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9055a27c-e43d-43c2-8591-45c307e561ad | State v. Allison | hawaii | Hawaii Supreme Court | No. 26848
IN THE SUPREME COURT OF THE STATE OF HAWAI‘T
STATE OF HAWAI'I,
Plaintiff-Appellee-Respondent,
4
Hd 02 700 wuz
PETER M. ALLISON, °
Defendant-Appellant-Petitioner. 3}
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(Cr. No. 1P102-13357)
(HPD Rep. No. 02488390)
(By: Levinson, J., for the court)
upon consideration of the application for a writ of
on June 15, 2007, by the defendant-appellant-
certiorari filed
petitioner Feter M. Allison, the application is hereby rejected
Honolulu, Hawai'i, July 20, 2007.
FOR THE COURT:
& a
STEVEN H. LevisoBEAL
Associate Just
Be oc
DATED:
Q
Stephen M. Shaw
for the defendant
appellant-petitioner
fon the application
Considered by: Moon, C.J., Levinson, Nekayame, Acoba, and Duffy, JV.
|
2ca3fc84-a110-42ab-9c44-f2acd6b201ee | State v. MacArthur | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 27706
STATE OF HAWAI'T, Plaintife-Appellee-Respondediis Soy
Bale ny —
vs. Bie om mn
38 2 m
KEVIN ROGER MACARTHUR, Defendant~Appellant-Petitéfner. wp O
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(case No. CTB1 (MPD Rep. Nos. 00523854, 0523854AM) )
wt
(By: Levinson, J., for the court’)
Upon consideration of the application for a writ of
certiorari filed on May 31, 2007 by the defendant-appellant-
petitioner Kevin Roger MacArthur, the application is hereby
rejected.
Honolulu, Hawai'i, July 2, 2007.
FOR THE COURT:
DATED:
Matthew S. Kohm,
for the defendant-
appellant-petitioner
Kevin Roger MacArthur,
fon the application
considered by: Moon, C.J., Levinton, Nakayama, Aecbs, and ouffy, 93.
|
8d5075a2-2610-42c3-9e2d-0cb2d8fc656a | State v. Manewa | hawaii | Hawaii Supreme Court | No. 27554
se GUERENE coURT OF nH rae oF nawnsielS
STATE OF HAWAI'I, Respondent /Plaintiff-Appel1&|
9E «1 Rd | L~ SAW L002
ve. a
ISAAC K. MANEWA, JR., Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 04=1-0304)
(ORAL ARGUMENT AND CANCELLING ORAL ARGUMENT
(By: Acoba, J., for the court’)
upon consideration of the Second Motion for
Postponement of Oral Argument filed by Respondent/Plaintiff-
Appellee State of Hawai
; the declaration attached thereto, the
record herein, and considering this court's oral argunent
scheduling calendar,
IT IS HERESY ORDERED that the motion is denied.
If IS FURTHER ORDERED that oral argument shall be
cancelled and this matter shall be decided on the submissions of
the parties.
DATED: Honolulu, Hawai'i, August 7, 2007.
FOR THE COUR
Rssociate Justice
Loren J. Thonas, Deputy
Prosecuting Attorney,
City and County of Honolulu,
on the motion for
respondent /plaintiff-appellee.
) considered by: Moon, C.J., Levinson, Nakayama, Acobe, and Duffy, JJ.
a3us
|
b7b9f143-b470-4e73-982b-c9267fd1accd | The Bank of New York, as Trustee of Amresco Residential Securities Corporation Loan Trust 1997-3 v. Dejos | hawaii | Hawaii Supreme Court | LAW LISRARY
Wo. 26534
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
BANK OF NEW YORK, AS TRUSTEE FOR AMRESCO
RESIDENTIAL SECURITIES CORPORATION LOAN TRUST 1
, Respondent /Plaintif£-Appellee
ass
vs.
fi
*e
Td S2 woe cage
ROSA B. DEJOS; JOHN S. ESPANOL; and JUDITH D. E!
Petitioners/Defendants-Appellants
ROSA E. DEJOS; JOHN $. ESPANOL: and JUDITH D. ESPANOL,
Petitioners/Counterclaimants-Appellants
BANK OF NEW YORK, AS TRUSTEE FOR AMRESCO
RESIDENTIAL SECURITIES CORPORATION LOAN TRUST 1997-3,
Respondent /Counterclaim Defendant Appellee
SSS
CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS
(CIV. Wo. 03-21-0114)
(By: Duffy, J., for the court’)
Petitioners /Defendants-Counterclaimants-Appellants
Rosa E. Dejes, John $. Espanol, end Judith D. Espanol’s
application for writ of certiorari, filed on May 16, 2007, is
hereby rejected.
Honolulu, Hawai'i, gune 25, 2007.
DATED:
Gary Victor Dubin FOR THE couRT:
for petitioners /defendants-
counterclainants-appellants
fon the application Cran £. Duty
Associate Justice
and Duffy, 29.
Moon, C.J., Levinson, Nakayama, Acob
> considered bys
|
0982f905-d86e-419d-8a09-cc51aadad0d7 | Frontier One, LCC v. McKenna | hawaii | Hawaii Supreme Court | LAWLIBRARY
No, 28603
IN THE SUPREME COURD OF ‘THE STATE OF HAWAT!
FRONTIER ONE, LCC, a Hawaii Limited Labiiry:|®
oat
THE HONORABLE SABRINA S. MCKENNA, JUDGE OF THE FIRST
CIRCUIT COURT, STATE OF HAWAI'I; VESTIN MORTGAGE, INC.
VESTIN REALTY MORTGAGE I, INC.; VESTIN REALTY
MORTGAGE 12, INC.; OWENS MORTGAGE INVESTMENT FUND:
BRIDGE CAPITAL, INC.; SUNSET FINANCIAL RESOURCES, INC.;
STATE OF HAWAI'I, Respondents.
ORIGINAL PROCEEDING
(CIV. NO, 04-1-2126)
(By: Moon, C.J., Levinson,
lakayama, Acoba, and Duffy, JJ.)
upon consideration of the petition for a writ of
mandamus filed by petitioner Frontier One, LUC and the papers in
support, it appears that the agreenent resolving the foreclosure
eale implements the October 31, 2006 order modifying the May 13,
2005 foreclosure decree. The provisions of the resolution
aor
ment are reviewable on app
1 of @ judgment entered on an
order confirming the foreclosure sale, the judgment may be stayed
pending appeal, and petitioner has an adequate remedy by way of
appeal. See HRS § 667-51(a) (2) (Supp. 2006); HRAP 8. ‘Therefore,
pers
joner is not entitled to mandamus relief. See Kema vs
Gaddis, 91 Hawai'i 200, 204, 962 P.24 334, 338 (2999) (A writ of
mandamus is an extraordinary renedy that will not issue unless
the petitioner denonstrates a clear and indisputable right to
relief and a lack of alternative means to redress adequately the
alleged wrong or obtain the requested action. Such writs are not
intended to supersede the legal discretionary authority of the
lower courts, nor are they intended to serve
legal remedies in
lieu of normal appellate procedures.). Accordingly,
I? IS HEREBY ORDERED that the petition for a writ of
mandamus is denied.
DATED: Honolulu, Hawai'i, July 5, 2007.
Sli ian
Rua bree gare
e
Yorn, Lelgs
|
b501ab65-53f8-4286-b00b-a9db6505d191 | FTW Revocable Trust v. Smith | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 27374
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
FTW REVOCABLE TRUST, STEPHEN R.
. Plaintis:
. HADLEY, and LINDA K. HADLEY,
‘Appel lants~Petiticners,
vs.
cepseed a nd ld ata haste ee pay
s
= a
a o i
CERTIORARI TO THE INTERMEDIATE COURT OF APPERLRZ o
(Civ. No, 03-1-1967-09) “ae Oe
‘ORDER REJECTING APPLICETION FoR WaT oF ceRmionmh: = B
(By: Levinson, J
for the court’)
Upon consideration of the June 28, 2007 application for
4 writ of certiorari by the plaintiffs-appellante-petitioners FTW
Revocable Trust, Stephen R. Hadley, and Linda K. Hedley, end the
June 28, 2007 response by the sbove-captioned defendants~
appellees-respondents, the application is hereby rejected.
DATED: Honolulu, Hawai'i, July 23, 2007.
FOR THE COURT:
STEVEN H. LEV;
Forevant to Hawai'i Role of Appellate Procedure
smith is eubetitoted for Feter R. Young, he.
Thompson ané Neeley Cho! rensin,
Ses in theiy individuel cepecities anc,
ith reepect te the claims agesnet then in their official copecities, they are
Feplaced by their successers in office.
+ considered by: Neon, C.J., Levineon, Nakeyend
Circuit Judge Ayabe, in F
ene he
ce of Dutt}, ou, recused,
Bey ane
R. Steven Geshell,
for the plaintiffs-appellants-petitioners,
on the application
William J. Wynhoff,
Deputy Attorney General, for
the defendants-appeliees-r
‘on the response
pondents,
|
f858fdf5-ae0e-4de0-a925-71cd19d77138 | Vidinha v. Miyaki | hawaii | Hawaii Supreme Court |
*** NOTFOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
No. 26168
=
m
o
ALTHIA VIDINHA, Respondent-Appellant,
and
WARREN VIDINHA, CORY VIDINHA, KELLIE ANNE VIDINHA, JOEY
VIDINEA, BRANDON VIDINEA and ERITANNY VIDINHA, Plaintiffs,
CLYDE T. MIYAKI, M.D., and SHARON LAWLER, M.D.,
Petitioner-Appellees,
and
‘THE QUEEN'S MEDIAL CENTER, JOHN DOES 1-10, JANE DOES 1-10,
DOE CORPORATIONS 1-10, and’DOE PARTNERSHIP 1-10, Defendant
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(crv. No. 01-1-1477)
(By: Moon, €.9., Levineehy Makayana, Recbe, and Dutty, 23.)
Fetitioners-Defendante-Appellees Clyde 7. wiyaki, M.D.
(ruyekie) and sharon Lawler, M.D. (CLavier*) tinely filed an
application for writ of certicrars from the Intermediate Court of
popes’ (CIM) decision én Vidisha vw. Mivaki, 112 Heval'i 336,
LAS P.3d 679 (app. 2006), which
‘ated the October 23, 2003
First Amended Final Judgment of the Circuit Court of the First
*** NOTFOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
Circuit's! grant of summary judgment in Miyaki and Lawler's favor
and remanded the case for further proceedings. This court
granted certiorari on December 21, 2006 and subsequently ordered
oral argunent and’ further briefing.
upon careful review of the record and the briefs
submitted by the parties (including the supplenental briefs),
having given due consideration to the argunent advanced and the
issue raised, and also having heard and carefully considered the
parties’ respective arguments at oral argunent held on April 24,
2007,
IT IS HEREBY ORDERED that the ICA’s Novenber 14, 2006
judgment on appeal ie affirmed.
DATED: Honolulu, Hawai"i, June 26, 2007.
on the application and
supplemental briefe:
George W. Playdon, ar, Gorm—
Kelvin #. Keneshire, and
R Aeron Crepe (of Reinwald,
O'Connor & Playdon LLP) Sli ceP Leds
for Petitioners-befencante-
Appellees clyde 7. Miyakis M.D.
and Sharon Lawier, M.D. Ren 6 rescence
Michael J. Green, David J .
Gierlach, and Debra A. Kagawa, Gor heer tQ
for Respondent -Plaintif#-Appel lant
Althia Vidinha re Ded
‘The Honorable Elizabeth Eden Hifo presided.
|
d5706b3e-5fe7-4bc1-8164-492880b5b022 | In re T. Children: J.K.T. | hawaii | Hawaii Supreme Court | LAW LIBRaRy
No. 27690
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
IN THE INTEREST OF T CHILDREN
K.T. (1), SNP, TTT.
TAK.T. (2), and JR.T., IR.
Wd Nr tg
CERTIORARI TO THE INTERMEDIATE COURT OF APPE
(FC-S NO. 04-09813)
Zor the court’)
(By: Nekeyama,
Petitioner-Appellant's application for writ of
certiorari filed on May 18, 2007, is hereby rejected.
DATED: Honolulu, Hawai'i, June 7, 2007.
FOR THE COURT:
uate CO TRemeyane
Associate Justice
kerbert Y. Hamada
for petitioner-appellant
on the application
Yconsicered by:
tevinsen,
O34
St
SEAL
Nakayama, Acobe, end Duffy, 99.
oe we
|
382c216f-94c7-48f7-8e44-7a2b1a7ee13b | In re Doe | hawaii | Hawaii Supreme Court | No. 25416
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
OOFNHY 22 Nap wag
In the Interest of
JOHN DOB, Born on May 2, 1983,
Petitioner/Minor-Appellant .
CERTIORARI 10 THE INTERMEDIATE COURT OF APPEALS
(Fe-3 NO. 0037695)
ORDER REJECT} car4: weIT OF ceRrr
(By: Moon, C.J., for the court")
titioner/minor-appellant John Doe's application for
writ of certiorari, filed May 15, 2007, is rejected.
DATED: Honolulu, Hawai'i, June 27, 2007
FOR THE COURT:
Brian A. Costa (of Costa
& DeLacy), for petitioner/
minor-appellant, on the
application
fef Justics
considered by:
Circuit dudge Alm, in place of Acoba,
Moon, C.5., Levinson, Nakayama, and Duffy, JJ.; an
|
df34d8e1-7ee6-43da-bec8-08bad67bc7a7 | Diplomat Tours and Travel, Inc. v. Sanga | hawaii | Hawaii Supreme Court | IN THE SUPREME COURT OF THE STATE OF HAWAI'I
DIPLOMAT TOURS AND TRAVEL, INC.,
NO. 26866
Plaintiff-Appellee/Respondent
vs.
TRINIDAD M. SANGA and DELIA ENCARNACION
ALUPAY dba PHIL USA TRAVEL & SERVICES, =
Defendant s-Appellants/Petitioners
ITs
70 THE INTERMEDIATE COURT OF APPEALS
CERTIORARI
(CIV. NO. 1RCO3~1-3443)
(By: Duffy, J., for the court’)
Defendant-Appellant/Petitioner Trinidad M. Sanga’s
application for a writ of certiorari, filed on May 30, 2007, is
hereby rejected.
DATED:
jonolule, Hawai'i, July 9, 2007.
FOR THE COURT:
Len € Deaf.
Associate Justice
Den S. Ikehara
for defendant-appellant/
petitioner Trinidad M.
Sanga on the application
. Nekayene, and Dotty
soeres by
|
8622257a-e2f1-404c-a975-6ff0516919cc | State v. Lo. | hawaii | Hawaii Supreme Court | LAWUBRARY
‘+++ FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER ***
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
000
STATE OF HAWAI'I, Petitioner,
vs.
THE HONORABLE DAVID W. LO, JUDGE OF THE DISTRICT COURT
OF THE FIRST CIRCUIT, STATE OF HAWAI'I
and JACK MILLER,’ Respondent
No. 28775 3
ORIGINAL PROCEEDING o =
(caSE noe one+07-027523) SE
z Oo
OCTOBER 30, 2007 =
MOON, C.9., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
Per Curiam. In this original proceeding, petition
State of Hawai'i (the prosecution) petitions this court for a
weit of mandamus directing respondent the Honorable David W. Lo,
judge of the District Court of the First Circuit (the respondent
judge), to vacate @ pretrial order granting respondent Jack
Miller's [hereinafter, defendant Miller) motion to compel
discovery in State v, Miller, Case No. 1DTC-07-017113. The
prosecution contends that the respondent judge exceeded his
lawful authority under Hawai'i Rules of Penal Procedure (HRPP)
+++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
Rule 16(d) (2007), quoted infra, by compelling the prosecution to
disclose to defendant Miller the calibration distances and
calibration locations for the laser unit used to cite defendant
Miller for excessive speeding, in violation of Hawai'i Revised
Statutes (HRS) § 291C-105(a) (1) (Supp. 2006), quoted infra.
Based on the following, we hold that, because the
calibration information falls within the ambit of HRPP Rule
16(d), the respondent judge did not exceed his lawful authority
and that, therefore, the prosecution is not entitled to mandamus
relief.
1. BACKGROUND
On March 25, 2007, defendant Miller was cited for
excessive speeding, in violation of HRS § 291C-105(a) (1), for
allegedly driving 76 miles per hour in a 35-mile-per-hour zone on
Kalanianaole Highway in Kailua, O'ahu, The speed was measured by
@ laser unit operated by Honolulu Police Department officer
Justin Wint!
Rs § 2910-208,
ntitled “Excessive Speeding," provides in relevant
pert:
No persen shall rive 6 motor vehicle at spe
‘The oppliceble state or county speed limit by
thirty miles per hoor er merel.J
jc) dnp person who viclates this section chell be
guilty of 2 petty misdeneaner |.)
1+ FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER ***
Defendant Miller scught discovery pursuant to HRPP Rule
16,? seeking disclosure by the prosecution of routine discovery
2 URPP Rule 26 provides:
(a) Applicability. Subject to subsection (d) of this
role, Siscovery uncer thie rule may be cbtesned in and is
LJnites to cases in which the Gefendant is charged with &
felony, and may commence upen the filing in the circuit
Court of an indictment or complaint
() Dinclosure by the prosecution.
(2) Srecuceune or Warress Winwn Froseeorron’s Pesszssiow.
the prosecutor shall disclose te the defendant oF the
Eciehdant’s ettorney the fellowing material and information
Within the prosecutor’ s possession or contrel
(i)° Ehe'nanes and last. known aderesces of persons
hon the prosecutor intends to call ae witnesses in the
Presentation of the evidence in chief, together with any
Pelevant written or Fecerdes statenente, proviced that
Statements recorded by the prosecutor shell not be subject
to aisclotures
{iii any written or recorded statenents end the
suretance of any oral statenents nade by the defendant, o:
nade by 8 co-cefendant if intended to be used in s joint
Trial, together with the nanes and last known addresses of
persone whe witnessed the making of such statements:
Tali) ony reperte or statements of experts, which were
made in connection with the particular case or which the
prosecutor intende to introduce, or which are material to
The preperation of the defense and are specifically
Gessgnated in writing by defence counsel, inclusing results
of physical or nentel examinations and of scientific tests,
experiments, or comparisons:
(iv) any Books, papers, docunents, photographs, or
tangible cbjects which the prosecuter intends to introduce,
of uhich were obtained from or which belong to the
Sexcnasnt, or which are materiel to the preparation of the
Gefense and are specifically designated in writing by
Sefense counsel;
{v) 8 copy of any Hawai'i criminal record of the
defendant tnd, if #0 ordered by the court, a copy of any
crininal record of the defendant cutsice the State of
Nawas's
(vi) whether there hes been any electronic
surveillance laneluding wiretapping) of conversations te
which the defendant was a party oF occurring on the
Gefencant’® prenices;
(vis) ony Reterial or information which tends to
the guilt of the defen
or would tend to reduce the defendant's punishnent therefor.
(2) Erecaceont er arruns Nor Mameaw Prceecurson’s Fosstssion,
pen written request of defense counsel and specific
Geclgnetion by defense counsel cf material of snforsation
hich woulé be Giscoverstle if in the possession or control
(cont snved..-)
*+** FOR PUBLICATION IN WEST'S HAWAT REPORTS AND PACIFIC REPORTER *
items’ and nine additional items concerning the laser unit used
by officer Winter. The prosecution disclosed the traffic crine
citation, but did not disclose the laser unit items. Defendant
Miller thereupon filed @ motion to compel discovery of the
following laser unit itens:
+ manufacturer's operation and maintenance
manuals;
+ certification documents:
+ police maintenance records:
+ manufacture and acquisition dates:
+ warranty documents;
+ laser readings:
+ firearm qualification test results for
officer Winte:
21. scontinves)
of the prosecutor and which ie the possession or contre} of
ether governnentel personnel, the prosecutor enall use
Giligent good faith efforts to cause such naterial oF
infornation to be nade available to defense counsel? end if
the prosecutor's efforts are unsuccessful the court shell)
issue suitable subpoenas er orcers to cause such material oF
information te be nade available to defense counsel
(4) Diteretionary disclosure. pon s showing of
materiality and if the request is veasensble, the court in
ke iscretion may require siscloeure a2 provides for in
this Rule 16 in eases cther than those in which the
Gefencant is charged with s felony, but now in cases
involving vielatiens.
(Emphases in criginal
2 the routine discovery materials included the police report or
citation, any police Photoaveph oF videotepe of the defendant, names end
eddresses of prosecution witnesses, eny prior criminal record cf the defendant
of prosecution witnese, and pelice dispatch log,
“te
+** FOR PUBLICATION IN WEST'S HAWAT REPORTS AND PACIFIC REPORTER ***
+ fixed distance used to calibrate the subject
laser unit and location where the calibration
took place; and
+ delta distance used to calibrate the subject
laser unit and location where the calibration
took place.
Defendant Miller contended that the accuracy of the laser unit
was necessary to sustain 2 conviction for excessive speeding
based solely on the laser unit and that the laser unit items were
material to determining the accuracy of the subject instrument.
‘The prosecution opposed disclosure of all the laser unit items as
“not discoverable under [HRPP) Rule 16.”
‘The respondent judge, by order filed on October 4,
2007, granted the motion to compel discovery as to the laser unit
calibration distances and calibration locations, denied the
motion as to all other items, and directed the prosecution to
disclose the calibration information to defendant Miller. The
prosecution thereupon filed the instant petition for a writ of
mandamus, requesting that this court vacate the respondent
judge’s October 4, 2007 order compelling disclosure of the laser
unit calibration information.
I. STANDARD FOR DISPOSITION
“The extraordinary writ of mandamus is appropriate to
confine an inferior tribunal to the lawful
reise of its proper
jurisdiction.” State ex rel. Merslend v, Ames, 71 Haw. 304, 306,
788 P.2d 1281, 1283 (1980) (internal quotation marks and
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
citations omitted). “But mandamus may not be used to perform the
office of an appeal.” Id. Thus, this court must determine at
the outset whether a mandamus petitioner may have a remedy by way
of appeal or any other means of relief from the trial court's
action. Ids
But the mere fact thet other renedies are not
available has never in itself been sufficient Justification
fer mandemos, “and where... the trial juage hae
Giscretion to act, mancamie clearly will net lie to.
Snterfere with or control the exercise of that discretion,
even where the Jucge has acted erronecusly, unless the judge
has exceeded his lor her] jurisdiction, hae committed 8
2 nd manifest sbuse of discretion, or hee refused to
act ons fubject properly before the court where it was
Onder a legal cuty to act.
[ds at 307, 788 P.2d at 1283 (internal citations, brackets,
quotation marks, and ellipses omitted).
III. piscussroy
A. Whethe ution’s Petition for Writ of Mandamus
is Proper
As indicated above, this court must first determine
whether the prosecution, as the mandamus petitioner, may have a
remedy by way of appeal or any other means of relief from the
trial court’s action. Marsland, 71 Haw. at 306, 768 P.2d at
1283. It does not.
HRS § 641-13 (Supp. 2006) authorizes an appeal by the
prosecution, ina criminal case, from: (1) an order or judgment
sustaining 8 motion to dismiss an indictment or complaint or any
count thereof; (2) an order or judgnent dismissing @ case where
the defendant has not been put in jeopardy; (3) an order granting
+** FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER ***
_
a new trials (4) an order arresting judgment; (5) @ ruling on a
question of law adverse to the State, where the defendant wes
convicted and appeals from the judgments (6) 2 sentence deened to
be illegal; (7) @ pretrial ozder suppressing evidence; (8) an
order denying the State's request for @ protective order for non-
disclosure of witnesses for their personal safety under HRPP Rule
16(e) (4) (9) @ judgment of acquittal following @ jury verdict of
guilty: end (10) @ denial of authorization to intercept wire,
oral, or electronic communications. Clearly, under section
641-13, the prosecution is not authorized to appeal the
respondent judge’s October 4, 2007 pretrial discovery order.
Thus, the prosecution would be without @ renedy unless
extraordinary relief is granted. Consequently, we next examine
whether the respondent judge exceeded his authority under HRPP
Rule 16(é) thereby entitling the prosecution to mandamus relief.
8
ner HAPP Rule 16(d
Disclosure in criminal cases is governed by HRP Rule
16, which limits discovery “to cases in which the defendant is
charged with a felony,” HRPP Rule 16(a), except as provided in
HRPP Rule 16(d). See supra note 2. HRPP Rule 16(d) provides
that, “[ulpon 8 showing of materiality and if the request is
reasonable, the court in its discretion may require disclosure as
provided for in this Rule 16 in cases other than those in which
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
the defendant is charged with a felony, but not in cases
involving vielations.”
“thus, discovery ina misdeneancr . . . case may be
permitted by the trial judge '[u)pon @ showing of materiality and
if the request is reasonable,’ but only to the extent authorized
by HREP Rule 16 for felony cases(,]” iste, the item sought to be
cisclosed must be an enunerated iten under HREP Rule 16(b).
Marslang, 71 Haw. at 309, 788 P.2d at 1284 (first set of brackets
in original).
In a misdemeanor case, @ district judge acts beyond the
scope of his or her authority under HRPP Rule 16(d) -- and, thus,
exceeds his or her jurisdiction -- by ordering disclosure by the
prosecution of material end information net discoverable pursuant
to HREP Rule 16(b). See Maxsland, 71 Haw. at 313-14, 768 F.2d at
1286-87. In Maxsland, the district judge -- upon written request
by the defendant who was charged with the misdemeanor traffic
crime of driving under the influence of intoxicating liquor (DUI)
compelled the prosecution to disclose forty-one items,
including information about the Intoxilyzer 4011S. Id, at 310
13, 788 P.26 at 1285-86. At the time of the DUI in Marslang,
HAPP Rule 16(b) distinguished between disclosure “upon written
request” and disclosure “without request.” Disclosure “upon
written request” was required by the prosecution as to those
items presently enumerated in HRPP ule 16(b) (i) through (v).
‘+*+ FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER ***
Disclosure “without request” was required by the prosecution as
to those itens presently enumerated in HRPP Rule 16(b) (vi) end
(vii). The distinction wes eliminated in 1993 when HRPP Rule
16(b) was amended to its present form. See supra note 2.
‘The prosecution in Marsland opposed disclosure of the
forty-one items and petitioned this court for mandamus relief.
We granted relief as to thirty-four of the forty-one items. Id.
at 305-06, 788 P.2d at 1262-83. We held that (1) the defendant
was not entitled, and the district judge was not authorized, to
order disclosure of the thirty-four items, including those
related to the intoxilyzer, inasmuch as the items did not fall
within the ambit of any of the categories now designated as (i)
through (v) and (2) discovery in a misdemeanor case that exceeded
the limits of discovery established by HRPP Rule 16 for felony
cases could not be justified under the rule. Id, at 313, 788
P.2d at 1286.
In the instant proceeding, the prosecution contends
that the laser unit calibration distances and calibration
Jocations are “beyond the scope of discovery as set forth by
[HRP] Rule 16 and Marslend.” The prosecution, thus, contends
that the respondent judge acted beyond the scope of his authority
under HREP Rule 16(d) and exceeded his jurisdiction by compelling
the prosecution te disclose the calibration information to
Gefendant Miller. However, information on the calibration
*** FOR PUBLICATION IN WEST'S HAWAT' REPORTS AND PACIFIC REPORTER *
distances and calibration locations for the laser unit used by
officer Winter is materiel to challenging the accuracy of the
perticular laser unit, which, if determined to be inaccurate,
could result in a failure of proof that defendant Miller was
driving at 2 speed of 76 miles per hour. Such failure of proof
could result in an acquittal for the charged offense of excessive
speeding or a conviction for speeding as @ viclation.‘ that
being the case, information showing that the subject laser unit
-- as the sole basis for the excessive speeding charge -- was not
properly calibrated as to distance and location may be considered
to fall within the ambit of HRPP Rule 16(b) (1) (vii) as “material
or information which tends to negate the guilt of the defendant
as to the offense charged or would tend to reduce the defendant's
punishnent therefor.”
The accuracy of the particular leser unit used by
officer Winter to cite defendant Miller on March 25, 2007 is
necessary to sustain a judgment for excessive speeding based
< Under HRS § 291¢-102 (Supp. 2006), entitled “Nenconplisnce with speed
Limit prohibited":
(a) A person violates this
river
(2) Actor venicle at a speed greater than the
naximun speed line other then provides in section 291C-205;
ction Sf the person
(2) A moter vehicle at @ speed ese than the minimum
speed Limit, where the naxinun GF ninimn Speed Limit ie
establishes’ by county ordinance or by effieial signe placed
by the director cf transportation on nighwsye under the
Girector’s juriediction.
Moreover, BRS § 291C-161(8) (Supp. 2006) provides that “[s]t is @
véolatien fer ny persen te viclate any of the provisions ef this chapter(.]*
10+
‘+++ FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER ***
solely on the laser unit. See State v, Tailo, 70 Haw. 580, 582,
779 P.2d 11, 13 (1989) ("[C)ourts have . . . consistently held
that evidence of the accuracy of the particular radar unit is
necessary to sustain a conviction for speeding obtained solely by
radar.” (Citations omitted.)). Thus, the information on the
laser unit calibration distances and calibration locations is
material, the request for such information is reasonable, and
defendant Miller was entitled to disclosure of the information
pursuant to HRPP Rule 16(d). By ordering the disclosure of the
information, the respondent judge acted within the scope of his
authority under HRPP Rule 16(d) and did not exceed his
jurisdiction.
IV. CONCLUSION
Based on the foregoing, the petition for a writ of
mandamus is denied.
Peter B. Carlisle,
Prosecuting. Attorney,
ona Lowell scotty fey
Deputy Prosecuting
Retorsey, for petitioner
fon the petition ec PRpBcrag
Puce nutes
a
Zz
Gorm «Dads
ane
|
ac1d9c30-17cf-44d4-83dd-f97b23b50a77 | Jones v. Iamwong | hawaii | Hawaii Supreme Court | LAW LIBRARY
g
5
z
2
No. 27235 9
IN THE SUPREME COURT OF THE STATE OF HAWAT‘pS/E
a3tg
=
JOHN A. JONES, Petitioner-Plaintiff-appellangl
CHAWEEWAN IAMWONG, TYRONE P. COLLINS, ROCKY’S LIMOUSINE SERVICE,
Respondent ~Defendant s-Appellees,
and
JOHN DOES 1-98, JANE DOES 1-99, DOE PARTNERSHIPS, CORPORATIONS
AND/OR OTHER ENTITIES 1-98, Respondents-Defendants-Appellees.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. No, 01-1-2939)
“ WITHOUT PREJUDICE
(ay: Nakayama, Jc, for the court?)
18 appearing that the judgment on appeal in the above
referenced matter has not been entered by the Intermediate Court
of Appenls, 86 Hawai'i Revised Statutes § 602-59(a), as amended
by Act 149 of the 2006 Hawai'i Session Laver see alse Hawas't
Rules of Appellate Procedure (HRAF) Rule 36(b)(1) (2006),
IP 15 HEREBY ORDERED that petitioner-plaintift-
appellent’s application for writ of certiorari, f1led on June 1,
2007, is disnissed without prejudice to re-filing the application
pursvent to HRAP Rule 40.1(a) (°Ne later than 90 deys after the
filing of the intermediate court of appeals’ judgment on appeal
+ Reobs, and Duffy,
Court: Moen, C.c., Levineon, Nakayar
or dismissal order, any party may apply in writing to the suprene
court for a writ of certiorari.”).
Honolulu, Hawai"i, June 4, 2007
FOR THE COURT:
Peete CO tty Orme
Associate Justice My,
Boe wy
DATE!
|
f16ef6a7-b6bf-4443-a591-7da7d2c1ee86 | 143 Nenue Holdings, LLC v. Bonds | hawaii | Hawaii Supreme Court | LAW LIBRARY
no. 27689
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
143 NENUE HOLDINGS, LLC, @ Hawai'i limited iability company,
Respondent /Plaintiff-Aappellee g
SUZANNE BONDS, Petitioner/Counterclaimant Appellant
143 NENUE HOLDINGS, LLC, @ Hawai'i limited liability company,
Respondent /Counterclaim Defendant /Crossclaimant-Appellee
and
AMERIQUEST MORTGAGE COMPANY, @ Delaware corporation,
Respondent /Additicnal Counterclaim Defendant /Crossclain
Defendant-Appeliee
and
RONALD G.S. AU, RYAN G.S. AU, and NATALIE AU,
Additional Counterclaim Defendants-Appellees
and
FREDDIE FRANCO; ALALA MANAGEMENT, LLC, a Hawai'i limited
Liability company; and DOES 1 THROUGH 20,
Additional Counterclaim Defendants
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. No. 05-1-0377)
Duffy, J., for the court”)
Petitioner/Defendant-Counterclaimant-Appellant Suzanne
Bond’s application for a writ of certiorari, filed on May 3,
2007, is hereby rejected.
DATED: Honolulu, Hawai'i, dune 7, 2007.
FOR THE couRT: —~ By
Paros €. Buy + ¢ g SEAL |
Associate Justice ce wi
Gary Victor Dubin
for petitioner/defendant-
counterclaimant-appellant
on the application
Considered by: Moen, C2. fon, Nakayens, and Duffy, 23., and
cércuit Judge Tewn, in place of Accba, J:, recused
|
cdb6a232-cced-47be-94f1-2155f169db30 | Pflueger v. Chang | hawaii | Hawaii Supreme Court | Law UB)
wo. 26576 s
bhi tHE supRawe coun? oF ce stare oF wawar@|
ZOE
JAMES H. PPLUBOER, PPLUPGER PROPERETES, in
FELGBGER VAMMCEVENT, LLG, Peticionete z 6
Bi 2
vs 4 g
2
THE HONORABLE GARY W.B. CHANG, JUDGE OF THE FIRST CfkcUIT
COURT, STATE OF HAWAI'I; STATE OP HAWAI'I; C. BREWER
AND COMPANY, LTD.; C. BREWER PROPERTIES, INC.; C. BREWER
HOMES, INC.; HAWAII LAND AND FARMING COMPANY, INC. ;
EHALANI HOLDINGS COMPANY, INC.: KILAUEA IRRIGATION
COMPANY, INC.; THOMAS A. HITCH; HITCH CO.; JOHN DOES 1-10;
JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10;
DOE UNINCORPORATED ASSOCIATIONS 1-10, Respondents
ORIGINAL PROCEEDING
(CIV, NO. 06-21-1391)
ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ
upon consideration of the petition for a writ of
mandamus or prohibition filed by petitioners James H. Pflueger,
Pflueger Properties, and Pflueger Management, LLC and the papers
in support, it appears that the change of venue of Civil No. 06-
41-1392 to the fifth cireuit court was within the discretion of
the respondent judge. Petitioners fail to demonstrate that the
respondent judge flagrantly and manifestly abused his discretion
in changing venue without prejudice to a re-transfer by the fifth
circuit court and that irreparable and immediate harm would
otherwise be the necessary consequence. ‘The change of venue or a
re-transfer of venue is reviewable on appeal from a final
judgment in Civil No, 06-1-1391, Thue, petitioners are not
entitled toa writ of mandams or prohibition. See Kena
Gaddig, 91 Hawai's 200, 204, 982 P.2d 334, 338 (1999) (A writ of
mandamus oF prohibition is an extraordinary remedy that will not
issue unless the petitioner dencnetrates a clear and indisputable
right to relief and a lack of alternative means to redress
adequately the alleged wrong or obtain the requested action.
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. where a
court has discretion to act, mandams will not lie to interfere
with or control the exercise of that discretion, even when the
judge has acted erroneously, unless the judge has exceeded his or’
her jurisdiction, has committed a flagrant and manifest abuse of
Giseretion, or has refused to act on a subject properly before
the court under circumstances in which it has a legal duty to
act.). therefore,
IP IS HEREBY ORDERED that the petition for a writ of
mandamus or prohibition is denied.
DATED: Honolulu, Hawai'i, July 3, 2007.
g .
Men Petorege ~
Passes Cree One
PNW
Boren: Buds r+
|
c828b32e-e9ea-4c7f-b2d3-be67e639e169 | In re Tax Appeal of Director of Taxation, State of Hawaii v. Medical Underwriters of California. | hawaii | Hawaii Supreme Court | MAW LIBRAR,
FOR PUBLICATION IN WEST'S HAWAM REPORTS AND PACIFIC REPORTER **#
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
000
IN THE MATTER OF THE TAX APPEAL OF
DIRECTOR OF TAXATION, STATE OF HAWAT'E,
‘Appellant /Cross-Appellee,
aai4
p 1s
SWAB ano
Wuvk 1 YHUON
MEDICAL UNDERWRITERS OF CALIFORNIA,
‘Taxpayer-Appellee/Cross-Appellant-
Vee Rd Of ONY LOG
No. 27023
APPEAL FROM THE TAX APPEAL COURT
(TAX APPEAL CASE NO. 00-0061)
AUGUST 30, 2007
MOON C.J.
LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY NAKAYAMA, J.
Appellant /Cress-Appellee, director of taxation, State
of Hawai's (“director”), appeals from the following orders and
judgment of the tax appeal court:! (1) the April 1, 2004 “orde
Regarding Director of Taxation, State of Hawaii’s Motion for
Sunmary Judgment”; (2) the Septenber 13, 2004 “Order Granting
Appellee Medical Underwriters of California’s Motion for Partial
Summary Judgment Filed August 10, 2004"; (3) the Septenber 13,
2004 “Final Judgnent”; and (4) the January 18, 2008 order denying
the director's motion for reconsideration. On appeal, the
director asserts that the tax appeal court erred by (1) sua
sponte determining that Medical Underwriters of California
("Myc") was subject to the .15 percent general excise tax rate
‘The Honorable Gary ¥.
chang prs
¢+* FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
imposed by Hawai" Revised Statutes (“HRS”) § 237-13(7) when it
is undisputed that MUC was not Licensed as an insurance solicitor
or agent, and (2) denying his motion for reconsideration.
Appellee/Cross-Appellant, MUC, cros:
ppeals from the
following judgment and orders of the tax appeal court: (1) the
September 13, 2004 “Final Judgment”; (2) the December 20, 2004
“order Denying Appellee Medical Underwriters of California's
Motion for Attorney's Fees and Costs Filed Septenber 27, 2004"
and (3) the December 20, 2004 “Order Denying Appellee Medical
Underwriters of California's Motion for Leave to File Amended
Answer to Appellant Director of Taxation, State of Hawaii's
Notice of Appeal to the Tax Appeal Court Filed July 6, 2000 and
to Alter or Anend Final Judgment{.]" On appeal, MUC presents the
following points of error: (1) the tax appeal court erred by
failing to exempt MUC from the payment of general excise taxes
pursuant to HRS § 237-29.7 inasmuch as MUC is an insurance
(2) the
tax appeal court improperly denied MUC’s motion for leave to file
company authorized to do business under HRS chapter 43:
an amended answer to director’
6, 2000, and to alter or amend the final judgment filed September
23, 2004; and (3) the tax app
notice of appeal, filed on July
1 court improperly denied muc
notion for attorneys’ fees and costs.
For the reasons that follow, we resolve the director's
appeal as follows: (1) the tax appeal court erred by applying
the .15 percent tax rate imposed by HRS § 237-13(7) inasmuch as
it is reserved for licensed general agents, subagents, and
solicitors; and (2) the tax appeal court did not err by denying
the director's motion for reconsideration. With respect to MUC’s
cross-appeal, we hold that: (1) MUC is not an insurance company
2
)R PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
exempt from the payment of general excise taxes; (2) MUC'S
axgunent that the tax appeal court erred by denying its motion
for leave to file an anended answer to the director's notice of
appeal, and to alter or amend the final judgnent filed Septenber
23, 2004 Le moots and (3) the tax appeal court did not err by
denying MUC’s notion for attorneys’ fees and costs. We therefore
partially vacate the tax appeal court's judgment and remand with
instructions to enter judgnent in favor of the director in the
anount of $105,172.04.
1. BACKGROUND
It is undisputed that MUC manages the Hawai"i-based
insurance operations for Medical Insurance Exchange of California
(*MIEC") and Clarenont Liability Insurance Company ("CLIC"),
foreign insurers authorized to do business in Hawai". Inasmuch
as MUC's activities essentially constituted the transaction of
insurance busines!
the insurance division of the Department of
commerce and Consuner Affairs, State of Hawai‘i, has consistently
construed MUC as an insurer for licensing purposes under HRS
chapter 431. As such, MUC has taken the position that it is an
“insurance company” exempted from general excise taxes under HRS
§ 237-29.7. Based upon the perceived exemption, MUC did not file
general excise tax returns with respect to, and did not pay
general excise taxes on, funds received in exchange for its
services rendered to MIEC and CLIC.
In 1999, the director assessed general excise taxes
against MUC at a rate of four percent for unreported income
received from 1985 through 1999. MUC prepaid and appealed
$160,258.45 of the director's assessments for the time period
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
from January 1, 1992 to January 31, 1999 to the Board of Review,
First Taxation District ("Board”).? On June 7, 2000, the Board
found that MUC’s tax liability was $19,460.36.
on July 6, 2000, the director filed a notice of appeal
in the tax appeal court.”
1, The parties’ motions for summary judament
on August 24, 2001, the director filed a motion for
summary judgment. Therein, the director alleged the following
facts. MUC is the attorney-in-fact for MIEC and the managing
agent of CLIC. MUC provides managenent services to MIEC and
CLIC, including selling insurance, making investments, and
adjusting, settling, and paying claims. To execute those
services, MUC maintains an office located at 1360 South Beretania
Street, Suite 405, Honolulu, Hawai'i and employs three persons in
ite claims department. MUC receives a percentage of the premiums
it collects on behalf of MIEC and CLIC as compensation for its
services. Although MIEC and CLIC were licensed in this
jurisdiction as foreign insurers, MUC was not licensed as an
insurer under HRS § 431:3-201. MUC was also not licensed as an
insurance general agent, subagent, solicitor, or adjuster under
HRS § 431:9-201. During the time period in question, MUC did not
file any general excise tax returns and paid no general excise
tax. Based upon the foregoing factual allegations, the director
argued that (1) MUC’s income from management services provided to
MIEC and CLIC was subject to Hawai'i’s general excise tax at a
3 The Board dismiesed MiC's appeal as to the 1985 to 1981
Jecanents dve to MUC'# failure to prepay.
+ te Honorable Gary W.B. Chang presided.
4
‘OR PUBLICAT
IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
rate of four percent, (2) MUC was not an insurance conpany
authorized to do business under the Hawai'i Insurance Code and
was thus not exempt from paying general excise taxes under HRS §
237-29.7, and (3) MUC did not qualify for the reduced .15 percent
general excise tax rate available to licensed inevrance general
agents, subagents, solicitors, or adjusters.
On Septenter 10, 2001, MUC filed a memorandum in
opposition. Therein, MUC disputed the director's
characterization of MUC, MIEC, and CLIC as separate entities.
Rather, MUC claimed that (1) it is the attorney-in-fact for MIEC,
a reciprocal insurance exchange, (2) that CLIC is a wholly ovned
subsidiary of MIEC, and (3) in every tax year since 1981, the
insurance commissioner has treated MUC and MIEC as a single
enterprise or entity, MUC asserted that the MIEC entity payed
gross premium insurance texes to the director of finance,
pursuant to HRS § 431:7-202, and that MUC, as part of the IEC
entity, was not subject to an additional general excise tax. uc
argued further that it should be included within the definition
of “insurer” for purposes of the general excise tax exemption by
virtue of its status as a constituent of the MIEC entity.
On April 1, 2004, the tax appeal court filed an order
partially granting and partially denying the director's notion
for summary judgment. The court concluded as follows
that of an inuurance: solicitor or geteral agents”
provides that, spon every person engaged a” a licensed colietter,
General agent, or eubagent pureuant to [HRS] chepter 431, there i8
hereby levied’ snd shall be sesessed and collected tax equal to
‘the director filed # reply nenorandum on Septenber 12, 2001 and 2
sopplenental nenorandum in support on October 2, 2001. MUC filed’ a
supplenental nenorandum in opposition on Octeber 3, 2002
5
1* FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
25 per cent of the conaissions due to such activity.”
5." (ioc) is taxable at the reduces general excise tax
rate of .15N on its conissions oF compensetion for services
Eendered se the attorney-in-fact.
(“The Court 14 not Ignoring the licensing requirement in
uns § 237-12(7), but believes that the statutory requirenenes of
attorneys-in-fact contained in HRS chapter 431, in effect, satisty
the statutory licensure requirenents of HRS § 237-13(7)-
S.A determination of the exact dollar anount of tax
Llabinity 42 not sajudicated by this order.
(Some brackets added and some in original.)
on August 10, 2004, MUC filed a motion for partial
summary judgment. MUC argued that since the court decided that
MUC is subject to a .15 percent tax rate,
the only remaining
issue is the exact dollar ancunt, which MUC calculated to be
$3,943.95. On August 19, 2004, the director filed a response to
muc's motion for partial summary judgment. Therein, the director
did not oppose MUC's calculation of its tax liability in the
amount of $3,943.95. Rather, the director clarified that he
continued to object to the court’s refusal to uphold the
assessment at a tax rate of four percent.
On Septenber 13, 2004, the court filed an order
granting MUC's motion for partial summary judgment. The court
also filed 2 “Final Judgnent,” stating as follows:
1, Appellant Director of Taxation, ste
appeat filed Joly 6, 2000 from the Board of Review for the First
Tonation District, State of Hawaii's Decision dated June 7, 2000
is hereby denied;
2.) ““Rppeliee Medical Underwriters of California is taxable
lat the teduced general excise tax rate of 0-15t (Fizteen
hundredths of one percent) on ite commissions or conpe!
Services rendered as the attorney-in-fact for Medical
Exchange of California;
‘3: Rppeliee Medical Underwriters of California's
Liabiiity for general excise tex for the period Janvary 1, 1992
through Jenuary 31, 1999 is $3,943.95 (Three, Thousand Nine Hundred.
Ferty Three Dollars and Ninety’ Five Cents)-[*] Any remaining
* the $3,943.95 amount ie derived from applying @ .15 percent tax
rate to Mic’ s gross incone received as compensation for services rendered to
(cone insed,
6
1+ FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER ***
elaine ore dientesed with prejudice
The director's motion for reconsideration
Following the tax appeal court's oral ruling on MuC’s
August 10, 2004 motion for partial sunmary judgment, the director
filed a proposed order that included the following pertinent
finding of fact: “MUC’s gross income subject to the general
excise tax for compensation for services rendered as an attorney~
in-fact to (MIEC] and (CLIC] for the period January 1992 through
January 1999, inclusive, totaled $2,629,301.00." uc filed
objections on September 8, 2004, asserting, inte: , that the
dixector’s finding of fact
Se inoppropriate because said proposed “fact” As erroneous an
neoppertes by any evisence. That appellee treated appellant’
Genera excise tax aseesenents, as “adniesions against interest’
Under Aule 803 of the Hawaii Roles of Evidence for the purpose of
Mc's notion for partial summary Judgment, does not convert the
assessments Into stipulated facts:
[the director's) proposed finding . . . should alse be
rejected because it is factually incorrect. (The] [f}inding «+ «
Eltonesusly states that appellee received “compensation for
Secvices rendered as an attorney-in-fact for... (CLIC)." In
fact, [CLI¢] 1s Not s reciprocal insurance carrier and therefore
did not compensate MIC for services rendered as its atterney-in=
fect.”
