo'a victin and “previously convicted” means a sentence imposed
the same tine or 2 sentenct
Set aside, reversed, oF va
Hearings to determine the grounds for imposing an enhanced
sentence for second degree murder may be initiated by the
prosecutor or by the court on its own motion. The court shall not
Impose an enhanced term unless the ground therefor has been
established at a hearing after the conviction of the defendant and
on written notice to the dafendant of the ground proposed
Subject to the provision of section 706-604, the defendant shall
have the right to hear and controvert the evidence agsinst the
Gefendant and to offer evidence upon the issue.
*** NOT FOR PUBLICATION ***
(citations omitted)).?
(2). The HPA’s minimum term did not offend the “law of
the case” doctrine inasmuch as (a) our previous holding in State
Young, 93 Hawai'i 224, 999 P.2d 230 (2000) only precluded the
circuit court from imposing an enhanced sentence under HRS § 706-
657, id. at 238, 999 P.2d at 244, and (2) we have already
concluded that the HPA’s one-hundred-year minimum term is not the
functional equivalent of an enhanced sentence of life without the
possibility of parole. See Ditto v. McCurdy, 98 Hawai'i 123,
128, 44 P.3d 274, 279 (2002) (describing the “law of the case”
doctrine) .
(3) Young failed to demonstrate a due process
violation insofar as the two grounds presented are without merit
and any unspecified grounds have been waived. See Hawai'i Rules
of Appellate Procedure Rule 28(b) (7) (2002) (“Points not argued
may be deemed waived."); Taomae v, Lingle, 108 Hawai'i 245, 257,
118 P.3d 1288, 1200 (2005) (declining to address an alleged due
process violation insofar as the “argument (did) not contain any
reasoning, supported by citations to case law or authority to
constitute discernible argument”).
2 Young appears to suggest that, by effectively removing the
possibility of parole from pie Life sentence, the HPA has circunvented the
peeeiearal prerequisites set forth by the legislature in HRG § 706-657, yet
Exiieved che resuit contemplated therein. That contention is factually
seeteeetce Insofar as a one-hundred-year minimum term is not the functional
SENSIS of en enhanced sentence of life without the possibility of parole
$Rlaca, Young's minimun term ia not immutable and he may petition for 2
HiGiteion of his minimum sentence pursuant to Hawai'i Administrative Rules
euetnactor “HAR") § 23-7002), (1992)- Seg HRS § 706-669(5) (providing that
UnStSinthay, “lalfter sixty days petice to the prosecuting attorney,
PSuce ‘the ainimun term”); HAR § 23-700-26 (1992) (delinesting guidelis
Fetus te unether « redsction is warranted). It should be noted that ti
eecStGures would not be svailesle had he received an enhanced sentence und
Eas 706-65
for
*** NOT FOR PUBLICATION ***
‘Therefore,
IT IS HEREBY ORDERED that the judoment from which the
appeal is taken is affirmed.
DATED: Honolulu, Hawai‘i, June 14, 2006.
on the briefs:
Shawn A. Luiz, tn
sae one sopettant
Daas Ore roe
Lisa M. Ttomura,
Deputy Attorney’ General,
for respondent-appell
State of Hawai'i
Came, Ongis th
|
e1b1c770-2a77-4b43-a14f-9c315ed143f9 | Keahole Defense Coalition, Inc. v. Board of Land and Natural Resources, State of Hawaii | hawaii | Hawaii Supreme Court | LAW LIBRARY
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
=--000-
KEAHOLE DEFENSE COALITION, INC., a Hawai'i
nonprofit corporation; PEGGY J. RATLIFF and
MAHI COOPER, Appellants-Appellees
BOARD OF LAND AND NATURAL RESOURCES, STATE OF
HAWAI'I; DEPARTMENT OF LAND AND NATURAL RESOURCES,
STATE OF HAWAI'I; HAWAII ELECTRIC LIGHT COMPANY, INC.,
2 Hawai"! corporation, DEPARTMENT OF HAWAIIAN HOME
TANDS, STATE OF HAWAI'I, Appellees-Appelle
‘corporation, Appellee-Appellant Fs
.
SF
aa
(0068x)
Az ZiHd SZ AVH IONE
DEPARTMENT OF HAWAIIAN HOME LANDS, STATE
OF HAWAI'I, Appellant-Appellee
DEPARTMENT OF LAND AND NATURAL RESOURCES, STATE OF
HAWAI'I; BOARD OF LAND AND NATURAL RESOURCES, STATE OF
HAWAT'I; HAWAII ELECTRIC LIGHT COMPANY, INC., a Hawai'i
corporation, PEGGY J. RATLIFF, MAHI COOPER, KEAHOLE
DEFENSE COALITION, INC., a Hawai'i nonprofit corporation,
Appellees-Appellees
and
WAIMANA ENTERPRISES, INC., 2 Hawai'i
corporation, Appellee-Appel lant
(CIV, No, 02-1-0078K)
No. 26305
ORDER OF AMENDMENT
(CIV. NOS. 02-1-68K & 02-1-0079K)
MAY 25, 2006
MOON, C.J.) LEVINSON, ACOBA, JJ., CIRCUIT
JUDGE DEL ROSARIO FOR NAKAYAMA,’ J.,'RECUSED, AND
CIRCUIT JUDGE CHAN FOR DUFFY, J., ‘RECUSED; WITH CIRCUIT
SUDGE DEL ROSARIO CONCURRING SEPARATELY
AND WITH WHOM ACOBA, J., JOINS
‘The opinion of the court, filed on May 18, 2006, is
amended as follows (deletions are bracketed/stricken and the
additions are double underscored) :
Line 11 from the top of page 2: We hold that
(44h) Appellee-Appellant Waimana
Line 17 from the top of page 2: [+s+] was barred
by collateral estoppel[7] and[tet] does not have a
Line 21 from the top of page 2 to line 4 from the
top of page 3: Constitution[(r)4’ [+#+—netwithstandine
the teck of property_interestytetmane was —girende
eset aetenee gees Sa atte ne
protection vichettons—end—t#}tetmanehes—tetted to
extubitehebreech-of-the-pubitetrestr) and, thus,
[454] the circuit court of the third circuit (the
court),? did not
The Clerk of the Court is directed to incorporate the
foregoing changes in the original opinion and take all necessary
Article I, section 5 of the Hawai'i Constitution, entitled Due
and Equal Protection,” provides that
2/ The Honorable Ronald Tbarra presided
2
steps to notify the publishing agencies of these changes.
|