(Some ellipses added and some in original.)
On September 17, 2004, the director filed a motion for
reconsideration of the order granting MUC’s motion for partial
sunmary judgnent, arguing that MUC’s objections presented new
evidence of genuine issues of material fact when MUC made the
following two factual admissions:
1, (toc] aid not receive any compensation or commissions
from (CLIC) for services rendered 45/ay attorney-in-facts and
Iie} “does not agree that its gross income subject to
the gencral cneive tax for conpensation for services rendered as
(,..continued)
nec and CLIC, calculated by the director to be §2,629,301.00. The tax appeal
Court opperently did not avard the director interest of penalties
1
FOR PUBLICATION IN WEST'S HAWAN REPORTS AND PACIFIC REPORTER *
fn sttorneymin-fact to (MIEC] and (CLIC) for the period January
4992 through Janvary 1998, inclusive, totaled $2, €25, 301.00.
The director contended that the compensation received by MUC from
CLIC was subject to a tax rate of four percent, rather than .15
percent, inasmuch as CLIC was not a reciprocal insurer and MUC
was not its attorney-in-fact. The director also averred that MUC
created a genuine issue of material fact as to MUC’s tax
Liability inasmuch as it expressly denied receiving gross income
in the amount of $2, 629,301.00 during the tax period in question.
‘The director pointed out that .15 percent of $2, 629,301.00 equals
$3,943.95 and that MUC’s denial of the gross income amount
necessarily means that its calculated tax liability required
MUC filed a memorandum in opposition on Septenber 27,
2004. MUC countered that the .15 percent tax rate applied to its
compensation received from CLIC inasmuch as it acted as an
“insurance company” for all of CLIC’s business in Hawai'i despite
its lack of attorney-in-fact status. MUC argued further that
calculation of its tax liability was based on the director’s own
assessments, that the director “had every opportunity to verify
CLIC's insurance status and the accuracy of its own assessments,”
and that “[i]t is simply too late for [the director] to raise . .
+ ‘new evidence’ as a basis to vacate the Order and Final
Judgment herein.”
On January 18, 2005, the court filed an order denying
the director’s motion for reconsideration.
3. MG's motion to amend
On Septenber 23, 2004, MUC filed a motion for leave to
file an amended answer to the director's “Notice Of Appeal To Tax
“OR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER
Appeal Court” and to alter or amend the September 13, 2004 “Final
Judgnent[.]” Therein, MUC requested consolidation of the
adjudication of the 198-1991 assessments with the present
adjudication of the 1992-1999 assessments. The director filed a
memorandum in opposition on October 8, 2004, objecting to MUC's
motion, inter alia, on the grounds that MUC may not cure its
failure to perfect a timely eppeal with respect to the 1985 to
1991 assessments through a motion to amend its pleadings in the
present case regarding the 1992 to 1999 assessments. On December
20, 2004, the court filed an order denying MUC’s motion for leave
to file an amended answer to the director's “Notice Of Appeal To
Tax Appeal Court{.]"
4, MUG's motion for attorneys’ fees and costs
On September 27, 2004, MUC filed a motion requesting an
award of attorneys’ fees and costs. Therein, MUC asserted that
it prevailed on its appeals before the Board and the tax appeal
court and that the director’s assessments from 1985-1999 were
frivolous, wilful violations of law, and in bad faith. on
December 20, 2004, the tax appeal court filed an order denying
Muc’s motion for attorneys’ fees and costs.
5. Notices of appeal
On December 10, 2004, the director filed a notice of
appeal from (1) the April 1, 2004 “Order Regarding Director of
Taxation, State of Hawaii’s Motion for Summary Judgment,” (2) the
September 13, 2004 “Order Granting Appellee Medical Underwriters
of California’s Motion for Partial Summary Judgment Filed August
10, 2004," (3) the September 13, 2004 “Final Judgment,” and (4)
the January 18, 2005 order denying the director's motion for
reconsideration. NUC filed a notice of cross-appeal from the
°
FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER *4
final judgment on December 27, 2004. On Janvary 19, 2005, MUC
filed a separate notice of appeal from the following post-
judgment orders: (1) the December 20, 2004 order denying MUC's
Septenber 23, 2004 motion for leave to file an amended answer and
to alter or amend the final judgments and (2) the December 20,
2004 order denying MUC's September 27, 2004 motion for attorneys’
fees and costs.
I, STANDARD OF REVIEW
When reviewing decisions of the tax appeal court, we
have generally stated as follows:
It Ss well settled that{,] in reviewing the dectaion
and findings of the Tax Appeal’ Court, a presumption arises
favoring ite actions which should not be overturned without
good and sufficient reason. The appellant hes the burden of
cision of the Tax Appeal Court was
Apoes sky cou vy, cies
Honolulu, €5 tawat' 36, 33, 936 p-24 612, €18 (1997) (quoting
79 Haw. 449, 455, 634 P.2d
3302, 1306 (1992))
Conversely, “(Conclusions of Lew art
right/urong standard,” "Gold v. Uarrlson,
P.2d 353, 359 (1996) "(citing Furukema v. Honolulu Zooleaical
Acclaty, "eS awai't 7, 12, 336 P-24 €43, G48 (1997))- Under the
e nove’ or right /wrorig standard, this court “evamine[s] the facts
fand anewer{a] the question without being required te give any
Weight to the trial court's anewer to it." ide (ceiving Aletin
Ocean View Inv. Cou, Inc., 84 Hawai" 447, 453,"995 P20 992, 598
(99
owed under the
jawai's 94, 100, 962
1 e Tax Avr re
Club v, County of Maui, 90 Hewai't 334, 339, 978 P.2d 772, 777
(1999) (brackets in original).
gous Va
More particularly, the director's appeal and MUC's
cross-appeal in the case at bar present questions involving the
meaning of, and interplay between, provisions of HRS chapters 237
and 431, Such ere questions of law reviewable de novo. Ide
("It]he meaning of a statute is 2 question of law that this court
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reviews de novo.”)
XII. DISCUSSION
A. ‘The Director's Appeal
1. MUC is subject to the ceneral exci at a rate
four percent.
‘The director's first point of error asserts that
management services provided by MUC to MIEC and CLIC should have
been taxed at four percent, 2s cpposed to -15 percent. In order
to resolve the issue presented by the director, it is first
necessary to address the issue presented by MUC's cross-appeal as
to whether MUC is an insurance company exempt from general excise
taxes under HRS § 237-29.7.
a. MUC is not an insurance company under HRS § 237-
29.7 and HRS chapter 431, and it ie therefore not
exempt from general excise tax:
As mentioned, HRS § 237-29.7 exenpts from the payment
of general excise tax assessments “insurance companies authorized
to do business under HRS chapter 431.” MUC, in its opening brief
on cross-appeal, urges that it is an insurance company under HRS
§ 237-29.7 and an “insurer” under HRS § 431:1-202 by virtue of
its status as the inseparable operating arm of the MIEC
reciprocal insurance exchange.*
Contrary to MUC’s argunents, however, the provisions of
HRS chapter 431, article 4, in pari materia, evince a legislative
intent to recognize a bipartite relationship. See HRS § 1-15(1)
+ Mocts pening brief does not present any argunent with respect to
ite velaticnship with CLIC. Accordingly, any such argument has Deen waived,
iai't Rules of Appellate Procedure Rule 26(b) (7) (2008) (Points not
nay be deened waived."), and the forthconing analysis iil
freee only unether on attorney-in-fact of a reciprocal insurer ie
insurance cenpany or “insurer.
a
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(1993) ("The meaning of ambiguous words may be sought by
examining the context, with which the ambiguous words, phrases,
and sentences may be compared, in order to ascertain their true
“405 define a
meaning.”). For example, HRS §§ 431:3-107 and 431:
reciprocal insurer and its attorney-in-fact in terms of their
relationship with each other, rather than bestowing existential
equivalence. See HRS § 431:3-107 (1993) ("A reciprocal insurer
means an unincorporated aggregation of subscribers operating
individually end collectively through an attorney-in-fact conmon
to all such person to provide reciprocal insurance anong
); HRS § 431:4-405 (1993) ("Attorney as used in this
themselves
part, refers to the attorney-in-fact of a reciprocal insurer.").
Also, as argued by the director, HRS § 431:4-406 requires the
attorney-in-fact to obtain a pover of attorney. Indeed, HRS §
431:4-406 (1993) provides as follows:
$431:4-406 Power of attorney. (a) The rights and powers of
the attorney of a reciprocel insurer shall be as provided in the
power of attorney given it by the subscribers.
{b)" “She power of sttorney must set forth:
(2) The powers, duties, and conpensation of the attorney:
(2) ThatPthe sttorney ie eapowered to accept service of
frotess on behalf of the insurer end to authorize the
Ecanissicner to receive service of process in action
Sgsinst the insurer upon contracts exchanged?
(3) Except as to renasseseable policies, a provision for
contingent several lisbility of cach subscriber in a
Specified ancont, which ancunt shall be not less than
che her more than ten times the presium or premium
Sepoait stated in the policy.
(c) The poner of attorney may:
(i) Provide for the right of substitution of the attorney
and revocation of the power of attorney and rights
thereunder;
(2) Tnpose svch restrictions upon the exercise of the
poner as are agreed upon by the subscribers;
(3) Provide for the exercise of any right reserved to the
Subscribers directly of through their advisory
committee and
(4) Contain other lawful provisions deened advicable
(a) The terms of any power of attorney, or agreenent
collateral thereto, shall be reasonable, equitable, and no such
power, agreenent or any anenduent thereof, shall be used or
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effective in this State until approved by the comissicner.
If, as NUC asserts, an attorney-in-fact 18 the operating arm of
the reciprocal ineurance exchange, as opposed to a legally
distinct agent of the exchange, a power of attorney would seem
unnecessary. Moreover, a reciprocal insurance exchange is
required to have a subscribers’ advisory committee. Soe HRS 55
431:4-409(a) (7) and 431:4-415 (1893). BRS § 431:4-415 provides
the following:
$¢31:4-415 Subscribers’ advisory comsittee, (a) the
advisory ccnmittee of s donestic reciprocal insurer exercising the
Subscribers” rights shall be selected under such rules ss the
subscribers adopt.
(b) Not ieee than three-fourths of the committee shall be
od) of subscriber ney, oF an
‘fnploved by, representing, or having a financial interest ia the
attomey,
Te) The committee shall:
(D) Supervise the finance
(2) Supervise the incurer's operstions to evch extent as
te assure their conformity with the subscribers”
agreement and power of attorney?
(3) Procure the avait of the account:
and of the attorney at the expense of the
5 and.
(4) Have such sdditiona powers and functions as may be
conferred by the subscribers’ agreement.
(Sophasis added.) These requirements are clearly designed to
protect the rights and interests of the subscribers where they do
not align with those of the attorney-in-fact. Finally, HRS
chapter 431, article 4, is replete with provisions that refer
separately to the “attorney” and the “insurer.” See HRS § 431:4-
406 ("The attorney is empowered to accept service of process on
behalf of the insurer and to authorize the conmissioner to
receive service of process in actions against the insurer...
.")4 HRS § 431:4-411(b) (1993) (“The bond shall be in the sum of
$25,000 conditioned that the attorney will faithfully account,
before a notary public, in a sworn affidavit, for all moneys and
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other property of the insurer coning into the attorney's hands,
and that the attorney will not withdraw or appropriate for the
attorney's own use from the funds of the insurer any moneys or
property to which the attorney is not entitled under the power of
attorney.”); HRS § 431:4-415(c) (3) ("The [subscribers’
advisory]
committee shall . . . (plrocure the audit of the accounts and
records of the insurer and of the attorney at the expense of the
insurer... .”); BRS § 431:4-422 (1993) ("The attorney or other
parties may advance to the reciprocal insurer funds as it may
require from time to time in its operations.”).
Additionally, under analogous circumstances, the
Indiana Court of Appeals in Ind, Dep't of Revenue v, Am.
nderwriters, Inc., 429 N.E.2d 306 (Ind. Ct. App. 1981), reb'a
denied, 431 N.E.2d 528 (Ind. Ct. App. 1982), held that American
Underwriters, Inc. (*A-U"), the attorney-in-fact of American
Interinsurance Exchange ("Exchange"), was a “distinct entity for
tex purposes... .” Id, at 312. In so holding, the court
recognized that the arrangement consisted of a singular
entezprise, id. at 311, but explained that “in the legal form of
‘the operation, and in the final analysis, a cleavage exist (ed)
and the single enterprise [was] conpartmented.” Id, The court
elaborated upon the separateness of A-U and the Exchange, as
follows:
First, the interests of A-U and the Exchange are divergent, and
the interesta of the Exchange are not coextensive with those Of Ax
U." Acceraing to the contract cocurents the subscribers ere
eititied to any profite and assete of the Exch
dissolution, ‘and AcU hes no interest in those
the subscribers have no interest in the Ml assets
of the Exchange are eubsect to the LiabLlity of the insurance
egeration, Bur none of the sesets of A-0 are svailable to these
claimants, AsO has five wholly-owned subsidiaries in weich the
Exchange subscribers heve no inter ‘Second,
treated for most purposes as an entity By AU, public
Likewise,
u
FOR PUBLICATK
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snsedtutions,
heme of (the Exchange]. AcU he
for the purpose of increasing the guaranty fund, and A-O hes
received the Fuchange's notes az security, Separate acccunts are
kept, and the respective assets of A-U and the Exchange are
segregated. Bonk sccounte are kept in the name of the Sxchange
and checks written in the rane of the Exchange. Policies of
insurance are written in the mane of the Exchange, losses adjusted
in the nane of the Exchange, and, in general, business is
trantacted in the rane of the Exchenge, Federal tax returns are
fled in the nane of the Exchange. ‘The annval statement to the
Indlana Tneorance Departnent 1s published in the nae of the
Exchange, and cther publications. reflect the Investaent Port folio
to be in the rane of the Exchange snd nanaged by the indiana
National Bank. These dscunente are not commingled mith the
personal assets or Business of A-U.
and the public at lorge, It sues and de ued in the
leaned the Exchange suns of money
Id, at 311-12, The court also noted that, having elected to
operate as an interinsurance exchange, A-U may benefit from the
advantages that flow from the particular business form, but must
also accept the attendant disadvantages:
It was conceded in oral argument by A-U that the principal
eevantage to writing incurance in thie sanner is the insulation of
Liability to A-U in-an area of high-risk, substandard insurance,
Tt appears that the rganizers of Ac deliberately have selected
this statutorily permitted vehicle of reciprocal insurance end
have Conpartnented the enterprise to achieve that end. Different
forms of business enterprises have different legal ss vell es tax
Consequences, ‘sone advantageous, and sone disadvantageous, “On the
fone hand, we’ view AU as desiring to trest the Exchange as 3
Separate entity to maintain insulation from 1iability, and on the
other hand, as desiring to escepe dual taxation By calling itself
‘and the Exchange ene single enterprise
Id, at 312. The court thus concluded that the receipt of
Premiums from policyholders by the Exchange wae one taxable
event, and "when A-U, as attorney-in-fact acting for the
Exchange, paid itself personally . . . the premium for its
management fee, a second taxable event occurred.” Id.
Similarly, in the case at bar, MUC’s own arrangements
with MIEC indicate that it is a separately taxable legal entity.
Under MUC's written agreements with MIEC, MIEC owns all
investments and corporate accounts of the exchange. MIEC i:
responsible for the payment of state and federal taxes inposed on
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the exchange. MUC is to receive premiums paid by subscribers and
deposit those premiums into separate accounts held by MIEC. It
is conceded that MUC does not share in the liabilities of
insurance contracts. See also In the Matter of Int’).
nderwriters, Inc., 157 F. Supp. 367, 371 (W.D. Mo. 1957)
("[Rlisk is an essential factor of the insurance business, and in
the absence of risk imposed upon an entity, regardless of the
other insurancelike functions it performs, it is not an
insurer.”).?
MUC was separately incorporated. MUC files its oun
corporate income tax returns. MIBC is statutorily mandated to
“sue and be sued” in its own name. HRS § 431:4-404 (1993).
Under these circumstances, we believe that Am, Underwriters, tne,
provides separate and additional grounds supporting the
conclusion that MUC maintains a separate identity from, and is
not subsumed within, the reciprocal insurer it serves.
Arguing for a contrary result, MUC offers a plethora of
subargunents, which we address in turn.
4. Prior codifications
MUC first refers this court to codifications of the
general excise tax and regulatory insurance schemes predating the
7 the court ultinstely concluded that the attorney-in-fact at issue
wee an “insurance corporation” for purposes of the Bankruptcy Act, inasmuch 3
Missours law statutorily inposed the requisite degree of risk on the attorney=
incfact. 157.F, Supp. at 371, 373." For example, Missouri law requized the
reserve and’ guaranty fund for the protection of insureds.”
The attorney-in-fact was not permitted to sesese the subscribers
seditional ‘charges in the event that “claims for losses exceed(ed] the fonds
available for payment of losses.” Id, Moreover, Misscurt law isposed the
duty to replenish funds that fail below the statutorily inposed inion on
Doth the subscribers and the attorney-in-fact- Id However, the court's
ultinate conclusion that the attorney-in-fact was an insurance corporation 1s
distingalshable from the present cose insofar oe this jurisdiction's insurance
code inposes no Such Fisk’ ch attorneys-in-fact ef reciprocal insurers.
Indeed, as nentioned, MIC concedes that 1t does not share in the liabilities
Of the insurance contracta,
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1955 recodification of the insurance code. MUC claims that,
under the statutory framework in effect at that time, an
attorney-in-fact in a reciprocal insurance exchange was
considered an insurance company exenpt from the payment of
general excise taxes. MUC's interpretation of the prior version
of the insurance code is plausible. Indeed, the code made no
reference to reciprocal or inter-insurance exchanges as an
insurance entity distinct from its attorney-in-fact. Rather, as
MUC points out, the code expressly required an attorney-in-fact
to “pay such taxes and fees for the transaction of business of
insurance as prescribed by law for the transaction of the sane
kinds of insurance by other insurance companii Revised Laws
of Hawai'i (“RLH") § 6825 (1935) (emphasis added). RLH § 6792
(1935) provided further that
soretyship, oF
2 oF of entering
Into contracts substantially anounting to insurance, shal) be
desned on insurance concany and shall not transact business unl
the business is suthorized or permitted by the laws of the
Tercitory, and ali laws regulating the same and applicable thereto
‘been complied with vss +
(Emphases added.) Thus, it appears that the attorney-in-fact was
statutorily deened the entity transacting the business of
insurance and against whom the tax on gross insurance premiums
received vas assessed. Seg RLH § 6850 (1935) (imposing a tax on
gross premiums received from all risks located in and all
business transacted in the Territory of Hawai'i). It therefore
made sense to construe the attorney-in-fact (the entity charged
with payment of the tax on insurance premiums) as the entity to
hich the benefit of the exemption from the payment of general
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excise taxes inured.*
However, even if we were to accept the proposition that
the 1935 codification of the insurance code contemplated the
attorney-in-fact in a reciprocal exchange as an insurance
company, we disagree with MUC’s subsequent assertion that the
recodification of the insurance code in 1955* did nothing to
alter the plausibility of that interpretation. Particularly
persuasive is the legislature's repeal of RLH §§ 6825 and 6791
(1935). See 1955 Haw. Sess. L. Act 277 at 564.! As discussed
supra, the provisions of the insurance code currently at issue
appear to recognize a bisection between a reciprocal insurance
exchange and its attorney-in-fact. Hence, MUC’s reference to
repealed statutes is unavailing.
ii, The trade meaning rule
Equally without merit is MUC's attempt to invoke the
trade meaning rule of statutory interpretation, expressed in In
re Taxes, Hisvaiian Pineapple Co., Ltd., 45 Haw. 167, 363 P.2d 990
(1961) ("Hawaiian Pineapple Co.”).
In Hawaiian Pineapple Co., the taxpayer was the
operator of a pineapple cannery located in Honolulu. 45 Haw, at
169, 363 P.2d at 992, In 1945, taxpayer commenced with the
manufacturing of frozen pinespple products which necessarily
+ tn 1935, the legistature levied a general excise taxes against
“persons on account of their business snd cther activities in this Territory .
ere S38 haw. Ly Act 141at 77, The legislature exempted from the
fement of sucht) ier alia, *[JInturanee conpanies which psy the
Territory of Hawaii a tax upon their grose preniome under the provisions of
the Revised Laws of Hevaii 1935, chapter 224+ - "Ida at 63.
* Soe 1955 Haw. Sess. L. Ret 277 at 377-565,
Rul § 6791 (1935) was recodified as RLM § 6462 (2945). 1955 Haw.
Sess. L, Act 277 repealed AL § 84€2 (1945). RLH § 6625 (1935) wae recodified
fas Rim § G50 (2945); 1955 Haw, ean, L, Act 277 repealed RLM $ 8500 (3945)~
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involved the packing of frozen pineapple products in hermetically
sealed cans. Id, at 169-70, 363 P.2d at 992-93. The tax
commissioner tock the position that taxpayer's manufacturing
process involved “canning,” within the meaning of a statute that
imposed a higher general excise tax rate on “canning” and
assessed the taxpayer accordingly. Id, at 171, 363 P.2d at 993.
on appeal before the Tax Appesl Court, the taxpayer presented the
testimony of several expert witnesses testifying that freeze
packing food does not involve sterilization by the use of heat,
and therefore would not be referred to as “canning” by the food
industry. Id. at 176, 363 P.2d at 996. The Tax Appeal Court
agreed with the taxpayer and set aside the tax connissioner’s
assessment. Ida at 173, 363 P.2d at 994.
on appeal, this court framed the issue as: “Does the
process of freezing pineapple products in hermetically sealed
cans constitute ‘canning’ within the meaning of the statute?”
Id. at 173, 363 P.2d at 995.
We subsequently concluded that the tax statute made
express reference to a particular trade or industry ~~
canning -- and that the applicable maxim of statutory
interpretation wi
the trade meaning rule, expressed as follow
fence to a particular trade,
‘re used unich everybody
int with that trade, Business, or transaction, knows and
particular meaning in it, then the words are
tobe construed az having that particular meaning, though it may
Sister from the conmon of ordinary meaning of the words.
Id. at 178, 363 P.2d at 997 (citation omitted). We explained
that the party ascerting the trade meaning must prove its
acceptance in the trade or industry, id. at 179, 363 P.2d at 997,
and, if proved, the result is a presumption in favor of the trade
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meaning subject always to “the cardinal principle that, the
legislative intent, hovever evinced, must be given effect.” Id.
at 161-62, 363 P.2d at 998.
Applying the rule, we concluded that the
“uncontradicted proof” presented by the taxpayer was that “the
trade meaning of ‘canning’ and ‘canned! excludes frozen foods,
however packed... .” Id, at 179, 363 P.2d at 997. Finding no
evidence of a contrary legislative intent, we upheld the trade
meaning presumption and affirmed the ruling of the Tax Appeal
Court. Id. at 194, 363 P.2d at 1005.
Here, however, MUC has failed to provide sufficient
evidence of a trade meaning. At trial, MUC offered a declaration
by Hiram Tanaka (“Tanaka”), who was employed as the
“Administrative Assistant, Deputy Insurance Commissioner” and
“Chief Deputy Insurance Commissioner of the Insurance Division of
the Department of Commerce and Consumer Affairs of the State of
Hawaii” from 1974 to 1999. Tanaka’s declaration stated, in
relevant part, as follows:
6. That the Insurance Division includes reciprocal
Aneurer attorneys-in-fact, such as MUC, in the definition of
“insurer” for the purpose of the exemption of insurance companies
under ERS 237-29," and considers MIEC and MOC to be a single
Insurer for the purposes of the insurance premium tax.
7." That the original legislative intent benind the
fenectnent of the Hawaii Insurance Code was to treat alike ai2
Insurers, whether stock, mutual orf
original iegie
the statutory interpretation of the Hawaii Insurance Code by the
Insurance Division is Pssed, in part, upon the following factst
vo “unlike a Stock insurer and mutual ineucer
reciprocal insurer does not have any eaployees
nd is requized by statute to be cperated by an
Sttorney-in-fact.
+ the attorney-in-fact {8 the reciprocal insurer
from an sdninistrative and operations function
standpoint
+ the reciprocal insurer has already paid the 4.78
insurance prenivm tax
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+ the attorney in fact actually performs the
Insurance work
+ aha the public policy of encouraging the
fcrnation of insurers, including reciprocal
insurers and reciprocal captive Ansurance
companies in Hawaii.
11, That the Insurance Division construes the reciprocal
ineurer ind insurance premium tax lows to treat reciprocal
insurers as a single unit and the reciprocal insurer attorney-Ln-
fact as exenpt from gross excise tax under ERS. 237-29.
MUC also attached a copy of former insurance commissioner
Reynaldo D. Graulty's testimony, presented before the Senate
Committee on Connerce and Consumer Protection on February 12,
1999, in support of Senate Bill No. 364. Senate Bill No. 364
proposed to clarify that attorneys-in-fact of reciprocal insurers
are exenpt from the payment of general excise taxes by HRS § 237-
29.7.% The former commissioner testified as follows:
The OCCA defers to the Department of Taxation on thie bill
Ne wish to inform the Coanittee however of the snsurance
Implications of this bill
Hawadd lew specifies that insurance cenpanies formed in the
hie note that the director argues that the fact that Senate ill
No. 364 was not enacted Le evidence of the legislature's intent to sunject
attorneys-in-fact to the general excise tax. However, although it is possible
Chat Senate Bill No. 364's failure to pass indicates a legislative intent to
reject the proposal contained therein, such legislative inaction 1g nota
Cogent expression of legislative intent. fee
a wenue, €(8 S.W.24 91, 85 n-5 (Mo. 1983) [acknowledging that the
feilure of s bill to pass ‘nay aid interpretation where a statute ie sxbiguous,
Dut stating that such reliance “provides a cenuous besis” insofar as, "without
a record to explain the purpose for which the bill Se introduced of & record
Of debate cn the bill when considered, examination of the enactments would not
Eeveal why the legislature rejected s propeced bill."]) Slue Springs tow) y,
‘SoradLing, 551 5.W.24 £96, 601 (wo. 1977) ("TE [ehe statute] were enbiguovs,
This legitlative history Could be construed as one of the aids to statutory’
construction which a court ray use. However reliance on bills not passed
provides # tenucus basis for determining legislative intent.“); Escrow Serv,
Go. v, Cressler, 365 P.24 760, 766-6? (laeh: 1963) {Finley, Ced- dissenting)
(fo hold that every bill of auch a nature introduced into the legislature bet
hot passed by it is a manifestation of legislative intent and a directive to
the courte not to effect a change similar to that attempted by the
‘unsuccessful bill spproxinates ... (1) extrene naivete respecting the nature
of the legislative process, and (2) an abdication of judicial function and
Feeponsibility that should not be condoned by resort to legal fictions")
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state shall be either an incorporated stock insurer, an
incorporated mutual insurer, of a reciprocal insurer. Unlike the
stock and mutual insurer, reciprocal insurer does aot have any
employees and is required by statute to be cpersted by an
attorney-in-fact, the reciprocal insurers reinburse thelr
atterney-in-facts [sic] for the cost of cperating the insurance
Company. The attorney-in-fact in essence Le the reciprocal
insurer from an administrative function standpoint. You cannot
hove a reciprocal insurer without an attorney-in-fact, You cannot
Rave one without the other”
Since the reciprocal inaurer pays premium taxes, ve
understood the original legislative intent to be that’ the
cperations of the attorney-in-fact, the entity that actually
performs the insurance work, ig incloded in the definition of
[neuer for the purposes of § 237-29.7, HRS, Exemption of
Insurance Cospants
Sone of the insurers which write medical malpractice
Aneurance in this state are reciprocal insurers comieiles in
calttorns
hich clearly exenpte the attorney-in-fact of 8 reciprocal. from
Californie has © specific provision in thetr tex low
taxes Girectly attributable to property used exclusively in oF on
Ancone derived from the attorney-inefact’s principal business.
Hawaii law sakes no specific reference and is therefore unclear.
5B 364 in Wedical Insurance Exchange's attempt to seek @
clarification of Hawal! law.
The Insurance Division 1e sensitive to the potential loss of
Jobs that might result if this bill 1g not enacted. One of the
Adnieted reciprocal insurers here hi
fo directly cervice their Hawaii policyholders, “If the
Feinbursenent the attorney-in-fact receives for ite Ha
Gperating cost becenes subject to the excise tax, we have been
an office with two employees
44 office
Sdvieed that the sttorney-in-fact will close ite Hawaii office ond
Service the policyhelders from thelr hone office in California.
ot only might existing Jobs in Ha
attorney’ svin-fact [sic] already doing bu
this oeate, out future job creation might also be adversely
affected.
41 be An Jeopardy for
Feciprocals in
‘The captive insurance law was amended last year to allow the
formation of captive insurance companies as reciprocals. One
Gonpany has already redenesticated ies captive to Howall an 8
result of this law change. We expect more reciprocal ceptive
Tneurance conpant
our regular insurance leq, the captive law also requires that a
Feciprocal have an attorney-in-faet. Tf our excise tax Lav ie
will be forned here in the future, Similar to
Unterpeeted in such a nonner ag to tax the attorney-inefact on ite
principal business for a Havaii-doniciled reciprocal, this will
Rave the negative effect of discouraging the creation or
employment ef ccal entities and personnel as the attorney-in-
fact (.]. Under a worst case scenario, it will discourage the
formation of reciprocal captive insurance cenpanies in Hawaii.
We thank the Comittee for the opportunity to conment on
this matter.
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Hearing on S.B. 364, Sen. Conm. on Commerce & Consumer Prot.,
20th Leg., Reg. Sess. (Feb. 12, 1999) (statement of Ins. Conm’r
Reynaldo D. Graulty) (on file with committee clerk).
While Tanaka’s declaration and the former
conmissicner’s testimony may set forth the insurance division's
position as to whether an attorney-in-fact is an insurer, they do
not purport to establish an industry-wide understanding.
Accordingly, MUC has failed to provide sufficient evidence of a
trade meaning and the presumption in favor of that meaning is not
triggered.?
iid. Equitable estoppel
MUC also claims that it relied on the insurance
division’s view that it was an insurance company since 1981. MUC
contends that the department of taxation had knowledge of MUC's
Hawai'i operations because MUC had been filing Hawai'i income tax
returns with the department since 1981, yet did not assess MUC
until 1999. MUC argues that it is “patently unfair” to “impose a
[general excise tax) upon MUC after MUC has relied to its
detriment upon a determination by another state agency... .”
‘The director, on the other hand, asserts that equitable
estoppel cannot be applied to interfere with the government's
exercise of its sovereign power (ie, the power to tax). The
director additionally contends that MUC failed to provide any
evidence of “manifest injustice.” The director further points
“Moc does not argue the related doctrine that the interpretation of
wwote by an agency charged with ite administration ie entitled to
deference, Seg, @.ds, In the Interest of John Doe, horn on August 3, 1977, 73
Baw. 63, 94, 628 F.2d 272, 275 (1382) (n(T}he Construction of (a statute by
tthe agency charged with ite administration is entitled to substantial
Geference ... + If the agency's construction 8 a reasonsble one, the court
‘Should give deference to it.") (Some brackets added and some in originals)
(Ellipees in original.) (Citation caitted.).
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out that MUC has not relied to its detriment on any
representation of the director. Moreover, the director avers
that the department of taxation has no duty to advise MUC of its
tax obligations and that, pursuant to HRS § 237-40, the director
4s authorized to assess MUC at any time insofar as MUC failed to
file any annual general excise tax returns.
‘This court has stated that generally, “the doctrine of
equitable estoppel is fully applicable against the government if
it is necessary to invoke it to prevent manifest injustice.”
State v. Zimring, 58 Haw. 106, 126, 566 P.2d 725, 738 (1977)
(citing Yamad easter Clad: q ‘count
of Hawas's, $4 Haw, 621, 629, 513 P.2d 1001, 1006 (1973),
abrocated on other orounds by Morcan vy. Planning Dep’t, County of
Kauai, 104 Hawai'i 173, 183, 86 P.3d 982, 992 (2004)). However,
“significant limitations have been placed on the doctrine in this
context.” Filipe v. chang, 62 Haw. 626, 634, 618 P.2d 295, 300
(2980). As argued by the director, one of these recognized
Limitations is that the doctrine of equitable estoppel “nay not
be used in such a way as to hinder the state in the exercise of
its sovereign power.” Ida; see also Godbold v. Manibog, 36 Haw.
206, 214 (1942) (“The doctrine of estoppel is not applied to the
extent of impairing sovereign powers of a state such as it
exercises, for example, in the enactment and enforcement of
police measures.”) (Citation omitted.).
It is beyond dispute that the power of taxation is a
sovereign power of the state. See Ionatz v. Conmonvealth, 849
A.2d 308, 313 (Pa. Conmw. Ct. 2004) (“The sovereign power of
taxation. . . is in the state... .”) (Some ellipses added
and some in original.); Lemke ex rel, Teta v. Brooks, 614 N.W.2d
24
+++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
242, 246 (Minn. Ct. App. 2000) (classifying the power to tax as a
sovereign poser); Nerning Safety Lights of Ga., Inc. v. state,
Dep't of Revenue, 678 So.2d 1377, 1381 (Fla. Dist. Ct. App. 1996)
(same); Mash. Public Pover Susply Svs. v. Gen, Elec. Co., 778
P.2d 1047, 1050 (Wash. 1989) (sene); Banner County vy, State Bd,
of Equalization ¢ Resossment, 411 N.W.2d 35, 45 (Web. 1987) ("The
power to tax is a sovereign power. . . .”
As such, the
doctrine of equitable estoppel may not be applied against the
governnent’s power to tax. See Fitzgerald v. City of Bangor, 726
A.2d 1253, 1255-56 (Me. 1999) ("The rationale for the rule
precluding the assertion of estoppel against the government in
tax cases is to assure that no officer of government has the
ability to interfere inadvertently with the government! s
fundamental sovereign power to tax its citizens.”); BCS, Inc. v
Ariz, Dep't of Revenue, 863 P.2d 920, 922 (Ariz. 7.C. 1993)
("(T]here can be no estoppel involved against a sovereign state.
‘The failure of the tax commission to attempt to collect taxes now
sought to be collected from plaintiff for a period of years
constitutes no defense to their collection.”) (Citing Ariz. Tax
Conm’n v. Dairy & Consumers Coop, Ass'n, 215 P.2d 235, 240 (Ariz.
1950).). Therefore, MUC’s estoppel argument is unavailing.
iv. a ments are withor
NUC also asserts that the legislature's preservation of
the term “insurance companies” when it enacted HRS § 237-29.7 in
1991 indicates @ legislative intent to continue to exempt from
the payment of general excise taxes all entities previously
considered “insurance companies,” including attorneys-in-fact.
However, we can find no evidence of legislative intent supporting
25
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
muc’s leap in logic." Rather, HRS § 237-29.7 continues to
expressly reference HRS chapter 431, and, as discussed supra, HRS
chapter 431 contenplates the attorney-in-fact as an entity
distinct from its reciprocal insurer.
NUC contends that the failure of any director of
taxation to assess general excise taxes against attorneys-in-fact
of reciprocal insurers “confirms the intent of the law to exenpt
[attorneys~in-fact] from [tax] liability." However, even
assuming that MUC's factual assertion is correct, the mere fact
that past directors have not assessed attorneys-in-fact does not
require the conclusion that they were not authorized to do so.
Rather, that assertion is germane to MUC’s estoppel argument,
addressed supra.
Finally, MUC asserts that it is authorized to do
business under HRS chapter 431. However, MUC’s authority to
transact business under HRS chapter 431 does not inform the
% Prior to 1992, insurance conpanies were exenpted from the general
excise tax schene by HRS § 237-23(a) (4). Sag HRS § 237-23 (a) (4) (2985 Supp.
550). “pecisicaily, aks § 237-23¢a) (4) (Sopp. 1990) proviced that chepter
237 “inal not apply to. - . [i]neurence companies which pay the State a tax
pon their gross. premiins Gnder chapter 431 ss +7 dn 1091, however, the
legislature repealed HRS § 237-23(8) (4). Seg 1951'Haw. Sess. L. Act 2668 3,
at 682. The legieiature simultanecusly enacted the following provision:
237- xcaption of insurance companies. This chapter shall
not apply to the gross incone or grose proceeds of insurance
Cenpaniee authorized to do business under chapter 421; except this
‘exemption shail not apply to any gross incone or gross proceeds
received after Decenber 31, 1991, ae rents from davestments in
real property in this state; provided that gross income or gross
proceeds fron investments in real property received by sneurence
Companies after Decenber 31, 1991, under written contracts entered
Into before the effective date of’ this Act that do not provide for
the passing on of taxes or tax increases shall not be texed until
he Contracts are renegotiated, renewed, or extended.
1991 Haw, L. Act 286 § 1, at 690. The purpose of the 1991 amendment wa
to ensure that incone derived from sources sther than premiuns on insurance
Centracte vere taxable “at the general excise rate of four percent ss =
Stand. Comm. Hep. No. 1002, n 1991 House Journal, st 1396.
26
** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
question as to MUC’s tax liability. Although MUC presented
evidence that the insurance division has taken the position that
At may authorize an attorney-in-fact to transact business under
the certificate of authority granted to it in the name of the
reciprocal insurer, it does not necessarily follow that the
attorney-in-fact and the reciprocal, insurer constitute the same
taxable entity.
For the foregoing reasons, we agree with the tex eppeal
court's implicit conclusion that MUC is not exempt from the
payment of general excise taxes under HRS § 237-29.7.
MUC does not qualify for the .15 percent tax rate
reserved for licensed general agents, subagents,
and solicitors.
Having established that MUC is not exempt from general
excise taxes, we turn to the director's argument that the tax
appeal court erred by sua sponte applying the tax rate of .15
percent reserved for licensed general agents, subagents, and
solicitors under HRS § 237-13(7). The director contends that MuC
was not licensed, an express requirenent of HRS § 237-13(7), and
that it therefore could not benefit from the reduced tax rate
provided for therein. The director points out that MUC provides
management sexvices to MIEC and CLIC, and that any compensation
received in exchange for those services is taxable under URS §
297-13(6) at a rate of four percent. The director argues further
that statutes exempting taxpayers from the payment of taxes must
be strictly construed.
MUC counters that if this court should find that it is
not exenpt under HRS § 237-29.7, it is alternatively subject to
the .15 percent general excise tex rate imposed by HRS § 237-
2
HAWAII REPORTS AND PACIFIC REPORTER
13(7) inasmuch as its business activity most closely resenbles
that of a general agent or solicitor, as found by the tax appeal
court. MUC avers that the certificate of authority under which
it operates is the License qualifying it under HRS § 237-13(7).
HRS § 237-13(7) (1993) provides the following:
£237, Imposition of tax. There is hereby levied snd shall
18 against persons
sn the state
neasured by the application of rates against values of product
gross proceeds of sales, or gross incone, whichever Se specified,
ae follow
” nce solicitors and agents. Upon every
fon engaged asa licensed solicitor, general agent,
ter 431, there is hereby
fed and collected « tax equal
to .15 per cont of the commissions due to such
activicy.
Preliminarily, we note that HRS § 237-13(7) is plainly
worded as a statute of imposition, as opposed to a statute of
exemption. Thus, although the director is correct that statutes
exempting persons from taxes are to be strictly construed against
the taxpayer, see Hawaiian Pineapple Co., 45 Haw. at 169, 363
P.2d at 1002 (“This court has. . . often applied strict
construction against a taxpayer and in favor of the government
when the ambiguity pertained to an exemption in a taxing
statute.”); In the Matter of the Tax Appeals of 711 Motors, Inc.,
56 Haw. 644, 646, 547 P.2d 1343, 1345 (1976)? In the Matter of
the Tax Ropeal Union -Arcadia Re! idenet
63 Haw. 199, 206, 624 P.2d 1346, 1351 (1961), a contrary rule
applies. To wit, statutes imposing taxes are to be strictly
construed against the government. See Hawaiian Pineapple Co., 45
Haw. at 189, 363 P.2d at 1002 ("This court has on many other
occasions resolved an ambiguity in a statute imposing a tax in
28
FOR PUBLICATION IN WES:
favor of the taxpayer."); Ince Hawaiian Tel, Co., 61 Haw. $72,
578, 608 P.2d 383, 388 (1980) ("It is a cardinal rule of
construction that a statute imposing taxes is to be construed
HAWAII REPORTS AND PACIFIC REPORTER.
strictly against the government and in favor of the taxpayers .
Nevertheless, these competing rules of strict
construction “should only be resorted to ‘as an aid to
construction when an ambiguity or doubt is apparent on the face
of the statute, and then only after other possible extrinsic aids
of construction available to resolve the ambiguity have been
exhausted.‘” Id, at 579, 608 P.2d at 388 (citing Bishop Trust
Co. v, Burns, 46 Haw. 375, 399-400, 381 P.2d 687, 701 (1963).
Here, giving effect to all of the words expressed by the
legislature, see Canara v. Agsalud, 67 Haw. 212, 215-16, 685 P.2d
794, 797 (1984) ("It is a 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
Af a construction can be legitimately found which will give force
to and preserve all the words of the statute.”), we think it
reasonably clear that the phrase “engaged as a licensed
solicitor, general agent, or subagent pursuant to chapter 431,”
is a direct reference to HRS chapter 431, article 9.
HRS § 431:9-201(a) (1993) unambiguously states that
“{nlo person in this State shall act as, be appointed as, or hold
oneself out to be a general agent, subagent, solicitor, or
adjuster unless so licensed by this State.” HRS § 431:9-102
(1993) defines the term “general agent” as:
any person sppointed under section 431:3-203(b) (1) and authorized
29
++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
by the insurer to perform all of the following acts in this State:
(2) Soiiest applications for insurancey
(2) Collect preatume on insurance spplied for or
sEfectustes
(3) point subagents and solicitors:
{4} ReEange ineurance on subjects located, resident, or to
bbe perfcrned wholly outside this State with an
authorized ingurer for which the agent is not
Licensed;
(5) In accordance with the provisions of article 8,
arrange inesrance on subject located, resident, or to
be performed wholly outside this state with an
neuthorized insurer; and
(6) Any other lowful acts porsvant to this article.
HRS § 43:
}-103 (1993) defines the term “subagent” as:
any person appointed by a general agent, or by 2 donestic insurer
Upen cenpliance with section #31:9°102 (b) to perform the following
facts in this state:
(2) Solicit applicetions for tneurances
(2) Cellect prenions on ineuronee so spplied for or
effectuateds and
(3) Any" other lawful acts pursuant to this article,
HRS § 432:
-104 (1993) defines the term “solicitor” as:
any individual sppointed by a general agent or by @ subagent oF by
a donestic ineurer upon compliance with section 431:3-102(b], te
Perform the following acts in this Stal
(2) Solieie applications for insurances
(2) Collect preniuns in connection therewith: and
(3) Gny other lawful acts pursuant to this article,
Here, MUC does not dispute the director's assertion
that it does not hold @ general agent, subagent, or solicitor
license under HRS chapter 431, article 9. Without such a
license, MUC could not have been legally appointed as either a
general agent, subagent, or solicitor of MIEC, its certificate of
authority notwithstanding. Consequently, MUC does not qualify as
a “general agent, “subagent,” or “solicitor,” as defined by HRS
chapter 431, and it therefore does not fall within the paraneters
of the category described by HAS § 237-13(7).
©. MUC is taxable under HRS § 237-13(6) at four
percent.
Rather, as averred by the director, the applicable
30
‘4+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
toxing statute is HRS § 237-13(6) (1993), which provides, in
pertinent part, as follow
“upon every person engaging or
continuing within the State in any service business or calling
not otherwise specifically taxed under this chapter, there is
Likewise hereby levied and shall be assessed and collected a tax
equal to four per cent of the gross income of any such business.”
There can be no question that MUC is compensated for the services
it provides to MIEC and CLIC, and MUC does not assert any other
statutory subsection under which it may be taxed. We therefore
hold that MUC 4s subject to a general excise tax at a rate of
four percent, purauant to HRS § 237-13(6).
2. The director's motion for reconsideration
The director's second and final point of error on
appeal acserts that the tex eppeal court erred by denying his
motion for reconsideration insofar as MUC made factual assertions
after the court's oral ruling on MUC’s motion for partial summary
judgment that raised genuine issues of material fact.
As previously mentioned, it appears that after the tax
appeal court’s oral ruling, the director prepared a proposed
order that included the following pertinent finding of fact:
*wuc's gross income subject to the general excise tax for
conpensation for services rendered as an attorney-in-fact to
(IEC) and [CLIC] for the period January 1992 through January
1999, inclusive, totaled $2,629,301.00." MUC filed objections to
that proposed finding of fact, asserting that it
4s inappropriate be
generat excise tax jens ageinst anterest™
Wic's notion for partial summary juagnent, does net convert the
sesesenents into stipulated facts.
[The director’) proposed finding . . . shovld sis be
foneous and
31
‘OR PUBLICATION IN WEST'S HAWAll REPORTS AND PACIFIC REPORTER **¢
rejected because it 1s factually incorrect, (The) (f]inding . . -
ervonecuely states that appellee received “compensation for
Services rendered as an attorney-inefact for... (CLIC)." tn
fact, [eLicl 1s No? a reciprocal insurance carrier snd therefor
rendered as ite attorney=in-
(Some ellipses added and some in original.). The director
thereafter filed a motion for reconsideration accusing MUC of
nisrepr
nting facts to the tax appeal court and arguing that
more evidentiary proceedings were required to address the genuine
issues of material fact created by (1) the revelation that MUC is
not the attorney-in-fact for CLIC, and (2) MUC’S refusal to
stipulate to the $2,629,301.00 amount that served as the basis
for calculating its tax lability.
For the following reasons, we agree with the tax appeal
court's decision to deny the director’s motion for
reconsideration. First, the director's characterization of MUC's
admission that it is not an attorney-in-fact for CLIC
evidence is curious given that the director’s own pretrial
motions characterized MUC as the attorney-in-fact for MIEC and
the managing agent of CLIC, thus demonstrating its cognizance of
the fact that MUC’s relationship with MIEC differed from its
relationship with CLIC. Moreover, even if the director was
truly not aware that MUC was not an attorney-in-fact of CLIC,
such basic information could easily have been obtained prior to
such a late stage in the proceedings. Second, the director has
waived any argument premised upon MUC’s assertion that it did not
see discussion supra at n.6.
Indeed, the director's August 24, 2001 motion for euamary judgment
sribed MOC as fellows: "[MOC] is the attorney-in fact (sic] of an
Sneurance conpany, [MIEC]. Taxpayer ie also the managing agent of another
Sneurance company, [CLIC]...
32
++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFICREPORTER ***
stipulate to the $2, 629,301.00 anount. The record indicates that
Muc's motion for partial sunmary judgnent expressly treated the
$2,629,301.00 anount as an adnission by a party opponent under
Hawai'i Rules of Evidence Rule 803(a) (1). Thus, MUC made clear
that it did not stipulate to the accuracy of the director's
calculation; rather it merely agreed that it would abide by that
number and used the nunber to calculate its tax liability at a
rate of .15 percent. The director was sufficiently apprised of
Muc's refusal to stipulate at that time. Nevertheless, the
director thereafter filed a response that stated, “the Director
does not object or oppose the fact that [MUC’s] general excise
tax liability is $3,943.95 for income received in the amount of
$2,629, 302.00 as compensation for services rendered as an
attorney-in-fact.” By failing to object or oppose MUC’s position
at that time, the director may not, in a motion for
reconsideration, challenge MUC’s reiteration of that position
after the tax appeal court's oral ruling on the matter.
Therefore, the director's present point of error is
without merit.
B. Muc's Cross-Appeal
In its opening brief on cross-appeal, MUC presents the
following points of error: (1) the tax appeal court erred by
failing to exempt MUC from the payment of general excise taxes
pursuant to HRS § 237-29.7 inasmuch as MUC is an insurance
company authorized to do business under HRS chapter 431; (2) the
tax appeal court improperly denied MUC’s motion for leave to file
an amended answer to director's notice of appeal, filed on July
6, 2000, and to alter or amend the final judgment filed September
3
1** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
23, 2004; and (3) the tax appeal court improperly denied muc’s
motion for attorneys’ fees and costs.
Inasmuch as we have already concluded that MUC's first
point of error is without merit, only MUC’s final two points of
error remain.
MuC's second point of error on cross-appeal asserts
that the Tax Appeal Court erred by denying MUC’s motion for leave
to file an anended ansver and to alter or amend the judgnent.
MUC specifically contends that the director introduced evidence
relating to MUC’s tax liability for the years 1985 to 1991, and
that under Hawai'i Rules of Civil Procedure Rule 15(b), the court
was required to amend “the pleadings as may be necessary to cause
them to conform to the evidence, upon motion of any party at any
time.” MUC further contends that under HRCP Rule 42, the issue
of its tax liability in years 1985-1991 should have been
consolidated with the present matter, involving its tax liability
for the years 1991-1999, inasmuch as connon issues of law and
fact arose from both time periods. The director counters that
nUc’s motion to amend was an attempt to circumnavigate the fact
that it failed to timely appeal the Board’s adverse ruling with
respect to the 1985-1991 time period.
However, in light of the foregoing conclusions that the
director properly taxed uc at a rate of four percent, the issue
presented is moot.
2, MUcts mots ‘ and cost
NUC's third point of error on cross-appeal asserts that
At ig entitied to attorneys’ £
s and costs incurred in defending
34
{1** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
against the director’s bad faith abuse of power. Specifically,
MUC asserts that
the actions of the [d}irector in unilaterally rewriting nore than
sixty years of law without precedent and then not on
his self-«ritten law upon MOC but also. spplyi
law retroactively for hearly fifteen
to'pay the taxes, penalties, and
at the very least, be described
factiona taken in bad faith,
However, MUC’s argunent is without merit inasmuch ai
(1) MUC was properly taxed at a rate of four percent, and (2) the
director is correct that MUC’s failure to file returns authorize:
it to assess MUC at any tine. See HRS § 237-40(b) (1993) (“In
the case of . . . a failure to file the annual return, the tax
may be assessed or levied at any time... .”). Accordingly,
NUC has failed to assert a legitimate basis for its bad faith
claim.
IV, concLusrow
In sum, the payment of compensation by a reciprocal
insurer to its attorney-in-fact is a taxable event under this
jurisdiction’s insurance code and general excise tax scheme.
Additionally, insofar as MIC is not licensed as a general agent,
subagent, or solicitor, it is not subject to the .15 percent tax
rate imposed by HRS § 237-13(7). Rather, it is subject to the
four percent tax rate imposed by HRS § 237-13(6).
35
+" FOR PUBLICATION IN WEST'S HAWAM REPORTS AND PACIFIC REPORTER *
‘Therefore, we partially vacate the tax appeal court's
judgment and remand with instructions to enter judgment in favor
of the dizector in the amount of $105,172.04."
on the briefs:
Hugh R. Jones and Damien A.
Elefante, Deputy Attorneys
General, for appellant/cross-
appellee Mim Yok armeo—
Russell L, Ching and Randall 1.
Morikawa of Ching, Yuen & Neues
Morikawa and Roy ¥. Yempuku of Net Dae
the law offices of Roy Y. Yempuku
for taxpayer-appellee/cross~ ae
appellant e
Gorm € Diy ty
The 6105, 172.06 ancunt 1s derived from applying a generat excise
tex rate of four percent to the $2,629,301.00 received by MUC as compensation
for services rendered to MIEC and CLIC. Although the director assessed MOC in
the ancunt of 160,250-45 for the tax years presently at iesue, that ancunt
Included interest and penalties. The tax appeal coure’s judgment did not award
interest and penalties, gg discussion supra at n.5, and the director did not
appeal that omiceion. ‘sence, interest and penalties should not be avarded on
remand.
36
|
1e00198f-efe0-412d-933d-d0b6c1aa1b90 | In re L-K Children: R. L-K | hawaii | Hawaii Supreme Court | No. 27787
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
IN THE INTEREST OF L-K CHILDREN:
R. LeK. (1) and R. L-K. (2)
ant
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(EC-S NO. 04-09841)
on LY
(By: Acoba, J., for the court")
The Application for Writ of Certiorari filed on May 24,
2007 by Petitioner/Mother-Appellant is hereby rejected.
DATED: Honolulu, Hawai'i, June 21, 2007.
FOR THE COURI
Tae W. Kim, on
the application for
Petitioner/Mother-Appellant.
2 conssal Moon, C.J., Levinson, Nakayama, Acoba, and
batty, 33.
|
e93baf9f-04ee-4447-96d0-2708668e6080 | Mathias v. State | hawaii | Hawaii Supreme Court | no. 27020
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. No. 02-1-0566)
ORDER DISMISSING APPLICATION FOR WRIT OF CERTIORARI
(By: Nakayama, J., for the court!)
upon consideration of the application for writ of
certiorari filed by Petitioner-Defendant-Appellant Brandon K.
Mathias ("Mathias"), pre se, on Sune 18, 2007, and careful review
of the record, we observe 2s follows:
(1) Te appears from the record that Mathias renains
represented by counsel, Jennie J. Park, Es. ("Park").
(2) The Intermediate Court of Appeals’ Judgment on
Appeal was filed on April 19, 2007.
(3) It appears that counsel for Mathias may timely
file an application for writ of certiorari on or before July 18,
2007.
Therefor:
IT IS HEREBY ORDERED that Mathias’ application for writ
of certiorari filed pro se is dismissed, without preiudice to a
subsequent application for writ of certiorari being filed by his
counsel within the time limit prescribed by Hawai'i Rules of
‘considered by: Moon, C.J-, Levinson, Nakayama, Acoba, and Duffy, JJ.
Appellate Procedure Rule 40.1(a) (2006). We note that counsel is
responsible for her own calendaring and the timely filing of an
application for writ of certiorari, if any, in thé instant cai
DATED: Honolulu, Hawai'i, June 28, 2007.
FOR THE COURT:
Pru Ort
|
c8a6df2d-6373-4bfa-b6e1-a0cd385e6448 | Buscher v. Doning. | hawaii | Hawaii Supreme Court | IBRARY
+++ FOR PUBLICATION
WEST'S HAWAFT REPORTS AND PACIFIC REPORTER ***
IN THE SUPREME COURT OF THE STATE OF HaWAI'IEI
aqaw4
ESTHER J. BUSCHER, Plaintiff-Appellee,
9:01 HY |L~ MiP LOO
DUANE S. BONING? COMMERCE INSURANCE CO. +
AVIS RENT-A-CAR SYSTEM, INC., Defendants-Appellants,
and
STATE OF HAWAI'I, Defendant-Appellee,
and
CRANFORD & CO.7 JOHN DOES 1-5; JANE DOES 1-5; DOE
CORPORATIONS 1-57 ROE NON-PROFIT CORPORATIONS 1-5
‘and ROE GOVERNNENTAL ENTITIES 1-5, Defendants
and
DUANE S. BONING; COMMERCE INSURANCE CO.
and AVIS RENT-A-CAR SYSTEM, INC.,
Third-Party Plaintiffs-Appellants,
STANFORD H. MASUI, Third-Party Defendant-Appellee.
No. 27232
APPEAL FROM THE THIRD CIRCUIT COURT
(CIV. NO, 99-0220K)
Jone 7, 2007
MOON, C.J., LEVINSON, NAKAYAMA, ACOBR, AND DUFFY, JJ.
s+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
OPINION OF THE COURT BY DUFFY, J
This workers’ compensation case srose from a 1996 motor
vehicle collision between vehicles operated by Plaintiff-Appellee
Esther J. Buscher and Defendant-Appellant and Third-Party
Plaintiff-Appellant Duane S. Boning. At the time of the
collision, Buscher was driving within the course and scope of her
employment with Defendant-Appellee State of Hawai'i. Buscher
made a clain for workers’ compensation benefits to the State and
sued Boning in Civil Ne. 97-237K, Buscher and Boning agreed to
settle the case for Boning’s policy limits of $125,000.00, and
the case was dismissed with prejudice by stipulation of the
parties. Soon thereafter, however, an issue arose with respect
to whether the Employer State consented to the alleged settlement
between Buscher and Boning as required by Hawai's Revised
Statutes (HRS) § 386-8 (1993), and Buscher filed the instant
lawsuit, Civil No, 99-0220K
Boning and Defendants-Appellents and Third-Party
Plaintiffs-Appeilants Commerce Insurance Co. (hereinafter,
Commerce] and Avis Rent-A-Car System, Inc. [hereinafter, Avis,
and collectively with Boning and Commerce, Defendants] appeal
from the Circuit Court of the Third Circuit's March 15, 2008
final judgnent,’ raising the following points of error on appeal:
‘The Honorable Ronald Ibarra presided over this matter
(2) the circuit court abused its discretion in granting Buscher's
September 24, 2001 motion to set aside the stipulation for
dismissal with prejudice of Civil No. 97-237K as to all claims
and parties [hereinafter, motion to set aside the stipulation];
(2) the circuit court erred in ruling in its February 11, 2002
Findings of facts, conclusions of law, and order thet the State
owed no duty te Boning to reasonably consent to the settlement
agreenent after the court previously found thet the State had
acted unreasonably and outrageously in withholding its consent;
(3) the circuit court erred by denying Defendants’ August 5, 2002
motion to enforce the settlenent agreement: (4) the circuit court
erred in dismissing Defendants’ third-party claim against Third-
Party Defendant Stanford #, Masui, Buscher’s attorney; (5) the
cirevit court erred in dismissing Defendants’ counterciain
against Suscher; (6) the circuit court erred in denying
Defendants’ October 12, 2000 motion for interpleader and
dismiseal; and (7) the circuit court abused its discretion in
granting Buscher’s motion for taxation of costs.
In reply, Buscher contends: (1) the circuit court did
not abuse its discretion in vacating the stipulated dismissal
between the parties because the settlement failed (2) the
settlenent between Euscher and Boning was either void or
voidable: (3) the circuit court did not err in refusing to
#** FOR PUBLICATION IN WEST'S HAWAF' REPORTS AND PACIFIC REPORTER ***
enforce the agreenent; (4) the State’s refusal to consent to
third-party settlement agreement was obstructive and
unreasonable; (5) adverse counsel owes no duty to defendants or
their attorneys in the course of representation of a party:
(6) the court's award of expenses to Buscher as the prevailing
party, and based on en offer of judgment, was reasonable; and
(7) Defendants’ fifth and sixth points of error should be deemed
waived pursuant to Hawai'i Rules of Appellate Procedure (HRAP)
Rule 26(b) (7). Additionally, the State, in response to Boning’s
second point of error, replies that the circuit court correctly
rejected Boning’s cross-claim against the State for unreascnable
failure to consent. Based on the following, the circuit court's
March 15, 2005 final judgment is affirmed. In addition, we
vacate the circuit court’s June 1, 2005 order awarding costs and
remand this case to the circuit court with instructions that an
amended order be entered, awarding costs in the amount of
$20,002.82 in favor of Buscher.
1. BACKGROUND
A or et Laweuit, Civ.
on June 13, 1996, Buscher, while driving within the
course and scope of her employment with the State, was injured in
2 motor vehicle collision with @ vehicle driven by Boning.
Buscher nade a claim for workers’ compensation benefits to the
*** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
State and also sued Boning in 1997 in Civil No. 97-237K. The
State did not intervene in that case, nor did it initiate its own
suit against Boning in connection with the motor vehicle
collision.
On July 8, 1999, Buscher accepted Defendants’ offer to
settle Civil No. 97-237K for $125,000.00. The State was advised
of the settlement by letter dated July 14, 1999. Boning’s
insurers, Conmerce and Avis, issued settlement checks totaling
$128,000.00, payable to Buscher and Masui, in July 1998. Such
checks, however, apparently were never delivered to Buscher or
Masui. Buscher and Boning, on numerous occasions, beth requested
written consent to the settlement from the State as required by
HRS § 386-8.7 Without receiving such consent, however, Euscher
HRS § 286-£, “Liability of third person,” provides in relevant part
cresting in sone person other than the employer oF another
enployee of the enployer acting in the course of his
fenploysent s legal liability to pay denages on account
thereof, the injured exployee or his Gependente (hereinafter
referred to collectively a8 the enployes) may claim
such thire person.
ie chapter and recover Ganages from
Ig the exployee conences an action against such thire
person he shall without delay give the employer written
Rotice of the action and the nase and location of the court
in which the getion ie Erousht ey personal service oF
registered nail. The exployer may, at any time before trial
onthe facts, join as party pleintife
No release or settlenent of env claim or action under
Teene inves
“+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
signed @ release and settienent agreement, drafted by Boning, on
August 2, 1998. The settlement agreement did not require the
signature of a representative of the State, nor did it mention
anything about the State's consent. Buscher’s attorney, Masui,
4, .continved)
This section ic velig without the written consent of both
‘Scploverand-enolcvee, The entire enount of the eettlenent
Sfter deauctions for attorney's fees and costs at
hereinafter provices, if subject to the employer’ s ri
Feinborsenent for his compensation paynente uncer thie
Chapter and his expenses end costs of acticn.
ot
1f the sction Se prosecuted by the employee alcne, the
exployee shall be entitles to apply out of the amcunt of the
SSsgnent for denagee, or settlement in case the action ie
Cempromiced before jucsnent, the reasonable iitigetion
Sepenses incurrea in preparation end prosecution cf such
Son, together with's Fessonable attorney’s fee whice
all $e based solely open the services rendered by the
exployes's attorney in effecting recovery both fer the
benefit of the employee and the employer. After the payment
of such expenses and attorney's fee there shell be applied
cot ef the ancunt of the Judgment er settlement proceeds,
the amount of the employer's expenditere for compensation,
Jess nis shave of such expenses and attorney’s fee. 02
application of the employer, the court shail allow as >
fest Iien against the amount of the Judgment for damages cr
settlenent proceeds, the snount of the empioyer’s
‘expenditure. for compensation, leas his share of such
expenses and attorney's fee.
In the
the anount of
ef attorneys"
faxed by the cou
fent that the parties are unable to agree upen
sonable litigation expenses end the encunt
Under thie section then the same shell be
After reimbursenent for his compensation paysents the
exployer shall be relieved from the cbligetion to make
forther compensation payments to the enpioyee under this
Chapter op to the entire snount of the Balance of the
Settlenent of the Sudgeent, If satisfied, as the case nay
be, after deducting the cost and expenses, including
attorneys" fees
ie aaded.)
+++ FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER ***
signed his approval of the form and content of the release and
settlement agreement. Masui also signed a stipulation for
dismissal with prejudice as to all claims and parties in Civil
No. 97-237K. On August 9, 1999, Boning filed the signed
stipulation for dismissal with prejudice in the circuit court,
despite the fact that Buscher had not yet been paid the
settlement consideration and the State had not yet consented to
the settlement.
by letter dated October 18, 1999, the State informed
Buscher that it consented to the settlement conditioned upon:
(1) the deposit of $12,500.00 into an interest-be
‘ing account
until the amount of the workers’ compensation lien and/or any
amount of contribution for fees and costs was finally determined;
and (2) the State's reservation of its “rights, remedies, clains
or causes of action it may have against . . . Eoning with respect
to any workers compensation benefits provided by the State to
Mrs. Buscher « .
Perceiving the October 15, 1999 letter as the State’s
written consent, Masui requested that Defendants issue settlement
checks by letters dated October 18 and 27 and Novenber 5. Having
not received the checks, Masui, by letter dated Novenber 15,
1999, informed Defendants that he considered the settlement “void
for failure of your clients to meet their obligations.” In
+#** FOR PUBLICATION IN WEST'S HAWAT] REPORTS AND PACIFIC REPORTER ***
reply, by letter dated Novenber 16, 1999, Defendants’ counsel
stated:
Je be reminded that you personally assured me that
‘Coke care cf” the lien with Employer, Seate of
Deputy Attorney General] Ma. Schoen then
personally called me on Novenber s, 1999 and told me that
Employer wovla not consent to the cettienent you and T
Feached on behalf of cor respective clients
Therefore, we have not receives consent from the State as
yoo insist.
5. The Instant Laweus 02201
fon December 13, 1999, Buscher filed the instant,
lawsuit, Civil No. 99-0220K, which included the previously
dismissed personal injury lewevit 2s Count I as well as nunerous
other claims accusing Defendants of breaching the settlenent
agreement and the State of interfering with the agreement by
wrongfully withholding consent. In response, Defendants:
(2) cross-clained against the state for, inter alia, unreasonable
failure to consent to the settlenent, interference with a
contractual relationship, and negligent claims handling/necligent
failure to consent; (2) counterclaimed against Buscher for, inter
alig, abuse of process, breach of the settlement agreement, and
misrepresentation? and (3) filed a thiré-party complaint against
Masui alleging that he breached his duty to Defendants by failing
to obtain the required employer's consent, failing to exercise
reasonable care and diligence to obtain consent, and
+++ FOR PUBLICATI HAWAF'T REPORTS 4’ REPORTER ***
we:
misrepresenting to Defendants that he had obtained such consent,
thus causing excess litigation expenses.
1. Defendants’ motion to intexplead
On October 11, 2000, Defendants filed @ motion to:
6 deposit with the covrt $125,000.00,
(2) interplead
representing the settlenent proceeds of the first lawsuit; and
(2) dismiss Defendants. At 2 Nevenber 6, 2000 hearing, the court
orally denied the notion, ressoning thet there was still a
dispute as to whether or not there was @ settlement. An order
Genying the motion was entered on Decenber 4, 2000.
Defendants’ counterclaim against Buscher
on May 15, 2001, Defendants moved for partial summary
judgment on their counterclaim against Buscher as to Counts 7
(breach) and III (misrepresentation). By order dated July 6,
2001, the court found that the State “did not agree to the
settlement,” and that there was “no valid settlement under HRS
§ 386-8." The court, however, inexplicably granted Defendants’
motion. On July 22, 2002, Buscher filed @ motion for relief from
the judgnent or order on the grounds of mistake, inadvertence,
and/or to accomplish justice. By order dated September 13, 2002,
the court granted Buscher's notion and set aside its order
granting Defendants’ motion for partial summary judgment.
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
on April 28, 2002, Buscher moved to dismiss Count I
(abuse of process) and Count III (misrepresentation) of the
counterclaim, arguing, inter alia, tha
found that there was no settlenent, Buscher cannot be said to
(2) because the court
have abused the legal process by pursuing her lawsuit against
Defendants; and (2) Defendants failed to state a claim for
misrepresentation because they did not allege that when Buscher
signed the settlenent agreenent, it was with the present intent
to make @ false representation. Following @ hearing on June 10,
2002, the court granted Buscher’s motion by order dated
August 19, 2002.
on October 31, 2002, Buscher filed a metion to dismiss
Count 11 of the counterclaim (breach), asserting that without
valid settlement agreement, there can be no breach. The court
granted Buscher’s motion on January 24, 2003. Judgnent was
entered in favor of Buscher on March 4, 2003.
3, Buscher’s motion to set aside the stipulation
dismissing Civil No. 97-237k with prejudice
In the meantime, on July 27, 2001, Buscher filed
notion to set aside the stipulation dismissing with prejudice
Civil No. 97-237K, requesting that the circuit court, pursuant to
Hawai'i Rules of Civil Procedure (HRCP) Rule 60(b), relieve
Buscher from the stipulation because the settlement agreement,
upon which she relied in executing the stipulation, was void or
20
*#** FOR PUBLICATION IN WEST'S HAWAT' REPORTS AND PACIFIC REPORTER
voidable. After an August 8, 2001 hearing, the court granted the
notion by order dated September 24, 2001.
4. Jury trial on Buscher’s personal injury ca
Jury trial conmenced on Buscher's personal injury case
against Boning on Septenber 11, 2001. ‘The jury returned a
verdict in favor of Buscher, and on November 7, 2002,, judgment
was entered in her favor in the amount of $275,000.00.
5. Bench trial on Defendants’ cross-claim against the
state
on February 11, 2002, after @ bench trial, the circuit
1 order,
court issued its findings of fact, conclusions of
which, inter alia, dismissed Defendants’ cross-claim
State. The court entered the following relevant findings:
48, [The statel’s #
ettlonent agreement mar unreasonable and the dire:
of a negligent review of Flaineiff Buecner'e worker’ ©
Conpensation and liability cleins by [the state]. Seid
Feview wae below the standard of care required of an
exployer in determining whether to consent to empleyee[s’)
Personal injury settlement agreements. (Trial testimony of
Richard K. Griffith, page 23, line 7-i8.)
49, (The state)’s negligent claim handling, i.e.(,]
ite wrongful refusal to consent to Plaintiff Buscher' &
settlement agreement with Defendant Bening, was 8 legel
cause of Plaintiff Buscher’s enotional distress.
‘The court additionally entered the following pertinent
conclusions of law:
6, By choosing net to intervene in Plaintiff
Boscher’s suit ageinet Defendant Boning oF prosecute
claim ageinst then, [the State) chose to rely on Plai
Buscher’s prosecution of her case against Oefendant Boning
[the State]"s sole
Werker"s compensation
‘++ FOR PUBLICATION IN WEST'S HAWAT' REPORTS AND PACIFIC REPORTER *
10, (The State]’s October 15, 1999 letter Exhibit =
ao awr se not consent ae that term is used in (HRS §) 256-2
because it purports to reserve to the employer the Fight te
sue the tortfeasor, whereas the consent under (HRS §) 366-8
hheane the employer looks only t0 the settienent proceeds for
Teinbursenent of its worker's compensation lien claim end
gives up its right to sue the tortfeasor
12. the court finds that [the State] hed @ duty to
‘act reancnably to Flasnei## Borcher in evaluating the
Settlenent agreement in Angust 1989.
12. (The State} nad a duty not to unressonsbly
withhold ste coneent from Plaintife/Defendent soning
Tettlement agreement.
13, [The State) waived ite inmunity under (RS
chapter] €62, and none of the exceptions under [HRS §) €62-
18(4) apply to protect the state,
au
worker’ compen
fed upon [the State]’s conduct in handling the
the reasons given for
Seared articipation in the
, the court concludes that the
[Statel unsesconably reivsed te consent to the proposed
settlenent agreenent
The court ruled that, based on the State’s unreasonable refusal
to consent, Buscher had stated clains against the State for
negligent infliction of enotional distress, intentional
infliction of enotional distress, and intentional harm.
Nevertheless, the court ruled that “Buscher has not specifically
proven monetary damages nor has she proven any general damages as
a result of the enctional distress(,]" and dismissed Buscher’s
clains. Additionally, the court dismissed Defendants’ clains
against the State, reasoning thet “[w]ith respect to (the
State]'s negligent claim handling and its impact on Defendant
Boning, there is no duty which gives rise to @ cause of action
+ FOR PUBLICATION IN WEST'S HAWAP'I REPORTS AND PACIFIC REPORTER ***
for ‘unreasonable failure to consent,’ ‘negligent claim
handling{,]‘ [lor ‘negligent failure to consent.‘*
Defendants’ third-party complaint against Masui
on April 29, 2002, Masui filed a motion to disniss
Defendants’ third-party complaint against him. Maevi"s motion
was granted on August §, 2002 after a June 10, 2002 hearing.
Judgnent was entered in favor of Masui by order filed Novenber 7,
2002.
7, Pefendants’ motion to enforce the settlement
on August $, 2002, Defendants filed a motion to enforce
the settlement agreement, to order the State to consent to the
settlenent agreement, and for relief from the February 11, 200:
findings of fact, conclusions of lex, and order, After a hearing
on October 7, 2002, the circuit court denied the motion on
october 24, 2002.
8. Appeal, final judgment, and taxation of costs
on March 31, 2003, Defendants filed @ notice of appeal.
on April 3, 2003, Buscher filed @ notice of cross-appeal. on
Septenber 16, 2003, we filed an order dismissing the appeal and
cross-appeal, noting that the orders and uncertified judgments
were not reduced to a single jucgnent resolving all claims and
parties as required by HCP Rule 58 and Jenkins v. Cades Schutte
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
Plening 6 Wricht, 7€ Hewai'l 115, 119-20, 869 P.2d 1334, 1338-39
(ag98).
on Noverber 19, 2003, Euscher filed a bill of costs in
the circuit court, and on Decenber 1, 2003, Defendants filed
objections thereto. On October 18, 2004, Buscher filed an
amended bill of costs, and on October 25, 2004, Defendants again
filed objections therete. On October 25, 2004, Buscher filed 2
motion for taxation of costs. Defendants and the State each
filed memoranda in opposition to Buscher’s motion on Novenber 10
and 12, 2004, respectively, A hearing was held on Novenber 29,
2004.
on March 18, 2008, final judgment was entered disposing
of a11 clains and parties in the case. Defendants filed their
notice of appeal on April 12, 2005. The circuit court granted
Buscher's October 25, 2004 motion for taxation of costs on
June 1, 2008.
11, STANDARDS OF REVIEW
RCP Rule 60 Motion to Set Aside Stipulation to Dismiss With
Exsiudice
“An appellate court reviews a circuit court's
determination of an BRCP Rule 60 motion for an abuse of
discretion.” Amantiad v. Odum, 90 Hawai'i 152, 158, 977 P.2d
160, 166 (1999) (citations mitted). “[A]n abuse of discretion
cccurs where the trial court has clearly exceeded the bounds of
‘++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
reason or disregarded rules cr principles of law or practice te
the substantial detriment of a party litigant.” Office of
Hawaiian Affaire v. State, 110 Hawe'{ 336, 361, 193 P.3¢ 767,
780 (2006) (quoting Ranger Ins. Co. v. Hinshaw, 103 Hawai'i 26,
30, 79 P.3d 118, 123 (2003)).
ion force Settlement Aoreenent
“A trial court's determination regarding the
enforceability of 2 settlement agreement is @ conclusion of law
reviewsble de nove.” Assocs. Fin, Serve. sai
Milo, 87 Hewai'i 12, 28, 960 P.26 1219, 1228 (1998) (citation
onitted).
c. Interpretation of
statutory interpretation is “a question of law
reviewable de novo.” State v. Levi, 102 Hawai'i 282, 265, 75
P.3d 1173, 2176 (2003) (quoting State v. Arcee, 64 Hawai'i 1, 10,
928 P.2d 843, 852 (1996)}. “When interpreting rules promulgated
by the court, principles of statutory construction apply.”
Kewamata Farms, Inc, v. United Aori Prods,, 86 Hawai"i 214, 255,
948 P.2d 1055, 1096 (1997) (quoting State v, Baron, 80 Hawai'i
107, 113, 905 P.2d 623, 619 (1995).
Db. Duty
“the existence of duty owed by the defendant to the
plaintiff , . . is entirely a question of law.” Knodie v
+2 FOR PUBLICATION I} 'S HAWAI'I REPORTS AND PACIFIC REPORTER *
Waikiki Gateway Hotel, Inc., 69 Haw. 376, 385, 742 P.2d 377, 363
(1987) (citations omitted).
Motion to Dismiss
atria} court's ruling on # motion to dismiss is
yevieved se nove. srenner ¥, City ¢ County of sonsiuly, 96
hawaii 136, 136, 28 F-3d 350, 394 (pp. 2001). The court
must sccest plaintsef"e aliegstione ae true anc view then sn
the Light most favorable to the pisintsté; dicnseesl se
proper only if Ire beyond doubt that the plaintiff
fen prove no set of fects in fuppert of his or her clair
t would entitie hin of her to relief.” Dunles v. baspen,
Hiewai's 26, 32, $24 P26 19€, 200 (1996), overruled en
c“Wawas'i, “162°Hewas $2,
105-02, 13 P38 46, D560 (200s) (citations omitted) .
however, "emotion seeking dismiteal cf a complaint te
transfcined' ite ¢ hemes Rulee of Civil Frocedure (ANCE)
Role £6 motion for summary Judgment when the circuit court
Consider matters cuteide the pleadings. Al ¥. AU, 63 Haw
Hos 212, Bee 26°95, “Soe Tbe)
Wong v. Cavetanc, 112 Hawai'i 462, 476, 143 P.3d 2, 18 (2006).
FB p for Summary Judon
Me review the circuit court's grant or cenisl of
guneary sudgnent de nave. Mavall
Grease “ution v. veka, Se waned 213, 201, 1 Pe a
4 for granting © notion for summary
[Slunmary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, sre
Denitesone cn file, together with the afficavste, if
any, show that there is no genuine issue es to any
rial fact and that the soving party is entitled to
Susgnent 2s a aster of lew. A fact ie material if
roof of that fact would have the effect of
tetablishing or refuting one of the essential elenents
of @ cause of action or defense assertes by the
parties. The evidence must be viewed in the 1ight
est favorable to the non-noving party. Jn othe:
Words, we must view all of the evidence and th
inferences draw therefrom in the Light nest: favorable
to the Party cpposing the notion.
Id, (citations and internal quotation marke onitted) .
con v. City an a 98 Hawai'i 233, 26
Frag se8, #8060 (2002) (eecone alteration in eriginal).
5, 4
x
*#* FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER *
Kau v, City & County of Honolulu, 104 Hawai'i 468, 473-74, 92
P.3d 477, 482-83 (2004).
G. Taxation of Costs
“the avard of a taxable cost is within the discretion
of the [circuit] court and will not be disturbed absent a clear
abuse of discretion.” Hong v. Takeuchi, 68 Hawai'i 46, $2, 961
P.26 611, 617 (1998) (internal quotation marks end citation
omitted).
TIT. DISCUSSION
Euscher’s Motion to Set Aside the Stipulation to Diemis:
Defendants first allege that the circuit court abused
its discretion in setting aside the stipuletion to dismiss with
prejudice Civil No. $7-237K. Buscher responds that the court did
not abuse ite discretion because pursuant to HAS § 386-8, neither
the settlenent nor the stipulation was valid without the State's
written consent. We agree with Buscher.
1. The settlement agreement was not valid pursuant to the
plain meaning of HRS § 386-8.
HRS § 386-8 states, in relevant part, that “[nJo
release or settlement of any claim or action under this section
is valid without the written consent of both employer and
employee.” This plain and unambiguous language required thé
State to consent in writing to validate the settlement between
FOR PUBLICATION IN WESTS HAWAI'I REPORTS AND PACIFIC REPORTER ***
Buscher and 5
ing. See Shimabuku v. Montoonery Elevator Co., 79
Hawai'i 382, 357, 903 P.2d 48, $3 (1995) ("[U]nder the clear
lahguage of HRS § 386-8, an injured employee, who has previously
received workers’ compensation benefits, may not dismiss a claim
against @ third-party tortfeascr without written consent of the
employer."). The circuit court correctly found, and Defendants
agree, that the State did not consent in writing.? Rather, ite
october 18, 1999 letter proposed an alternative “settlement,”
with which Boning did not agree, whereby the State purported to
reserve its right to sue Boning. Therefore, the State's
Coteber 15, 1999 letter did not constitute written consent to the
settlement as required by HAS § 386-8, and the settlement was not
valia.
2. The cirevit court did not abuse ite discretion in
setting aside the stipulation.
Defendants contend, however, that the stipulation to
dismiss with prejudice could not be set aside because: (1) it
was improper for the trial court to allow Buscher to make a
motion in an independent action after the initial case was
dismissed with prejudice; (2) Buscher did not have “clean hands”
° ar de Buscher's position that the State's Ceteber 25, 1999 letter
constituted valid written consent Fursuant to HRS € 366-8. In Buscher’s view,
S's 306-8 only requires that the employer consent to the settlement
agreenent? st oes no! i oyer agree to release si] claine
‘Boscher, however, dia not cross
ngly, this issue ie
(CIFIC REPORTER
because she breached the settlenent agreenent; (3) none of the
reasons enunerated in HRCP Rule 60(b) existed to support setting
aside the dismissal of Civil No. $7-237K; (4) Buscher’s motion to
set aside the dismissel was untinely and she did not exercise due
diligence insemuch ae two years passed between the dismissel of
Civil No. 97-237K and her motion: and (5) Buscher did not show
that she wee “injured and that circumstances beyond . . . her
control prevented timely action te protect [her] interest” as
required by Lehman v. United States, 154 F.3d 1010 (9th Cir.
1998). These contentions are unavailing.
In Shimabuky v. Montacnery Elevator Cox, we addressed a
similar situation invelving en enployee’s workers’ compensation
and third-party claims. Therein, the plaintiffs, the injured
enployee and his wife, stipulated with the defendants to dismiss
all clains and settled their personal injury and loss of
consortium clains against the defendants without the consent of
the injured employee's employer. 79 Hawai'i at 354, 903 P.2d at
50, We held, purevant to HRS § 386-8, that without the
employer's consent, the stipulation to dismiss with prejudice was
invalid. Id. at 358, 903 P.2d at Likewise, the stipulation
to dismiss in the instant case was invalid because the State did
not consent thereto. Accordingly, the circuit court did not
abuse its discretion in setting aside the stipulation.
s
WEST'S HAWAT
FOR PUBLICATION
while Shimsbuky is dispositive on this issue, we will
proceed to address Defendants’ specific arguments.
HRCP Rule 60(b) provides in relevant part:
fon motion ane upon svch tems as are Just, the court say
relieve party or party's legal reprerentasive fron @
final judgnent, crder, or proceeding for the following
Feasone () the judgnent. hes been satisfieg,
Felessed, Or diecharged, ors prior judgnent upon which it
is besee nas been reverses or Stherwise vacates, cr it ie no
Longer equitable that the Judgnent should have prospective
application; or (€) any ether season sustifvine relief trom
the cperation of she iudanent:
The fetion shell be made
Sithin © reasonable tines). this rule dees net limit
‘the power'of a court to entertain an inderendent ection to
Felieve s party from 2 judgnent, order, er prececaing
(Emphases sdded.) According te the plain language of the rule, @
court can “entertain an independent action te relieve a party
fron @ judgment, order, or proceeding... .” As such,
Defendants’ first contention is without merit.
With respect to Defendants’ second contention, Buscher
could net have breached the settlenent agreement because, 3s
discussed in Section II.A.1, supra, there was no velid
settlenent agreenent to breach.‘
Defendants’ third assertion that none of the reasons
enunerated in HRCP Rule 60(b) existed to support setting acide
the dismissal of Civil No. 97-237K is also without nerit.
According to HRCP Rule 60(b), “the court may relieve a party
« authough Sefendents scnit thet the State oid not consent to the
settienent, Defendants contend that the settienent agreement was stil) valié
and enfercéatle as between Euscher and Boning. Me disagree, os discussed in
Seetion 131.8, dnixa
20
++ FOR PUBLICATION IN WEST'S HAWATI REPORTS AND PACIFIC REPORTER.
« from 2 final judgment, order, or proceeding for... (6)
anyother reason justifying relief from the operation of the
judgnent." The Intermediate Court of Appeals (ICA) has stated
that “Rule 60(b) (é) empowers the court in its discretion to
vacate @ judgment whenever that action is appropriate to
accomplish justice.” Inre Hane Ranch Co. Ltda, 3 Hew. App.
141, 147, 642 P.26 938, 942 (1982). The fact that the
settlement, upon which the stipulation to disnise was based, was
not valid constitutes an appropriate reason justifying relief,
and the circuit court did net abuse its discretion in so ruling.
Defendants’ fourth contention that Buscher did not
exercise due diligence and that her motion was untimely, is also
vnaveiling. HRCP Rule 60(b) (6) requires that the motion be made
“within @ reasonable time|.)” After the dismissal of Civil No.
97-237K, Buscher and Boning both attempted to get the State's
consent and argued their respective positions regarding the
effect of the State’s October 15, 1999 letter. Based on the
letters exchanged between the parties’ attorneys, it appears that
the parties realized that they had come to an impasse in
approximately Novenber 1999. One month later, Buscher filed the
instant lawsuit. Buscher filed her motion to set aside the
stipulation approximately one and one-half years later. Although
ultimately, nearly two years elapsed between the dismissal of
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
Civil No. 97-237K and Buscher’s motion to set aside the
Gisnissal, based on the circumstances of this case, it cannot be
Saié that the circuit court's ruling that such time period was
reasonable clearly exceeded the bounds of reason to Defendants’
substantial detrinent.*
Finally, in addition to the fact that this court is not
bound by Ninth Circuit precedent, Defendants’ citation to Lehnan
is unavailing. First, Defendants contend that Euscher was not
injured by the dismissal of Civil No. 97-237K. Contrarily,
inasmuch as the settlement agreenent was not valid, if the
circuit court had not set aside the dismissal of Civil No. 97-
237K, Buscher would have recovered nothing fron Defendants, who
aintained that they did not have to pay the $125,000.00
settlement consideration until Buscher procured the State's
consent to the settlement agreenent as required by HRS § 386-8.
Second, Defendants contend that Buscher did not show that
* Detendante’ reliance on Billingham Inv, Com. ¥, Kunio Yokovans
Tevet, @ Saw. Ape. 226, 757 P.2d 316 (1890), and BAM" 7
Hoenata, 77 aol ed, 663 7.20 ۩ (2994), 4p unavesiing. Uniske the
Exstent core, Dillinotam ceale with ¢ moticn for relief from Judgnent based on
mcr fue 6018) (1), which, by its terme, must be filed within one year after
the judgeent, order, oF proceeding wee entered of taken. Here, Buscher"s
‘Snot request relief Deced on HRCP Rule 6016) (1), (3), atl of
Discher’
eine
‘ise distingussheble from the instant case Because more
eee ane cne-hel! years clapeea between the entry cf the Gismiseal order
ane the tine vyehara filed hie WReP Rule €0 motion. 77 Hawsi's at 148, 862
Prag at 10. Moreover, unlike in this case, the circus roled
that such @ tine Selay wee ot reasonable; we affirmec, concluding that the
Court had not abused ite discretion in so ruling. 1d."
then
++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
circumstances beyond her control prevented timely action to
protect her interests because, according to Defendants, it was
solely Euscher’s fault that she failed to get the State's
consent, thus thwarting consunmation of the settiement. To the
contrary, both parties attempted and failed to obtain the state's
consent to their settlement agreement. The fact that the state
unreasonably withheld its consent, a finding not challenged as a
point of error on appeal, was not within Buscher’s control.
Based on the extraordinary circumstances in this case,
which ultimately led to the invalidity of the settlement and
ipulation, it is clear that Defendants did not carry their
burden of establishing that the circuit court abused its
discretion in setting aside the stipulation to dismiss. See
1 162, 80 P.3d 974, 8
Ditto v. McCurdy, 103 Hawai'i 1 3 (2003)
("The burden of establishing abuse of discretion is on the
appellant, and a strong showing is required to establish it.”
(oueting Lepere v. United Pub, Workers, Local 646, 77 Hawai'i
471, 474, 887 P.2d 1029, 1032 (1995).)).
The Circuit Court Did Not Err in Refusing to Enforce the
oT ‘Rareenent.
Defendants also contend that the circuit court erred in
refusing to enforce the settlement agreement. Because, as
cussed in Section I11.A.1, supra, the settlement agreement was
not valid pursuant to HRS § 386-8, the circuit court did not err
'1 REPORTS AND PACIFIC REPORTER
FOR PUBLICATION IN WEST'S HAW:
Nevertheless, Defendants contend that
in refusing to enforce
although the State did not consent to the settienent, the
settlenent agreenent was still valid and enforceable as between
Buscher and Boning. We disagree.
Defendants point to language in Buscher’s complaint in
which she adnitted that there was @ settlement agreement between
Boning and herself, arguing that such admissions are binding on
Buscher. Even assuming, axeuendo, tht Buscher believed the
settlement agreement was valid, this does not change the fact
thet HRS § 386-8 requires the State’s consent without which there
can be no valid settlement agreement. The agreenent between
Buscher and Boning cannet be read as enything other than 2
proposed settlement agreement, which never reached fruition
because of the State's failure to consent. Accordingly, the
circuit court did not err in denying Defendants’ motion to
enforce the settlement aoreenent
c. court Did Ni s
cross: ‘State:
As stated in Section I.B.$, supra, the circuit court
found that “(The State]’s negligent claim handling, i.e.(,) its
wrongful refusal to consent to Plaintiff Buscher’s settlement
agreement with Defendant Boning, was @ legal cause of Plaintiff
Euscher’s enctional distress.” The court therefore concluded
that Buscher stated 2 claim for negligent infliction of encticnal
WEST'S HAWAT
FOR PUBLICATION \D PACIFIC REPORTER
distress, intentional infliction of emotional distress, and
intentional harm. Defendants aver that because the court found
the foregoing, the court erred in also finding that Defendants
did not have clains against the Stete for “unreasonable failure
to consent” and “negligent clains handling.” the State replies
that the circuit court correctly rejected the cross-claim against
it because: (1) the plain statutory language of HRS § 386-8 does
not mandate that consent shell not be unreescnsbly withheld:
(2) the legislative history of the stetute indicates an intent to
protect the interests of the employer and the employee, but not
the tortfeasor: (3) the statutes and cases from cther
jurisdictions upon which Defendants rely sre irrelevant and
distinguishable; (4) common sense requires affirmance; (5) the
state hes epecificslly not waived its immunity for the clains
asserted: and (6) the State's conditional consent to the
settlement agreement was reasonable.
1, The State Tort Liability Act
As a threshold matter, we first address the state's
contention that it ie immune from suit based on the State Tort
Liability Act (STLA), HRS chapter 622. Generally, “la) sovereign
[s]tate 4s immune from suit for money damages, except where there
hes been @ ‘clear relinguishment’
£ immunity and the [s]tate has
nted to be sued.” Bush
con Watson, €1 Hawai'i 474, 461, 916
‘OR PUBLICATION IN WEST'S HAWAF REPORTS AND PACIFIC REPORTER ***
P.2¢ 1130, 1137 (1996) (quoting Bele Defense Fund v. Paty, 73
Hew. 578, 605, 837 P.2d 1247, 1265 (1992)) (internal quotation
marks omitted). The STLA provides thet “[t]he State hereby
waives its inmunity for liebility for the torts of its employees
and shell be liable in the same manner and to the same extent as
BRS § 662-2
a privete individual under like cizcunstences
(1993). Notwithstanding this general waiver, the STLA contains
numerous exceptions for which the State retains its sovereign
immunity. Here, the State contends that Defendants’ cross-claim
falle within HRS § 6€2-15(4) (1993), which states an exception
m arising out of . . . interference with contract
for “[alny c:
rights[.]"* Assuming, without deciding, that a claim for
interference with prospective business advantage’ or prospective
© we noted Sn i sue) Core v. 2 Andersen
that the requisite elenente ef intentionol oF tortious interte;
contractusl relations ere:
(2) & contract between the plaintiff and e thiré partys (2)
the Gefencant’s knowledge of the contract; (3) the
Gefendant’s intentions) inducenent of the third perty te
Breach the contract; |) tne ansence of justification on the
Gefendant’s part) (5) the subsequent breach of the contract
by the third party; and (6) denages te the plaintssr.
223 Hawad's 261, 267 n.17, 182 P.34 752, 148 n.17 (2007) (ettation® omitted)
in Kahala Reval Corps, we noted that the following elenents
constitute the tert cf intentional or torticus interference with prospective
Easiness or econenic advantage:
(2) the existence of a valid business relationenip or
prospective advantage or expectancy sufficiently definite,
Specific, ano capable of acceptance in the sense that there
iba reasonable probability of it maturing into a future
econcnie benefit to the plaintiff; (2) knowledge of the
Teont inved.
2
++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
contractual relations! fells within the aforementioned
exception,’ we nevertheless disagree that Defendants’ claims for
“unreasonable failure to consent” and “negligent cleims handling”
(continued)
Telaticnehip, advantege, or expectancy by the defendant; (3)
ecpurpeseful intent te interfere mith the relationship,
Scvartage, or cxpestency:, {¢] legal ceuestaon between the
Get of interference ond the impairment of the reletsonship,
Sevantage, or expectency: ane (5) actual damages:
de et 267 n.28, 181 F.3d at 748 n.18 (citation omittes)
+ Gn Kutcher v, Zimmerman, the 1CA noted thet “the tort of interference
with prospective contvactual relatiche is 2 sub-epecies of the erosaer tort of
Yherierence with prospective econcnie advantage. 67 Newel 364, 408 n.25,
S87 F.26 1076, 1087 5.25 (app. 1888). The ICA then held thet @ pleintift
Sileging the tort of interference with prospective contractual relations most
flese one prove the following:
(2) # prospective contractual relationship existed between
the pisintiff ano s thire party) (2) the Gefencant knew of
thie reletionshsps (3) the defendant intentionally
interferes with the plaintiff's prospective contract (4)
the defencant acted without proper justifications (§) the
SCiencant's interterence caused the third party to fail te
ESnsunnate the prospective contract with the plaintiff; and
(El the cetensant's interference causes danages to the
plaints
Ad, at 406, 108
(footnotes emitted) «
+ the 3CA, in Hutches, recognized that “the interests protected by [the
tort of interference with existing contractual relaticns] and by the tort of
[itentionel interference with prespective economic edventage have been viewed
as relatea{.J” 67 Hawal't 294, 405.35, 957 F.26 2076, 2087 1.15 (app.
{Se6). “west Jurisdictions appear to agree that the tort of interference with
prospective economic ecventage falls within the “interference with contract
Eights" exception to the waiver of sovereign immunity. See, e.g., Art
tecel-U,fhe Inc. 2, Unites States, 755 Fezd i151, 1158 (D-C. cir. 1885)
Tconpiling caves ond Pelding that the plaintiff's “clains for interference
wietterocpective sovantage are barred s¢ clains arising cut ef interference
vith contract rights”); Dunres v United States, 26¢ F.2d 140, 145-44 (30
Cizri(eoneluaing that the tort of interference with prospective advantage was
Stinpay en extension” of tne tort cf interference with contractual relations
and hos thus snclogable wehin the exception to the tert claime ect) (citation
SEEMSG) "Sere ceniec, 361 Us. £22 (1988). But see Colersdo Ins, Group,
nes. Gnited States, 216 F, Supp. 767, 793 (B. Core. 1963) CIA] mere
Lifigetion of interference with proepective sovantage should not be construed
fc neceesacily fall within the sestutery exception pertaining to interference
Wit’ Conteactuel rights.”
++ FOR PUBLICATION IN WEST'S HAWAT REPORTS AND PACIFIC REPORTER“
constituted such an interference claim. It cannot be said that
the State improperly interfered with the alleged settlement
agreement because, pursuant to HRS § 386-8, the State was =
necessary party to such agreement. See Hell v. Burcer King
Corp., 912 F. Supp. 1509, 1837 (8.0. Fla. 1995) (holding that
because any prospective sale cf the restaurant required the
defendant's consent, defendant's refusal to consent did not give
rise to a claim for tortious interference). Cf. Ethyl Corp, v.
Balter, 386 Sc. 2d 1220, 1224 (Fla. App. 1980) (“[A] cause of
action for interference does nct exist against one who is himself
@ party to the contract allegedly interfered with"): Uptoun
Heiohts Assocs, Ltd, P’ship v, Seafirst Comp,, 691 F.2d 639, 647
(Or. 1995) (holding that a party to a contract could not be
Mable in tort for conduct which the party was entitled to do
under the contract, even if party has malevolent purpose): Fort
vancouv ced 147 F.2d $47, $54 (9th
Cir. 1984) (concluding that a “tort{] committed by persons
sustaining contract relations” does not constitute the tort of
interference with contract rights) (citing Nicholson v. United
States, 177 F.2d 768, 769 (Sth Cir. 1949)). We therefore held
that the interference with contract rights exception does not
apply to the instent case.
#* FOR PUBLICATION IN Wi
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The State does not owe Defendants an actionable duty.
Defendants next challenge the circuit court’s
conclusion that “[w]ith respect to [the State]’s negligent claim
handling and its impact on Defendant Boning, there is no duty
which gives rise to a cause of action for ‘unreasonable failure
to consent,’ ‘negligent claim handling[,]’ [Jor ‘negligent
failure to consent.’” The State responds that the circuit court
correctly determined that it does not owe an actionable duty to
Defendants. We agree with the State.
We have often stated:
fon upon one fer the benefit of the other =~ or, nore
+ shethes fect of the plaintiff which
ntities to legal protection at the
ie entirely a goestion of Lew
Knodle, 69 Haw. at 385, 742 P.2¢ at 383 (internal quotation
signals, ellipsis, and citations omitted). The state correctly
notes that the plain language of HRS § 386-8, supra note 2, does
not explicitly mandate thet an employer has a duty not to
unreasonably withhold consent. However, this is not dispositive
of whether @ duty exists here. Rather, in considering whether to
inpose @ duty on a defendant (here, the State) to be owed to @
plaintsff (here, Defendants) we have stated generally that:
2
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IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER ***
(W)e recognize that cuty se not escrosanct in itself, put
only an expression of the sun total of these considerations
Of Belicy which lead the law te say that the particul
Blalncitt is eneities to protection. legal duties ar
severable facts of noture, but merely conclusory
expressions that, in cases of particular type, lability
should be inpesed for danage dene. In determining wh
Srinct @ duty is owes, we must weigh the consideracior
Policy which favor the [plaintiffe’] recovery against those
Wich fever uniting the (defendante’] Lisbiisty- The
Goestion cf whether che ose # duty to ancther must be
Secided ch e cate-by-case Baris, Rowever, we are relsctent
fo inpose a new coty upon menbers of cur society withost ery
logicel, sound, and compelling reasons taking inte
ceneigerstion the octal and funan relaticnenipe ef ovr
society.
Blaix ving, 98 Howes‘ 247, 259-60, 21 F.3d 452, 464-€5 (2001)
(citations omitted).
b. Caselaw and statutes
Defendants cite to various caselaw and statutes, mainly
from other jurisdictions, to support their contention that we
should interpret HRS § 386-E as imposing @ duty on the employer,
in favor of the tortfeasor, not to unreasonably withheld consent
to the settlenent agreement. The State contends that the
statutes and cases upon which Defendants rely are irrelevant and
distinguishable. Again, we agree with the State.
cate
The only Hawai'i case cited by Defendants ss
Pacific Rent-All, Inc., in which we “[wleigh{ed) the policy
considerations underlying an insurer's right of subrogation
against those considerations supporting the finality of
settlement,” and held that “in the context of fire and casualty
insurance,” @ settlement egreement between an insured and @
+++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
tortfeaccr does net bar an insurer's subrogation action. 90
hawai'i 315, 332, 978 P.26 753, 770 (1999). As Pacific Rent-A:
makes clear, HRS § 386-8 supports our holding in that case
because it statutorily preserves an employer's subrogation rights
from third-party settlement. See id. It is unclear, however, how
that case supports Defendants’ position that an enployer/insurer
has 9 duty not to vnresscnably refuse to consent to a settlement
agreement.%° Rather, the case seems to support the State's
position insofar as it enphasizes that an employer‘s subrogation
interest outweighs the tortfeasor’s interest in reaching @
settlement with an employee.
Defendants alse rely on Eckhardt v. Village Inn
Vicorpl, 626 P.2d BSS (Cole. 1992), in which the Colorado
Supreme Court held that an insurance carrier's refusal to approve
a settlenent between an injured employee and third-party
tortfeasor must be reasonable. In that case, Eckhardt, the
injured employee, received workers’ compensation benefits from
his employer, via the insurance carrier, after being injured in a
truck accident. Id. at @87. Eckhardt subsequently sued the
tortfeasor. Id. Realizing that a recovery in his third-party
© To the extent that Defendants are arguing thet Paci{ic Rent-Ai
sopperts their contention chat the settienent agreenent shosle be enforceable
af Between Buscher anc Bening, such argunent is without merit for the reascns
Set forth in Section 111.8, gunzg, 2nd Deccuse Zacific Rent-All wae decices
Sin the context of nd Casualty insurence,” and not HRS § 266-6.
PUBLICATION IN WEST'S HA\
REPORTS AND PACIFIC REPORTER
suit was unlikely, Eckhardt entered into settlement negotiations,
and the tortfeasor offered $12,500.00. Id, Eckharét sought the
carrier's approval, pursuant to @ Colorado statute requiring the
carrier's consent prior to settlement when the amount to be
recovered is less then the total compensation owed by the
carrier. Id, The carrier offered to approve a settlement in
which it would receive $7,000.00 and @ complete release from its
obligation to pay Eckhardt any future benefits related to his
claim. Id. After Eckherdt refused the offer, the carrier
refused to consent to any settlement not sufficient te indemnify
fully the carrier for its subrogated interest. Id, at 857-58.
Eckhardt nevertheless settled with the tortfeasor for $12,500.00.
Id, at €56. The Colorado Court of Appeals affirmed the
administrative lew judge's conclusion that Eckhardt had forfeited
future benefits by settling the suit against the tortfeasor
without the carrier’s consent. Id. The Colorado Supreme Court
granted certiorari and reversed, holding that “an insurance
carrier, which has been properly notified about a suit brought in
good faith by the injured enployee, has an ebligation to act
reasonably when an injured employee requests approval of a
settlement in such a suit.” Jd, The court reasoned that
imposing ne duty on the carrier te act reascnsbly when
retve: tous cettlenent offer would only work to
Gininsen the nomber of actions initiated by employers
Torttessors. The result would be
Contrary to the intent ona purposes of the Act and £0
22
‘+++ FOR PUBLICATION IN WEST'S HAWAT] REPORTS AND PACIFIC REPORTER ***
employers’ best interests because their carriers will net
Seteive eny reinbursenent from the third parties
Fesponsibie.
Id
‘The key fact that distinguishes Eckhardt from the
instant case ig that in that case, unlike here, the injured
employee, not the tortfeasor, brought suit against the
employer/carrier. In other words, Eckhardt stands for the
proposition thet the insurer owes a duty to the emplovee not to
unreasonably withhold consent. The Eckhardt Court's reasoning,
as set forth above, indicates that its holding promoted the
public policy interest of not discouraging employees from suing
tortfessors, thereby else ensuring that employers receive
reinbursemente from reeponsible tortfeasors. The court did not
mention sny public pelicy supporting the imposition of @ duty en
the enployer owed to the tortfessor. Therefore, Eckhardt does
not support Defendants’ position.
Defendants elso direct this court to several states
that permit an employee to seek court approval of the settlement
in lieu of obtaining the consent of the employer or carrier,”
and argue that because Hewai‘i does not have such a statute, we
befendants cite to the states of Arkansas, Mel
anc tiew York, Tisted in 6 Arthur Larson & Lex K. Larse!
‘Slupensaticn’ Law § 116.07 (5) (2000), se states that permit on enpleyee to
Geurt approval of the cettienent in' lieu of obtaining the consent of the
Gnployer or insurer.
achuserts, Nebrasks,
+++ FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER
should fashion a remedy for tortfeasors whose settlements ere
“held hostage” by unreasonable employers or insurers. We look to
HRS § 386-8 and its legislative history for guidance in
determining whether tortfeasors should be protected by imposing a
duty on employers, as Defendants contend.
c. Lesislative history
The State aptly points out that the legislative history
of HRS § 386-8 indicates thet the statute's purpose is to protect
the interests of the employee end the employer. As stated in
Shimabuky v. Montoomery Elevator Co.:
HRS § 386-8 originated in 1915 a6
of the Laue of the Territory of Hawal't. Rowever, the
Siepositive paregraph of HAS § 3EE-E in the instant cose,
nich requires consent of Both employer and enployee before
Gy “release” or “settlenent” is valle, wes net adged until
$551 hen the House Leber Consittes arcnded Senate fil) 1
(6.8. 416) to sneiude tne paragraph. 1961 Maw. Sess. 1. Act
154, § 4409 et 225. The paragraph proposed by the House
Labor Connittee provices in Felevant pari
section § of Act 221
No release or settlement of any claim or action under
this section is valid without the written consent of
both enployer and employee. The entire amount of such
settlenent ie aubject to the employer's fli cleim for
Feinborsenent fer hse expensitures fer benefice onder
this chapter and his expenses and costs of acticn
In anending 5.8. 18, the House Leber Committee notes:
H.D.i anends 5.0.1 in accordance with suggestions of
the Department cf Labor ond the Inturance Industry £0
that the wording . . » provides # more equitable
Ealance ae betheen the Fights of the employer and the
employee.
ise. Stand. Conn. Rep. No. 722, in 1981 House Journal, at
595. Thus, the legisisture enacted HRS § 386-8 to give the
injured employee # right to cleim workere’ compensation
benefits and to proceed against s chize-party tortfeascr
without waiving his of her righte to either. Wee, Stand
'ST’S HAWA REPORTS AND PACIFIC REPORTER ***
FOR PUBLICATION IN W1
Comm. Rep. No. 722, in 1961 House Journal, at $79. However,
because the eaployér's right to reimbursement is often
Gepencent on the injured exployee’s actions, the legislature
Sspotes 8 provicion regiring the written consent of both
expleyer end enployee Before eny release of settlement if
value fefore, me mst construe the fourth paregreph of
HRS § 306-8 to give foll effect to the intent of the
legislature, hich sought to protect the Fights of both
enployees and employers:
79 Hawai'i at 357-58, 903 F.2d at
As Defendants admit in their reply brief to the State,
“[the consent requirement of [HRS] § 386-8 is supposed to
protect the employer and employee.” Indeed, it is clear that our
legislature intended the statute to protect the employer’s right
to reimbursement and the employee's right to claim workers’
compensation benefits and to file suit against the tortfeasor.
d. Conclusion
Stated simply, there is nothing in cur caselaw or in
the legislative history of HRS § 366-€ to support the imposition
of a duty on employers in favor of tortfeasors regarding consent
tos third-party settlement. Moreover, we do not believe it to
be prudent public policy to impose on employers such an
actionable duty. Accordingly, the circuit court did not err in
ruling that the State did not owe Defendants an actionable duty
ctionable
Becevte ue hold that the Stete does not owe Defendants an
1 consent
coty in this cate, we need not discues whether the Staters conaitic
fo the proposed scttlenent agreenent wes Teascnable. Furthernore, as
Detensents pesnt cut, the circuit court's ruling that the State's refusal to
Consent was unressonable with respect co Fuscher stands unchallenged because
the Stave aid not appeal this ruling,
Ea
++ FOR PUBLICATION IN WEST'S HAWAI' REPORTS AND PACIFIC REPORTER,
and thus, did not err in dismissing Defendants’ cross-claim
against the State.
Dd. The ci xt Did Not Err in Dismissine Defendants’
Third-Party Claim Aoainst Masui.
Defendants also aver that the circuit court erred in
disniesing Defendants’ third-party claim against Masui, which
alleged “negligent handling of 2 settlement between his client
and (Defendants) resulting in damages to [Defendants] .”
Specifically, Defendants contend: (1) Masui’s motion to dismiss
was actually @ motion for sunmary judgment and should have been
treated as such; and (2) (a) Mesui owed Defendants = duty of care
pursuant to Blair v. Ing, 9 Hewai'i 247, 21 P.3é 452 (2001), and
(b) Masui’ failure to obtain the State’s consent breached this
Guty resulting in harm to Defendants. Regardless of whether
Masui's motion is reviewed as 2 motion to dismiss or @ notion for
summary judgment, based on the following, Defendants’ argunent
that Masui owed Defendants an actionable duty is without merit as
a matter of lew, and the circuit court did not err in dismissing
Defendants’ third-party claim against Masui.
As the ICA stated in Myers v, Cohen, “creation of a
Guty in favor of an adversary of the attorney's client would
create an unacceptable conflict of interest. Not only would the
adversary’s interests interfere with the client’s interests, the
attorney’s justifiable concern with being sued for negligence
3
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\CIFIC REPORTER
would detrimentally interfere with the attorney-client
relationship.” 5 Haw. App. 232, 246, 687 P.2d 6, 16 (1984)
(quoting Friedman v, Dozore, 312 N.W.26 585, 591 (Mich. 1961)),
rev'd on other cfounds, €7 Haw. 389, 688 P.2d 1145 (1984).
Accord Rashid v. Albricht, 618 F. Supp. 1354, 1358 (D. Nev.
1993) ("while the Court expects all counsel to conform with the
ethical guidelines, imposing an affirmative duty of care to an
adverse party in litigation would create an unaccepteble conflict
of interest.”); Clark v. Druckwan, 624 S.£.2d 864, 869 (W. Va.
2005) {collecting cases and stating that “courts which have
addressed the issue have uniformly found that an attorney does
not have a duty to @ third party, including an opposing party,
the breach of which would subject the attorney to liability”);
Garcia v. Rodev, Dickason, Sloan. Akin & Robb, P.A., 750 P.2d
116, 122 (N.M, 1988) (holding that attorney’s actions would not
Norton
MaHines, 49 Cal. App. 3d 917, 123 Cal. Rptr. 237 (1975) (stating
give rise to cause of action under theory of negligence):
that the plaintiff did not have cause of action against adverse
party's attorneys for simple negligence).
Nevertheless, Defendants cite Blair for the proposition
that “there can be a duty of care between an attorney and a non-
client either in negligence or contract actions.” Blaiz,
however, is distinguishable. Blair involved a legal malpractice
s+ FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER
action brought by the beneficiaries of @ trust against the
attorney whe drafted the trust documents. Therein, we adopted
thé test set forth in Lucas v. Hamm, $€ Cal. 24 $83, 15 cal.
Rptr. €21, 364 P.2d €8 (1961), also @ malpractice action against
an attorney who drafted trust documents, to determine “whether to
impose @ duty upon attorneys to nen-client beneficiaries in the
ate clannine context.” Blaiz, 98 Hewai'i at 260, 21 P.3d at
465 (enphesis added). Inasmuch as this case clearly dees not
zr held that there
involve estate planning, the fact that Bl
could be @ duty of cere between an attorney and non-client
beneficiaries does not support Defendants’ assertion that Masui
owed an actionable duty of care to Defendants here. Indeed, as
we rade clear in Elaiz, “we emphasize that our holding today does
not create @ blanket duty of care to all non-client beneficiaries
in every case.” Id, at 261, 21 P.3d at 466.
ke therefore hold that Masui did not ewe Defendants an
actionable duty in the instant case such that Defendants could
assert # claim for relief sounding in negligence against hin, and
the circuit court did not err in so ruling."
1% pathough Defendants eppesr to frame their issue cn epreai in terme
negligence, they eiso assert at nuserous tines throughout their briefs that
fasts misrepresented to Defencants thet he had ostaines the State's consent.
Gniise s cloit for negligence, an stterney can be held liable for frevaslen
plerepresentation. "See Kanal Roval Corey, 113 Hawaii at 268-69, 151 F.3d at
lens stating that it 1s wel
perey for fraud); Matsuura
149, 362, 73 P-2¢ 667, 700 (2003) ("Under
++ FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER ***
E. Countercleim Agsinst Buscher and Motion for Interpleader and
Dismissal
As their fifth and sixth points of error, Defendants
contend that the circuit court erred 41
(1) dismissing their
jer and dismissal “for the reasons stated in
motion for interple
the Motion for Interpleader and For Dismissal Filed October 12,
2000"; and (2) denying their counterclaim against Busther “for
the reasons stated in their Memoranda in Opposition to the
motions.” Buscher replies that these points of error should be
deemed waived pursuant to HRAP Rule 26(b) (7) because Defendants
fail to provide an argument, citations to authorities, statutes,
and parts of the record upon which they relied. Inasmuch as
Defendants indeed do not have @ corresponding argument section
for either their fifth or sixth points of error, and only direct
this court to look at previcusly filed memoranda, we deen these
points of error waived. See HRAP Rule 26(b) (7) (stating that an
opening brief should contain “[t)he argument, containing the
contentions of the appellant on the points presented and the
reasons therefor, with citetions to the authorities, statutes and
(continued)
|, » party 1s not inmune from lisbility for civil Garages besed vpon that
Lyte fraud engaged in during prior Litigation proceeainge.")? 2
Chuck, 1 Faw, App. 379, 383-84, 620 P.26 733, 736687 (2980) ("Ine rule of
That an attorney representing & client say be held personally liable to an
aoverse party cr @ chiro person who eustains injury as 2 result of sn
attorney's intentional tortious acte ie weil settled.” (Citations omitted.)
Betencants, however, concede in thei cpening brief thet "{iJn the instant
Cece, snere sre no allegations thet the agreenent Between (Bvecher) ane
Defendants wae procures by fraud.”
38
‘OR PUBLICATION IN WEST'S HAWALT REPORTS AND PACIFIC REPORTER,
parts of the record relied on. . . . Points not argued may be
deened waived"). If we were to accept Defendants’ previously
filed memoranda as Defendants’ argument in support of these
points of error, and thus, part of their opening brief,
Defendants would be in violation of HRAP Rule 28 (a), which states
that “an opening . . . brief shall not exceed 35 pages|.]”
Accordingly, Defendants’ fifth and sixth points of error are
waived.
F. The Cixcuit Court's award of Costs
Finally, Defendants contend that the circuit court
(1) lacked jurisdiction to enter an order granting Buscher’s
motion for taxation of costs, and in the alternative, (2) abused
its discretion in granting such costs.
1, The circuit court had jurisdiction to grant Buscher’s
motion for costs.
RAP Rule 4(2) (3) (2006), entitled “Tine to eppesl
affected by post-judgnent motions,” states:
If any party files a tinely motion . . . for attorney's fee
or coset, the tine for filing the notice of appesl se
Eetensed enti 30. cays after entry of an crder disposing of
the motion; provided, that the failure £0 dispose of any,
notion by order enteved upon the record within 90 days after
the cate the noticn wae filed shell constitute a denial of
the RotSen.
notion to strike Defendante! faret
fest Defendants’ fifth ano siach pointe of
ctor should be orened watved pursuant to ARAP Rule 26(b) (7). This court, on
Geteber 14,7005, grentes Buscher's motion to strike Defencante’ firet opening
Brief, but for faslure te comply with HRAP Rule 26(B) (8)
% gugcher prevsovely filed
opening erief, arguing, amber alia,
«0
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This rule, effective Jenuary 1, 2000, supersedes the line of
cases standing for the proposition that the circuit court lacks
jurisdiction to evard costs after a notice of appeal is filed.
‘The rule provices that the court has 90 days to dispose of 2
postjudenent motion for costs, regardless of when the notice of
is filed. In the instant case, Buscher prematurely filed
opp
her motion for costs on Octcker 28, 2004, four and one-half
months prior to the entry of final judgment on March 15, 2005.
Although the rule does not address the situation in which =
motion for costs is prematurely filed prior to the entry of final
judgment, we will deem such motion filed immediately after the
judgment becomes final for the purpose of calculating the 90-day
period, As such, the court's June 1, 2008 order granting
Buscher's motion for costs is valid, and Defendants’ April 12,
2005 notice of appeal is deened to appeal this disposition. HRAP
Rule 4(b) (3).
2, The cixeuit court's avard of costs
a. HRCP Rule 6&
We first address Buscher’s contention that she is
entitled to costs under HRCP Rule 68 (2003), which provides, in
relevant part:
At any tine more than 10 days before the trisl begine,
ny party may serve upon any adverse party an offer of
Eettlenent oF an offer to allow juagnent to be taken 2
aither party for the money or property or to the effect
specified in the offer, with coste then accrued, vs An
++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER.
offer not accepted shall be ceened withdyenn and evicence
Sherect is net scniesible except in s proceeding te
Geternine coste, Lf the sudssent finally chteined by the
siferse ie not nore Zeversh : s
‘URL Day the costs incurred after the makina of the offer,
(Emphasis added.) Buscher filed two purported HACP Rule 68
offere of judgement -- one on January 31, 2001 and one on July 27,
2001 -- both in the amount ef $200,000.00. The judoment entered
against Boning after a jury trial was in the amount of
$278,000.00. Although this judoment was not more favorable te
Eoning than Buscher's offers, Buscher is not entitled to costs
under HRCP Rule €8 because her two offers did not constitute
valid Rule 68 offers inesmuch as they did not “fully and
completely decide the claim or clains toward which the offer(s)
Iwere) directed.” Kikuchi v. Brown, 110 Hawai'i 204, 209, 230
P.3é 1068, 1074 (App. 2006) (quoting Ass'n of Apt. owners of
Mailes Flue v. Mailes Resort Co., 100 Hawai'i 97, 120, $8 P.3d
608, 691 (2002) (quoting Crown Frops., Inc. v. Fin, Sec. Life
Ing. Co., 6 Haw. App. 105, 113, 712 P.2d $04, 520 (1988))).
Here, as discussed in Section 17.8, supra, @ settlenent would
not have been valid without the State’s consent pursuant to HRS §
286-8. Thus, had Boning accepted Buscher’s purported offer of
judgrent, it would not have fully and completely decided the
clains toward which the offer was directed because it lacked the
State's written consent. As such, Buscher’s offers were not
sufficient to qualify as HRCP Rule 68 offers of judgnent.
@
++ FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER ***
b. HRCP Rule $4/d)
Buscher, however, is entitled to costs under HRCP Rule
S4(d), which provides that “costs shall be allowed as of course
to the prevailing party unless the court otherwise directs|.)"
“costs” are those properly avardable under HRS § 607-9 (1993),
which states:
ALL actual disbursenente, including bot not limite
te, intvactate travel expenses for witnesses
expenses for cepesition transeript originals and copies, and
cther incidental expences, including cep)
Gnerastace long distance telephone charge
sworn to by en attorney ora party, anc deenec resscnabie by
the court, may be silowed in taxation of corte.
We therefore now address each of Defendants’ challenges to the
circuit court's award of costs to Buscher.
(1) Messenger service:
Defendants first challenge the circuit court's award of
1,125.00 for what Buscher labeled “messenger services,” for
“redex” and “CitiExprese” charges. Defendants contend that
Buscher is not entitled to the award because she failed to
provide “any explanation for why express service was necessary or
reascnable. Moreover, there was no justification or support
provided for why [Buscher] is entitled to this. Messenger
service is an expensive luxury which would be unnecessary with
proper time managenent and scheduling to avoid the need for
express services.”
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“Because there is a presumption that the prevedling
party may be awarded its costs, the burden of showing that
particular cost request is unreasonable is more properly on the
adverse party.” Mong, @8 Hawai'i at 53, 961 P.2d at 616. Thus,
it was Defendants’ burden to show why the expenses were
unreasonable.
With respect to messenger services, the ICA in Kikuchi
held that such fees are generally not taxable costs. 110 Hawai'i
at 212-23, 130 P.3d at 1077-78. As the ICA explained therein,
“except in the rare circumstance where the need in particular
case is extraordinary in its volume or nature, the cost of this
fonction . . . is properly treated as overhead.” Ic. et 213, 130
F.3d at 1078, In this case, Buscher’s attorneys were on C'ahu,
while the case was being tried in the third cirevit (Kona
Division) on the islend cf Hawai'i. Buscher avers that the costs
requested were for delivery of various pleadings to the third
circuit court. Buscher provided itemized invoices detailing the
Gate and place of delivery, @ description of the documents
Gelivered (s.a., motions, menoranda, exhibits, subpoenas, etc.),
and the cost of each delivery, Despite having this detailed
information, Defendants do net provide any evidence that any
specific delivery costs were unnecessary or unreasonable. Thus,
while messenger services may generally not constitute @ taxable
“
#4 FOR PUBLICATION IN WEST'S HAWAT REPORTS AND PACIFIC REPORTER,
cost, it would be reasonable for the circuit court to have
allewed @ portion of this cost for the expense of mailing the
numerous filings from O'ahu to Hawai'i. See HRS § 607-9 (“ALL
actual disbursements, including but not limited to, - . -
postage, sworn to by an attorney or a party, and deened
reasonable by the court, may be allowed in taxation of costs.”).
We further note that the circuit court reduced Buscher’s
requested messenger service costs from $2,606.88 to $1,125.00.
We therefore held that the circuit court did not abuse its
discretion in ewarding Fuscher $1,125.00 of her requested costs.
(2) Expert services
Defendants next take issue with Buscher’s request for
$5,032.74 for “expert services,” correctly stating that expert
witness fees are generally not taxable as costs. See Canalez vw
Bob/s Appliance Serv, Ctr., Inc., 69 Hawai'i 292, 307, 972 P.26
295, 320 (1999) ("{T]his court has reaffirmed the proposition
that expert witness fees are normally not allowed.” (Citations
omitted.}}.% However, the court only awarded $352.02 for
“expert services,” apparently for Buscher’s request with respect
% pathoogh in Canglez we stated that “expert witness fees incurred
after the making of an offer of judgment, if deemed reasonable, are taxable in
the Court's diseretion se coste agsinet the offeree pursuant to HRCP Rule
bet, ]* €9 Hawei't at 308, 972 F.26 at 31, a8 discussed in Section TI1.F.2.
Haugy, Buscher's cffere were not sufficient to quelify ae ACP Bule 6€ offers
EF jedgnent. Ae such, uncer HRCF Rule 54(d), expert witness fees ere not
shiowed
“6
2+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
te Micro-Imaging-HI, Inc. (Kone Hespital), which appears to be 8
charge for @ microfilm copy of her nedical record as well as 2
$20.00 “research” charge. This cost, therefore, does not appear
to be an expert witness fee. Because Defendants only objected to
an evard of expert witness fees and do not specifically object to
this cost, the circuit court did not abuse its discretion in
awarding it. See fiona, 68 Hawai'i at 53, 961 P.2d at 618
("Because there is @ presumption that the prevailing party may be
awarded its costs, the burden of showing that a particular cost
request is unreasonable is more properly on the adverse party.").
(2) Travel expenses
Fuscher requested $6,904.35 for travel expenses,
including airfare, rental car fees, lodging, expenses, and meals.
The circuit court evarded her costs in the ancunt of $6,593.04,
but did not explain the $311.31 reduction. In support of ner
airfare and rental car expenses, Buscher provided travel
itineraries detailing the date each cost was incurred, the matter
requiring travel (g.g., circuit court hearing re:
Motions/Settlenent Conference), airline flight departure and
arrival information, copies of airline coupons used with the
passenger's name, rental car charges, and credit card charges
showing payment of each expense. Despite having this detailed
“
OR PUBLICATION IN WEST'S HAWAF'I REPORTS AND PACIFIC REPORTER *
information, Defendants do not cbject to any specific travel
expense request; their objection, in its entirety, states:
There wes no setisfactery explanation for whe incurred these
see or specifically what they were for. The cost of
‘Toaging for witnesses wee not auerdea by the t3ii
court in the Harking cose and the sppellste court cored,
fee Haruine ve Theda, 18) Haw. 376, 989 Pele 766) (2976)
Contrary to Defendants’ implication, as stated above, “[blecause
2 presumption thet the prevailing party may be awarded
there 4
dts costs, the burden of showing that @ particular cost request
is unreasonable is more properly on the adverse party.” Wong, 87
Hawai'i at 53, 985 P.2d at 618 (rejecting non-moving party's
argument thet lower court abused its discretion because moving
party failed to explain way the costs were necessary). As we
held in wong:
(Wyhen costs are avardeble to # prevailing party uncer ERCP
Kole S419) and s particular taxable costs allowed by
featute oF precedent, then actuel eisburcenente for this
purpose sre presumptively resscnable. The saverse party he
The burden cf challenging the reasonableness of « particule
cost request. in the sosence of @ chellenge to ¢ particy
Feguert, st ie not an ebuse of discretion for the trial
court 10 suara the cost requested as presumptively
Feasonabl
Id, at 53-54, 961 P.2d at 616-19. With this in mind, we address
each of the categories in Buscher’s request for travel expenses.
Firet, airfare clearly falls within HRS § 607-9"s
“intrastate travel expenses” category, as do expenditures for
Mong, 88 Hawai'i at $4, 961 P.26
parking, rental car, and ¢
at 619.
IAWAT'I REPORTS.
25+ FOR PUBLICATIO’ PACIFIC REPORTER,
wes
on the other hand, “[mJeals are not texable costs. The
necessity for eating lunch is severable from and unrelated to the
Litigation.” Id. at 54-55, 961 P.2d at 619-20. After a careful
review of the record, it appears thet $466.23 of the costs
requested were for meals, which are not taxable costs according
to Wong. Id, Thus, this amount should be deducted from
Buscher’s award.
With respect to Buscher’s request for the cost of
lodging, we have stated that “[hjotel expenditures are reasonable
only if necessary due to the scheduling of court proceedings or
Gepositions. Hotel expenditures for the convenience of counsel
should not be allowed.” Id, at $4, 961 P.2d at 619. As stated
above, Defendants do not challenge @ particular request, but
merely cite to Harkins v. Ikeda, for the proposition that hotel
lodging for witnesses is not a taxable cost. Defendants,
however, do not point to anything in the record indicating that
the hotel lodging expense was for witnesses. Defendants also do
not argue that the hotel expenditures were otherwi:
unnecessary
or unreasonable. Thus, it is clear that Defendants fail to show
that the circuit court abused its discretion in awarding this
cost. See Int'] Bro, of Elec, Workers v. Hawaiian Tel., 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 @
FOR PUBLICATIO’
WEST's HAW!
REPORTS AND PACIFIC REPORTER +
voluminous record to find the ground of an ebjection.” (Citation
onitted.)).
Absent any argument by Defendants objecting te any of
puscher’s specific travel expense entries, we conclude that
Buscher is entitled to an award of costs for travel expenses in
the amount of $6,438.12, which reflects a reduction of $466.23
for the cost of meals.
(4) Cour 2
The cirevit court evarded $4,487.96 for court reporter
fees, In support of her request, Buscher provided itemized
invoices describing the case name, the date of the deposition,
the names of the deponent and the court reporter, and the cost of
the deposition, Despite having this detailed infornation,
pefendants make only @ general cbjection that “there was no
explenation or support for why [Buscher] is entitled to these
costs. . . . [Buscher) failed to present any explanation in her
bill of costs to ageist the Court in determining whether the
depositions listed were reasonable or necessary.” This general
objection is substantially similar to the objection rejected in
Wong. 88 Hawai"i at $3, 961 P.2d at 61 (rejecting non-moving
party's argument that the moving party’s cost request contained
“no explanation as to why these depositions and/or costs they
incurred were necessary, . . . [the moving party's) failure to
WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *
‘OR PUBLICATIO’
show why these depositions and/or costs they incurred were
necessary make it clear that it would be an abuse of discretion
for this court to tax them to [the adverse party]”). As set
forth above, “when costs are avardable to a prevailing party
under HRCP Rule 54(¢) end @ particular taxable cost is allowed by
statute or precedent, then actual disbursenents for this purpose
are presumptively reesonable. The adverse party hes the burden
of challenging the reasonableness of a particular cost request.”
Id. at 53-54, 961 P.2d at 618-19. HRS § 607-9 clearly allows
“expenses for deposition transcript originals and copies.”
Defendants do not indicate which of the depositions were
unreasonably obtained or unnecessary and therefore do not carry
their burden of showing that the circuit court abused its
discretion in avarding this cost. See Int’) Ero. of Elec.
P.2d at 950 n.
Horkers, 68 Hew. at 322.7, 7 We thus hold
that the circuit court did not abuse its discretion in awarding
Buscher court reporter expenses.
Because Defendants do not specifically contest the
remainder of Buscher's request, such costs will be presumed
reasonable. See Blair v. Ing, 96 Hawai'i 327, 335, 3
192 (2002) ("No opposition was received regarding the
P.3d 184,
reasonableness of the costs. In the absence of cpposition, we
presume that the remaining costs were reasonable.”).
2+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER,
Accordingly, Buscher is entitled to costs in the amount of
$20,002.62, which reflects a reduction for meals from Buscher’s
travel expenses request.
IV. CONCLUSION
Based on the foregoing, the circuit court's March 15,
2005 final judgnent is affirmed. In addition, we vacate the
cireuit court's June 1, 2005 order awarding costs and remand this
case to the circuit court with instructions that an amended order
be entered, awarding costs in the amount of $20,002.82 in favor
of Buscher-
on the briefs:
John #. Price and
Amand J. We:
on for
defendants-appeliants and
third-party piaintifé:
sppellents Duane §. Boning, .
Connerce insurance Co., and Rl Lricar—
Nuc Oo cetonyomec
Avis Rent-A-Car System, Inc.
Herbert R. Takahashi,
Danny J. Vasconellos,
and Rebecca L. Covert >
(of Takahashi, Mesui, ad
Vesconcelios & Covert):
Stanford H. Masui in Gon «Bote bo
Substitution after. 5/1/06,
for plointiff-appellee
Esther J. Buscher and
third-party defendant
appellee Stanford H. Masui
Dorothy Sellers and
Kimberly Tsunoto,
Deputy Attorneys General
for defendant-appellee
Stete of Hawai'i
|
6a74c84d-d90d-42e6-8b63-7954c4284061 | State v. Barona | hawaii | Hawaii Supreme Court | No. 27702
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
STATE OF HAWAI'I, Plaintiff-Appellee-Respondent,
ALBERT BARONA, Defendant-Appellant-Petitioner,
and
KELII ENOMOTO, Defendant.
a =
CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS
(Cr. No. 02-1-2277)
(By: Levinson, J., for the court™; and
Acoba, J., dissenting, with whom Duffy, J., joins)
upon consideration of the application for a writ of
certiorari filed on May 11, 2007 by the defendant-appellant-
petitioner Albert Barona, the application is hereby rejected.
Hawai'i, June 6, 2007.
DATED: Honolulu,
FOR THE COURT:
cs
4)
STEVEN 1. LEVINGON,— 2)
Associate Justibg ©ZAL
Shawn A, Luiz,
for the defendant-
appellant-petitioner
Albert Barona,
on the application
1 Considered by: Moon, C.J, Levinson, Nakayama, Acobs, end Duffy, 39
|
9305478e-5e14-43e9-af4e-7320336c4184 | Citizens Against Reckless Development v. Zoning Board of Appeals of the City and County of Honolulu. | hawaii | Hawaii Supreme Court | 2+ FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER ***
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
=--000"
CITIZENS AGAINST RECKLESS DEVELOPMENT,
an unincorporated association; DORIS NAKAMURA; and
UNITED FOOD @ COMMERCIAL WORKERS UNION LOCAL 480,
Appellants-Appellants,
ZONING BOARD OF APPEALS OF THE CITY AND COUNTY OF HONOLULU;
in his capacity as Chair of the ZONING BOARD
HENRY ENG, in his
DAVID MINKTN,
OF APPEALS OF THE CITY AND COUNTY OF HONOLULU;
capacity as Director of the Department of Planning and Permitting
of the City and County of Honolulu;’ and WAL-MART
REAL ESTATE BUSINESS TRUST, a Delaware Business Trust,
Appellees-Appellees.
No. 27264
APPEAL FROM THE FIRST CIRCUIT COURT =
(CIV. NO, 04-1-1280) =
2
MAY 31, 2007 2
»
2
NAKAYAMA, AND DUFFY,
J. RECUSED
LEVINSON,
‘IN PLACE OF ACOBA,
MOON, C.3.,
IRCUIT JUDGE WONG,
QPINION OF THE COURT BY DUFF:
Appellants-appellants Citizens Against Reckless
Doris Nakamura; and
Development, an unincorporated assec:
United Foods & Commercial Workers Union Local 480 (Local 480)
(hereinafter, collectively, CARD] appeal from the March 30, 2005
fe) (2000)
for Brian
Pursuant to Hawai's Rules of Appellet
‘ihe careent Chest of the
Teujimure and Henry Eng, current Director of
aang
“7 FOR FUBLICATION IN WEST'S BAWAS] REPORTS AND PACIFIC REPORTER **_
final judgment of the Circuit Court of the First Circuit,’ which
affirmed the decision and order of the Zoning Board of Appeals of
the City and County of Honolulu (2BA) dismissing Case Nunber
2003/28A-9, and entered judgment in favor of Appellees 2BA, David
Minkin, in his capacity as Chair of the ZBA, Henry Eng, in his
capacity as Director of the Department of Planning and Permitting
(DPP), and the Wal-Mart Real Estate Business Trust (Ww
Mart).
‘This case concerns the appropriate procedural options = third=
party may take to challenge the issuance of a Conditional Use
Permit (CUP) by the DPP.
On appeal, CARD argues that: (1) @ petition for a
declaratory ruling is a proper procedure for appealing an action
of the director of the DPP; (2) the circuit court erred insofar
as it upheld the Director's action because the petition did not
seek the determination of a prospective action: (3) the circuit
court erred in applying the doctrine of laches to find that
CARD's petition for a declaratory ruling was untimely: and (4)
the cizcuit court erred in upholding the Oirector’s action on the
basis of DPP Rules of Practice and Procedure Rule (Department
Rule or DPP Rule) Section 3-5
Based on the following, we affirm the circuit court's
March 30, 2005 final judgment.
‘The tonerable Eden Elizabeth Wifo presided over this matter.
*#* FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
I. BACKGROUND
‘This case comes before this court after a series of
challenges by CARD to the DPP’s issuance of a CUP to Wal-Mart for
@ commercial development on the Keeaumoku “Superblock” site.
Underlying all of CARD's actions (review processes within the
OPP, appeals to the 2BA, and suits filed in the circuit court)
is its contention that the DPP improperly accepted and approved
Wal-Mart’s application for = CUP, because the DPP violated
several provisions of the Land Use Ordinance (LUO), Revised
ordinances of Honolulu chapter 21.°
The present action does not concern the merits of this
claim; rather, it concerns CARD’s attempt to use the declaratory
ruling procedure -- required by law under Hawai'i Revised
Statutes (HRS) § 91-8 and implemented by the OPP through DPP
Rules chapter 3 -- to challenge the decision of the Director of
the DPP to issue the CUP in question.
Various sections of the LUO pertain to CUPs. Ae stated in tuo § 21
2.50, “Cenditional use permit=-fvrpose and intent," “lal The purpose of this
Suction ir to ectatlisn a procedure fer permitting certain Uses in some zoning
SISHCes si certain sinimun standards ang conditions, shich are detasied an
Article § [Specific Use Development Standords], are net.” The procedures for
Eling # CUP spplicetion are detesiea in 100 §'21-2.90°i, “Applicetion
Fequirenents.”" LUG § 71-7.90-2, entitled "General requirenents,” describes
the criteria that guide the director in evelusting CUP appiicat ions
« §a¢ infra Section 111.8. and nete 12.
*** FOR PUBLICATION LN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
A. Actions of the Parties Preceding the Motion for Declaratory
Ruling
The relevant background of this suit and related
Litigation of the parties is drawn from the factual summary made
by the circuit court in its March 30, 2008 Findings of Fact,
Conclusions of Law, and Order Affirming the Decision and Order of
the Zoning Board of Appeals in Case Number 2003/2BA-9.
1. Wal-Mart’ ® application for the CUP
Findings of Fact nos. 1-14 relate te Wal-Mart's
application for, and the subsequent approval of, a CUP
application, as well as its conmunications with the public
regarding the status of its development plans from May to
September of 200:
i. Wal-Mart gougnt to construct @ Sent
Store (the “Prcject") on real property designated at Tax Map
Key tte: 2:09 6 43 (the "xeeaumoku siterly which te Ih
the “aifi-3 = Business Mixed Use” conmercsal district in
Honoluls, Hawal't
Chub and Mal-Nact,
2. Wal-Mart informed the public of ite plans to develop
the eroject on the Keeaunoku Site on May 3, 2002,
approxinstely {ive months before it commenced construction
activities on the Keeaunoke Site.
3. Wal-Mart representatives algo attended numerous
neightorhoed board meetings of the Ala Mans /Kakaake
Neightornoad Board [ene “Me:gnborhood Bosra") in May, June,
Buguet, ond September of 2002 in an effort to keep the
pubiic apprises of its construction plans. At these
Eeetings, anong other things, Wal-Mart representatives
Gisplayes conceptual crawinge of che proposed Presect, and
Snaicated that groundbreaking would occur in Late Septenber
of October of 2002,” CARD neabers attended every one of
These eighborhcod Eosrd meetings
4, on suly 24, 2002, Wal-Mart applied to the Department
of Planning and Pernitting ("Oepartment”) for a new
Conaiticna: Use Permit (minor) (°CUP") for the Soint
‘s+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *
development of adjacent zoning lets comprising the Project
Bt the Keeaunoks Site
5, AE the Neighborhocd Hoard meeting conducted en August
25, 2008, ‘Wai-Nart's contractor specificsily reperted that
fal-Mart was “going through the permitting process.”
&. The Director approved Wal-Mart's application and
SSauea Cop fo. 2002/CUF-S4 on August 1, 2002
7. Wal-Mart received netice of the issuance of the CUP on
Abguet'3, 2002
8. _ on Septenber 18, 2002, 2 foundation permit application
as gubnittes to the Departhent to construct the Project.
8. Follewing receipt of the CUP, Wal-Mart commenced
Construction of the Project sn Septenser 2002 By Beginning
foverect a construction fence arcuna the Keeaumsko Site om
Septenser 16,2002,
10, Ae the Septenter 24, 2002 teighborhced Board meeting,
Slel-Mart representative announced that "(eJhey Rave Begun
fo fence the property.”
11, Department Rule § 6.2, entitled “Notice of Decision,”
provides that "(t]he Oirector shall mail the written
Secision to the applicant and, upon request, shall give
notice of the decisicn to sther interested persons.” The
Gecisicn ehall be available for review by the public at the
Separtnent of planning and perniteing.”
12. At ne time before Cctcber 2002 did any CARD member
Fequest the Separtnent to provide the aeapers with notice of
any decision regarding the Project pursuant to Department
Rule $6.2
13, At no tine before October 2002 id any CARD menber
feriew the public files regeraing the Project. at the
Department.
14. On October 16, 2002, Mr. Mark Wolfe ("Mr Wolfe"),
Celigornsa attorney’ whe represents other groups who oppose
Mel-Mart stores in other Jurisdictions, personally went te
tthe beparenent on behalf of CARO renuer United Feed &
Connereiei Workers Union Local 4£0. ("Local 480") and
mitted s request to review Wel-Mart"s CUP File: File &
2002-cUF-5¢,"" That sane cay, lr. Wolfe also submitted 2
Request for Access to Public hecords to the oepartment for
the Keesuncks Site on beheif of CARO wenber Local #80 to
Unspect “ell correspondence in file since Jan. 1, 2002 both
Inspector's core. s# misc, corr.” Responding to this
Fequest, on Getober 23, 2002 the Department. faxed to CARD
heaber Local 480.8 copy of the ob file index fer the
Eupject parcels thet indicates the Oepartment issued che CUP
fon August 8, 2002.
++ FOR PUBLICATION IN WEST'S HAW?
1 REPORTS AND PACIFIC REPORTER
2. The “october Appeal”: CARD’
approval of Wal-Mart’ = CUP
first appeal of the
On October 21, 2002, CARD brought its first complaint
to the attention of the ZEA:
1S. By a letter dated October 21, 2002 addreseed co Mayor
Sereny Hazeis, the Honolull City Couneti, and the 2BA, CARD
initiated ite’ first appeal (the “October” 2002 Appeal” or
Stace No. 2002/26A-2"), wherein it alleged generally thet
the Prosect ae snconsievent with applicable zoning
Fequirenente, end argued, among other things, that (2)
Project contiiers with the sensng requirements of the 00;
(2) the Project will nave an adverse impact on the
atenent most be Project will nave
ecenemie, see! burrounding
Community and an'economic study must be prepared: and. (¢)
the Project cenflicte with visions and policies of the
Honoluie Frimary Urban Center Development Pian,
26. On Noventer 20, 2002, the Director moved to disnise
CARO'« Gctober 2002 Appeal’ on grounds that the ZEA lacked
Jurieasctien because there was no "Action of the Director”
From which CARD appealed. CARD submitted an oppceition
encraridim to the Director's Motion to Demise on Decenber
5, 2002, in which CARD igentified, for the first tine, the
itsuance of the CUP as a challenged action of the Director
18. the BA issued ite Findings of Fact, Conclusions of
Leu, end Decision and Order with respect to the Octcber 2002
Appeal on July 3, 2003 sn which it granted the Director's.
Betion fe Dismiss’ and diansssed CARD’s appeal on greunds,
inter alla, thet CARO's sppeal failed to challi
Shetich ef the Director, "ane thet even sf che
from the issuance of the CUP, it had not been filed within
the thirty-say mandatory filing persed
Although the written order dismissing the October Appeal was
not issued until July, apparently the 2BA voted to dismiss
the appeal on January 30, 2003,* on the grounds that the
Authough the record does not contain an acknowledgment ef this action
from the 28h stse)t, both CARD and the DFP Director recite thie Janvary
dismisses! of CARD's' sppeal,
27 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
Petitioners had failed to file their appeal concerning the
CUP within the thirty-day mandatory appeal filing deadline.*
3. CARD's second appeal and lawsuit
Before the 2BA had issued its Findings of Fact,
Conclusions of Law, and Decision and Order on CARD's first
appeal, CARD filed a lawsuit in circuit court, as well as
second appeal by letter to the ZEA.
2. The Lawsuit
With respect to CARD's lawsuit, the circuit court
stated:
1. On December $, 2002, CARD initiated @ lawsuit in the
Fitst Cirewit Court, State of Hawai'd, copticned CARD
ss ney of P clvsi Me, O2-I-281-12
(the “CARO Lawsuit?
20. On Secenber 23, 2002, CARD filed a First Anendes
int for Declaratory and Injunctive Relief in the CARD
Lausuie thet challenged the Cepartnent's issuance of the CUP
ar violations of the rane U0 provieiene identified in the
Decenber 2002 Appeal: LU0 § 21=2.90-2(a) (2) ICount One:
permitted use); Z1-2-80-2(2) (2) (Count Two: sustable
Site}; $ 21-2-90-2 (a) (3). (Count Thee: no alteration of
Surrounding area); § 21-2.90-2(a) (4) (Count Four:
Contribution te general welfare of neighborhood); § 21-
2°502(m) (Count Five: failure to smpose additional
Fequirenents and conditions); § 21-2.90-2(a) (Count Six
Esllure to condition vericus {gsves regarding traffs
access, parking, ete.| and § 21-21-1.20(a) (Count Seven
fatiure to regulate land use in sppropriste manner)
This lawsuit was dismissed by final judgment entered on
September 16, 2003, pursuant to stipulation of the perties
* gae inten Section 111.8. discussing thirty-day deadline.
2+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *
b. The Second Appeal (The “Decenber Appeal")
The circuit court summarized CARO’s second appeal to
the ZBA as follow:
39. CARD initiated a second oppea? by letter dated
Oocenber 13, 2002 to EBA chair Re Brian Tousimure chat
specificeliy challenges the issuance of the CUP ("becenber
2002 Appeal” or “Care No. 2003/2BA-")
21. The Osxector and Wal-Mart moves to dismiss the
December 2002 Appeal on Januar) 29, 2003 ana Febrvary 6,
2003, respective.y. In ite opposition filed on February
2003, GARD argued that ‘the 28h had Jursedietion over ite
appeal becouse CARD should have been, ost wae not, notified
invwriting of the Director's issuance of the CUP, ana
alvernatively, thet CARD had appealed eo the 22 within 20
Gays of receiving actual notice that the permit was issued,
22, The 2BA issued ite Findings of Fact, Conclusions of Law, ond
Decision ana Order with respect to the December 2002 Appeal. oh
July 31, 2003. The 2BA granted the Director's and WalMart’ e
Motions’ te Dismiss ana denied CARD s appeal on grounde that CARD'®
petition was not timely filed.
At its hearing on February 27, 2003, the ZBA voted to dismiss the
December appeal on the ground that it was not filed within the
thirty-day mandatory appeals filing deadline.
4. CARD's unsuccessful appeal to the circuit court of the
two ZBA rulings rendered on July 31, 2003
CARD subsequently appealed the 28A’s rulings -- which
denied both of CARD’s appeals to that agency -- to the circuit
court, as recounted by the circuit court:
23. on August 28, 2003, CARD fi1ed an eppeel to the First
Citeuse court for the Stace of Hawas'i in Civil No. O41
3250-05 (CARO 1") “appealing from the “[dvly) 1, 2003 tinal
actions ot the Zoning Board of Appeals of the City anc
County of Honelois fetuing Findings of Fact,
Cenelusiene of Law, Cecieiens and Orders upholding the
Director of Departnent of Planning and Permittine’s approval
ef Conditional Use Permit (Minor) No. 2002/CUP-S4 +s (ZEA
.
“++ FOR PUBLICAT!
IN WEST?S HAWAT!
REPORTS AND PACIFIC REPORTER,
case Mos. 2002/28A-2 and 2003/28A-1)." CARD algo sought @
Seclerstion that the CUP was erroneously granted by the
Dizector because the CUP Spplicaticn aid net conply with the
LUG. The Fizse circuit Court affirred the JBA'e decisior
and orders in 28K Case Nos. 2002/28n+2 and 2003/2BR-1,
Siensssed ChRO’s clains for declaratory relief with
prejudice, and entered final judgment ageinst CARD on March
£5, 2008.’ In Ate conclusions of law, thie Court stated
6. CARD October 2002 Appeal and Decenber 2002
Aepeed were properly oisnissed ae untimely because
beth wore filed efter the s0nsay deadline of Seprenber
£2002 ned Lepeed:
7. The fact that CARD renbere attended
Neighcornoed Board meetings where they voleed concerns
Secut the Project dia not require the Department to
provide such CARD menbers with written notice that the
Gop sad Sesued. chad menbers failea to avail
thenseives of Departnent mechenions that would have
provided notice ef the appiicetion fer and the
Essvance of the CUP, including the right to inspect,
the public records at the Department and to request
notification of decisions regarding the Project,
persuant to Department Rule § 6.2
@. on the facte before the Court, the 30-cay
peals period established by 100 § Z1-i.40 and 28K
Rule § 26-2 cannot be tole
The timely filing of a notice of appeal with
istrative agency 1s fundamental to the
agency s jurisdiction ane here the statutory tine
Fequirenent fer filing a notice of appeal hes not bes
met, the appeal must be dismissed. "See Korean
oo i aise Tee PEA, §
Rew. App. 296, 303, 857 P-2a Sit, 315 145801
‘guetruled on other” arcunds,
Indus. Relations, 100 Howell 348, 382 n.7, 60 Pose
288, S02 ne? (2002)
10, Having fatled to timely chaLienge the
action of the Director in iseuing the CUP under the
Uo in ite appeais to the ZEA, CARD may not “circumvent
the adninietrative sppeais process and deed ine
Fequirenents by bringing 9 declaratory action in this
Court that similarly challenges the Director's
actions. See Ko'alau Ag. Cou, Lid, v. Conmission or
Maser Rees Mant, #9 Baxali 48%, 469, 493, 927 Poza
ser, 1370, 2378 (1996)
CARD aid not appesl fron the finol Judgment that this Court
enteres
BOR PUBLICATION IN WEST'S HAWATI REPORTS AND PACIFIC REPORTER,
8. CARDYS ea Decl Bulin
‘This appeal concerns the decision of the DPP Director
not to issue a declaratory ruling, which was affirmed by the
circuit court. CARD petitioned DPP for a declaratory ruling on
March 6, 2003, subsequent to the ZBA's vote to dismiss its first,
October appeal (No. 2002/CUP-54) and its second, December appeal
challenging the approval of the CUP (No. 2003/2BA-1), and after
CARD had initiated the December lawsuit alleging 1U0 violations
and public and private nuisance claims.’
In its petition for a declaratory ruling, which CARD
filed pursuant to HRS § 91-6 and DPP Rule § 3-1," CARD stated, in
the first paragraph of the letter, that it was “submit(ting] this
petition for a declaratory ruling as to the applicability of
certain provisions of the (LU0] to the 317,000 square-foct Wal~
Mart/Sam's Club development proposed for the Keeaumoku Superblock
“In the introduction section, CARD stated that
“Petitioner requests that the Director review the applicable
regulations and issue a Declaration that (1) the Conditional Use
Prior to ite petition for 4 declaratory ruling, CARD, in a February
24, 2003 letter addressed to the Director ot the OFF, Tequested that the
Department sseve 3 cease and Gesist order to hslt the Froject fared on
Sengeing wicistsone of the soneluls Lend Use Ordinance ("LUO"), RO.
Zits] the Department denied thie request on March 10, 2003, noting chat the
petition for declaratory ruling. CARD appealed this denial but withorew ite
Sppeal cn Septenber 19, 200:
‘$e ines Section 111.8. and note 1
22 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
Permit (minor) is voi
(2) the Project violates the existing
zoning regulations." (Emphasis added.) In the body of the
petition, CARD requested declaratory rulings on six specific
issues, five of which pertained to the CUP. These requests were
Listed under the heading “Specific Requests for Declaratory
Relief,” as follows:
1. the Separtnent Improperly Accepted an Approved the
Application for a Conditional Use Permit (Miner)
. Petitioners Request A Oecloratory Ruling thet the Wal~
Mart owners Did Net submit the Required Flan ef Propored
Structures When applying for the CUP iMincr)
3. Petitioners Request ¢ Declaratory Ruling that the
Dipartnent bid hot Consider the Foor General Requirencnts
hen Approving the Application
4. Petitioners Request 2 Declaratory Ruling that th
Separtment Dis hot Consider Evidence in Suppert of er
Against the Four General Requirenents when Approving the
Application
5. Petitioners Request # Declaratory uling Thet che
Proposed Use is Not Permitted as a Conditicnal Use in the
Deseriying Zoning District sna oer hot Conform to the
Reguizenents of this chapter
(a) The site is not suitable for the proposed use
Considering size, shape, location, topography,
Sntrastrocture sng netorel feacuree
(b) The proposed use will alter the character of the
Surrounding ares in a manner substantially
Tinieing, sageiring Gr precluding the use of
n
2** FOR PUBLICATION IN WEST'S HAWAF REPORTS AND PACIFIC REPORTER ***
surrounding properties for the principal uses
Permitted in the uncerlying zontng district
[cl The use at ite proposed location will not
provide 3 service er facilities which will
Contribute te the general welfare of the
conmunitysat-large oF surrounding nelgheorhood
[Id] The Aeting Director improperly Failes te
Consider the impacts of tne Project on the
Community
(©) The Acting Director Improperly Failed to
Conditicn Permitting on Mitigation of ispacts of
the Project on the Community
6. Fetitionere Request a Declaratory Ruling that the
Project 25 Geseribed Cannot Meet the BUGI-5 Zoning
Regeirenents
In response, on April 30, 2003 the Director issued
Findings of Fact, Conclusions of Law and a Declaratory Ruling.
Rejecting all requests for declaratory rulings with respect to
the already-accepted CUP, the Director stated:
c. partial pet " Suing: In
accordance with Section 3-515) of the Toler, the Eirector
Fefuses to issue a declaratory ruling regarding amy natter
pertaining to the approval of the [CUP] (Petitioner's
“specific requests” Nes. 1 through §). Although the
Director maintains that the CUP was properly accepted,
reviewed and issued, the Director may refuse to issve a
Gecleratory ruling pursuant to Section 3-813) for good
cause. Accordingly the petition fer declaratory raling
Soncerning any natter airectly related to the approve! of
the CUP for joint development of the site is properly
refused for the following reasons.
2. The Petitioners have siready filed two appeale
fttes. 2002/28A-2 ane 2003/2BA-1) with the Zoning Board
of Appeals, (28) challenging the approval of the CUP
for Jeint development of the site. See Fart C1 of
the FINDINGS centeines herein. Ia both cases, the 2BA
12
/* FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
ruled that the Petitioners failed to meet the
Bancatory appeal filing deadline specified under
Section 22-2(a), of the Rules of the Zoning boerd of
Appeale ("ZEA roles") and 1U0 Section 2171-40
2, Further, Section 22-7 of the 28 rules
Sipiicitiy sravents any waiver of the mandstory appeal
Filing deadiine.
3. A decision rendered on a petition for
declaratory ruling is sppealable by the ZEA (sce
Section 21-1, ZEA rules, definition for "Action of the
Gizectar"]. ‘2 the Directer were to grant §
Seclaratery ruling on any matter related to the CUP,
then the Petitioners would in essence be provided 4m
oppertunity to circumvent the Z8A"s mandatory appeal
Filing deadline and the 100, effectively achieving &
“second bite at the sane apple.” To hold otherwise
would violate the purpose and intent of ene 2BA"e
Randstory appesl f1ing deadiine and the LUO. And,
this woulé certainly open the flosugates for'a review
Of any action ever taxen by the director, werely By
Fequesting © declaratory ruling on the matter.
In the remainder of its ruling, the Director addressed the sixth
specific request for declaratory relief raised by CARD, the
substance of which is not relevent to this appeal.
CARD subsequently appealed the Director's refusal to
issue a declaratory ruling to the ZBA, and then to the circuit
26. On May 9, 2004, CARD eppesied the Directors's refveal
to sssve a declaratory ruling with respect te matters
Ferteining to the COP to the ZBR.” Certain rencers of the
EEA twice moves to sustain the portion of the appeal
pertaining to the Director’s refusal to issue 4 declaratory
Piling relating te the CUP at hearings held en Seprenber 22,
2003 and Cetober §, 2003, but the decisions by the ZBA on
those motions were’ eplit, with two members for ane two
Fenbers oppeses. Bechuse there wae ne majority vote on the
Director's refusal to issue # seclerstory ruling relseing £0
the CUF st two separate meetings of the ZEA, CARO's appeal
Gn thst Save wes denied pursuant to UA Rule § 20-619)+, On
Sune 17, "2004 the ZEn issued ite written Fincings of Fact
Conclusions of Law, and Decision and Oraer in Case No.
2003/28R-8
FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER ***
28. On July 18, 2008, CARD tinely filed the snetant eppes)
fren the IBA'e decision upholding the Osrecter's refusal te
issue @ declaretery ruling regarding the approval of the CUP
In'Case No. 2003/28A+3 (the “Appeal®) «
In its March 30, 2005 final judgment, the circuit court
affirmed the decision and order of the ZBA in case nunber
2003/2BA-3. Before proceeding to the merits of CARD’s claim, the
court ruled that CARD was not precluded by res judicata or
collateral estoppel from appealing the denial of its request for
@ ceclaratory ruling, despite the circuit court’s dismiesal with
prejudice of CARO's pricr clains in the appeal for failing to
meet the thirty-day deadline under LU0 § 21-1.49 and 2BA Rule §
22-2, Regarding the merits of CARD’s appeal, the circuit court
made the following conclusions of law:
8. nile there is no nandstory deadline for a person
petition an agency for a declaratory ruling regarding of
Usseriying order cx decision of that agency pursuant ee BRS
§ Si-b, equitable principles of laches can be applied to
such a petition, See Suize Pre v
card of Acbeals, 7S Rav. 1, 6 0-4, €26 P20 876, 678
hed (1382) ("[s)ance proceedings for declaratory relief have
much in cennon with oquitebie proceedings, the equitable
Goctrine of laches has eeen applied in euch proceedings.”
22h An. our. 2a ‘S185. (1968)
(feotnotes omitted + i ‘Seallz.tadennop, €7 Ha
626, 10! F.26 667 (1988) Tequity ede the vigsiant)}
9. Departnent Rule § €.2 was cnended by 1993 after the
decision was rendered to allow, "upon
Fequest,” any interestea person to receive notice ef written
Gecisions of the Director, yet no CARD menber availed
Ringel! herself, or itself of this opportunity to receive
such netice. Possessing kicwiedge of the potential
Gevelopnent of the Frovect, CARD's failure to request notice
of written decisions of the Director pursuant to beparesont
Bole § 6.2 ingicates that CARO menbers tlept cn thei® Tights
ang invokes the doctrine of aches.
Mu
2° FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER ***
10. Having faited to tinely avail thenselves of multiple
opportunities ane procedures to timely enalienge the
Steuance of the CUP, CARO's delay in filing Sta petition on
Naren €, 2003 =- approximately seven months after the
Directer issued che CUP and nearly eix months after Wal-Mart
openly cormenced construction by erecting ® construction
fence around the Project ~~ indicates thet CARD was not
sigilent in petitioning the Director for a roling cn the
GOB. “Consequently, it is not equiteble te allow CARD te
Seek yet ancther review of the CUP after failing to timely
avail iteeif of pricr opportunities ta review the CUP.
12, Under Department Rule § 205, the Director has
Giscretion to refuse te issue 4 Geclsratory Toling for “goos
Cause,” or when such a ruling “may aaversely affect the
interests of the city in any Litigation which ie pending or
may reasonably be expected to arise." ChRD had already,
Tniciated iitigetsen against the city sn the CARD Leweust
when it petitioned the Director for a declaratory ruling
hed multiple chalienges of the CUP pending before the EEA
12. The Director's refusal to issue @ declaratory ruling on
Suplicseive notters rsised in CARD"s petition for’ =
Seclaratory ruling was therefcre not sn abuse of hie
Siecretion under Departnent Role £ 3-33) and (5). See
pee te Temple, 67 Hawei's at 231, 853
Pilg et 1329 ("Director was correct in concluding that it
would be a waste of time and effort te duplicate nie
Consideration of the cone issues in the context of & request
fer a declaratory ruling" where iscues reseed were
“Substantially the sane’ as those relating to the various
variance appiications."); of. Haas ¢ tavnie Comm, Vi ac.
¢ 2vaws Ape 332, 134, 627 F-28251,
BoP 290i) (it Te well-seeties that courte’ wil not
entertain a declaratory sudonent action if there 1s peneing,
St the time of the Commencement of the action for
Geclaratory relief, sn action cr proceeding co which the
Ste peracne_are parties ane in which the sane Sanves nay be
seudicated.”) (citing 22am. dur. 24
SMdseente $16 (1965), for the proposition that *Lulnder the
Seneral Tule, a deciatetery judgnent is not s proper mode cf
Seternining the sufficiency of 1egel defenses to = pending
Setion”
13. Additionally, the Director's gecision to decline te
rule on CARD's petition waz not an abuse of his siscretion
pursuant to HRS § 81-8 because the petition did not seek the
‘Geterminaticn of a prospective action of the Departnent in
ite interpretation ef the LUO; rather, CARD requested the
Director to determine the propriety of the Directer’s past
action in approving the CUP under the LUO, which CARD hed
Ereviourly' ena repeatesiy challenged sn aultipie forune
Eee Feel 0. State Public Euplowent Relations ad., 60 Hw
450, 44s, 381 F.2d 113, 117 (2978) [section sie decleratery
petition’ inveives « question “relevant to sone action whieh
1s
2° FOR PUBLICATION IN WEST’
HAWAF REPORTS AND PACIFIC REPORTER *
the lagency] might take in the exercise of the powers
grante by [etarute)”)
14, Consequently, the 28h's affirmance of the Dizecter’s
Gecision and dieniasal of CARD's appeal in Case Mucha
2003/2BA~8 was not axbiteary, capricious, or sthernise
contrary te daw
CARD filed a timely notice of appeal on April 29, 2005.
12, STANDARDS OF REVIEW
AL Se
Review of « decision made by the circuit court upon
Sts review cf an agency's decision i¢'a secondary apes!
‘The standard of review is one in which this court nese
determine whether the cizcslt court was right cr wrong in
its decssien, applying the stancaras eet forth in BRS § 9:~
14(g) [13993)) te the agency's Secisicn=
Ki ” sat: Hawai'i v. su! 87
Hawai't 217, 229, 963 P.2¢ 1315, 1327 (1998) (quoting Bragg v,
Hawai't 302, 304, 916 P.2d 1203,
2205 (1996)) (alteration in original). HRS § 91-24, entitled
“Judicial review of contested cases,” provides in relevant part:
(9), Upon review of the record the court may affirm
the decision of the agency or remand the case with
snstructions for further proceedings; of it may reverse or
Bodily the decicion and ofver if the substantial fights of
the petitioners may have been prejudiced because the
administrative findings, conclusions, decisions, oF orders
(2) In violation of constitutional or statutory
provisione; er
(2) Inexcess of the statutory authority or
jurisdiction or the agency: er
(3) Made upon onlawtu! procedvrer or
(G) Affected by cther errer of lew; or
(S) Clearly erroneous Sn view of the reliable,
probative, and substantial evidence on the whole
6) Arbitrary, or caprietous, of characterized 6:
ebuse of discretion or clearly unwarranted
exercise of discretion.
16
FOR PUBLICATION IN WEST'S HAWAN'I REPORTS AND PACIFIC REPORTER
“[U}nder HRS § 91-14(g), conclusions of lew are reviewable under
subsections (1), (2), and (4); questions regarding procedural
defects under subsection (3); findings of fact under subsection
(5)7 and an agency's exercise of discretion under subsection
(6)." Inve Hawaiian Elec. Co., 81 Hawai'i 459, 465, 918 P.24
561, S67 (1996) (citing Qutdoor Circle v. Harold K.L. Castle
1 638-39, 675 P.2d 784, 789 (1983).
Teust Estate, 4 Haw. App. 63
B. Statutory Construction
Statutory interpretation is “a question of law
reviewable de nove.” State v, Levi, 102 Hawai'i 262, 265, 75
P.3d 1173, 1176 (2003) (quoting State v. Arceo, @4 Hawai'i 1, 10,
928 F.2d @43, 852 (1996)). This court’s statutory construction
is guided by established rules:
First, the fondsnental etarting point for statutery
interpretation ir tne Language cf the statute itself.
Second, where the statutory language is plain ana
Gnanbigucus, cbr sole duty is to give effect to its plain
ang obvious nearing. Third, implicit in the task of
Etatotory construction is our forencst cbligation to
Gieertain sna give effect to the intention of the
Legislature, which is to be obtained prinartly fron the
Lerquage contained in the statute iteelf. Fourth, when
there is doubt, doubleness of meaning, of snaistinctivenees
Gr uncertainty of an expreseion used inva statute, an
ambiguity exists
Eeterson v. Hawaii Elec. Light Co. Inc., 85 Hawai'i 322, 327-28,
944 P.2d 1265, 1270-71 (1997), superseded on other grounds by HRS
§ 269-15.5 (Supp. 1999) (block quotation format, brackets,
citations, and quotation marks omitted) .
REPORTER ***
When there is ambiguity in a statute, “the meaning of
the ambiguous words may be sought by examining the context, with
which the ambiguous words, phrases, and sentences may be
compared, in order to ascertain their true meaning.” Id.
(quoting HRS § 1-15(1) (1993)). Moreover, the courts may resort
to extrinsic aids in determining legislative intent, such as
legislative history, or the reason and spirit of the law. See
HRS § 1-15(2) (1993).
C. Construction of ative
‘The general principiee of construction which apply te
statutes also apply to administrative rulee. Ae sn
Statutery construction, course iook fiver at an
seministrative rule's language. If an soministrative rule's
guage is unanbiguous, and ice literal application ie
ser inconsistent with che policies of the statute the
Inplenence nor produces an sbevrd oF unjust result,
s enforce the rule's plain meaning’
clatos, G6 Faw. 316, 385, 715 ald Ste SoO TEC
ee Co. v. Ponce, 108 Hawai'i 445, 454, 99 P.3d 96, 105
(2004) (quoting In re Doe Children: John, Born on January 27
1982, and Jane, Sern on Julv 31, 1886, 10 Hawai'i 38, 53, 93
P.3¢ 1145, 1160 (2004) (quoting In_xe Was‘cla 0 Moloka'i, Inc,,
103 Hawai'i 402, 425, 83 P.3d 664, 686 (2004) (qucting Lee vs
Elbaun, 77 Hawai'i 446, 457, 887 P.2d 656, 667 (App. 1993)))).
. ew of OPP Refusal sue a De 2
Under HRS 91-14(g) (6), an administrative agency's
discretionary determinations will not be disturbed unless
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“[alrbitrary, or capricious, or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.”
However, only discretionary decisions of agencies receive this
deferential level of review. In this regard, this court has
stated:
The standard of review for adninietrative agencies
consists of two parte: firet, an analyeie of whetner
int legislature enpowerea the agency with ciseretion te make
a particular secerminat ion? and second, if the agency's
Setersination was within its realm of discretion, wnether
the agency abused that gigeretion (or whether the agency’ =
action wes Otherwise arbitrary, oF copriciess, oF
Gharacterizea by... (a) clearly unwarranted exercise of
Giscretion," WAS § 81-1419) (6)). If on egency setermination
fe not within its realm cf discretion [as sefined by the
Teoisiature), then the agency's seterminaticn 12 not
entitled to the deferentiai “abuse of dsscretion” stander
Gf review. If, however, the agency acts within its realm of
Siscretion, then its determination will not be overturned
Unless the agency hae abused ite discretion
Paul’ s v. Befitel, 104 Hawai'i 412, 417, 91
P.3d 494, 499 (2004) (internal citation omitted).
‘The abuse of discretion standard should apply to the
DPP Director's decision regarding whether to refuse to issue 3
declaratory ruling, because the legislature empowered the DPP
with discretion over its decleratery ruling procedures. HRS §
81-8, which governs the declaratory ruling procedure, establishes
that “felach agency shall adopt rules prescribing the form of the
petitions and the procedure for their submission, consideration,
and prompt disposition.” (Emphesis added.) A refusal to issue a
declaratory ruling is a manner of disposing of the petition. See
ev. Hawai'i Government i
18
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182, 107 Hawai": 178, 190, 111 P.3d $87, 599 (2005) (Acoba, J.,
concurring} (“Orders refusing to issue a declaratory ruling would
fall within the definition of actions ‘disposing’ of
petitions.”
By empowering agencies generally with the authority to
adept ru
es regarding the manner in which declaratery ruling
petitions shall be considered and disposed of, the legislature
has granted agencies discretion with regard to the consideration
of declaratory rulings. The boundaries of that discretion, which
normally are defined by the legislature, may in such cases be
established with reference to the agency rules themselves, or by
reading the statute and the agency rules in tandem. See Paul's
Elec, 104 Hawai'i at 417-18, 91 P.3d at 499-500 (“the boundaries
of an agency's discretion are established by the legislature
+ and these statutory boun:
ies will likely assist a
reviewing court in defining ‘discretion’ when the court examines
an agency’s action for an abuse of discretion.” (Citation
omitted.) .*
The legislative history of Secticn 91-8 alse showe ne
envisioned that agency decisions regarding whether to issue &
ratory ruling would invelve the use of discretion. A repert of the House
‘ag Comittee on the bili which would become HRS chapter $1 seid thie,
eqard to the declaratory ruling sectien
This section would require each agency to adept rules governing the
sssvance cf declaratery crdere. These rules, however, could provice fer
the agency having sone discretionary power to refuse to bake ©
Gecleratory Foling
20
In this case, DPP Rule § 3-5 governs DPP refusals to
issue a declaratory ruling, making that decision discretionary
with the DPP Director, within the parameters of five enumerated
reasons. The rule provides:
s a The director may
Tefore to iseue 7 declaratory Tuling where:
(2) the au
Scer not invoive exseting facts,
Gan reasonably be expected ts
tion is speculative or hypothetical and
br facts
(2) The petitioner's interest se not of the type
hich woulé give him/her standing to sasntsin an
fection if he/she were to seek judicial relief.
(3) The issuance of the declaratory ruling may
adversely offect the interests of the city in
Sny Litigation whieh ie pescing or my
Feasonably be expected to arise,
(4) The matter Se not within the jurisdiction of
Separtnent
(5) For other geod couse.
DPP Rule $ 3-5 (1999), available at http: //honcluludpp.org/
permitinfo/parti.pdf. Therefore, DPP decisions to refuse to
issue a declaratory ruling will be reviewed under the “abuse of
discretion” standard, with reference to the language of HRS § 9
@ and the bases for refusal enumerated in the Department rule.
1. -eontinued)
ge. Stand. Con. Rep. No. &, in 19€1 House Journal, at 659. See infra note
1e
Pointing to COLs 9-14 as erroneous, CARD makes three
basic arguments as to why the DPP Director's refusal to issue a
declaratory ruling was in error, namely that: (1) A petition for
a declaratory ruling was a proper procedure, based in part on
Suire Prot dawas: no a 173
Haw. 1, 626 P.2d 876 (1992) (2) CARD's petition for a
Gecleratory order was timely and the doctrine of laches should
not apply; and (3) the Director's decision could not be justified
fon the grounds of DFP Rule § 3-5(3), which allows the Director to
refuse to issue a decleratory ruling where euch = ruling “nay
adversely affect the interests of the city in any litigation.”
In response, Wal-Mart argues that: (1) the decision to
refuse to issue a declaratory ruling on the matters relating to
the CUP was prope
1, because (a) it was justified on the basis of
Department Rule § 3+5(3) and (5), as the ruling requested was a
duplicative matter with regards to pending litigation, (b) it was
justified on the “good cause” reason that it would be absurd to
allow a challenge to a permit issuance by declaratory ruling at
‘san connection with this argument, CARD claime thet it was error for
the lower court te “creat (e) s ‘Legal defense’ or ‘other good couse’
‘ation for the DPF's decision," which was not previced by the DPF.
ge we hold herein that the Geclaratory ruling petition mas not a. proper
procedure fer seeking review of the DPP's isevance ef the CUP, this, sion
‘ith CARD's second and third arguments, nees not be addressed
2
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anytine in the future when a direct appeal must be filed within
thirty days of issuance, and (c) a request for a declaratory
ruling under HRS § 91-8 is not a proper procedure to challenge
the Director's approval of a minor CUP; and (2) Swire Properties
does not require the Director to issue @ declaratory ruling on
matters pertaining to the CUP in this case.
B. Th Bulini 2 oper Mean:
Review of Se Bs ny
CARD, having failed to bring an appeal of the CUP
issuance within the required thirty-day time-limit, sought review
of the CUP issuance via the declaratory ruling petition procedure
provided by HRS § $1-8 and accompanying DPP Rule § 3-1. Although
styled as a “petition for a declaratory ruling as to the
applicability of certain provisions of the [1U0) to the 327,000
square-foot Wal-Mart /Sam’s Club development proposed for the
Keeaunoku Superblock,” in reality five out of six of its specific
requests sought a declaration that the CUP was improperly issued.
See supra Section 1.2."
It is undisputed that an appeal of a CUP issuance must
teke place within thirty days of the mailing or service of the
b the sixth point, a request for 4 declaration that “the Project as
Described Cannct Meet the BMi-3 Zoning Requitenents,” reesivea & declaratory
ruling from the Directer which was affirmed ty the 2A, end not challenged
director’s decision, pursuant to LUO § 21-1.40
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nd as provided
forin 2BA Rule § 22-2. LUO § 21-1.40 provides:
Likewise,
Appesls fron the actions of the director in the
aaninistration of the provisions of the LUO shall ke te the
Zoning beard of appeals as provided by Section é-1816 of che
charter. Appeals shall be filed within 30 days of the
Rolling or Service of the director's decision
2BA Rule § 22-2 states as follows:
(a) | [A written petition appeating an action of the director
host be received at the departrent of land utiiizasion
within 30 days of the cate cf nailing or perscnal service of
the director's written dec
nef the eubaivieien
tion must be received within 15 days
Teceipt of the notice cf the a
(b)___Tf the appeal is not tinely filed, st shall be
Giemieses by the board upen the Board's ohn motion or the
notion of any party to the proceedin
Based on the text and structure of the statute, its
tegislative history, and relevant caselax, we agree with Wal-Mart
that the declaratory ruling procedure was not intended to be
utilized to seek review of agency determinations that have
already been made and which have not been timely appealed.
HRS § 91-@, entitled “Declaratory rulings by agencies,”
provides that:
Any interested person may petiticn an agency for a
Geclaratory order ac te the applicability of any statutory
Provision or of any role cr ender ef the agency
agency shall adopt rules prescribing the ferm cf the
Petitions and the procedure for their submission,
Corsigeretion, and pronpt disposition. Orders disposing of
Petitions in such coses shall have the sone status as ofher
Sgensy creere
88 FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER ***
HRS § 91-8 (emphasis added) .""
As both the title (“Declaratory rulings by agencies”)
and the pertinent text ("a declaratory order as to the
applicability [of a statute, agency rule, or order]”) make clear,
the declaratory ruling procedure of HRS § 91-8 is meant to
provide a means of seeking a determination of whether and in what
way sone statute, agency rule, or order, applies to the factual
situation raised by an interested person. It was not intended to
allow review of concrete agency decisions for which other means
of review are available. Reading HRS § 91-8 in a common sense
fashion, and bearing in mind the plain meaning of the term
“applicability,” it cannot seriously be maintained that the
procedure was intended to review already-made agency decisions.
For such decisions, like the DPP Director's issuance of the CUP
to Wal-Mart, the agency has already spoken as to the
# DPP Rule § 3-1 describes the subject of a declaratory ruling in
substantially similar terns: ested person nay petition the director
‘or ordinance
to the departnent, or of any rule or order of the departnent.”” OPP
aosea}. The enly difterence between DPF Rule § 3-1 and
HES § ice ie that the Dep rule clearly states that declaratory rulings can
cnly be sought over statutes oF ordinances. # a
Condition which ss only implicit in Re § 91-8. “DFP Roles Soi (weny stotate
of ordinance gelating te the desertnent, of of any rule cr order of the
Separtment” (Emphasis eadea.J)
In the context of declaretory iudanents, it hes been said that “the
purpose of such & proceeding iis) te renove uncertainty from legal Fe
Sng clarify, quiet, ane stabilize then before irretrievsble acts hav
Undertaken, ‘to enable an sesue of questioned status of fact, on which o whole
complex sf rights nay depend, te be expeditiously determined vs. ." 26
C.O'8. Declazatory ludments § 3 (1956)
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“applicability” of the relevant law to the factual circumstances
at hand -- implicitly or explicitly it has found the relevant
legal requirements to be met. There is no longer a question of
how the relevant laws, in this case the 1U0, “apply.”
Use of the declaratory ruling procedural device only
makes sense where the applicability of relevant law is unknown,
either because the agency has net yet acted upon particular
factual circumstances, or for some cther reason the applicability
of some provisions of law have not been brought into
consideration. Cf, State vs Lucks, $6 Haw. 128, 133, 532 P.2d
85:
858 (1975) (“We view the term ‘applicable offense’ as
described in Penal Code Section 101(2) (a) to mean an offense that
is applicable to a civen set of factual circumstances that make
up a criminal act.” (Emphasis added.)).
‘The structure of Hawaii's Administrative Procedure Act
(HAPA), HRS chapter 91, combined with the agency rules governing
appeals of actions of directors, confirm thie view, The HAPA
Provides a party with several separate means of seeking review of
agency determinations. Two provisions apply to agency rules: (1)
under HRS § 91-6, an interested party may petition an agency to
\s For example, CARD's request for a declaration thet “It]he Department
Improperly Accepted and Approves the Application for @ Conditional Jee Ferast
(tsiner)* or “that the Wal-Mart Owners Did Not submit the Required Plan of
Proposed Structures hen applying fer the CUP (Minor]” bot seek declarations
as to matters for which the agency has already determined that the 00's
Feguivenents were met =~ and no question of their “applicability reneine
26
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adopt, amend, or repeal an existing rules and (2) under HRS
§ 91-7, such party may seek a judicial declaration as to the
validity of an agency rule. Final agency decisions or orders in
contested cases may be appealed to the cireuit court as provided
in HRS § 91-14.%
Given this panoply of review options available to
interested parties, each specified to a different type of agency
action, it would appear that the legislature intended the
declaratory ruling procedure to likewise have a unique and
independent role in the statutory scheme. See State v. Kalani,
108 Hawai'i 279, 283, 118 P.3d 1222, 1226 (2005) ("{Clourts are
bound, if rational and practicable, to give effect to all parts
of a statute, and. . . 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
Win the context of DEP actions that pertain to the adninistration of
‘the zoning and subdivision ordinances, like the CUP approval at iesue here,
appeal must be brought to the 28A before it is appesieble co the eareurs
Court. “See Revised Charter of Honolulu (RCH) § €-1516 ("The soning board of
oppeais shall hear and determine appeals fron the actions of the dsrecter Sn
stration of the zoning ovdinances, including variances therefrom,
subdivision ordinances ang any rules and regulations adopted porsuant to
either.” (citation omitted)). This is because the director's action, which
broceeds without the need for an agency nearing, is not a "a final cecision oF
Order in 2 contested case"? euch » hearing i8 provided by the Zh, which
results in s final sppesiatle decision. gee Kena Old Hawaiian Trasie Group By
and Inzovah Sereene ve Liman, 69 Haw. G1, Si-90, 734 Foe 161, 167€8 (1907
(heTding that circuit court lacked jurisdiction where plaintiff sppeoled
Girectly fron county planning director's issuance ef special nanagenent ares
Riner permit, Eecause directar's sction wae not “e fine! decision or order 1m
& contested case” ang Hawai) county charter provided that el) appeals of
Girector’s decision would go the Board of Appeals, which would conduct o
hearing -+ “its cecision, unlike that of the director, ungvestionably would
b sppealable to the circuit court”
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and preserve all words of the statute.” (Citations omitted.)).
We therefore presume that the legislature acted intentionally
when it chose the term “applicability” to denote a special type
of procedure, whereby an interested party could seek agency
advice as to how @ statute, agency rule, or order would apply to
Particular circumstances not yet determined. See Moran ve
Elanning Deo't, 104 Hawai'i 1
(hen @ law is enacted, @ presumption exists that the words in
3, 185, 86 P.3d 982, 994 (2004)
the statute express the intent of the legislature.”). It is
therefore inconsistent with the structure of HRS chapter £1 te
allow declaratory orders as a means of review of agency
decisions
This interpretation is consonant with our caselaw.
Although dealing with a jurisdictional issue not presented here,
in Ba State Public Em ati , this court
stated that HRS § 91-8 “is designed to provide @ means for
securing from an agency its interpretation of relevant statutes,
rules
d orders,” and noted that “[t)he only parties necessary
to a proceeding under § 91-8 are the petitioner and the agency.”
60 Haw. 436, 444, 591 P.2d 113, 118 (1979). This comports with
the view propounded here, that the declaratory ruling procedure
is intended to allow an individual to seek an advance
determination of how some law or order applies to his or her
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circumstances. See alse Korean Buddhist Dae Won Sa Temple, 87
Hawas'i at 231, 953 P.2d at 1329 (upholding Department of Land
Utilization (DLU) Director’s conclusion that “it would be a waste
of time and effort to duplicate his consideration of the same
issues in the context of 2 request for a declaratory ruling,”
where party seeking ruling had already raised issues in its
variance application and associated litigation).
‘The legislative history of the HAPA and the caselaw of
another jurisdiction are also in accord with the view that the
declaratory ruling procedure cannot be used to review decisions
that agencies have already rendered. Hawai'i adopted HRS chapter
91, “Administrative Procedure,” based on the Uniform Law
Commissioners’ Model State Administrative Procedure Act of
1961. In a prefatory section entitled “Content of the Model
“As Justice Acoba, concurring, recounted in Linge v. Howat’
In 1946, the Nationa Conference of Commissioners on Uniform State Laws
iteuea the Nodel State Auministrative Procedure Act. Hot
Epacedure Acts (amended 1961}, 18 U.L.A. 115-76 ftinster ed- 2000}
The Model Act wae then revised in 196i (Revised Model Ret). Id. at. 174
HAPA was noceled after the 1859 draft of the Revised Model Act.” Ase-
Stand. Com. Rep. No. 8, in 196) House Jour es
The House Connittee's report provides section-by-section anslysis of
BILL Ne. $, with reference to the Revised Model Act. he te the section
on declaratory rulings, now coaifies as HRE § 21-8, the Connittes
Section & of the Revised Model Act has been adopted with the
Fellowing change
(a) The amerchent to this section changes the style of the
language to confor to Section 6 of this bill. the lenguege of
(continues...)
2
22° FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER.
State Administrative Procedure Act,” the Commissioners outlined
what it termed the “major principles embraced in the Act." 15
U.L.A. at 178, Among the six principles was the following:
on for advance determination of the validity of
(3) eee
edninistrative rules, and for "Declaratory rulings,
ekfording advance determination of the applicability of
Sdeinistretive rules te particular case:
Id, et 179." This principle clearly shows that the declaratory
ruling procedure was intended for advance determinations of
applicability, rether than review of already-made agency
Gecisions. In adopting the HAPA, we presume that the Hawai'i
legislature was avare of the Model Act as well ae all connents
related thereto. Cf, Cowan v. First ins. Co. of Hawaii, Ltd, 61
Haw. 644, 649 n.4, 608 P.2d 394, 399 n.4 (1980)
Tt is a
(.sontinued)
thse section does not necessarily require an agency te issue
Geclarstery crder in every indtance but is intended to incuce then
to de so nore frequently than they may have been doing in xe
past. This section would require each agency to scope rules
Governing the sesuance of declaratory orders, These rules
however, could provide for the agency} having sone dsscres icnary
Power to refuse te make a declaratory roling. Since the refuse)
in itselt would be an agency order, in appropriate cases,
‘application for judicial review on the grounds thet denial was en
abuse of discretion on the part of the agency nay be mede.
ad. av 656-59.
207 Hawai's at 186-88, 111 .3¢ at 597-98 (acoba, 3. concurring) {emphasise
onittes)
The Ccnnissicners sieo stated
There is no good reason uby these generel Frinciples should not
govern throughout the entire administrative seracture
Setsile; they are e:
process.
Ad. at 175
20
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well-settled rule that the adoption of another state's statute
encompasses that state’s judicial construction of the statute
unless a contrary intent appears.”); State v. Yamasaki, 91
Hawai'i 163, 165, 981 P.2d 720, 722 (App. 1999) (looking to Model
Renal Code and Commentaries to “inform (court's) effort to glean
the scope of parallel statutes” in Hawai'i}. Furthermore, there
is clear evidence in the legislative history that the legislature
carefully studied the Model Act before adopting it. See Stand.
Com. Rep. No. & in 1961 House Journal, at 654 ("[YJour Committee
has examined and very carefully reviewed the first tentative
draft of the revision of the Model State Administrative Procedure
Act... and the comments made by the committee on the revision
of said Model State Administrative Procedure Act. The basic
structure for this bill in the amended form has been the Revised
Model Act.”). The language chosen for HRS § 91-8 is
Substantially similar to that of the Model Act," and the
legislature stated that changes made were for stylistic reasons
to conform with other parts of the bill, rather than for
% The 19€2 Hodel Act contained
Rulings by Agencies”
1@ following provision on “Declaratory
Each agency shall provide by rule fer the filing and prompt
Aleposition sf petitions’ for secleretory rulings #2 te the applic
ef any statutory provision or of any rule or créer of the agency
Rotinge cieposing of petitions have the cane status ae agency secieione
or orders in contested cases
nity
15 ULAR, at 267
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substantive alteration. See id. at 659 ("The amendment to
(Section 6, Declaratory Rulings by Agencies) changes the style of
the language to conform to Section 6 of this bill."). The
comments on the “Declaratory Rulings by Agencies” section do not
indicate an intent to deviate from the model act in terms of the
availability of the declaratory ruling procedure. See supra note
16
The view of another jurisdiction that has adopted the
Model Act strengthens this conclusion. The Supreme Court of
Wisconsin, interpreting a similar Wisconsin provision also
derived from the Model Act," has explicitly adopted the position
Rithovoh the House Conmittee Repert comment on the Declaratory
ings section states that it was “intended te tnauce (egencieal eo iistve
laratery orders) more frequently than they may have been doug in the
Past,” it also states that "(t}ne language cf this section dees aot
Recessarily require an agency te iseue 2 declarstory crder in every instance,”
and clearly provides for discretion te refuse to make 8 decletetery slice
Stand. Com. Rep. No. 8, in 1961 House Uostnal, et e553.” che Stansigg conmectee
iso sade the following conclusion, eased on the cemnonte submitees te re
“that under declaratory rulinge by’ agencies, the agencies would be required to
render rulings which sost agencies have net been desing in the pest! ide at
G85. These connents in no way imply that the deciarerery ruling proceccre
should serve a different function ae that suggested by its text or noted by
the drafters of the Model het == rather, they appear to persarn te specifi
gitcunstences that the Hawai'l legislature scught to eadiess in intaceucing
broad reforms into its administrative lam, d-esy the fect that price te the
daw administrative agencies in the state didnot requlerly asus declocatery
rulings, "This reluctance of agencies to issue formal declaratory flings eae
snared by other stotes, anc the federal government, which ied to ene referee
embodied in the Model Act. See Frank £. coopers State saministsatise tao na0=
verges)
the Wisconsin statute provides in relevant part:
Any agency mey, on petition by any interested person, issue @
Geclaratery ruling with respect to the amilicabilicy to an
Wis. stat. § 227.4111) (west, Hestiew
The Language
through 2007 Act 5) (emphasis added)
iesue in thi case is substentisily similer to that of the
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we take here, holding that the declaratory ruling procedure “does
not provide a method of review of a determination already made
but a method of requesting an agency to make a determination.”
Wisconsin Fertilizer Ass'n v. Karns, 158 N.W.2d 294, 300 (Wis.
1968). See also Aiello v, Litscher, 104 F. Supp. 2d 1068, 1073-
74 (W.0, Wis. 2000) (holding that inmates could not use Wisconsin
declaratory ruling procedure to challenge Department of
Corrections’ dismissal of their complaint under the inmate
complaint review system, as this would allow the department to
“sit in judoment on a decision made by itself”) (citing Karns).
Based on the foregoing, the circuit court did not err
when it affirmed the ZBA decision upholding the DPP Director's
refusal to issue a declaratory ruling. Because HRS § 91-6 only
allows for declaratory rulings as to questions of
“applicability,” an administrative agency has no discretion to
issue rulings under this section that do not bear on such
questions. See Paul's Elec., 104 Hawai'i at 417, 91 P.3d at 499
(If an agency determination is not within its realm of
Giscretion (as defined by the legislature}, then the agency's
determination is not entitled to the deferential ‘abuse of
discretion’ standard of review.); id. at 420, 91 P.3d at $02 ("If
cont inued
Wisconsin etatute, as it focuses on the “applicability of any role oF
statute,” HRS § 51-8
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the legislature has not granted the agency discretion over @
Particular matter, then the agency’s conclusions are subject to
de nove review.”
+ In fact, such a ruling wovld be in excess of
the DPP’s statutorily-defined authority. The OPP Director
therefore did not abuse his discretion, under the applicable
Statute and DeP Rules, when he refused to issue declaratory
rulings as to matters involving the CUP application. Moreover,
the Director's stated reasons for the denial are in accord with
the basic notion of our holding here, that the declaratory ruling
Procedure may not be used as a means for review of issues that
have come before the board and been properly decided.”
ce gw s Not Rei ntra
CARD argues that “Suire Properties is very clear that
the § 91-8 Petition is available to interested parties who had
not received notice of an action of the Director to obtain review
of the Director's action,” and notes that CARD “did precisely
what the Swire Court advised.” We disagree.
4M the “good cause” reasons cited by the Director te refuse to issue a
declaratory ruling included the following: (1) the Petitioner nad slscsay
filed appeals to the 264 but missed the eppeais desdiine, (2) “Section 22~
the ZEA rules prevents any waiver cf the mandatory appes! filing deedi ine,”
ang (3) “IE the Director were to grant s declaratory ruling on any natte®
related to the CUF, then the Fetitioners wovld in easence ve provided an
opportunity to circunvent the ZBA’s mandatory appeal filing deadline and the
10, ‘effectively achieving 2 ‘secone bite st the sane opple.” Te ele
therwise would viclate the purpose and ntent of the ZEA's mancatory appeal
filing deadline ang the U0." Ang, this would certainly epen ene flecdgates
for a review of any action ever taken by the cizecter, merely by requesting &
Gectaratery ruling on the matter.”
of
™
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Sulre Properties concerned an appeal from a circuit
court decision affirming a 28A ruling in favor of petitioning
landowners, who had challenged the action of DLU officials of
“initialing” or “checking off” on several building permits as
part of @ phased development project. 13 Haw. at 3-5, 826 P.2d
at 877-78. This court reversed the circuit court on the basis
that the ZEA lacked jurisdiction to entertain an appeal of the
DLY actions, because the “check offs” were ministerial acts that
did not constitute an “action of the director” from which an
appeal could be brought under the ZEA Rules Relating to
Administrative Procedure. Id, at 7-8, 626 P.2d at 679. Rather,
this court found that this matter hed already been resolved three
years prior to the institution of the landowners’ appeal, when
the DLU issued 8 letter approving the building height plane of
Phase IV of the development project in 1986. Id.
In the course of explaining the manner in which DLU
decisions may be appealed, the court noted a 2BA rule of the tine
requiring that any appeal from actions of the DLU director“ be
® after uly 2998, the DPP tock cver many functions formerly hosted én
the iv. “The OFF websites Neighborhood Boerd Information Handbook gives the
following entry on the DPF:
Establiched as of July 1998, reflecting responsibilities formerly housed
under Department of Land Utilization, euilding Cepartment, and evaft
{zon transportation, sewer sng engineering prograns. Ae of January,
1995, the former Department of Planning merged into OFF
Departnent of Planning and Permitting, City and County of Honelule, A View
a
FOR PUBLICATION
WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *
brought within thirty days of mailing or service of the w:
ten
decision. Id, at 6, 826 F.2d at 878. The court appended a
footnote to this rule, upon which CARD relies heavily.
In that footnote -- footnote four -- this court state
We are avare chat this section provides for a thirty dey
Geagline following written notice. Only the ap
fan action gets written notice, genersiiy, ‘nae Suize.
Properties. However, one appellee dia receive s iet’
the DL, dated Septenber 16, 1986, which specifically states
St}he proposed Building heights for Phase IV have been
reviewed and determined to be acceptable pursuant to POH
Ordinance No, #421 approved March 5, 19950" tn additichy
appellees had the option of asking the Director of the Diu
for s Dectaratory Ruling onder the Rules Reieting Te
Administrative Frectice and frocedure for the Deporenent of
1d Utilization. Hewever, we caution fi
Ice Proceedings’ for declari
in conncn with equitable proceedings, the equitesle doctrine
of laches has been applied in such proceedings.”
Id, at 6 n.4, €26 P.2d at 876 n.d (citations omitted).
Notwithstanding the fact that the statenents in this
footnote are dicta, even taken at their word they do not support
the right sought by CARD. CARD argues that the Sire Eroperty
footnote created a way out of the dilemma faced by would-be
chellengers who miss the deadline for appeals of Director
decisions: by petition for a declaratory ruling.
We disagree. Simply stated, CARD reads too much into
footnote four. The Sire Properties footnote four dicta was not
2
++ FOR PUBLICATION IN WEST'S HAWAT'T
intended to avthorize an untimely “back door
"ORTS AND PACIFIC REPORTER ***
appeal of Director
decisions by requesting a declaratory ruling.
Iv. CONCLUSION
Based oh the foregoing, we affirm the circuit court's
March 30, 2005 final judgment.
on the briefs:
James J. Bickerton and
K. Bartlett Durand, Jr.
(of Bickerton Saunders
Dang & Sullivan) for
appellants-appellants
Citizens Against Reckless
Development, an unincorporated
association; Doris Nakamura;
and United Food * Commercial
Workers Union Local 480
C. Michael Heihre,
Kelly G. Laporte, and
Allison M. Mizuo’ (of Cades
Schutte) for appeliee-
appellee Wal-Mart Rea:
Estate Business Trust
Lori K. K, Sunakoda,
Deputy Corporation Counsel,
for appellee-appellee
Henry Eng
Dawn D. M. Spurlin,
Deputy Corporation Counsel,
for Zoning Board of Appeals
of the City and County of
Honolulu and David J. Minkin
ope
Baca S-Zivinee
Nata OF eceeycts en
Van €. Says ta
(attr.
v
|
8b7f994a-8775-421a-b510-43254d0c6154 | Diplomat Tours and Travel, Inc. v. Lazo | hawaii | Hawaii Supreme Court | NO. 26570
IN THE SUPREME COURT OF THE STATE oF HAWAT'T. =
ae
DIPLOMAT TOURS AND TRAVEL, INC.
Respondent /Plaintiff-Appellee,
vor cage
Ra 2e|
VERONICA B. LAZO, Petitioner/Defendant-Appellant,
and
DELIA ENCARNACION ALUPAY dba PHIL USA
TRAVEL & SERVICES, Defendant -Appellant.
a
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. No. 1RC03-1-3438)
ORDER REJECTING 1
(By: Moon, C.J., for the court?)
Petitioner/defendant-appellant Veronica B. Lazo's
filed May 30, 2007, is
application for writ of certiorari,
jected.
Honolulu, Hawai'i, June 22, 2007.
Dan 8. tkehara, for FOR THE COURT:
petitioner/defendant-
appellant Veronica B. NTE
Lazo, on the application
Grossi gpa 2
Ve oe ws
DATED:
f Sopeidered by: Moon, ¢.J., Levinton, wakayama, and Duffy, 9.; and
Cirowit Judge Wong, in place of Aecba, 5. recusee
Oat
|
2dd22991-3ecd-4632-b7f2-52cffe10b225 | Silva v. City and County of Honolulu. | hawaii | Hawaii Supreme Court | Law Liprany
FOR PUBLICATION IN WEST'S HAWAI'T REFORTS AND PACIFIC REPORTER
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
00
LORIN SILVA and CAROL SILVA, individually and as
personal representative of the Estate of Kevin Silva,
Plaintiffs-Appellants,
CITY AND COUNTY OF HONOLULU, Defendant-Appellee,
and
10, JANE DOES 1-10, DOE CORPORATIONS 1-10,
DOE PARTNERSHIPS 1-10, and DOE GOVERNMENTAL AGENCIES 1-10,
Defendants. a
No. 27385
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 05-1-0286-02)
‘Sn¥fonr
oats
20:6 we oF
AUGUST 10, 2007
MOON, C.J., LEVINSON, NAKAYAMA, AND DUFFY, JJ., AND
JL, RECUSED
CIRCUIT JUBGE CHANG, IN PLACE OF ACOBA,
OPINION OF THE COURT BY LEVINSON, Jy
‘The plaintiffs-appellants Lorin and Carol Silva
Ihereinafter, collectively, “the Plaintiffs”) appeal from the
the Honorable
firet cireult court’s dune 14, 2008 judgment,
Randal K,0, Lee presiding, in favor of the defendant-appellee
City and County cf Honolulu [hereinafter, “the County”] and
effectively dismissing their complaint
against the Plaintiffs,
$04 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS 2ND PACIFIC REPORTER ***
On appeal to this court, the Plaintiffs contend that:
(2) Hawai'i Revised Statutes (HRS) § 663-3(b) (Supp. 1997)! is
the controlling statute of limitations in wrongful death actions
against the County, not HRS § 46-72 (Supp. 1998); (2) in any
case, the “Plaintiffs substantially complied with the provisions
of HRS § 46-72"; (3) the notice period “should have been tolled
until . . . a personal representative was appointed to represent
[the Plaintiffs’ decedent son Kevin's} estate”
(hereinafter, “the estate”]; and (4) “[t]he application of HRS
y Wns § 663-3, entitied “Death by wrongful act," provides in
relevant part:
‘or any of the persons enunersted in
Bay agintain an action againet the person causing
the death oF ageinat the person responsibie for the seath- The
action shall be scintained on benalf of the persons enumerates in
Subsection (b), except that the legal representative may recover
on Eehalf of the estate the reasonable expenses cf the deceased’ s
Inst iiness and burial.
{b) In any action under this section, such damages say be
given as uncer the circumstances shell be deened fair and just
Compensation, with reference to the pecuniary injury and loss of
love ane affection, - . - By the surviving... father| and]
nother: . . Any action Brought Under this section shall be
Connenced within tye years from the date of Geath of the injured
person, except se otheruise provided
HRS § ¢6-72 (Sopp. 1988), entitled “Lisbility for damages notice
of injuries," provided in pertinent part:
Before the {sic} county shall be liable for damages to any
person for injuries to person or property received upon any of
fhe... public places of the county, or on sccount ef any
negligence of any official or employee of the county, the Person
sc injured, . . . oF someone in the person'e behalf, shall, within
cf give the chaszperson,
Sf the counesi cf the county or the city clerk of Henolule notice
Sn writing ef the injuries end the specific canager resulting,
stating fully in the notice unen, where, and how the injuries
cccurres, the extent shereof, and the amount clasned therefor.
(Emphasis added.) Effective June 7, 2007, the legislature anenced this
fection, in respects gernare to thit appeai, such that the emphatized language
ow reads: “tuo years after the injuries accrued”. Sex Act 152, 28th Leges
Reg. Sess., $68, 14 (2007).
/+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *+*
§ 46-72 to the instant case . . . violates the Equal Protection
Clauses of . . . the Hawai'i Constitution and the . . . United
States Constitution.”
We conclude that the Plaintiffs’ first three points are
meritiess, but on the basis of their fourth point, as discussed
infra in section IIT.D, we vacate the circuit court's judgnent
and remand for further proceedings.
1. BACKGROUND
In this appeal, we consider whether the notice-of-claim
requirement set forth in HRS § 46-72, supra note 2, as applied to
the circumstances of this case, operates as a legal bar to the
County’s liability for Kevin's death.
On September 7, 2004, Carol filed a petition in the
circuit court sitting in probate, the Honorable Colleen K. Hirai
presiding, for adjudication of intestacy and appointment of a
personal representative for the estate. Effective upon its
January 21, 2005 order, the probate court granted Carcl’s
petition and appointed her the estate's personal representative.
on February 22, 2008, Lorin (individually) and Carol
(individually and as the estate's personal representative) filed
@ complaint in the circuit court, the Honorable Randal K.0. Lee
presiding, against, inter alia, the County for damages arising
out of Kevin's death.
‘The Plaintiffs alleged that, on July 4, 2004, Honolulu
Folice Department (HPD) officers, “acting within the course and
scope of their employment by” the County, arrested Kevin in the
vicinity of Kipapa Neighborhood Park, The Plaintiffs further
FOR PUBLICATION INV WEST'S HAKAI'T REPORTS AND PACIFIC REPORTER ++#
alleged the following facts: (1) that Kevin “sustained severe
and life threatening physical injuries as a result of the conduct
of one or more of the [HPD] officers who arrested him” and thet
“the police knew or should have known that he needed immediate
medical attention”; (2) that Kevin, however, “was not provided
with any medical treatment” until “hie physical condition
Geteriorated further”; (3) that Kevin died the same day at
Wahiews General Hospital as 2 result of the injuries inflicted by
the HPD officers and by unnaned Doe defendants and the officers’
failure to provide Kevin with timely medical care; (4) that, on
July 6 end 7, 2004, at least three articles in Honolulu
Rewspapers discussed the incident and Carcl's consequent grief:
(5) that, on August 17, 2004, the Plaintiffs’ attorney, Dennis W.
Potts, wrote two letters to HPD Detective Sheryl Sunia, which
stated in relevant part:
RE: My Client: Kevin sii
Date of Deaths July
200
Wie’ Tithe Plaintétte’ counse2)] are writing this letter
Sue to cur understanding thet yeu are conducting sn
internal’ investigation at HPD inte the cireunstances
Surrounding the death of Kevin’... on duly 4, 2008 in
hie «It}e have been Setained by [kevsn]'s
fanily to’ conduct an investigation inte the cireunstances
serrounding his death. Ae part of this investigation we do
inten... te review and/or listen to the HPO dispatch
topes releting to (Kevin) 's arrest, detention and citinate
Gesth.
We ere therefore writing this letter to request that
these dispatch tapes not be cestroyes or discarded and that
they be held intact until... Gur review of these capes
RE: My Client: Kevin sive
Date of Death: July 4, 200¢
Ll! inpne request made in my prior letter
encompasses net only the dispetch tapes, but any
Communications, dispaten loge or printouts feleting
é and
POR PUBLICATION IN MEST" AWAZ'T REFORTS AID PACIFIC REPORTER *#¢
(emphases in original); (6) that, on August 25, 2004, Potts wrote
a letter to the County's then-corporation counsel, David 2.
Arakawa, which read in relevant part:
Re 4, 2008
iwje are investigating the circunstances
surrounding the death ef Kevin Sn polsce custody . «
fon July 4, 2006." Me nelve] previously written to...
Detective’... Sonia, who is epparently conducting an
internel snwestigation inte the eiveunstances surrounding
[kevin]"s Geath, requesting that 212 HPD daspaten tapes, and
any ang all connunications, dispatch loge or printouts
Teleting thereto be preserved pending the conpletion of our
invest igetien.
fare enclosing herewith the twe letters that I sent
to Detective Sunie in this regard.
wwe are. making the
office thet we nade of HPD
(emphasis in original); (7) that, on April 13, 2008, Potts sent a
sme request of your
letter to the County's Department of the Corporation Counsel
concerning Kevin's death and describing itself as a “notice of
claim” within the meaning of HRS § 46-72, Kahale v. City & County
of Honolulu, 104 Hawai'i 341, 90 P.3d 233 (2004), and Salavea v
City & County of Honolulu, 55 Haw. 216, 517 P.2d 51 (1973).
Citing the Plaintiffs’ complaint and his letters to Detective
Sunia and Arakawa, supposedly attached, Potts esserted that
the attached cccunente provide you with ali of the available
information regarding (Wevin]’s death ane the clains of [the
ejetate against the = . «County which we have at the
present tire... . [T]he [eletaie. . . is at this tine
Etering » .» $800,000.00 as. . . daniges resulting fron
his desth at Wentau(Z) General fogpite! en July 4, 2008.
Tkevin)'s Geath oppeare to have Deen caused by injuries that
he receives at Kiilpape (Neighborhood) Fark ee the
Fercit cf sn alsercetion with persens using thet perk
Nell as inturies that be received subsequent to hit arrest
Caused by employees of [HPD]. These injuries includee
traumatic Snvuries to his head ane ecay. .- caused by the
manner in which he was restrasrea 1h saaition, [the
[kevin] wae not provided with’
of [HPD] once st became
he has
sustained
‘+44 FOR PUBLICATION 8 MEST’ § HAWAI'I REPORTS AND PACIFIC REPORTER *
On March 22, 2005, the County filed a motion to dismiss
the Plaintiffs’ complaint on the ground, inter alia, that the
Plaintiffs had not complied with HRS § 46-72. (Citing Kahale,
104 Hawai'i at 343, 90 P.3d at 235; Albert v, Diets, 283 F. Supp.
854 (D. Haw. 1968); Oaklev v. State, 54 Haw. 210, 220, 505 F.2d
2182, 1187 (1973) (Abe, J, concurring).)
on April 25, 2005, the Plaintiffs filed a memorandum in
opposition to the County’s motion, which advanced several
alternative arguments: (1) that (a) their letters to Detective
Sunia and Arakawa, their ostensible “notice of claim,” “the
highly publicized nature of [the) case,” and/or HPD's Internal
Affairs investigation complied with the netice requirement in and
of themselves or (b) BRS § 46-72 should be liberally construed to
recognize that the County was adequately “‘protect{ed] . .
against fraud arising out of stale claims’” (emphasis omitted)
(citing Cochran v. Pfluecer Autos., Inc., 72 Haw. 460, 621 P.2d
934 (1991); Levi vy, Univ, of Hawaii, 67 Haw. 90, 679 P.2d 129
(1964); Shibuya v, Architects Hawaii Ltd., 65 Hew. 26, 647 P.2d
276 (1982)); (2) that HRS § 46-72 was tolled pending appointment
of @ personel representative; (3) that HRS § 663-3(b), see supra
note 1, which sets forth a two-year limitation period, is the
controlling statute and that HRS § 46-72, which only concerns
“injury” cases, is of no consequence te the present wrongful
death matter (quoting Kahale, 104 Hawai'i at 346, 90 P.30
at 236); and (4) that BRS § 46-72, as applied to the Plaintiffs,
contravenes the equal protection clauses of the United States and
Hawai'i constitutions insofar as “no rational basis existe for
the disparate treatment of claimants when a cese of wrongful
€
‘104 FOR PUBLICATION IN WEST'S HANAT'T REPORTS AND PACIFIC REPORTER +1
death involving the [County, as opposed to the state,] arises”
(quoting Kahale, 104 Hewai"i et 383-84, 90 P.3d at 245-46 (Acobe,
Ju, concurring and dissenting)).
During a hearing conducted on May 4, 2005, the circuit
court reasoned in relevant part es follows:
Kahale . . . overruled Salavea . . . and held that HRS
Siteri2 provices the statute of limitations that governs
fort claine agsinst the counties. . . . The reel question
[o'inis cece de uhecher or not notice wes ectusily given te
the (County] within... int Inonth(s) oie Oakey
ree [ovthe Soprene Court indicaved that (*jthe basic
purpose of the stetutery requirenent of filing » written
Rotice olf) clsin | ] 1s to snform the municipal
Suthorities [*Jwnen, where, ang how the injuries
Occurred « , . .* 54 Haw. at 216, S08 PrZd at 1186). The
Purpose is [*)io guard the (counties) egeinst fraudslent anc
Snfeunced claine end[") provide the(m) an opportunity te
(Jinvectiget le.) wale tne facts
fohditions rensin subetantislly the same(_. + | Tihe test
fo'determine » . . suféiciency of compliance .'.'. is
whether. - the municipal officials [have been misled] to
ie] under aii. the elreunstances of the
da. at 216-17, S05 P20 at 16).
J wieh reqoires & broad reading of the notice
requirerent, refers to Sayre v. E] Corece County Hioh Schl!
p21? B.26 713. (Ca! Toso). (5¢ Haw.
BIE boS pt ee 1167.)
3 bos collision, and ou
sth the schoo! district, rather then the municipality.
Nith a Brose reading of the netice requirenent, Saye ihelc!
thet the notice filed with the school Getrict wae
Sufficient [te put the muniespality on notice of the tort
Claim). In beth Qakley anc Sauzg, cleins were files.
in this partscular case, (e} clain() wlas) not filed
with the [Clounty within eix months [after]... the cate
Of the alleged injuri "
Stn Hegvive State, 51 P.3d 632 (Idaho ct. App.
2002)); a wrongful ceeth clase], the plaintiffs alleges thet
the state “eS breschea ite duty te the decedent because
[it]. failed te involuntarily ceanit the decedent to s mental
health inetstutisen! (a) letter was written te the
Stete seserting thet the decedent hed cied end request [ing]
fan investigatien into the circumstances . . . . (The court
held that the pecsing reference to the decedent was
Sheaffseient to put the Stare on netice «
See U.S, Const. amend. xIV, § 2 ("Ne State shall... ceny te any
person within ite suriediction the equa? protection of the lave."}; Haw.
EGnets art. fy €.5 (Ne persen shell be cenieg the equel protectin of
the lame sso)
‘1** FOR PUBLICATION IN WEST’ S HAWAI'I REPORTS AND PACIFIC REPORTER +44
This Court views this cese [ae] similar to aay in
thet the issue te whether or not the letter toe 1 Araka
vas sufficient notice. The fetter to
Arakawa (vale written with the intent ef placing (him) on
notice that there should be an investigation surrounding the
Circumstances of [Kevin]’s desth. This letter... wae
Insufficient... . te place (the County] en netice thot a
claix was going to be filed eguinst it
y rejected the Plaintiffs’
Furthermore, the circuit court summa:
equal protection and tolling arguments. Accordingly, the circuit
court granted the County's notion to dismiss and, on June 14,
2005, entered final judgment in faver of the County and against
the Plaintiffs. On July 5, 2005, the Plaintiffs filed a timely
notice of appeal.
aa DARD:
A. Sunmary dudanent*
We review the
sonmary Judgment ge
“ 3
cuit court’ grant or denial of
nove. Hauai's C/miey crease
5 11 F.38 7, 8 (2000)
“for ‘summary Judgment Se
[Slunmary judonent is appropriate if the pleadings,
Gepesitions, aneuere to interrogatories, and
Sdnissione cn file, together with the alficavite, if
any, show that there ie no genuine sesue ae teeny
fateriei fect ond that the moving parey 48 entitled to
Sussrent ae 2 nevter of fect is sstersel if
Broct of that fact would have the effect of
Geteblishing or refuting one cf the essentiel elements
Of @ cause cf action cr defence asserted by the
ee. The evidence must be viewed in the Tight
fetoratle to the nen-noving party. In other
words, we must view all cf the evidence and the
Inferences Grawn therefren in the liant soet favorable
te the party opposing the motion
2a. (eit
ions ang internal quotation marke omitted)
a motion . . . to dienise fer failure of the pleading te
which relier con ke graztes, matters outsice the pleosios
are presented to and rot excluded by the court, the notion shell be trestes
ene for summary judgment : +. +" Haws"! Rules of Civil Procedure
Role 1202)
‘4+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
, 112 Hawai'i 184, 188, 145 P.36 727, 731 (2006)
(brackets in original) (quoting Querubin v. Throngs, 107 Hawai'i
48, 56, 109 P.3d 683, 697 (2005) (quoting Durette v. Aloha
Plastic Recveling, Inc., 105 Hawai'i 490, $01, 100 P.3d 60, 71
(2004) (quoting Simmons v. Puy, 105 Hawai'i 112, 117-18, 94 P.3¢
667, 672-73 (2004) (quoting Kahale, 104 Hawai" at 344, 90 P.3d
at 236 (quoting SCi Mamt, Corp, v. Sims, 101 Hawai'i 438, 445, 71
P.3d 389, 396 (2003) (quoting Coon vs City & County of Honolulu,
96 Hawai'i 233, 244-45, 47 P.3d 348, 369-60 (2002))))))}«
ws Sue
B. ry Interpys
["]the interpretation of = statute is = question of
Ele ge ngve-("] State v. Aicea, 84 Hawai'd
Pizd ses, 82" (1986) [ ianterne: quotation signal's
onittes) |:
Furthermore, our statutory construction is guided by
established rules
Tihen construing a statute, cur forenoet
Sbiigation 14 to ascertain and give effect to
the intention of the legicleture, uaien is to be
y fron the language contained
ne statute itself. And we sust read
‘utcry language in the context of the entire
ute ang construe it ins manner consistent
with ite purpose
When there i¢ doubt, dovbleness of
tinctiveness er uncertainty of
G ine statute, an ambiguity
3h construing sn enbiguovs statute, “{t]he
mening of the anbiguovt words ray be scught BY.
Ghenining the context, sith whieh the sxbiquovs
Words, phrases, enc sentences my be compared,
In orer te ascertain tnesr true mesning.” BRS
S 1-252) [(1983)]. Merecver, the courte may
Petort to extrinsic aice in determining
ive intent. One evenve if the use of
sry ag an interpre:
le, Admin, Diz, of the Court), 64 Hawai’
gat Poze foe, S90 (ilsei1) queting
€, 16-19, 906 Fre €5
Tiprackets anc ‘ellipsis points in original)
LEootnete onsetes) 56 coneider,
weich inguced the legislature to enact it te
"+ FOR PUBLICATION IN MEST"S HAWAI'I REPORTS AND PACIFIC REPORTER +++
discover its true meaning.” HRS § 1-112)
“Laws 40 Bard MALexia, oF upon the sane subject
matter, theil be construed with reference t2 each
Other.’ Wher is clear in one stetute may be called
lupen in aig to explain shat is doubtful sn another.”
mks '§ 1-16 (1993)
State ve Koch, 107 Hawai's 215, 220, 112 P30 €8, 74 (2008)
Tieone brackets sddes and sone in origi
added anc sone in eriginsl)] laueting Stace vf
Hawaii 1, 7-8, 72 P34 473, 479-880 (200317 Abe
sBSUrG of unjust result, see State v. Hauser, 106 Ha
7, 77, ts F.36 178, 184 (200¢), thie court ie bound to give
eftect’ te the plain'meaning of Unenbigvour statutory
snguage: we nay only resort to the vse of lesisle:
hietory wnen interpreting an enbigvoue statute. £t
Valdivia, so Hawaii 46s, ¢72, 26 P30 661, 666 (200TTS
Hawaii Home Infusion Assocs, v, Befitel, 114 Hawai's 87, 92, 157
P.3d $26, 530 (2007) (quoting Courbat v, Dahana Ranch, inc., 111
Hawai'i 254, 260-61, 142 P.3d 427, 433-34 (2006)) (brackets and
ellipses in original).
C. Questions of Constitutional Law
“We answer questions of constitutional law ‘by
exercising our own independent . . . judgment besed on the facts
of the case.’ Thus, we review questions of constitutional law
{*Junder the [Jright/wrong[] standard.*” Arceo, 64 Hawai'i
at 11, 928 F.2d at 853 (quoting State v. Lee, 83 Hawai" 267,
273, 928 P.2d 1091, 1097 (1996); State v. Trainor, @3 Hawas'd
250, 255, 925 P.2d 818, €23 (1996); Zovomura, 80 Hawai'i at 15,
904 F.2d at 900; State v, Beranco, 77 Hawai'i 361, 355, 884 P.2d
728, 733 (1994).
111. Discussion
On appeal, as in the circuit covrt, the Plaintiffs
erque: (1) thet HRS § 6€3-3(b), see supra note 1, is the
controlling statute of limitations in wrongful death actions
against the County, not HRS § 46-72, see supra note 2; (2) thet,
10
+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REFORTER +++
in any case, the “Plaintiffs substantially complied with the
provisions of HRS S{ )46-72"; (3) that the notice period “should
have been tolled until . . . @ personal representative was
appointed to represent . . . [Kevin's] estate"; and (4) that
“t]he application of BRS § 46-72 to the instant case. . «
violates the Equal Protection Clauses of . . . the Hawai'i
Constitution and the . . . United States Constitution,” see supra
note 3.
AL 2 e of
rf i
Claime Brisine Opt OF Injuries Resulting In Death
‘The Plaintitte «
m to reason that, inasmuch as HRS
§ 663-3 applies more “specifically” to wrongful death actions,
HRS § 46-72's notice requirenent is applicable only to cases
“injuries” shy of death.! (Citing Crawford v
Cranford, 62 Haw. 610, 415, 745 P.26 285, 288 (2987).)
Furthermore, they urge that, even if we were to determine that
involving
HRS § 46-72 applied to their claims, that statute must yield to
the longer limitation period set forth in HRS § 663-3(b).
(Citing Crawford, 69 Haw. at 415, 745 P.2¢ at 287.)
The County counters: (a) that an “injury” is simply
*L, [t]he violation of ancther‘s legal right . . . [,] a wrong
cer", or IhJarm or damage’
“even HRS § 663-3(b) [], the
whereas (b) “a death
is the result of injuries sustained”,
+ consuner Lawyers of Hawai'i enphaticelly concurs in its amicus
brief. citing Grawiera v Crasterg, 420, 145 FeZ0 265 (1987}-) The
Seppesing” Steynere are
Wrongful
3° (SURE
+4 FOR PUBLICATION I WEST'S RAWAI'T REPORTS AND PACIFIC REPORTER +
statute that [the] Plaintiffs would like this . . . Court to
apply to their claims, concerns the ‘death of the injured
person[)’ (emphasis added). (Citation omitted.)
Consumer Lawyers of Hawaii, as amicus curize, adds:
the legislature has not blended personel injury cleins
and death Claims... s0 that e single period of Limitation
governs each.
Claims for wrongful desth are governed sclely by H.R.S.
Is) ee
it'mist be presumes that the legislature, in enscting W.R.S.
[g] €87=7,(") for perscnal injery elaine, and {HRS S$] ee5-3{] for
death claims, was aware of the serious... differences between
+ injury’ soffere by s ISving person versus Gesth =
ize tne egislature had wanted #.R.S. [8] 46-72 to
apply to ceath claims, . . . it could nave aie #6.
(Some emphases omitted and some in original.)
We hold, following Kahale, that the statute of
Limitations applicable to the estate's claims arising out of
Kevin's injuries and the Plaintiffs’ own derivative wrongful
Geath damages, is HRS § 46-72. See Kahale, 104 Mi at 343,
345, 347 & n.7, 90 P.3d at 235, 237, 239 6 n.7, We ascribe no
significance to HRS § 46-72's general reference to “injuries” as
compared to HRS § 663-3's uses of the term “death.” The
Plaintiffs’ first amended compleint alleged that their damages
sprang from the physical harm allegedly visited upon Kevin in the
hours before his death and, to a substantial degree, from the
trauma that Kevin experienced while still alive:
ed the “genera” personel insury
letions fer the Fecovery ef
cr property ensil be sneticut
lceruea, ane not after, except
compensation fer a
br sneansty)
2
+4 FOR PUBLICATION IN WEST'S KAWAZ"I REPORTS AND PACIFIC REPORTER ++#
ip] sustained severe end ite
threatening’ phvsisal-intuties as's result of the conduct of
one or nore of the police cfficers who srrectes Nir
a2. ss [HPD] knew or should have known that
[Kevin] needed inmeciate medical sttention for the phusical
8: “Those police officers who were involved in the
arrest, transportation end ineerceration of (Kevin)
inflicted physical intury on (hin), [es a) direct and
picainate result
‘of unich he . . + ultimately ered
20. "ab
of the Derensencs tithe estate susteines spec
Garages by way of aedical, funeral and burial expenses and
Joes of excess earnings a vell as general canages for the
SonEGious cain, sufterina and eactional distress which
Tkevin} experiences piact to lig death while [Lorin ene
Carol] sustained canages by way of loss of financial
Sopport, masntenence snd other, miscellaneous costs and
expenses, ‘the lose of filial love, affection, cere, support
fane counsel, encticnal distress end the disruption ef their
fone and family Life. «+
(Emphases added.) The fortuity of Kevin's death should not allow
the Plaintiffs to evade the statute of limitations applicable to
“injuries.”
Moreover, we reject the Plaintiffs’ argument that
Gecedents' estates, per ss, enjoy the longer limitation period of
two years because of the logistical difficulties inherent in the
appointment of @ personal representative. The Plaintiffs’
Antimation that the legislature intended to create an additional
eighteen-month allowance for lengthy probate proceedings is
purely conjectural; the Plaintiffs do not, and we believe could
not, point te eny authority in support of their suggestion.
In any case, the statute of limitations that the
Plaintiffs offer as the correct one is facially inapposite to the
estate’s claims (with a minor exception). Wrongful death clains,
the sole subject of HRS § 66:
3, are derivative claims for the
exclusive benefit of a “surviving spouse, reciprocal beneficiary,
FOR PUBLICATION 1 WEST! KAWAI'T REPORTS AND PACIFIC REPORTER
children, father, mother, [or] . . . any person wholly or partly
dependent upon the deceased person,” not primary claims of the
Gecedent’s estate except with regard to “reasonable expenses of
last illness and burial." In any event, by its plain language,
HRS § 663-3 yields to a more restrictive provisic!
any action
brought under this section shall be conmenced within two years
from the date of death of the injured person, except as otherwise
provided” (emphasis added).
For the foregoing reasons, HRS § 46-72 applies to
claims against counties arising fron fatal injuries -- holding
aside for now the Plaintiffs’ constitutional argument. But see
iniza section 111.0.
B 46-72 Is Not Toll. eviod Befor:
Plaintiff fetate’s Fe fepresentative is Aeseint
‘The Plaintiffs argue that the six-month notice period
“should have been tolled until such time as @ personal
representative was appointed to represent . . . Kevin[’s]
estate.” They urge = liberal construction of HRS § 46-72:
“Justice (Bernard #.] Levinson was clearly aware of the
difficulties that would ensue if the limitations period were not
Neither party discusses the possibility that any claim egainst the
County dic not gccrue until Corel use sppeinted. in any case, this court has
that the
eines ‘the estate notes
ns aR Person may seek appointment of special
chinistretor where necessary to preserve the estate oF to secure its proper
ineluding bur net limited to eitustsone wh (e) fer
‘Set glsc APR Rule S6ie) cet the nominated
persons ve is not 2 close fan:iy nenber probate say
toke tec jong if the statute of linitetsone en the claim Je ebeut te
orpire Sie uns € 56053-6148 Supp. 18) ("Spectel eeninieteter:
Sproincnen
a
s+ POR PUBLICATION IN WEST’ TWAT REFORTS AND FACTFIC REFORTER ++
tolled pending the appointment of @ guardian ad litem for a
minor. Without . . . a personal representative, there would
Likewise be needless confusion and unnecessary litigation with
respect to who is legally authorized to act on behalf of the
decedent.” (Citing Salavea, $5 Haw. at 223-25, $17 P.2d at 56-57
(Levinson, J., dissenting).) The Plaintiffs’ argument is
meritless.
‘There appears to be a long-standing consensus among
foreign jurisdictions that, in the absence of @ specific
enactment te the contrary, the applicable limitation period is
not tolled, nor is its onset postponed, by delays in the
appointment of personal representative. See J.N.P.,
Annotation, Delay in Procurino Appointment of Persona:
Representative of Deceased o: His Death in
Action for Death, 70 A.L.R. 472, 472-74 (1931 & Supp. 2007);
Riley v. $, Transp. Co., 90 F. Supp. 642, @44 (S.D.N.Y. 1950),
: n 4g, 192 F.2d 391 (2d Cir.
assay: ve Bu : We, 107 F. Supp. 270, 274-76 (W.D.
Mich. 1952); Straub v. Jaecer, 9 F.R.D. 672, 678 (B.D. Pa. 1950);
Williams v. Quebec $.8. Cou, 126 F. $91, $82 ($.D.N.¥. 1903)
("The Language of the Act is explicit: ‘Such an action must be
commenced within two years after the decedent's death,’ and, in
view of the plain langua:
not be extended by construction.”}; Badezky v. Sargent & Co., 58
the time to conmence an action can
‘+4 FOR PUBLICATION I WEST’ S HAWAI'I REPORTS AND PACIFIC REPORTER +
A, 708, 710 (Conn. 1904) ("The language of the statute('] is
clear and explicit, conteining no exception and suggesting no
qualification. Neither the failure of the . . . beneficiaries
+ to secure the appointment of an administrator, nor the
failure of an administrator to commence an action, affect the
time limit fixed by statute."); Miller v. United Teche, Corp.,
S15 A.2d 386, 389 (Conn. Super. Ct. 1986) (where wrongful death
statute of limitations
arred actions “brought” more than “two
years [after] date of injury or discovery of injury,” see Conn.
Gen. Stat. Anni. § 52-555(a) & historical notes (Lexis 2007),
holding that, “(where the permanent administrator is appointed
after the running of the (wrongful-death] statute of limitations
, the action is barred by said statute of limitations”),
rev'd in part on other grounds, 660 A.2d €10, €37 (Conn. 1995);
Hannay. Jeffersonville RR, Co., 32 Ind, 113, 123-14 (1869)
("{T]t does not appear possible . . . that the legislature neant
that [the two years begin to run upon] the appointment of the
administrator. . . . [Bly delay to procure the eppointrent of an
administrator, the suit might . . . be delayed for any length of
time."); Van Vactor's Adn’x v. Louisville & N. RAR, Cou, 66 8.¥.
4, 4-5 (Ky. 1902); Carden v. L, & NRRL, 39 8.W. 1027, 1028
(ky. 1897); Cashman v. Hedbere, 10 N.W.2d 388, 392-92 (Minn.
1943) (quoting Rugland v, Anderson, 15 N.W. 676, 676 (Minn. 1883)
(The action “must ‘be commenced within two years after the act or
16
FOR PUBLICATION IN WEST'S WAMAI'T REPORTS AND PACIFIC REFORTER +++
omission by which the death was caused.’ To this limitation the
statute makes no exception, and none can be made by
construction.”)); Davis v. State, 253 N.¥.S.2d 267, 268 (App.
Div. 1964) (where statute “provide(d) that ‘[i]n any event [a]
claim shall be filed within two years after the death of the
decedent,’” effectively dismissing complaint on grounds of
untimely notice of cla:
, despite acknowledging that estate had
no recoverable claim until appointment of representative)
(emphasis omitted); Davis v, Schactmeistner, 112 N.Y.8.2d 208,
208-09 (Sup. Ct. 1952); Cohen v, Steigman, 292 N.¥.S. 750, 753
(app. Div. 1937); Beat v, Town of Kinston, 10 S.£. 997, 997-98
(N.C. 1890); Eldridge v, Eastmoreland Gen, Hosp., 769 P.2d 775,
778 (or. 1989) (“[T]he appointment of the personal representative
is not relevant to the determination whether the limitations
period established by [the controlling Oregon statute] hes
expired. "); Mann v. Dep't of Transp., 836 P.2¢ 1353, 1355 n.2
(or. Ct. App. 1992), adhered to, abrogated on different crounds
after remand, @56 F.2d 1055, 1085 (Or. Ct. APP. 1993); Mierts
Adn'x vs Eover, 196 A.2d $01, 502-03 (Vt. 1963); Dodson vs Cont’)
Gan Cou, 294 P. 265, 266-67 (Wash. 1930) (following analogous
interpretation of Federal Employers’ Liability Act by Reading Co.
vs Koons, 271 U.S, $8, $8-65 (1926)); Georce vs Chin, Milw. & St
Foul By. Cou, € NW. 374, 374 (Wis, 1681) (while acknowledging
that action could have been brought no earlier than
representative's sppointment, applying “absolute and
unconditional” language of statute to bar action): cf. Safir v
Conpacnie Generale Transatiantique, 261 F. Supp. $01, 505
(E.D.N.Y, 1965) (resting analysis on express statutory exception
FOR PUBLICATION 8 MEST’ § HAMAI'T REPORTS AND PACIFIC REPORTER +++
delaying limitation period until appointment of administrator
Smith vu. Deller, 288 S.E.2d 828, 826-27 (Ga. Ct. App. 1982)
(same); Hehrer v. N. Ninth Lumber Co., 92 N.Y.S.2d 178, 179 (App.
Div. 1949) (men.) (seme); Gibson v. Meehan, 178 N.Y.S.24 674, 675
(Sup. Ct. 1958) (same); Carpenter v. Johnson, 514 S.W.2d 968,
869-70 (Tenn. 1974) (same).
In the case of HRS § 46-72, the legislature obviously
recognized that, where the injured person has died, the act of
supplying notice must be perforned by “someone in the person's
behalf," see supra note 2, and yet, in the same penstroke, the
legislature set the limitation period at six months from the
indury, not from the appointment of a pereonal representative or
special administrator and without reference to 2 delayed
“accrual.” Accordingly, and in view of (1) the overwhelming
foreign case law in support of @ literal construction of “six
months after the injuries are received,” HRS § 46-72 (Supp.
1998), and (2) the availability of special administration as an
expedient mechanism by which to preserve an estate's claims, see
HRS $§ 560:3-614 to -617 (Supp. 1996); Hawai'i Probate Rule 56 6
ent., we hold that the limitation period set forth in HRS § 46-72
is not tolled pending the appointment of 2 personel
representative.
C. Zhe Elaintifts complaint Was Untinely
Inasmuch as the Plaintiffs did not file their complaint
within six months ef Kevin's injuries, it was categoricelly
untimely and, accordingly, we need not address the questions of
the effectiveness of the Plaintiffe’ letters ee notices of claim
or whether the County essentially “notified itself” of the
38
+6 FOR PUBLICATION IN WEST'® HAWAI'I REFORTS AND PACIFIC REFORTER
Plaintiffs’ claims as circumstantially reflected in the HPD
investigation,
As we observed in Salavea and reiterated in Kahale,
while the notice requirement set forth in ERS § 46-72 may appear
to be a mere “condition precedent to liability,” it “operates, in
reality, as 2 statute of limitations.” Selaves, 55 Haw. at 216,
517 P.2d at $3; see also Kahale, 104 Hawai'i at 343, 345, 347 &
n.7, 90 P.3¢ at 235, 237, 239 & n.7. Furthermore, the
legislature recently affirmed HRS § 46-72's character as a
statute of limitations by enacting Act 152, 24th Leg., Reg. Sess.
(2007), the preambles of which describe HRS § 46-72 as “the
statute of limitations for claims for damage and injury against
the counties.” See Act 162 §§ 1, 7, 8, and 14 (emphasis added).
That being the case, the Plaintiffs did net comply with HRS
§ 46-72 (holding aside their equal protection argument, see infra
section II1.D), inesmoch es they filed their initial complaint on
February 22, 2005, more than seven months after Kevin's alleged
Jely 4, 2004 injuries. Cf. Kahale, 104 Hawai'i at 349, 90 F.3d
at 24] ("Rachael, as Brandzie’s next friend, having filed claims
for relief on Brandzie’s behalf while she was still @ minor,
ensured that HRS § 46-72 would not act as @ bar to those claims
against the [County].”).
‘1** FOR PUBLICATION IN WEST'S HAKAI'I REPORTS AD PACIFIC REPORTER +
>. 1;
es? Tort Victins Fron tate’s Tort Victins W
aii Coni on.
Finally, given our disposition of the Plaintiffs’ first
three points of error, it becones necessary to reach their equal
protection’ argument, on which basis we vacate and remand.
1, The Plaintifte’ Arouments:
The Plaintiffs contend that HRS § 46-
creates a class
of tort claimants, to wit, those injured by the conduct of a
county, who are subject to disparate treatment vis-a-vis victins
of injuries caused by the state" without @ rational basis to
support such a distinction." (Quoting Felder v, Casey, 487 U.S.
131, 145-46 (1988); Turner v. Stages, 510 P.2d 879, 882-£3 (Nev.
1973); Jenkins v. State, $40 P.2d 1363, 1367-68 (Wash. 2975).)
(Citing Reed v. Reed, 404 U.S, 71, 75-76 (1973); Crandall v, city
ef Birmingham, 442 So. 2¢ 77, 78-79 (Ala, 1983); Gleason
Davenport, 275 N.W.2c 431, 436 (Iowa 1979); Reich v. State, 194
NW.2d 700, 702 (Wich. 1912); Glassman v. Miller, 38€ N.W.2d 655,
+ We confine our interpre
ESE SUBLE note 3, ingenuch oe we reed
tion to Rewaii's equel protection clause,
t comment cn ite federel counterpart
© Set BRS § 662-4 (1993) (7A tort claim against the State shall be
forever barreo unless action is begun within two yeors after the cleim
eccrues, except in the case of @ medical tert clals )
* the Fleintsffe cet fundamental rights nor suspect
claeessics are ot ietve. Tod Wawast ot 383, 90 oad at
245 (Acts, o-, concursing ang disser! But see" Shoemaker v. sugror
Mont inc, 251°8.6.28 $48, S61 m1 62) iRsity Pedey STE
(his eteunes that the right to recover cempensatery caneces
tortfeasor is not = “fundesentel zaght ¥
S04, $08 {Joma 1973) iReynoldsen, ng) Tit would plainiy sapinge
gx besic rights to ceny reascnable opportunity fer redress in court to ene whe
Ehrough the wrongful ect cf ancther hee been permanently oieabied, with e
consequent inebility te enjoy life ane to follew ¢ geinful eccepation in order
te acquire ane pe
20
‘449 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER **#
656 (Minn. 1984).) In substance, the Plaintiffs argue that,
whereas tort cleimants against private parties or the state
derive the benefit of @ two-year limitation period, they and
other plaintiffs allegedly injured by a county are subject to a
more restrictive six-month limitation for which no rational basis
exists.!? We agree.”
2. Analysis
our case law construing Hawaii's equal protection
clause is heretofore silent as to the particular nuance before
us. Justice Sernard H. Levinson postulated that “the purpose of
protecting the public fisc from fraudulent claims justifies the
imposition on victims of governmental torts a more onerous
requirement of prompt notice of claims than on victims of private
torts,” Salavea, $$ Haw. at 223 n.3, $17 P.2d at 56 n.3
(Levinson, J., concurring and dissenting) (emphases added), but
we are not willing simply to transform this explanation of the
separate classification of governnent and private tortfeasors’
victims into retionél besis for the distinction between county
and state defendants; we have no reason te believe that the
r= of Maui and Howai'i Counties,
hore counties haves two-year shelf
‘ofpesea to the six nonths mandates by ARS § 46-72 (Sopp. 1992). (The
County of Mevs's charter wae anended in 200, but this is net pertinent here.
We igegree with the Plaintstfe’ implicetion thet county charters. supplas
stove eeatuter. See Hew. Const. ert. VIIJ, $6 1-2, €7 HRS § 80-26 (1998). In
any cere, the only chaluenges classificaticn to wnich the Plaintiffs belong 2
of clasmante againet the City and County ef Henolube
® ie should nete, in response to the County's understandable
suppesition that, "if [we] Believed ARE § 46-72 to be unconstitutional,” we
rotle neve scopted custice Acobe’s position in Kenaie, 104 Hewari at 382-8,
50 F.3a at 248-46 thecbe, OW, concurring end dissenting), thet the Kabale
pleinti¢is sid not advance 2 constitutiens] argurent.
o
‘14 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER +*+#
counties endure greater budcetary strain or more freudulent
clains than the state.
Among the few authorities on point, Farnum v. 6.0.
Searle 4 Co., 339 N.W.2d 392 (Iowa 1983), advances the most
detailed justification of @ county/state distinction, but we
believe it to be distinguishable. In Farnum, the plaintiffs
“contendied] there is no rational basis for having @ more
stringent limitations period for actions against county doctors
than for
tions against state doctors.” Id. at 396. The Iowa
Supreme Court disagreed:
Despite hone rule, counties eperate under greater
SSecel constraints than’ the state does. Their mein scarce
of revenue is the property tax. The property tex levy 15
subject to a statutory ceiling. Strict tine lines are
established in the Local fidget hondn conteast, the
(lowe) General Assenbly is free te raise revenue from
nunber of sources, and its procedure ‘chebles it to
appropricte funds es necessery, after the fact, te pay
claims.
‘This court has previously noted the special problems
encountered by ons municipelities tn
inplenenting Budgets. Euogetary cone:
Sn’ Lungayly, Vogelmann, 213 Bl.20 $00 (Iowa
re 1 354 N.W.2d 776,
Tel (2986),1 a8 supporting the notice fequirenent
See [ida] at $07-08.” Other courte have alse given weight to
This factor in upholding similar netice requivenentes
he sane reasoning lea the hew Mexice Supreme Court to
uphold differential treatment of victina and tertfeasers in
shalogous facts in Eerancls Hogs[-] Ashley Atencio,
+ = $68 P.261259 (IN. 1971); the court Baler
In this state, cities are clearly limited in
their expencitures.” The absiity of cities te re
soney to meet such extraordinary expense 15 230
restrictes.
Therefore, it appears that sone rational basis
coes exist for limiting the tine period in weich
soit may be brought against a city.
es... at 1236. other cou:
Sohciusicn. We find these case
vpnoleing the cifferential tr
‘448 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
Seoarra v. Chi, Transit Auth., 637 N.E.2d 572, S75 (Ill. App. Ct.
1994) (where plaintiff challenged notice requirement for suits
against the Chicago Transit Authority (CTA) thet did not apply to
suits against municipalities, upholding stetute as consistent
with equal protection, noting that the CTA, “having as its only
purpose the operation of one of the largest mass transit systems
in the United States{,] performs @ . . . governmental function
with ite own peculiar problems having no parallel in the usual
functions of . . . governmental entities,” such as a “large
number of personal injury claims") (internal quotation signals
omitted) .
unlike Seoarra, Farnum, and Atencio, the record before
us is silent with respect to any difference between the levels of
government in this state that would constitute @ rational basis
for a more stringent limitation period when the County is the
defendant as compared to when the state is the defendant. In
% the Farnum court relied upon Tous statutes to illustrate
differences between the scurces of and procedures for allocating funds of the
State versus the counties. See 322°N,k.2e st 287 (citing lows code ensps. 24,
B5R ang §6 331.422, 424. (corrent vertion available at
http! /swm legis. state. 12.os/ionalaw. nts!
,
Sintleriy, in Atencio, the New Hexico Suprene Court cbrerved thet, “[i)n
IWew Mexico], cities ere Ciesrly linited in their expenditures” and that
sItine ability of caties to raise neney co meet extraordinary expense se
alec restricted,” S68 F,20 at 1286 (citing Nit. Stat. Ann, $6 11-61 end =6
(1852 ¢ Repl. 1974)/- Uniske the present matter, the Gefendent city hae
froffered some atecrtedly “rational” beses for enjoying a shorter statute of
: rey 1asites [in thesy bility] to
isnel 4 wcities have @ greeter heed te know whet
ing a fiscal year becouse, potentially, they
3 f iseality.
wisie Ganatta coed not sirettiy Gite factual support for the CThte
unique stature, the court cited S by $8 Habezd 4€7 (211. 1986), in
hich the 11]inote Supreme Cou ) of the nagnitude of
the gperstione ef [ene CTA) ‘ipevating ef the busy streets and
crougefares cf the second largee: city in tne United states, one cf the
rgest cities of the werle, [it] becenes involved in the largest velune of
{cent inves...)
++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
fact, the legislature has expressly recognized that the disparity
is at least unnecessary and at most unfair. Effective June 7,
2007, the legislature enacted Act 12, 24th Leg., Reg. Sess.,
$8, which amended HRS § 46-72 so as to expand the limitation
period to “two years after the injuries accrued.” See supra
note 2. Act 152’s preamble states that “it ie necessary to
conform the statute of limitetions . . . against the counties
with the Limitations period applicable to the State and private
individuals generally to ensure fair and consistent application
of the law." See Act 182 § 1; accord 4
“{eJhe purpose of” the amendnent): Sen. Stand. Comm. Rep. No. 276
§ 7 (articulating
at 2 (Feb, 14, 2007) (“This [amendment] will bring county clains
in conformity with all other government and private sector cleins
and the reasonable expectations of the public.”). Furthermore,
while the County and the state’s Department of the Attorney
General opposed the amencnent from its inception, when testifying
against it, they failed te demonstrate how, if at all, the
County's exposure to or procedure for handling tort claims is
different from the state’s so as to justify a disparate
Limitation period:
4. scentinved)
personal Injuries litigation in the state. There are, no doubt, many, if not
Bere, “Blind” claine - thoee not reported by ite employece =~ than in
‘ony Other municipality in ilisnele."” igs at 9] (emphasis eded)
We are unwiiiing te “fine” or juescially netsce thet the ceunty’s
bodgetary fetters place it ine worse posiesor than the states Te the
contrary, the county's cherter appears te sanction certein emergency
appropriations, even if on unaresespated deficit results, fee Revived Charter
cf Woneluis § $08.3 (2000 Sone ‘not inciuged in the
Eusget orci ia) To meet contingencies
which could not 6 then the budget or:
Unless pete
matt be ineluces
FOR PUBLICATION IN WEST'S HAWAI'I REFORTS AND PACIFIC REPORTER +
‘The eix-nonth requirenent is @ policy matter .
Because the Counties rely on public funds to operate, it is
critics! that the Counties have all possible avenues to
Protect their scarce resources.
‘The mesority of the laine received by the
counties ore not the sentational mettere ebout which the
negia reports; rather the majority of the clains are the
hore monsane types of mattere that sffect ronicspalsties and
Counties an their citizens, (egal, pothole claims, ‘damage
fo mailboxes from refuse trucks, eidewalk trip snd falls,
noney lest in parking meters, tree branches dinging ears,
‘yensele danage fron debris in the readwey, land) injuries
From divete in parke ws +
See Hearing on S.B. 1641," Sen. Intergov’tal ¢ Mil. Affairs
Comm., 24th Leg., Reg. Sess. (Feb. 12, 2007) (statement of Corp.
Counsel Carrie K.8. Okinaoa) (on file with committee clerk);
It just as easily
(statement of the Dep't of the Att’y Gen
could be said of the state that ite “resources” are “scarce” and
that it 4s regularly sued over “debris in the roadway,” “damage
fron refuse trucks,” and similar workaday perils.
Finally, the cases offered by the County in its
answering brief concern only the governnent-versus-private
tortfeasor distinc
n that we have already rejected as
dissiniler to the classification scheme at work in HRS § 46-72
(Supp. 1998). See Rios v. Montoonerv County, £72 A.2é 1, 16-19
(Mé. 2008); Johnson v, Marviand State Police, 626 A.2¢ 162, 167
(Nd. Ct. App. 1993); Biccitelli v, Brockhvizen, $96 N.W.2d 392,
401 (Wis. 1999) .1
S.E, 1681, 24th Le
ef the anenanent te Bhs §. 46-7
incorporated it inte the bill
Conn. Rep. No, 919 at 2 (Hal
Reg, Sere (2007) wae an esriser incarnation
the Senate Judiciary and Lazer Comittee
sat would become Act 182. See Sen. Stanc
2, 200).
spect tully decline to follow the contrary conclusion of
Shoemsier v. Alancr Most., Ins., 291 S.£.22 £68, ©: (G2. 1982) (opnolaine
Retice statute at not viclotive of equel protection). The Georgie Supreme
Cosrt plainly sisrese the limitation statute's cistinction Eetween the
Teontinced...)
‘+4 TOR PUBLICATION IN MEST’ § HAWAI'I REPORTS AND PACIFIC REPORTER
3. The Bottom Line
Wie hold that there is no rational basis for the
classification scheme effectuated by HRS § 46-72 as it read in
2004. The County offers no rationale for the distinction between
the classes, nor can we deduce one. ‘The record on appeal and the
legislative history are silent with respect to any budgetary,
logistical, or other difference between the County and the state
that might justify the unequal treatment of victims of their
torts.
We cure this constitutional error by severing HRS
§ 46-72's (since repealed) six-month provision, thereby
relegating the Plaintiffs’ clains to the same two-year limitation
M1. -continved)
Fequireneits of notice to sunicipslities and to counties, concluding simply
that “sufficient differences exist between governmental ond Eri
tortieasors to justify... requiring that. - sotice be given to one but
not the other,” gee 4g, et 550 (enphases added). Preeiging Justice Mist
protestes thet “the different tines for netice as between counties and
Cities... Go) not beara ressonable relationship tos legitimate
Gevernnental purpose,” but His dissenting opinion prompted not moment's
Fetlecticn by the sajerity.” See ig. at S8I°S2 |Hiil, Feds, eissencine)
oh 1976), disturb
‘Suprene Court uphele & statutory’ schene
t netice periods applied to the State of Utah (one
@ county Ininety days), ane 2 city or town (six months). dd. at
The court ressoned!
nile no precise formula has been enunciated, it is generally hele
that the lesisisture hat a wide discretion in enacting lews which
affect ene group of citizens differently then other groupe
‘The legislature is presuned to have actee within their
Constitutional authority even though inequality resuites
[nsie ."- de may hove Seen preserabie fer ne
iegssiatore to'nave specified ¢ uniform period for all
an subcivicione ef Stete government, ss tne state
be stricken down merely because the legsslatore adoptes three
pericas curing unieh notices of claine mst be files.
647 Ifoctnete omitted). We generally agree with Croudes’s intimation
subject to only rationg:-basis scrutiny ie pretonptively valid
for equal-protection purpeses, Ost, a we noted gupta, the Haws: iegitieture
sitimatively acknowleages that parity aneng cleine against the counties and
the state “ie necessary.”
26
‘1° FOR PUBLICATION IN WEST'S HAWAS'T REPORTS AND PACIFIC REPORTER ++*
applicable to claims against private tortfeasors under HRS
$§ 657-7, see supra note 6, and 663-3(b), see supra note 1. See
Kehale, 104 Hawai'i at 348 n.8, 90 P.3d at 240 n.8 ("{T]he
legislature is perfectly free to amend [HRS § 46-72) to provide,
say, for @ two-year limitations period or to repeal st
altogether, in which case tort claims against the counties would
be governed by HRS § €57-7."). Inasmuch as the Plaintiffs filed
their complaint well within two years of Kevin's initial contact
with HPD on July 4, 2004, a fortiori “within two years after the
WRS § €S7-7, they are entitled to
cause of action accrued,”
pursue their claims.
IV. CONCLUSION
In light of the foregoing analysis, we vacate the
circuit court's judgment and remand the matter to the circuit
court for further proceedings consistent with this opinion.
on the briefs:
Dennis W. Potts and Todd W. Eddins, Goro
for the plaintiffs-appeliants
Lorin and Carol Silva
Moana A. Yost, Deputy Corporation
Counsel (DCC), for the
\
defendant -appellee Pei OM rusleny aren
City and County of Honoluly
Janes Krueger, Karee &. Dusty +
Consumer dangers ef haw! WBC be,
Jane E, Lovell, DCC,
for the amicus curiae
County of Maui
|
23991e9e-6732-49bc-9a93-c031d8d6769c | Vestin Mortgage, Inc. v. McKenna | hawaii | Hawaii Supreme Court | LAW LIBRARY
wo, 28322
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
\VESTIN MORTGAGE, INC.; VESTIN REALTY MORTGAGE I, INC.;
VESTIN REALTY MORTGAGE IT, INC. ; OWENS MORTGAGE
INVESTMENT FUND; BRIDGE CAPITAL, INC. ;
SUNSET FINANCIAL RESOURCES, INC., Petitioners,
‘THE HONORABLE SABRINA S. MCKENNA, JUDGE OF THE FIRST
CIRCUIT COURT, STATE OF HAWAI'I; STATE OF HAWATTs
ALTERNATIVE DEBT PORTFOLIOS, L.P.; ALTERNATIVE”,
DEST PORTFOLIOS LLC, ‘Respondents.
aati
ORIGINAL PROCEEDING 1
(CIV. NO. 04-21-2126)
‘ORDER
1 Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Xt appearing that petitioners settled the matter for
which mandamus relief is sought,
37 18 HEREBY ORDERED that thie original proceeding is
ismisned.
DATED: Honolulu, Hawai'i, June 27, 2007.
MaeSifolovrnas—
Peace Cea are
oN,
Rowe &. Duly. Ge
|
a57b0422-cec5-44b8-8203-0fc0bb9cadd9 | Holi v. AIG Hawaii Insurance Company, Inc. | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 26089
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
HOLI, Petiticner-Pla:
sue wnwnss snconance conan, ave., EZ §
esponsenttetendare-appeilee/crose-nppelie@alé = Fy
Fae =
and Srile
ae 2 @
0
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS <SpO; 2g
CORPORATIONS 1-10; ROE “NON-PROFIT” CORPORATIONS 1-70; and @OE
GOVERNMENTAL ENTITIES 1-10, Respondente-Defendants-
Appel lees/Cross-Appellees.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. NO. 02-1-0395)
for the court’
(By: Nakayama,
Petitioner-Pleintiff-Appellant /Cross-Appellee’ s
application for writ of certiorari filed on April 26, 2007, is
hereby rejected.
DATED: Honclulu, Hewai"i, June 5, 2007
FOR THE COURT:
Bassas Obreastereyarer
Associate Justice
Arthur Y. Park, Laurent 3.
Remillaré, Jz., John C.
McLaren and Earl T. Nakasato
for petitioner-plaintiff-
appellant /cross-appellee
on the application
son, Nekayens, Acobs, anc buffy,
Coneicered by: Moon, C2.) Le
|
8615200b-0b15-49f8-8f1d-c36f5e278103 | Kalima v. Marks | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 28594
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
LEONA KALIMA, DIANNE BONER, RAYNETTE NALANI AH CHONG,
Special Administrator of the Estate of Joseph Ching,
‘Deceased, on behalf of themselves and all others
Similarly situated, Petitioners,
"HE HONORABLE VICTORIA S. MARKS, SUDGE OF THE FIRST
CInGUIT COURT, STATE OP HAWAL'Y; STATE OF HANAT;
STATE Gr UownE'x DEEARDINT OF HAWAIIAN HOME LAND;
STATE OF HAWAI'T HAWAIIAN Howe Lanbs TwoSF g))
BIVECUM, Cities Revien Patenr Lien LENcialy
Inher eftictal cepucity a0 Governor of eh
Stace of Howat.” sespendente 2
ad
= m
ORIGINAL PROCEEDING = o
te Wo Sear) =
ORDER
(By: Moon, C.J., Levinson, Nakayama, and Duffy, JJ.
‘and Intermediate Court of Appeals Judge Nakamura,
in place of Acoba, J., recused)
Upon consideration of the petition for a writ of
prohibition filed by petitioners Leona Kalima, Dianne Boner, and
Raynette Nalani Ah Chong, Special Administrator of the Estate of
Joseph Ching, Deceased, on behalf of themselves and all others
similarly situated and the papers in support, it appears that the
transfer of Civil No. 99-4771 to another circuit judge was within
the discretion of the respondent judge and petitioners fail to
demonstrate that the respondent judge flagrantly and manifestly
abused her discretion in transferring the case. Accordingly,
petitioners are not entitled to extraordinary relief. See Xeme
vs Gaddie, 91 Hawai't 200, 204, 982 P.24 334, 338 (1999) (A writ
of mandamus or prohibition is an extraordinary remedy that will
a clear and
not issue unless the petitioner demonstra
indisputable right to relief and a lack of alternative means to
redress
lequately the alleged wrong or obtain the requested
action. Such writs are not intended to supersede the legal
discretionary authority of the lower courts, nor ere they
intended to serve as legal remedies in lieu of normal appellate
procedures. Where a court has discretion to act, mandamus will
not lie to interfere with or control the exercise of that
discretion, even when the judge has acted erroneously; unless the
judge has exceeded his or her jurisdiction, has committed a
flagrant and manifest abuse of discretion, or has refused to act
on a subject properly before the court under circumstances in
which it has a legal duty to act.). Therefore,
IT IS HEREBY ORDERED that the petition for a writ of
prohibition is denied.
DATED: Honolulu, Hawai'i, July 9, 2007.
Gp
Paste CNet our
Yorone. Debt:
GAS Hla —_—
|
cf12e3a5-ed2b-479b-84c7-1ac35f4f5bff | Ranches v. City and County of Honolulu. ICA s.d.o., filed 02/16/2007 [pdf], 113 Haw. 330. S.Ct. Order Accepting Application for Writ of Certiorari, filed 06/22/2007 [pdf]. | hawaii | Hawaii Supreme Court | +*4FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTERS**
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
‘o0o==~
JERRY RANCHES AND RIZALINA RANCHES,
Petitioners/Plaintiffs-Appellants
CITY AND COUNTY OF HONOLULU, i
Respondent /Defendant appellee e
and
JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10;
DOE PARTNERSHIPS 1-10; DOE NON-PROFIT ENTITIES 1-10;
‘and DOE GOVERNMENTAL ENTITIES 1-10, Defendants
No. 27846
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. No, 04-1-1274)
ocTosER 5, 2007
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY ACOBA, J,
Petitioners/Plaintiffs-Appellants Jerry Ranches (Jerry)
and Rizalina Ranches (collectively, Petitioners] filed an
application for writ of certiorari! on May 16, 2007, requesting
+ Pursuant to Havas" Revised Statutes (HRS) § 602-59 (Supp. 2006),
42 party may appeal the decision of the intermediate appellate court (the ICK)
oniy by an appiiestion to this court fora writ of certiorari, Sea HRS § 602
59(a).. In determining whether to accept or reject the epplication for writ of
certicrari, this court reviews the ICA decision for:
(2) Grave errors of law or of facts or
(2) Gbvicus inconsistencies in the dectaion of the [ICA]
vith that of the supreme court, federal decisions, or
Tee own decision,
‘and the magnitede ef such errors or inconsistencies
(wontinved. «1
“FOR PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REFORTER*
that this court review the judgment of the Intermediate Court of
App
1s (the ICR) filed on April 16, 2007, ieeued pursuant to its
Summary Disposition Order (S00) filed on February 16, 2007,”
affirming the March 15, 2006 judgment of the first circuit court?
(the court) in favor of Respondent/Defendant-Appellee City and
County of Honolulu (Respondent) in a slip and fall case.
Respondent filed a memorandum in opposition to the
application for certiorari. In the opposition memorandum
Respondent initially contend that Petitioners’ petition should be
denied because it “does not contain any basis for review that is
new or different than his [sic] request for review to the [ICA].
However, Hawai'i Rules of Appellate Procedure (HRAP) Rule 40.1
(2007) does not require a new basis for review in order for a
petition to be accepted.*
(continued)
Gictating the need for further appeal.
BRS § 602-S9(b). The grant or denial of a petition for certiorari is
discretionary with this court. gge HRS § €02-59(a)
+ the $00 was issued by Chief Judge Janes S. Burns and Associate
Judges John $.W. Lin and Craig #. Nakamura.
> the Honorable Randal K.0, Lee presided.
+ WRAP Rule 40.1 (4) states:
(2) Contents, The application for a writ of certiorari
shell not exceed 12 pages and shall contain in the folloxing
order!
(2) A short and concise statenent of the questions
presented for decision, set forth in the most general terme
Possible. The statenent of a question presented will be
Seemed £0 incluce every subsidiary question fairly comprised
therein. Questions not presented according to this
parsgragh Will be disrecsrdes. The supreme court, at its
Option, may notices plain error not presented.
(2i"A statenent! of prior proceedings in the case
(3) A short statement of the case containing the facts
(eontinved,
‘s**F0R PUBLICATION IN MEST’S HAWAI'I REPORTS AND PACIFIC REPORTERM#®
‘The requirements in HRS § 602-59(b) are “directed only
to the application for the writ, It is not descriptive of the
scope of review determinative of the [s]upreme [c]ourt’s decision
to grant or deny certiorari. The (s]upreme {cJourt’s power in
that regard is intended to simply be discretionary.” State v
Chong, 86 Hawai'i 262, 283 n.1, 949 P.2d 122, 123 n.1 (1997)
(emphasis and citations omitted). Accordingly, Petitioners are
not required to provide a “new or different” basis for review in
their petition.
I.
Petitioners present the following questions for this
courts decision: (1) [whether] the definition of what
constitutes 2 subsequent remedial measure under Hawai'i law
[should be clarified]; and (2) whether actions taken by
[Respondent] in preparation to refinish a floor prior to a slip
and fall incident can be defined as subsequent remedial
measures.” (Emphasis in original.)
In.
The following pertinent matters are from the petition
and opening brief.
(Petitioners) filed their Complaint . . . on July 13,
2004, alleging that on May 26, 2003, (Jerry) slipped and
fell’ immediately inside the entrance to the men’s restroom
‘at Eva Beach Park due to conditions on the floor which posed
fn unreasonable risk of harm.
“1 -continvea)
Imatersal. to the consideration of the questions presented.
(4) A brief srgunent with supporting authorities. A.
copy of the challenged opinion, dispositional order, of
Fullng of the [ICA] shall be attached as an appendix.
3
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*##
Qn January 21, 2006, {Respondent filed various
notions’ in Motion in Limine Ro. 2
Exclusion of all Evidence of Subsequent Remedial Measures
the concrete slab to drain water away fron the door.
‘On February 7, 2006(, Petitioners) filed (a)
Menorandum in Gppositien 6 (Respondent's) Motion in Linine
Worl.
(Emphases added.)
At trial the following evidence was adduced and events
transpired, according to Petitioners.
[Petitioners] were occasional users of Ewa Beach Park.
«The restroom .". + has no roof and the walls. we
Constrsctes of concrete block. (Jerry) walked paste
Shower and into the docrway which required him to take an
ineediate left turn ang right torn. As soon as [Jerry] nade
the lefe turn his right foot slipped and he fell. [Jerry]
hoted that the floor under him was smooth snd worn. Tt hed
Previously been painted but the paint had worn off...
[ije wes sitting in a puddle after he fell. There were no
Greing in the floor ang walls of the men's’ restroom
1s {O)n the day of the incident, ager cabato)
iniezed the nen’ restroom st approximately 12:00 p.m.
tipon’entering the men's restroom, Mr. Cabato saw a puddle of
Water. The floor "had sone green moss end mildew.” Mr.
sbato authenticated a photograph of the shower pipes
without the water “on” and that photogreph was sdmitted as
Exhibit P-€5. Mr. Cobato testified that the floor felt
slippery in the aves where he found (Jerry) still on the
floor after his fall.
fs. Stacey Kahue ((Rahve)} .; . had testified at
la} deposition as” (Respondents Hawai'i Rules of Civil
Procedure) Rule 30(b) (6) witness regarding "any and all
nodificaticns and/or repairs to the men’s restfoan and
Adsscent shower area at Eva Beach Fark from May 26, 1998 up
fo and including the current date.”
‘Sn offer of proof that [Kshse] woule' tests
work a2 the pro‘ect sanacer for Arakaki Contracting which
cestroce ..—. which beaan-orior to (ersy'sl fall on
tity 26,2005, Th addition to testifying regarding
~ the resurfacing work which the floor was determined to
Fequire because of its worn, weathered and smooth condition,
[Kehue] would testify regarding photographs he took of the
Condition of the restrooms which were submitted to
[Respondent] prior to the subject incident.
4
‘++POR PUBLICATION IN WEST'S HAMAT'T REPORTS AND PACIFIC REFORTER**#
ould Jead “directly to the issue of the resurtacina of the
Res el obiectio aclu
otect, hese actions fore th
‘The _{clourt had decned the cost incident resurfacing to bes
cee eint Lenedlal seasure in ite ruling on (Respondent
Gotion in Linine Noi. . and it extendea that derinition
to inclade events witch occurred prior to the subject
Sneidene.
(Baphases added.)
As set forth by Respondent, fa) jury [trial had)
conmenc{ed) on February 27, 2006, and end{ed] on March 3, 2006,
with the jury's verdict in favor of [Respondent]. [Petitioners]
appealed from the judgment entered on the jury's verdict. On
February 16, 2007, the [ICA] entered its [S00] affirming the
sudgnent.
ur.
With regard to the two questions posed in the petition,
Petitioners are generally correct in that the “(ICA] simply
states that it affirms the March 15, 2006 judgment” and
“[tyherefore it is impossible for Petitioners to specifically
address any flaws in the ICA's reasoning.” The ICA did say:
Generally, we agree with the following statement made
by [Respondent] in the answering brief:
‘The only tesves which shosld be considered by this
Tejourt are the following: 1)
= if the resus’ he nen
ing, 2] the exclusion of evidence regarding the
operation of the showerhead and the slope of the
Concrete shower, ped
$00 at 3 (emphasis added).
Ww.
As to their first question, Petitioners cite the
following text of HRE Rule 407.
POR PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REPORTER*##
nen, after an event,
taken previously, would hi
lures are taken which, if
je made the event less likely to
weal scence oF culpabl
fheevent. ‘This rule does not Tequire the exclusion of
Gvidence Of subsequent measures when offered for ancthe:
Purpose, such as proving @ dangerous defect in products
Tiability cases, ownership, control, or feasibiliey of
precautionary measures, if controverted, or impeachment.
(Emphases added.) The Commentary to HRE Rule 407 states in
pertinent part as follows:
This rule is similar to [Federal Rules of Evidence
(FRE) ] 407, ‘the Advisory Conmittes’s Note to which points
out: ~The’ rule incorporates conventional doctrine which
excludes evidence of subsequent renedial messures as proof
of an scmission of fault..." The. . - around tor
‘suclusion rests on 2 social oolicy of encoureaing people to
‘in turtherance of added safety. The courts have applies
thie principle to exclude evidence of subsequent repairs,
Installation of = ‘in company rules,
land discharge of employees,
Tule is brosd enough to. encomps
Tals rule ie limited seri
evidence when offered as proof of
Conduct. “The second sentence of the rule lists some of the
Sther purposes for which this evidence nay be admitted. The
Yule varies from [FRE] ¢07 in the addition of “dangerous
in products liability cases” af one permissible
Ray be oamiteed.
(Emphasis added.) (£11ipses points in original.)
As to the first question Respondent reiterates in its
response to Petitioners’ petition that “the basis for
[Respondent’s] motion vas not only HRE 407 (subsequent renedial
measures), but also HRE 403 (exclusion of relevant evidence due
+ Thus under limited circunstances, subsequent measures were ruled
adnissible in order to prove the existence of defects in a product in two
Hewai'i cases. In Am, road. Cos, v. Kenai Air of Hawaii, Inc., 67 Haw. 219,
228, 686 P.26 1, 7 (2580), this court held that the lower court erred in
Fejécting Kenai's “offer of proof related to measures allegedly taken to
Fenedy the problem of unexpected power failures in the particular model of
In In xe Hawaii Fed. Asbestos Cases, 665 F. Supp. 1454 (D. Haw.
2086}, the federal court followed the Fationaie set forth in Kenai, holding
that the “state of the art” theory as 2 defense to strict liability for
estes cleins was inadnissible because "the product's design 1s considered
at the tine of triai not at the tine of nanofactore. [HRE] 407 allows the
jury to consider eubsequent renediel measures at proof of @ dangerous defect.
Agi at 1657 (esting Renal, €7 How. at 223, 686 F.2d at 9)
6
‘++FOR PUBLICATION IN MEST'S HAWAI'T REFORTS AND PACIFIC REFORTER'*#
to prejudice).”* Respondents argue that “the [court] ruled that
the evidence of the subsequent floor resurfacing was precluded by
HRE 403{, thus t]here is no need in this case for (this clourt to
define subsequent remedial measures, as that w
not the basis
for the (court’s] ruling.”
In response, Petitioners said in their reply brief that
Respondent’s failure to respond to the HRE 407 issue, and
subsequent redirection towards an HRE 403 analysis exemplifies
Respondent's lack of understanding of the “trial court’s ruling
and the interrelationship of Rules 407 and 403 regarding the
resurfacing project." The question of whether further
explication is needed regarding HRE Rule 407 is subsumed in
Petitioners’ second question.
v.
Preliminarily it should be noted that “[t]he bar of
[Rlule 407 is specific and unambiguous: Evidence of subsequent
remedial measures ‘is not admissible to prove negligence or
culpable conduct.'” Addison M. Bowman, Hawai'i Rules of Evidence
Manual $ 407-1 (3d ed. 2006). The term “subsequent” indicates
that the measure in question must have been undertaken “after
* im connection with this question, Respondent said in its answering
brief that it does not take a position on the HAE Rule {07 argument. Instead,
Respondent contended that the court algo based its decision on HAE Rule 403
grounds. HRE Role ¢03 states in part that “evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice(.]" “Respondent algo declared that under HRE Role 401, evidence
Pertaining to the resurfacing of the men’s bathroom is not relevant beceuse it
Goes not shave a tendency to neke the existence of any fact that is of
Consequence to the determination of the action more probable or lees probable
than st would be without the evidence.”
7
‘s*4FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERS#®
[the] event,” which is “the occurrence that caused the death or
injury cited in the current complaint.” Id, (brackets in
original). This rationale tracks interpretations of FRE Rule
4077 as in Moulton v, Rival Co,, 116 F.3d 22, 27 (1st Cir. 1997)
(admitting evidence of prior accidents vas not an abuse of
discretion); and Traylor v. Husavarna Motor, 988 F.2d 729, 733
(eh Cir. 1993) (stating that “remedial measures were taken
before rather than after the ‘event,’ which in an accident case
the courts have invariably and we think correctly understood to
mean the accident” (citations omitted) ).
HRE Rule 407, entitled “[slubsequent renedial measures”
(emphasis added), provides in relevant part that “[wJhen, after
an event, measures are taken which, if taken previously, would
have made the event less likely to occur, evidence of the
subsequent measures is not admissible to prove negligence or
culpable conduct in connection with the event.” The word
“remedial” means “intended for a remedy or for the removal or
abatenent of a disease or of an evil.” Wl ts Thix
Dictionary 1920 (1993) (emphasis added). Thus, a “measure” is
“remedial” if it is intended to address the occurrence of an
event by making the event less likely to happen in the future.
7 tt may be noted that “[HRE 407) {a simiiar te [FRE] 407" but
vvaries from [FRE] 407 in the addition ‘dangerous defect in products liability
fone permissible purpose for which remedial measures nay be
Comentary to HRE Rule 407. The Variance between HRE 407 and FRE
407 does not affect the analysis herein, because the instant case does not
Involve products Iiability,
‘S*4POR PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REPORTERS#*
Therefore, measures that are taken after an event but that are
predetermined before the event are not “remedial” under HRE Rule
407, because they are not intended to address the event. See
Schmeck v. City of Shawnee, 651 P.2d 85
(holding that the city’s ordering and installation of traffic
600 (Kan. 1982)
signal control devices at an intersection where the plaintiff had
been injured were not “remedial” because the city’s actions “had
been predetermined . . . many, many months prior to [the]
accident,” and the city had “merely completed something which had
started long before the plaintiff's accident” (first emphasis
added and following emphases in original)}; 23 Charles Alan
Wright 6 Kenneth W. Graham, Jr., Federal Practice & Procedure
§ 5283, at 104-05 & 105 n.43 (Ist ed. 1980) (observing that when
FRE Rule 407 is read to require a “causal relationship” between
the accident and the measures, “exclusion would not be required
where the motivation for the renedial measure was not the
prevention of a recurrence of the accident in issue,” such as
where “the defendant undertook repairs as a result of an earlier
accident”).' Because such measures are not “remedial,” it
follows that evidence of such measures is not inadmissible under
the plain language of HRE Rule 407.
+ ansofar as ERE Rule 407 is similar to ite federal counterpart,
interpretations of the federal rule by treatises and cases are instructive.
See, Qua, Stave v, Viset, 98 Hawal't 94, 108, 19 P.3a 42, $3 (2001)
([Slecause the BRE are patterned on the [FRE]... , construction of the
federal counterparts of the WRE by the federal courts’ is instructive, but
obviously not binding on our courts." (Citations omitted.)); Nskagsus w
nana, 52 Haw. 379, 368-89, ¢77 P.24 611, 617 (1970) (felicwing a treatise on
fegersi procedure in interpreting Hawai Rules of Civil Procedure Rule $9)
°
‘*4FOR PUBLICATION IN WEST'S HAWAI'I REFORTS AND PACIFIC REPORTER*#*
vi.
In their appeal, Petitioners contended that “different
standards of review must be applied to trial court decisions
regarding the admissibility of evidence, depending on the
requirements of the particular rule of evidence at issue.”
(Citing Kealoha v. County of Hawaii, 74 Haw. 308, 319, 944 P.2d
670, 676 (1993).
nen application of a particular evidentiary rule can yield
only one correct result, the proper standard for appellate
Feview is the right/wrong standard: However, the
traditional abuse of discretion standara should be
in the cae of those rules of evidence that require &
“juagnent call" on the part of the trial courts
nied
Kealoha, 74 Haw. at 319-20, 644 P.2d at 676.
Petitioners correctly submit that “decisions regarding
the aduissibility of evidence under [HRE Rule 407), such as the
decision to exclude [Kshue’s] testimony and other evidence of the
resurfacing project, should be reviewed under the right /wrong
standard as 2 measure taken is either a subsequent remedial
measure(,] or it is not.” However, the standard of review for
exclusion of evidence under HRE 403 is the abuse of discretion
standard. State v. Rabe, $ Haw. App. 251, 264, 687 P.2d 554, 563
(2984) (citation omitted). Evidentiary decisions based on this
rule, “which require a ‘judgment call’ on the part of the trial
court, are reviewed for an abuse of discretion.” Walsh vy. Chan,
80 Hawai's 212, 215, 908 P.2d 1198, 1201 (1995) (citation
omitted). Under an abuse of discretion standard, as Petitioners
set forth,
10
SWAT'T REPORTS 28D PACIFIC REPORTER*##
[t]he trial court abuses ite discretion if it bases its
ruling on an erroneous view of the law of on a clearly
erronecus secerenent of the evidence. Oftice of Hawaiian
Aefaies v State, 110 Hawai'i 338, 351, 133 F-3a 767, 780
(2006) {citing Bancer Ins. Coz, Hinshaw, 103 Hawai" 26,
30, 79 P.3d 119, 123 (2003) (citation omitted) }. Abuse of
Giseretion occurs when “the trisl court nas clearly exceeded
tthe bounds of reason or disregarded rules or principles of
lew or practice to che substantial detrinent Of @ party
litigant.” 1d.
vit.
AL
As to the second question, Petitioners acknowledge that
they must “prove both the existence of a condition which posed an
unreasonable risk of harm and that [Respondent] knew, or should
have known of the unreasonable risk, and that it failed to take
reasonable steps to eliminate the risk or adequately to warn
users againet it.” (Citing Corbett v, Ass'n of Apartment Owners:
of Wailua Bayview Apartments, 70 Haw. 415, 417, 722 P.2d 693, 695
(1989).). According to Petitioners, Respondent
determined that it was neces:
ry to resurface the floor of
the men's restroom ot Eva Seach Park. It hired Arakaki
Construction to re
irface the floor with a slip reasatent,
‘Rrakaki Construction began to execute
1e part of that work,
the
Ticor of the subject men's restroon.
(Emphasis added.) They state that “[Kahue’s] precluded testimony
was highly relevant on all of these issues.”*
Petitioners maintain that “[nJone of these actions had
anything to do with the happening of (Jerry's) fall.
* in that regard Petitioners aesert that “under [HRE) Rule 407 an
‘action taken prior to sn event cannot be a subsequent venedial measure(, and)
Ss 2 subsequent action, which is taken pursuant to @ predetermined course
Of aétion is not # subsequent remedial measure.”
n
FOR PUBLICATION IN MEST’ S HAWAI'I REPORTS AND PACIFIC REFORTERt*#
[Respondent] would not . . . have been discouraged or affected in
any way, by the prospect of admissibility at a trial arising from
an incident yet to occur or unknown at the time.” Thus,
Petitioners maintain, the excluded evidence “was highly probative
of the substantial risk of harm and notice which they were
required to prove as elements of their clains.”
5
Petitioners urge this court to adopt the analysis set
forth in several cases that support their position that “Rule 407
Limits its scope to evidence of measures which were taken
‘subsequent’ to the date of the incident which gave rise to the
Litigation.” As set out by Petitioners, in Ravond v. Raymond
Corp., 938 F.2d 1518, 1523 (Ist Cir. 1991),
a side loader . . . identified as Model 75 was involved in
the subject accident. (Zd.] at 1523. Subsequent to the
Eble of Model. 75, but prior to [plisintiff’s injury, the
3
fondant rade design modifications in ite subsequent Medel
which "were on the drawing board prior to the
manufacture of Model 78." Id. The trial court did not
Edit evidence regarding these modifications, but the (first
Clizcuit concluded that *[a}ay reliance upon’ 407 at all,
however, wae misplacedt 1”
They cite the following statement from Raymond.
o
Sevent* The term “event” refers to th
Becident that precipitated the suit. Roberts v.
Hnrnischtecer Corp, 901 F.2d 42, 44 net (sth Cir. 1909);
96 F.2d 17, 21 (4th Cir.
see),
‘Id. (emphasis added). This is an accurate assessment of the
holding in Raymond and establishes a clear before and after
“event” delineation. In accordance with this rationale, actions
taken by Respondent prior to Jerry's fall would not be afforde
12
“+++P0R PUBLICATION IN MEST’S HAMAT'T REPORTS AND PACIFIC REFORTER'**
protection under HRE 407, because the policy considerations
behind the statute would not apply as set forth infra.”
‘The rationale for this interpretation, Petitioners
urge, is in Cupp v. AMTRAK, 138 $.W.3d 766, 776 (Mo. Ct. App.
2004). In that case, the plaintiff argued that “the evidence did
no more than reiterate the existence of conditions that Antrak
was aware of prior to the accident and measures Amtrak had
planned to take prior to the accident.” Id." The court of
appeals “agree[d],” stating as follows:
‘the. sey ration tudin =
‘accident resedial measures does not appl if the measures In
Etestion were planned, provided for or undartaran prior to
she-accident, the purpose of the exclusionary rule is te
fan eigen and has been induced
By the accident to sake the repair to prevent further
Injury. A defendant who is swore of the problen and has
propoted measures for remediation
Id. (citations omitted) (emphases added). Similarly, it does not
appear Respondent can benefit from the protections of HRE 407
* — fowever, Bawmond held that “[t]he district court did not abuse its
discretion in ruling that the Nodel 76 evidence vas only parainally relevant
ane excluding the evidence under (FRE] Rule 403.” 938 F.2d at 1522 (footnote
‘Onittes) (emphasis added), The first circuit explained that
the question of strict Liability in New Hampshire centers on
the level of dangerousness of the product et the tine of
Sele. for this reason, the introduction of evidence of
vresaceiden on e
he ae
‘Eo tne defendant
and mislesding to the jury for determining the question
‘sf sanufactore end sale
ds at 1524 (citation omitted) (emphases adéed). Contrastingly, in the
{nitant cose, the pre-sceident neatures were not made after the resurfacing of
the subject floor, but were mage in contemplation ef the resurfacing and,
arguably, were more then “marginally relevant.”
in missouri, “[tJhe rule regarding the admissibility of
post-accident remedial neatures con best be stated by reference to (FRE Role)
Sortai" pollard ve Ashby, 298°S.W.20 394, 401 (Mo. Ct. App. 1990).
13
FOR FUGLICATION IN WEST’ S HAWAI'T REPORTS AND PACIFIC REFORTER**+
simply because it vas in the middle of the resurfacing project
when the accident took place.
Also, Petitioners
ly on Schneck. As previously
noted, in that case claims against the city and a power company
arose out of a motorcycle accident which occurred on July 11,
1976, as the result of inadequate traffic signals. 651 P.2d at
588-89. Objection was made to admission of “the date the new
signalization equipment was ordered, July 13, 1976, and the date
it was finally installed, March 24, 1977[.]” Id. at 599.
However, the trial court noted that “the installation of traffic
control devices . . . was conduct that had been predetermined
+ many, many months prior to this accident!.]” Id, at 600
(emphases added). Evidence of the city’s pre-accident plan to
install traffic signals, the installation of which took place
after the accident, was held to be admissible. Id, the
Schmeck court reasoned that because the city’s actions were
determined prior to the accident, “the [city] merely completed
something which had been started long before the plaintiff's
accident. Thus, this evidence could not be characterized as
% kan. stat. Ann. § 60°:
remedial conduct” states!
1 (2006) which pertains to “Subsequent
When after the occurrence of an event renedial or
precautionary measures Gf taken previously
Would have tended to mal yent less Likely to occur,
evicence of such subsequent measures is not sduissible to
Prove negligence or culpable conduct in connection with the
1s
‘s++70R PUSLICAEION IN WEST'S HAMAI'T REPORTS AND PACIFIC REFORTERY*#
subsequent remedial conduct.” Id, (emphases in original)."
Finally, Petitioners cite Rollins, in which the
district court allowed all evidence of repair prior to the
accident to be admitted, but precluded admission of evidence of
that same repair that occurred after the incident.
[alii evidence of discussions, drafts, proposals,
deliberations of actual alterations of repairs regarding
Gither the haroware of the procedures involved with the
operation of the ship-tovshere power cable connection that
Securred prior to the incident on August 11, 1986 will be
Sdaitted. “this evidence is not governed by’ Rule 407 and is
highly probative as to notice and knowledge of the potential
dangers of the ship-to-shore hardware and procedures
Evidence of actual repairs, alterations or procedural
Changes made after August il, 1986 ere inadnissible,
761 F. Supp. at 940-41 (emphases in original). The Rolling court
explained that evidence of prior measures directly connected to
the accident are “highly probative as to notice and knowledge of
the potential dangers[.]” Id. However, the Rollins court did
not allow evidence which occurred after the accident to be
admitted under FRE 407. Id. at 941. It said that “[e]vidence of
actual repairs, alterations or procedural changes made after
% — Schneek noted that even though the trial court “really ha(d) @
even finding the installation of traffic control devices was rene
Shed been predetermined... prior to this scci
serait nonetheless limites the use of such evidence. Schueck, 651
at’ 600. The trial court instructed the jury thet Lt "could not use anything
that happened after the date of the accident for the apportionment of
Liability or fault,” although it could be used "ro show a condition that
existed.” Id. (enphasis added). The Schaeck court, without discussion,
‘Seened to accept the trial court's rationale ang further explained that the
‘siso sdnissible te show “contrel(, which} was s major issue.”
‘et, control is not an issue in the present case. In addition,
‘G07 provides that evicence of subsequent renedial measures may be
Introduced to! prove "a dangerous defect in products liability cases,
Ounershipy control, of feasibility of precestionsry neasures, Sf controverted,
oF inpeachnent™ but not "to show a condition that existed.” Thos, vnile we
Sore with the Schreck court that repairs to which a defendant has committed
Before an accident But which are not completed until after the accident are
not “subsequent renedisl measures”, the evicence in this case is not
Sdniseible unger any exception to the general exclusionary role recognized in
this. jurisdiction
as
‘***FOR PUBLICATION IN WEST’ § HAWAI'T REPORTS AND PACIFIC REPORTERM+®
August 11, 1986 are inadmissible.” Id, (emphasis in original)."
Rolling noted, however, that subsequent matters may be admissible
under exceptions to Rule 407. Id,'*
‘The reasoning of the Schmeck court is persuasive,
Actions contemplated and commenced prior to the “event” required
by HRE Rule 407 cannot be considered “remedial” in the sense
contemplated by that rule. Moreover, the exclusion from evidence
of post event measures does not serve the policy underlying Rule
407 of removing any detrimental effect that such repairs would
have on a defendant in subsequent litigation inasmuch as the
repairs were contemplated before the accident.
“Rolling steted that
[tIhis policy [onder FRE Rule 407} is not served by
adnitting evidence of subsequent repairs, even if the
Gecision to make such repairs was msde prior to the incident
being litigated. ‘Once an accident occurs, there 18 even
hore reasch to encourage defendants to take renedial
Defendants should not fear that if 1itigation
‘after a particular incident, any renedial measures
token will be admitted to prove their negligence.
761 F. Supp. at 940.
% The Bolling court said:
‘Tis [clourt, however, makes 2 reservation in accord
with Role 407. Subsequent repairs, alterations, or
Procedural changes nay be adnissibie if offered to prove
Sunership, control or feasibility of precautionary measure,
Sf such te controverted. Moreover, defendants should be oh
notice that such evidence may also be acnitted if necessary
for inpeachsent purposes or if plaintiff seeks to admit the
evidence for reasons other then to denonstrate tre
Gefendente’ cvlpabiisty.
Kika, 455 F.2d 392,) 386 ((sth Cir. T97d)) (in certain
Limited instances, ‘however, the policy favoring the repair
of dangerous conditions 18 overcome by the duty of courts to
ellow litigants to bring the facts of the situation to tre
tention of the jury where they are otherwise Felevant end
Probative.").
761 F. Supp. at 942.
16
FOR FUELICATION IN MEST’S HAWAI'T REPORTS AND PACIFIC REPORTER**#
In that light, a rule excluding from evidence measures
contemplated before the “event” but completed afterwards as set
forth in Bolling, without more, is unconvincing. Bolling did not
explicate the rationale underlying its view that there was “more
reason to encourage defendants to take remedial measures”,
Rollins, 761 F. Supp. at 940 (emphasis added), after an “event”
although the measures had already been initiated prior to the
event. On that point, the reasoning set forth in Cupp is
significantly more persuasive. HRE Rule 407 was designed to
encourage defendants who are first notified of a dangerous
conditions to make repairs, without fear of prejudicing their
defense in ensuing Litigation. Tt was not, however, designed to
protect defendants who knew of a condition, had initiated steps
to renedy it, but did not finish before an innocent party was
injured. See, Cupp, 138 $.W.3¢ at 776 ("The purpose of the
exclusionary rule is to protect a defendant who has been first
alerted to the possibility of danger after an accident... . A
defendant who is aware of the problen . . . prior to the accident
is not entitled to the sane protection.”)
vain.
In sum and based on the foregoing, the measures taken
by Respondent in thie case that began prior to Jerry's accident
and continued thereafter cannot be characterized as either
subsequent or remedial and, therefore, cannot be precluded under
HRE Rule 407, notwithstanding the fact that they were completed
after Jerry's accident. To the extent the court excluded such
‘s/+F0R PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERS
evidence on HRE Rule 407 grounds, it reversibly erred, and
insofar as the ICA premised its judgment on such a ruling, the
TCA gravely erred.
rm.
As previously noted, in its opposition memorandum
Respondent argues pre-accident evidence was nevertheless
excludable “on the basis of HRE 403.” HRE 403 provides that
“{a}ithough relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.”
At trial, Respondent's memorandum in support of Motion
in Limine No. 1 Re: Exclusion of all Subsequent Remedial
Measures, stated that its HRE 403 arguments were made in the
alternative.
Assuming arquendo that thie [clourt allows inte
evidence testimony of photos of the resurfacing of the floor
or the cut ade near the entrance of the men’ # restroom or
the feasibility of precautionary measures despite the
underlying policy and purpose of Rule 407 of the (HRE], any
testineny of photos of the resurfacing or cut near the
entrance of the men's restroom
nder Hule 403 of the [HRE].
(Emphasis added.) Respondent argued with respect to Motion in
Limine No. 1, that
[t]he introduction of testimony with recerd to the
Eequrtacing of the floor of the nen's restroom or the
fegeabiisty of rectutionsty measures will enly serve te
Moreover, the introduction of this evidence will confuse the
jury with regard to the iseves in this case.
(Emphasis added.)
18
‘s+470R PUBLICATION IN MEST’S AWAIT REPORTS AND PACIFIC REPORTER#*#
‘The arguments made by Respondent during the motion in
Limine hearing similarly indicated that “{alny reference to the
because it wou!
ublic policy. i the resu
would be more prejudicial than it would be probative to the
city.” (Emphasis added.) The court apparently agreed, ruling
that,
(vlader Rule 407 and Rule 403, 407, subsequent renedial
he pad was done after this incident. The court finds that
Sliowing teatineny and or evidence regarding the resurfacing
find the cut from the pad,
the prebstive value, so therefore, the court will grant
‘notion in linine nutber one.
(Emphases added.)
x,
‘The court also ruled at trial on exclusion of Kahu
testimony. According to Respondent,
linen the esue [of excluding evidence of subsequent renedial
nesoures) was revisited doring the trial, the [court]
Sliowes the picture requested by (Petiticners), but
Sustained the objection as to the testinony of witness
Kehoe, fineing that "given the nature of his testimeny and
Balancing it ageinst the probative and prejedice to show the
weight of the evidence, the (court finds that the prejudice
Dstweight any probative value of his testimony end,
therefere, will not allow [Kahue's) testimony.”
pon objection to Kahue’s testimony, Petitioners made the
following offer of proof:
It 4s cur intention to call [Xahue], who is currently an
employee with the City and County ef Honcluis, as a witness
ecegtity reaarding the werk that he did back in January of
‘Out purpose in Calling
TKenue] would be to a
specifically with respect to photographs in Exhibit Nunber
Poe, and £2 elicit testimony’ from kahve) regarding the’
as
‘S*4FOR PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REFORTER!*#
ature of the protect that Arakaki Construction was involved
h_spacificaliv the resurfacing of the flocr thst uae
rs ie preiect- He hed an
inspector, Allison Ayabe, who was his contact with the
Departnent of Design and Construction, with whom he wae in
contact to report on the progress of the project.
(Emphases added.) The court sustained the objection, statin
‘The (court further finds, that given the nature of his
Testimony and balancing it against the probative and
prejudice to show the weight of the evisence, the [elourt
Finds thet the prejudice outweighs eny probative value of
Ais testimony and, therefore, will not allow (Kanue's]
testimony es to where he was’ working.
The court was not specific in its ruling as to the reasons for
sustaining the objection.
AL
Respondent argued in its answering brief that because
witness Kahue could not specifically recall the condition of the
men’s restroom, his testimony was irrelevant and not highly
probative as to the need to repair the floor. Second, Respondent
argued that the offer of proof regarding Kahue’s testimony did
not prove that the resurfacing of the men’s restroom would have
“eliminated the allegedly dangerous condition." Third,
Respondents contended that Petitioners failed to establish an
evidentiary link by not retaining an expert to support their
position that the resurfacing would have prevented Jerry's
accident. In conclusion, Respondent maintained that if the pre~
accident events are admitted, “[t)he jury may . . . improperly
concludle] that [Respondent] found that the restroom floor was
defective and that the resurfacing project was performed to
remedy this defective condition.” Respondent argues that thus
20
‘ss4POR PUBLICATION IN WEST'S HAMAT'T REPORTS AND PACIFIC REFORTER**#
“the [court] did not abuse its discretion when it precluded
evidence of the resurfacing of the men’s restroom floor and the
testimony of [Kahue].”
B,
In response, Petitioners submitted in their reply brief
‘that Kahue’s testimony regarding the resurfacing project “would
have been damaging to the City’s case [but] would not constitute
‘unfair prejudice’ under [HRE] Rule 403.” Petitioners quote from
the Advisory Committee Notes to FRE Rule 403 which states that
“unfair prejudice” in this rule “means an undue tendency to
suggest a decision on an improver basis, commonly, though not
necessarily, an emotional one.” (Emphasis added.)
Petitioners also rely on Kaeo v. Davis, 68 Haw. 447,
454, 719 P.2d 387, 392 (1986), which states that “evidence with a
capacity for unfair prejudice cannot be equated with testimony
simply adverse to the opposing partys for evidence is only
material if it is prejudicial in some relevant respect[,]” and
United States v, Figueroa, 618 F.2d 934, 943 (2d Cir. 1980), for
the proposition that “[e]vidence is prejudicial only when it
tends to have some adverse effect upon a [party] beyond tending
to prove the fact or issue that justified its admission into
evidence.”
Petitioners asserted that “the only dancer of ‘unfair
dice’ addi he tet hi
widence wae a ur set
2
FOR PUBLICATION IN WEST'S HAWAI' REPORTS AND PACIFIC REFORTER!+#
evidence of a subsequent remedial measure which it considered to
be an improper basis{,]” (emphasis added), as it had expressed in
its ruling on Respondent’s motion in Limine no. 1. Petitioners
claim that “{t)here is no indication in the record that the
[court] vas concerned with any other possible prejudicial effect
of the testinony of (Kahue) regarding the resurfacing project.”
Accordingly, Petitioners argue the court’s analysis
under HRE Rule 403 was “fatally flawed," because “[Kahue’s]
testimony regarding the resurfacing project which began before
the subject incident was not evidence of a subsequent renedial
measure under Rule 407." This is correct. With respect to HRE
403, neither Respondent nor the court identified the specific
prejudice that would befall Respondent, except that evidence of
the pre-accident resurfacing would prejudice Respondent.
However, such evidence is not excludable on HRE Rule 403 grounds
merely because the effect of admitting such evidence might
engender an adverse view of the City’s conduct, but must be
unfairly prejudicial. See discussion infra.
Second, as to the dangerous condition and (apparently
expert) issue(s) Petitioners contend that it was “{not] necessary
for Kshue’s testimony to ‘establish that the resurfacing would
have eliminated the allegedly dangerous condition,’” in order to
be admissible." Petitioners submit that there is no authority
at may be noted that no authority is cited for the proposition
that expert witness opinion is required as part of the proof ins e1ip and
fall case
22
'FOR PUBLICATION IN WEST'S HANAI'T REPORTS AND PACIFIC REFORTER'
to support Respondent’s position. Rather, Petitioners claim that
“[e}he evidence was adnissible, at a minimum, to establish notice
+ that the defendant knew, or should have known, of the
unreasonable risk of harm.” (Citing Corbett, 70 Haw. at 417, 772
P.2d at 695.).
Respondent cites Bogosian v. Mercedes-Benz of N. Am,
Ince, 104 F.3d 472, 481 (1st Cir. 1997), to support exclusion of
evidence of the resurfacing project under HRE Rule 403. In that
case, the plaintiff brought a strict liability claim against
Mercedes-Benz after the automobile she parked and exited rolled
back, injuring her. Id, at 474-75. The Bogosian court stated
that “[a]lthough [the first circuit] has recognized that (FRE)
407 applies to strict liability cases, . . . it does not apply
where, as here, the modification took place before the accident
that precipitated the suit.” Id, at 481 (citing Raymond, 938
F.2d at 1523).
The Booosian court observed that “[iJn cases such as
this, the district court may, if necessary, exclude evidence of
the remedial modification by resort to its considerable
discretion under [FRE] 403, which permits exclusion of relevant
evidence if its probative value is substantially outweighed by
the danger of unfair prejudice or misleading the jury.” Id.
(citations omitted). It was further noted that because
[a) strict Liability claim centers on the condition of the
preduct at the tine it leaves the seller's handste} ©.
the introduction of evidence of sre-accisent design
23
‘*++FOR PUBLICATION IN WEST'S HAWAI'T REFORTS AND PACIFIC REFORTER**#
Of the allegedly defective prodoct may reason
to the defendant and misieading to the
jury for determining the question whether the product wa
nseascnably dangerous st the tine of manufcture and sale.
Ids (citation omitted) (emphases added) (internal quotation marks
and citations omitted).
‘The Eogosian court concluded that because “the jury had
before it uncontroverted evidence that Mercedes-Benz could have
implenented the modification during the relevant time frame[,]
any evidence that Mercedes-Benz, in fact, later modified its
vehicles risked the danger that ‘jurors would too readily equate
subsequent design modifications with admissions of a prior
defective design.’” Id, (citation omitted). Thus, Bogosian
held that “the district court did not abuse its considerable
discretion” in refusing to allow the plaintiff to question
Mercedes-Benz’s only witness regarding a modification that had
taken place subsequent to the sale of the car but prior to the
plaintiff's accident because the plaintiff “was attempting to
create a feasibility dispute where there was none.” Id. at 481-
82.
Unlike Bogosian, in this case, the evidence of the
measures taken by Respondent that began prior to Jerry's accident
were not “uncontroverted.” Instead, those measures were
probative of proving the existence of a condition which arguably
posed an unreasonable risk of harm and that Respondent knew, or
should have known created an unreasonable risk, but failed to
24
FOR PUBLICATION IN WEST'S NAMAI'T REPORTS AND PACIFIC-REFORTER*+#
reasonably eliminate or to adequately warn users about.” See
Corbett, 70 Haw. at 417, 722 P.2d at 695. Moreover, unlike
Rogosian, this is not @ case where proposed modifications to the
product or site were made after the product or site had passed
into the control of the consumer or user. The product liability
situation in Bogosian is simply not relevant to the slip and fall
situation where the premises always remained in control of
Respondent, Therefore, contrary to Respondent’s contention,
Rogosian does not support excluding the measures pursuant to HRE
Rule 403.
on the other hand, a8 noted before, the Rollins court
admitted “all evidence of discussions, drafts, proposals,
deliberations or actual alterations or repairs” that occurred
prior to the incident inasmuch as that evidence was “not governed
by [FRE] Rule 407 and [was] highly probative as to notice and
knowledge of the potential dangers[.]" 761 F. Supp. at 940-41.
However, in Rollins, that court also rejected the defendant's FRE
403 argument as to subsequent repairs allowed under any
exceptions in FRE 407, It was stated that
Itihe fact that such evidence may “hurt” the defendants’
case does not nean that its protative value is outweighed by
ite prejudicial effect. “Untair prejudice” as used in [FRE]
Role. 403 ie not to be equated with testimony sisply adverse
fo the opposing party. Virtually all evidence is
% he question of whether notice shovld be attributed to Respondent
would, as other facts, rest Gn the fact Finder's determination of credibility
ee the weight to be given such evidence, See State v. fastmen, 6) Hawa:
13, TettsBS'etbertnf es" soe “tecacing chee sedieariay it ae’ within the
province of the "fact“finder te assess the credipility of witnesses and to
Fesolve ali questions of fect” (eitation omitted) )
The commentary to HRE Rule 403 states that “(this rule is
Adentical with (FRE) 403,”
25
‘**7OR PUBLICATION IN WEST'S HAWAI'I REPORTS AND FACIPIC REPORTER*!
Ss
prejudicial or it isn’t material. The prejudice must be
unfair.
Ada at 941 (citation omitted) (emphasis added) (some internal
quotation marks omitted). Similarly, in this case, admitting the
measures taken by Respondent would not be unfair to Respondent,
but would be “highly probative as to notice and knowledge of the
potential danger(.J” Id, at 940-41.
Therefore, the court incorrectly excluded evidence of
the resurfacing project on HRE 403 grounds, because the project
commenced before the subject accident and the evidence was not
subject to HRE 407 exclusion or the policy considerations
thereunder, Such evidence was probative at least as to notice.
Under these circumstances, admission of the evidence would not
have been unfairly prejudicial, as the court apparently believed.
CE. Cupp, 138 S.W.3d at 776 (defendant who has proposed measures
prior to accident not entitled to bar against post accident
remedial evidence); Rollins, 761 F. Supp. at 941 (rejecting FRE
403 argument as precluding subsequent measures into evidence
under exceptions to FRE 407); Schneck, 651 P.2d at 600 (evidence
of defendant's pre-accident remedial plan and predetermined post
accident conduct admissible in evidence).
xz.
Respondent also declared that under HRE Rule 401,
evidence pertaining to the resurfacing of the men’s bathroom is
not relevant because it does not “have a tendency to make the
existence of any fact that is of consequence to the determination
26
POR PUBLICATION IN WEST’ § HAMAI'I REPORTS AND PACIFIC REFORTER*##
of the action more probable or less probable than it would be
without the evidence.” However, based on the foregoing,
Respondent's pre-accident plans to resurface the bathroom would
have a tendency to make the existence of notice of a dangerous
condition -- an element of the negligent action -- more probable
than it would be without the evidence. See Cupp, 138 $.W.3d at
776 (defendant aware of problem not entitled to bar of pre~
accident measures); Rolling, 761 F. Supp. at 940-41 (pre-accident
measures highly probative as to notice and knowledge of danger).
Accordingly, such pre-accident plans would appear to be relevant.
xin.
For the foregoing reasons, the ICA’s April 16, 2007
judgment and the court's March 15, 2006 judgment are vacated and
the case is remanded to the court for disposition consistent with
this opinion.
Mark F. Gallagher (Zan DP
wrhattoen with nim on
the appiication) taw Offices Bir Hoderinae~
Sf ran Mattoch,, for
Petitioners/
Plaintiffe-appellants.
-
Marie Manuele Gavigan, — Aw tw
Deputy Corporation 22
counsel (Carrie K.S.
Okinaga, Corporation Yow €. Dufbgith +
Counsel, with her on the
response) for Respondent/
Defendant-Appellee.
27
|
8247a6dd-9653-4dda-8a0d-c703c5969ce5 | Kuamoo v. State, Department of Agriculture | hawaii | Hawaii Supreme Court | NO. 26370
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
“WILLIAM J. M. KUAMOO, SR., Petitioner/Claimant-Appellant,
STATE OF HAWAT'I, DEPARTMENT OF AGRICULTURE,
Respondent /Employer-Appellee, Self-Insured,
nd = oF
i = o
UAWAIZ HEALTH SYSTEMS CORP., dba HILO MEDICAL ciNTER,
Respondent /appellee s
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NO. AB 2002-122(H) (1-80-02492))
ORDER DISMISSING NOTICES OF APPEAL AND PERMITTING
PETITIONER/CLAIMANT-APPELIANT TO PILE AN APPROPATATE
APPLICATION FOR WRIT OF CERTIORARI IN ACCORDANCE WITH
‘HAWAI'I RUL aoe APPELLATE PROCEDURE RULE 40.1
tiys Dotty, Jus for the court)
Xt appearing that (2) Petitioner/Claimasnt-Appellant
Willian J. M. Koanoo, Sx, fLled two documents labeled “Wotice of
Appeal,” on dune 12, 2007 and dune 19, 2007 respectively, seeking
review of the Intermediate Court of Appeals (ICA's Hay 18, 2007
fudgnent on appeal that affissed the Decision and Order of the
Labor and Industrial Relations Appeals Board filed on
Decenber 31, 2003, (2) the appropriate vehicle for seeking review
of the ICA’s judgment is an application for a writ of certiorari,
pursuant to Hawai"! Revised Statutes § 602-59, and which must
comply with Hawai‘ Rules of Appellate Procedure (HRAP) Rule
} Considered by: Moon, C.J., Levinson, Nakayama, Accba, end Doffy, JJ.
40.1(d), and (3) insofar as the ICA’s judgment on appeal was
filed on May 18, 2007, the deadline to file the application for a
writ of certiorari will not expire until August 16, 2007,
IT 1S HEREBY ORDERED that the “Notice of Appeal”
documents filed on June 12, 2007 and June 19, 2007 are dismissed,
and Kuance 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 August 16, 2007.
DATED: Honolulu, Hawai", gune 22, 2007. '
FOR THE COURT:
Gormn #. Dues oe
Associate Justice
|
f7f300b8-9c2d-439f-b23b-67de8b0c2f2d | Ice Cream Dreams, LLC v. Marks | hawaii | Hawaii Supreme Court |
wo. 28502
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
ICE CREAM DREAMS, LLC, Petitioner,
aa 00d
iON
vs. 3
WEVA Eh
Wd Of
a3
‘THE HONORABLE VICTORIA S. MARKS,
JUDGE OF THE CIRCUIT COURT OF THE FIRST’ CIRCUIT:
Respondent,
and
THE ISLANDS ICE CREAM COMPANY I, LLC; LEONARD RYDER)
KAREN KOZEN-RYDER; and COLD STONE CREAMERY, INC.
Real Parties in Interest.
ORIGINAL PROCEEDING
(crv. No. 07-1-0028)
ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
upon consideration of the petition for a writ of
mandamus filed by petitioner Ice Cream Dreams, LLC and the papers
in support, it appears that the April 9, 2007 order dismissing
Civil No. 07-1-0028 is forthwith appealable upon entry of a final
judgment thereon and petitioner has an adequate remedy by way of
appeal. Therefore, petitioner is not entitled to mandamus
relief. See Kema v, Gaddis, 91 Hawai'i 200, 204, 982 P.2d 334,
338 (1999) (A writ of mandamus is an extraordinary remedy that
will not issue unless the petitioner demonstrates 2 clear and
indisputable right to relief and a lack of alternative means to
redress adequately the alleged wrong or obtain the requested
action. Such writs are not intended to supersede the legal
discretionary authority of the lover courts, nor are they
intended to serve as legal remedies in lieu of normal appellate
procedures.). Accordingly,
IT IS HEREBY ORDERED that the petition for a writ of
mandamus is denied.
DATED: Honolulu, Hawai'i, april 30, 2007.
Paul Alston
and Peter Knapman
for petitioner frm
MiccSxp Lecrnae~
Prats ON ue GNC
Pra
Yone. Saline +
|
3c22b622-7f75-4668-9a89-6e2f38c6a4e3 | In re United Public Workers, AFSCME, Local 646, AFL-CIO v. Shimizu | hawaii | Hawaii Supreme Court | LAW LIBRARY
NOT FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER *
no. 26568
IN THE SUPREME COURT OF THE STATE OF HAWAI'I 5
IN THE MATTER OF
UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AF!
Complainant ~Appellant~Appellant,
KENNETH A. SHIMIZU, DEPUTY DIRECTOR, DEPARTMENT OF ENVIRONMENTAL
‘SERVICES, CITY AND COUNTY OF HONOLULU; ERIC TAKAMURA, DIRECTOR,
DEPARTWENT OF ENVIRONMENTAL SERVICES, CITY AND COUNTY OF
HONOLULU; KENNETH NAKAMATSU, DIRECTOR, DEPARTMENT OF HUMAN
RESOURCES, CITY AND COUNTY OF HONOLULU; AND NUFI HANNEMANN,
MAYOR, CITY AND COUNTY OF HONOLULU’,
Respondent s~Appellees~Appellees,
and
HAWAII LABOR RELATIONS BOARD: BRIAN NAKAMURA, CHAIRPERSON, ENORY
SPRINGER, BOARD MEMBER, AND SARAH HIRAKAMI, BOARD MEMBER,
Appellees-Appellees.
(crv. No. 03-1-0546)
IN THE MATTER OF
UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-CIO,
Complainant-Appellant~Appellant,
KENNETH A, SHIMIZU, DEPUTY DIRECTOR, DEPARTMENT OF ENVIRONMENTAL
SERVICES, CITY AND COUNTY OF HONOLULU; ERIC TAKAMURA, DIRECTOR,
DEPARTMENT OF ENVIRONMENTAL SERVICES, CITY AND COUNTY OF
HONOLULU; KENNETH NAKAMATSU, DIRECTOR, DEPARTMENT OF HUMAN
RESOURCES, CITY AND COUNTY OF HONOLULU; AND MUFI HANNEMANN,
MAYOR, CITY AND COUNTY OF HONOLULU,
Respondent s-Appellees-Appellees,
and
Porsuant to Nawas"t Rules of Appellate Procedure (*HRAP") Rule
43(c} (2000), Renneth A, Shimizu, Eric Takamura, Kenneth Nekanateu, and Mofi
Hannensnn nave been substitutes as parties to the instant appeal in place of
Frank 3. Doyle, Timothy £, Steinberger, Cheryl Okuna-Sepe, and Jereny Harris,
Fespectively (in thelr official copacities); algo, nominal appellees Brory
Egeinger snd Saran Hirekani have been substituted in place of chester Kuniteke
and Kathleen Rakuya-Markrich, respectively.
+ NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER,
HAWAII LABOR RELATIONS BOARD; BRIAN NAKAMURA, CHAIRPERSON, EMORY
SPRINGER, BOARD MEMBER, AND SARAH HIRAKAMI, BOARD MEMBER,
‘Appellees-Appellees.
(CIV. NO. 03-1-0552)
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NOS. 03-1-0546 and 03-1-0552)
‘SUMMARY DISPOSITION ORDER
(py: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, Jd.)
Complainant-Appellant-Appellant United Public Workers,
AFSCHE, Local 646, AFL-CIO (hereinafter “UPW") appeals from the
Circuit Court of the First Circuit's order,? filed May 6, 2004,
denying its motion for order to show cause and for contempt
otion for contempt sanctions”) against the above-
(hereinafter *
named Respondents-Appellees-Appellees (collectively the City and
county of Honolulu, hereinafter “City”). The circuit court’s
order was filed on the same day that this court filed an order
granting a stay pending appeal in favor of the City as to the
exact seme subject matter. At issue was the City’s alleged
noncompliance with an order fron the circuit court which ordered
the City to take certain affirmative good faith actions towards
meeting its employment obligations to UPW and the unionized
refuse collection workers whom it represented arising from the
automation of the City’s refuse collection system.
on appeal, UPW makes the following assertions: (1)
there is no dispute that the City had failed to comply with the
‘The lionoreble Sabrina S, McKenna presided.
2
“+++ NOT FOR PUBLICATION IN WEST'S HAWAU REPORTS AND PACIFIC REPORTER ***
circuit court’s September 17, 2003 findings of fact, conclusions
of law and order (“compliance order”) requiring the City to begin
good faith restoration and expansion of municipal refuse
collection services; (2) the City’s appeal in United Public
Workers, AFSCME, Local 646, AFL-CIO v. Shimizu, No. 26168 (April
4, 2005) (hereinafter “URW v. Shimizu”) and then-pending motion
for stay before this court had no impact upon the City’s
affirmative duty to comply with the circuit court's order,
inasmuch as an unstayed order is fully enforceable pending
appeal; and (3) the City had no right to an “automatic stay” from
that order; and that because the City’s motion for stay before
the circuit court was denied, not appealed, and therefore final,
the circuit court, pursuant to the “law of the case” doctrine,
“had no authority to deny (UPW’s] motion for contempt” as @ means
of revisiting the issue of whether the City was entitled to such
an automatic stay.
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 instant appeal is moot. On May 6, 2004, this
court filed its order granting a stay fron enforcement of the
circuit court’s September 17, 2003 compliance order (pending
appeal in UP y, Shimizu (decided on April 4, 2005)) ~~ the sane
day as the circuit court filed its order denying UPH’s motion for
contempt sanctions. This court’s order was filed before the
[NOT FOR PUBLICATION IN WEST'S HAWAII REFORTS AND PACIFIC REPORTER
cdxcuit court's own order on that day. Therefore, even if the
edrcuit court had ruled in favor of UPW and granted contempt
sanctions, its ruling, by virtue of being filed “second in tine,”
would be inmediately superceded and invalidated by this court's
grant of a stay to the City, inasmuch as the circuit court would
have to yield to this court’s superior jurisdiction in the face
of its unequivocal pronouncement that the status quo shall be
maintained until URW v. Shimizu was decided. As the City
correctly points out, “[hlad the [circuit] court agreed with the
UPW’s position and forced compliance, it would have destroyed the
‘status quo,’ which is the very purpose of pursuing a motion for
stoy.”
Given the timing of this court's and the circuit
court’s rulings, no live controversy remains, because this
court's May 6, 2004 order granting of the City’s motion for stay
precludes the awarding of contempt sanctions in UPW’s favor even
Af this court were to reverse the circuit court’s denial of UPW's
notion. And it is well-settled that “merely abstract or moot
questions will not be determined on appeal . . . .” AIG Hawai's
nevrance Co., Inc. v. Batenan, 82 Hawai'i 453, 459, 923 P.2d
395, 401 (1996) (citation omitted) (internal quotation marks
omitted). Thus, the only remaining question is whether an
exception to the mootness doctrine is applicable. As UPH
correctly notes, “[this court has) repeatedly recognized an
exception to the mootness doctrine in cases involving questions
+++ NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
that affect the public interest and are ‘capable of repetition
yet evading review.'” See In re Doe Children, 105 Hawai'i 38,
56-57, 93 P.3d 1145, 1163-64 (2004) (emphases added) (citations
omitted).
‘The phrase, “capable of repetition, yet evading review,” means
that's court will not dianiss » case on the grounds of mootness
‘Chaluengee governmental action would evade full review
the pessage of tine would prevent any single plaintift
fron fenaising subject to the restriction complained of for the
period necessary to complete the lawsuit,
Idk at 57, 93 P.3d at 1164 (citations omitted) (some internal
quotation marks omitted). UPW asserts that “[d]isputes over
whether services in the public sector may be privatized or should
be restored to civil servants is ‘capable of repetition’ and
Likely to evade review.” (Citation omitted.) This generalized
argunent, however, fails to demonstrate how the complained-of
action in the instant case (noncompliance with the circuit
court's order to begin goed faith restoration and expansion of
the City’s refuse collection services) will escape review. In
fact, said action has already been subject to full review in UP
ws Shimieu.? Because no exception to the moctness doctrine has
been shown or is otherwise apparent, the instant appeal is
>the DEH y, Shinigu summary disposition order states in pertinent
part:
Notwithstanding the circuit court's ruling that the City was bound
to "restore collection services for the city which had Deen
privatizes and to expand services to businesses, condominiums, and
Churches and compete with private haulers to contract services for
military bases and public Schools,” the unchallenged language of
the HAB's February 11, 2003 decision, bound the City to the same
Echeractual obligations when this court reversed the NLAB's prior
Gecision in United Eublic Workers, AESCWE, Local G26, AFLACIO, v
Msnnenan, 106 Nawel'i 359, 362-63, 105 P, a 236, 238-40 (2005)
5
{14+ NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
dismissed as moot. Therefore,
IP 18 HEREBY ORDERED that the instant appeal is
dismissed.
DATED: Honolulu, Hawai'i, May 18, 2007.
on the brief
Herbert R. Takahashi,
(Of Counsel for Masui, Gorn
Vasconcelos and Covert,
Attorneys at Law) for
Complainant “Appellant Appellant Mca Rlbarise
Corporation Counsel for
Respondent s~Appellees~Appellees o} ae
Yon 0-86:
|
3f9268b6-6b79-4ffa-b4b7-688d7b62a406 | State v. Deryke | hawaii | Hawaii Supreme Court | No, 27259
Hd 81 AvW Lone
o3ms
STATE OF HAWAI'I, Respondent-Plaintif£-Appell
noe
vs.
ERIK BAREND DERYKE, Petitioner-Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(HPD TRAFFIC NO. 02436927)
(By: Nakayama, J., for the court™
‘and Acoba, J., dissenting)
Petitioner-Defendant-Appellant’s application for writ
of certiorari filed on April 4, 2007, is hereby rejected.
Honolulu, Hawai'i, May 18, 2007.
FOR THE COURT:
Pu Cue oe
Associate Justice
DATED:
Brian A. Costa and
James A. DeLacy for
petitioner-defendant-
appellant on the
application
» Nakayama, Acobe, and Duffy, 93.
‘considered by: Moon,
|
1ad31e11-5d68-4b9a-8351-4463161747c6 | State v. Kaheaku | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 26968
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
STATE OF HAMAI'T, ae
Plaintiff-Appellee-Respondent, =e |
CHARLES KAHEAKU, JR. BPO OS
Detendant-Appellant-Petitioner. 33/°
en
|
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(Cr. No. 04-1-0341)
way:
(By: Levinson, J., for the court!)
upon consideration of the application for a writ of
certiorari filed on April 23, 2007, by the defendant-appellant-
petitioner Charles Kaheaku, Jr., the application is hereby
rejected.
DATED: Honolulu, Hawai'i, May 22, 2007
FOR THE COURT:
Dwight C-H. Lum,
for the defendant-appellant-petitioner
on the application
* considered by: Moon, C.J-, Levinson, Nakayama, Acoba, and Duffy, 3d
|
298fda37-01ef-4de2-81f1-b9bbe8129200 | Grandinetti v. Corrections Corporation of America | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 26318
IN THE SUPREME COURT OF THE STATE OP HAWAI'E
FRANCIS GRANDINETTI, III, Petitioner-Plaintiff-Appellant,
state
a mlti
CORRECTIONS CORPORATION OF AMERICA, dba Ci
company doing business in the State of Hawai'i, et al.
Respondent s-Defendants-Appellees.
CERTIORARI 10 THE INTERMEDIATE COURT OF APPEALS
(CIV. NO. 06-1-1762)
Ps
(By: Moon, C.J. for the court")
Petitioner-plaintiff-appellant Francis Grandinetti's
application for writ of certiorari filed on May 7, 2007 is hereby
rejected.
Hawai'i, June 19, 2007.
FOR THE court:
Ap 4, [
f Justice
PATED: Honolulu,
a3
Nakayama, Acoba, ané Duffy, Jv.
fered by: Moon, C.J., Levins
|
18106586-0b12-44ee-9a70-933babbf6136 | In re K. Children: D.K. and B.K. | hawaii | Hawaii Supreme Court | No, 27515
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
No. 27514
IN THE INTEREST OF K CHILDREN: D.K. AND B.K.
(Fe“S No. 04-09743)
No. 27515
JN THE INTEREST OF B.A.N., JR. z
(FC-S No. 04-09756)
6 WY “re
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(FC-S Nos. 04-09743 and 04-09756)
RB TING APPLICATION FOR RTIORART
(By: Levinson, J., for the court’)
Upon consideration of the application for a writ of
certiorari filed on May 18, 2007, by the respondent-appellant-
petitioner, the application is hereby rejected.
DATED: Honolulu, Hawai'i, June 15, 2007.
FOR THE COURT:
Richard S. Kawana
for the respondent-
appellant-petitioner
on the application
Jay K. Goss and Mary Anne
Maghier, Deputy Attorneys
General, for petitioner-
appellee-respondent
on the opposition
Considered by: Moon, C.J., Levinson, Nakayama, Aceba, and Duffy, 90
atte
|
7f20e71c-bbb3-4dba-957b-3aaf035239f9 | Cutter Motor Cars, Inc. v. Ayabe | hawaii | Hawaii Supreme Court | No. 28496
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
CUTTER MOTOR CARS, INC.,
dba CUTTER ALA MOANA VOLKSWAGEN MAZDA, Petitioner
vs g
THE HONORABLE BERT I, AYABE, Respondent { 3
ORIGINAL PROCEEDING ae 8
(e1v. NO, 06-1-1698-08 (BTA) He OS
2
ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of the petition for a writ of
mandanus filed by petitioner Cutter Motor Cars, Inc. and the
papers in support, it appears that petitioner fails to
demonstrate irreparable and inmediate harm from the denial of the
motion to disqualify plaintiff’s counsel in Civil No. 06-1-1498
and the denial of the motion is reviewable on appeal from a final
judgment in Civil No, 06-1-1498. Therefore, petitioner is not
entitled to mandamus relief. See Wiong v. Fong, 60 Haw. 601, 593
P.2d 386 (1979) (a writ of mandamus may be brought where
irreparable and immediate harm would result from an order denying
a motion for disqualification of counsel); Kena v. Gaddis, 91
Hawai'i 200, 204, 982 P.2d 334, 338 (1999) (A writ of mandamus is
an extraordinary renedy that will not issue unless the petitioner
Genonstrates a clear and indisputable right to relief and a lack
of alternative means to redress adequately the alleged wrong or
aa
obtain the requested action. 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.). Accordingly,
37 18 HEREBY OROERED that the petition for a writ of
mandamus is denied.
DATED: Honolulu,
vai‘, April 27, 2007.
|
fa4b6071-0e01-407c-a795-35fff1aede69 | Brescia v. North Shore Ohana. Concurring Opinion by J. Levinson, with whom C.J. Moon joins [pdf]. S.Ct. Order Denying Motion for Reconsideration and/or Clarification, filed 08/31/2007 [pdf]. | hawaii | Hawaii Supreme Court | ‘s*470R PUBLICATION IN WEST’ S HAMAI'T REPORTS AND PACIFIC REFORTERS+#
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
00.
JOSEPH A. BRESCIA, Plaintiff/appellant-Appellee
NORTH SHORE OHANA, HAROLD BRONSTEIN and CAREN DIAMOND,
Defendants /Appellees-Appellante
and
runswane comnssion oF aie counne or mwas)
Defendant /Appellee Ibs
Wy 2l
G31.
No. 27211
APPEAL FROM THE FIFTH CIRCUIT COURT
(CIV. No, 3-1-0177)
guLy 12, 2007
NAKAYAMA, ACOBA, AND DUFFY, 33.; WITH LEVINSON, J.,
CONCURRING SEPARATELY, AND WITH WHOM MOON, C.J., JOINS
‘OPINION OF THE COURT BY ACOBA, J.
We hold in this secondary appeal by Defendants/
Appellees-Appellants North Shore Ohana, Hareld Bronstein, and
Caren Diamond [hereinafter collectively, “Appellants”], from the
Merch 4, 2005 judgment of the circuit court of the fifth circuit!
(the court) issved pursuant to the court's March 4, 2005 findings
of fact, conclusions of law, decision and order reversing and
remanding, in favor of Plaintiff/Appellant-Appellee Joseph A.
Brescia (Brescia), the June 10, 2003 decision of
Defendant/Appellee Kaua'i County Planning Conmieion (the
‘The Honcrsble George M. Matvoka presided.
'+FOR FUELICATION IN WEST’ § HAWAI'I REPORTS AND FACIFIC REPORTER'S
Commission) to deny Brescia’s application, the June 16, 2003
Commission’s order denying Brescia’s motion for reconsideration,
and the Conmission’s findings of fact, conclusions of law,
decision and order dated September 9, 2003 (2003 order), that:
(1) the Comnission’s decision in enforcing the shoreline setback
Line as shown on the July 1, 1983 subdivision map is supported by
reliable, probative, and substantial evidence, (2) the Commission
did not act arbitrarily or abuse its discretion in denying
Brescia's request for an amendment or variance as to his lot to
build within 31 feet of the shoreline, given that, inter alia,
other shoreline setbacks in the area ranged from approximately 35
to 80 feet, (3) Brescia did not have a right to rely on
representations of the County of Kaua'i Planning Department
(Planning Department), if any, as to any purported setback
boundary inasmuch as (a) the Conmission retained the authority to
establish shoreline setbacks within the Special Management Area
(SMA), as opposed to any individual planning department employee,
and (b) Brescia was on notice that @ restriction in his deed
Provided that the Commission could impose a greater shoreline
setback at the time of building permit review, (4) Brescia was
not vested with a sufficient property interest to implicate any
alleged due process violation and, in any event, at the time of
building permit review he was given a full public hearing by the
Commission, and (8) inasmuch as Brescia acknowledged to the
Commission that utilizing the Developer's Setback provided
Br + and 4,974 sq. ft. of buildable
with between 4,203 sq.
‘s*4F0R PUBLICATION IN WEST'S HAWAI'I REPORTS AND FACIFIC REPORTER:
area, and Brescia’s own architect testified that utilizing the
Developer's Setback did not necessarily make the lot unbuildable,
Brescia did not demonstrate that he was denied reasonable use of
his property. Accordingly, we vacate the court’s March 4, 2008
Judgment, and remand to the court with instructions to enter
judgment affirming the 2003 order.
1.
AL
‘The subject property owned by Brescia is Lot 6 within
the 15-lot? Wainiha Subdivision 11, located on the makai? aide of '
Alealea Road on the north shore of the island of Kaue'i. The
subdivision is located in the SMA along the shoreline. Any
development in the SMA is governed by the Coastal Zone Management
Act (C2MA), codified in Hawai'i Revised Statutes (HRS) chapter
205A. The CZMA includes guidelines for development within the
SMR. The legislature, finding that “special controls on
developments within an area elong the shoreline are necessary to
avoid permanent losses of valuable resources and the foreclosure
of management options,” HRS § 205-21 (2001), delegated the
responsibility to each of the counties of enforcing the
objectives and policies of the CZMA and of issuing SMA permits in
accordance with the stetute’s mandates, A policy under the CZMA
is to “{e]nsure that new cevelopents are compatible with their
2 obeter:
includes 28 or 16 love
counts are present as to whether the subdivision
se net material, however, co cur eiecuetion,
> ose se or “toward the see[.]” Mery
ae).
Pokol ¢ Samuel hi, Etbert, Hawaiian Dieticuary 228 (rev, eds
3
{S*4FOR FUBLICATION I MEST’ HAWAI'I REPORTS AND FACIFIC REPORTERS
visual environment by designing and locating such developments to
minimize the slteration of natural landforms and existing public
views to and slong the shoreline(.]" HRS § 205R-2(c) (3) (B)
(2001). Further, an objective of the C2MA 4s to “{rleduce hazard
to Life and property from teunami, storm waves, stream flooding,
erosion, subsidence, and pollution.” HRS $ 20SA-2(b) (6) (A)
(2001).
on Kaua's, the Connission is the body charged with
smplenentation of the C2MA. In that regard, the Commission
adopted the Planning Departnent’s “Shoreline Setback Rules and
Regulations” {hereinafter “Kavi Roles") in furtherance of this
ebligatson. HRS § 20SA-48 (2001), entitled “Conflict of other
ows,” states in relevant part that “[i]n case of » conflict
between the reguizenents of any other state law or county
ordinance regarding shoreline setback Lines, the nore restrictive
requizenents shall apply in furthering the purposes of this
part.”
2
Tale fe the second tine the Wainiha Subdivision TZ hes
been c
sidered by this court. On Octeber 25, 1978, the
Conmission approved SMA Permit (U)-79-1 allowing for the
Gevelopnent of the subdivision. The Connissicn’s issuance of SMA
(U)-79-1 was subsequently challenged and eventually overturned by
this court in Ma » n Yn, 65 Haw. $06, €54 P.2d
674 (1982).
‘S*4FOR PUBLICATION IN WEST'S EAWAI'T REFORTS AND PACIFIC REFORTER®
on July 5, 1983, developer Alex Ferreira (the
Developer) reapplied for an SMA Use Permit. The Developer
proposed a 22-lot subdivision. Included within his application
was a proposed preliminary subdivision plan map dated July 1,
1983, on which the Developer designated a so-called “Zoning
District Boundary Setback Line” [hereinafter “Developer's
Setback”]. The Developer also included in his application an
Environmental Aeseeement which stated, inter alia, that “Inlo
structures are allowed within 40 feet of the certified shoreline
and, therefore, the shoreline area will not be affected.”
After community opposition was expressed, ‘the Developer
presented a second proposal for 2 20-lot subdivision, again
indicating the same Developer's Setback on a map dated Septenber
19, 1983. A third plan proposing 19 lots was also submitted at
the same time, and it too included a map indicating the
Develeper's Setback. The Director of the Planning Department
stated the following, inter alia, in his evaluation of these two
proposals:
sauna ExAOINGS:
laistscnenay, (the Seveloper) proposed the following
TSEISLETIGAL’ oppldcabie co eleher"Gee fon scheme enedens
Stor STPES eto ta eandaes to geste Peston and
‘49FOR FUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REFORTER*##
This shoreline property 1s located within the
Orban Lond Use District, is further zoned
Resicential District (R-4), with «strip slong
‘the shoreline zoned Open District 10), the’
orth shere fevelsonent Plan Tecate maintains
‘He_Ghen District (01 to avoid the undue
‘[iskcachient of structures onto the ehoreline.
.
Eibedon the foregcing, it te concluded that the design
alternatives conform to the Raval Ceneral Flan, the
Comprehensive Zoning Ordinsnce, and the Subdivision
Ordinance. It ig further concluded that adverse
sreironmental and ecologies] effects can be minimized, and
st iciet end cvldelines contain 7
2052 of the IGRS1, and Aules and Reauletions of the County
St Kasai relating to cbiectives, policies and euicelines,
Bt 1s ido" concluded that provided all these restrictions
are established, it te not
Siternative and’ tha
Eubdivicion review end spprevel- In necting sé chiectives,,
ik ip nore important to extebligh the restrictions and
GEiteris st this tine snd not necessarily the supivision
Tevout.
(Emphases added.)
After continued opposition by beth connunity members
and members of the Conmission, the Developer presented a fourth
proposal for a 1S-lot subdivision, Like all of its predecessor
proposals, it was accompanied by @ map that included the sane
Developer's Setback. On Decenber 15, 1983, the Commission issued
its “Findings of Fact, Conclusions of Law, Decision and ord
approving SMA (U)-84-2. No reference to the maps presented in
the proceedings was made in the SMA (U)-64-2 order. However, the
Commission's findings included the following:
The Zoning for the property se
ceicential District (Rr4)™ end Open District
feet wide, ihe property 12s
‘s+4FOR PUSLICATION IN WEST! § RAWAZ'I REPORTS AND FACIFIC REFORTERS**
iz! he arate north shore Development Plan Update
(orth Shore Update”), as pproved by the
Planning Coamisslen, recommends that the subject
site and surrounding properties be rezoned from
ite present Residentiel bistrict” (R-4) /open
District (0) to Residential District (R-2)/open
District (0) due to their Jocetion in a coastal
high hezerd zone area... snd due to the rural
Reture of the ares.
Shore Usdate ie sti subtect tae) public
hearings at the County Council level; B) County
Couneli review and approvals and c) review and
approval by the Mayor.
sa nejuinivbers
22, The North Shore of Kauai has long been
recognised for ite natural Deasty and scenic
Qualities. The goals of the North shore
Develepnent Flan Update reflect thet the area's
nigue natural beauty end special rural charm
should be preserved.” eens definstely reflects
Uhese charscteristice, and eny developnent
Within the ares should be sensitive to ene
Quelities that make it a special place. Ap
reserve tnd wh te 7
‘the quality of coastal scenic and cpen space
A supporting policy of this cbiectiv
focsting sich cevelcpnente to-mininize the
fublie views te and alone the shoreline.”
nother obtective relates to redveing nea
fe erty from tsunami, storm seve
Seselocnent in cress scbject fo ster wav
ae a ainsien ant Sabriena
beseras*
The Weens aren does have a {raoile envionment
cbiectives. Any development shoul reflect and
be Farmenicus with the present character of
at
Ccaetal scenic and open space rescurces, the
Stbaivieion of the real property shoulé and will
bject to the following restrictions
ke con shall bs sitnss
ip, Senatroctien shal be aloe
frsnerty slong the shoreline ys + (and)
icte chall be se wide o£ peecible so ae to
saxinize view planes to the shoreline? nd
‘#9FOR PUBLICATION IN WEST'S HAWAI'T REFORTS 2ND PACIFIC REFORTER!*#
the overall layout of the subdivision
shall be subject to Planning Comission
approval,
(Enphases' added. )
‘The Commission's conclusions in the SNA (U)-84-2 order
included, inter alia, the following:
1. The Planning Commission hae jurisdiction
Seer thie spplication pursuant te ERS
Chapter 205°A and the SHA Rules, and
the power under said statutes and rules to
Lspose ressonsble restriction and
conditions in the developnent of the ¥%
property herein.
1
4," ie de turther concluded thet provided that the
yectrictions es noted above fe eetabliched, it
ip not necessary to select « design alternative
and that such decision could be nage at time of
Eubdivision review and approval. In meeting SHA
ebjectives, it is sore inpertent to establish
the restrictions and criteria et this tine.
Among the conditions enumerated in the SMA (U)-84-2
order, in light of the “visual sensitivity of the site” were the
following:
2. Boe to the views) of the site in
8) Building locations, materials, and designs
shall be subject to [the Conieeson's)
Ecview ang spproval at the tine of
Bullding and soning permit application.
‘The bullding locations shell be
constructed cn the ground in strict
Sdherence to the approved eubaivision map
and buileing plot pisn
roma corrent certified shoreline at rine
St cevelemment. uo nart of any structure
sal penetrate the Open sone striae
‘renting the shoreline.
ec) Builainge shail be lisited to one story
above the fleed elevation.
b)
hi’ " he setback from Alesles fosd and Alanc'o
Road shail be a minimon ef 20 feet. All
cther frent yard cethecks shell be 18
feet. The eide yerd eetbacke shell be &
Hininun of 10 feet, ineressed setbacks
sn 2 ihe plang
‘*ATOR PUBLICATION IN WEST’ S HAWAL'T REPORTS AND PACIFIC REPORTERS*#
permit review if the deeien of a residence
Scrrante--areater eathactiate
ALLof the shove resuirenents shell be eciablished as
egbrictive covenants within each deed at the tine of
subdivision:
1
"" "8. tne everatl eubdivieion design and layout
. be'subsect to the review and/aroreval ef the
Acenmizaicnl in accordance with suk
The subaivieion ote shall be as
reauirenents.
wise a= porribie and
Roxinize view plane: oreline.
(Emphases added.)
After the {ssuence of SMA (U)-84-2, the Commission on
april 11, 1984, granted the Developer tentative subdivision
approval for a 15-lot subdivision, which differed in layout from
the previous (fourth) 15-lot proposal submitted by the Developer.
Once again, however, conditions of the approval were that all
building setbacks be measured from a certified shoreline, that no
part of any structure penetrate the Open zone strip fronting the
shoreline, and that these restrictions be made part-of all
subdivision deeds. After obtaining tentative subdivision
approval, the Developer sold the property to Sylvester Stallone
(Stallone), who subsequently sought approval of the final
subdivision nap.
on March 13, 1985, the Commission approved the final
subdivieion map. The final subdivision map, later recorded as
File Plan 1840, did not contain the Developer's Setback which had
appeared on all previous maps submitted to the Conmission.
Section 9-3.8 of the Kaua'i County Code, entitled “Final
Subdivision Map," requires that the final subdivision map
indicate, among other things, setback lines. Additionally,
‘s#070R FUBLICATION IN WEST'S IANAI'T REPCRES AND FACIFIC REPORTERS
Section 9-3.8(c) (5) of the Code, entitled “Errors and
Discrepancies,” stated:
he approval of the fina subdivicion sep by the Planning
Connissicn shall not relieve the spplicent of the
responsibility for any error in the dimensions or other
Giecrepancies or oversights. Errore, discrepancies, oF
oversights shall be revised or corrected, upon sequestt,) to
the eatiefaction of the Pisnning Commission.
On February 20, 1992, the Declaration of Covenants,
Conditions and Restrictions (hereinafter “cCtRs”) for the
‘the
subdivision was recorded at the State Bureau of Conveyanc
CcéRs stated, inter alia, the following: .
DECLARATION OF COVENANTS, CONDITIONS
AND RESTRICTIONS FOR WAINIHR SOBDIVISTON=11,
RECLIALS
WHEREAS, a6 2 condition to fine) subdivision spprova:
ronerty By the = certain re
‘Sovenante ware imposed upon the Eroperty, which restrictive
‘SSuenants are stated in Schedule “p sttached hereto and
nade 8 part hereo!t.)
WHEREAS, [Stailene], by making this Declaratien,
ans
gest 7
r Brosertys and
WoW, THEREFORE, (Stallone! ben
(as hereinafter defined), hereby
Geclaree that bert -
suguibered, conveved, sold. used, cccunied and improved,
ibiect to and 1 betefit tn th
suitations, restrictions, covenants and conditions set
Sersh in thie Ceclaration. sll of shleh are established and
isclared be Tor th enhanc
Pratectina the wales, desirability and attractiveness of the
Eccertv, there Linitetions, restrictions: covenants and
ihe bene (it of ang be binding Gn all parties having or oro
coquize eny right, tite er inte
TICLE 12
por sreseicHons
Section 1, county Restrictions, All Owners che
Her Getached-herete. In the event
tency between Schedule “B" and the
10
FOR PUBLICATION IN WEST’ S HAWAI'I REFCRTS 25D FACIFIC REPORTER*#
Section 2. Construction. No building . . . shall be
constructed. .'. until the complete plans, drawings and
Specifications therefor . = « have been submitted to and
approved by the Design Comittee. . ;.- No residence shall
Contain less than 2,500 square feet of covered space
(excluding garage, lanais and cutbulldings) «
Section $. Setback Lines. Al1 building setbacks
shall conform to the requirenents stated in Paragraph € of
. Schedule "E" attached hereto
Schedule “B" is a restatement of the conditions of
approval in SMA (U)-€4-2, and states in relevant part:
SCHEDULE “2”
COVENANTS, CONDITIONS AND RESTRICTIONS
FoR
i.” Buliaing tocations, materials and designe shell be
subject ‘te [Conmission) review and epproval at the time of
Building end soning permit application. - =
2: “All butidine setbacks shell ke nesiured from a
worrent certified shoreline at the tite 7
[Eonting the shoreline.
"W'.", aneresced setbscks shalt be required by the
io. “there shail be no reversing movenents onto Alea:
Reed, Each lot shall provice for ite cm turn-around.
(Emphases added.)
on February 11, 2000, Brescia and Jodie A. Brescia
purchased Let 6 of the subdivision by Warrenty Deed (deed),
recorded on February 23, 2000. Accerding to Brescia, Lot 6 is a
funnel-shaped flag let, with the top of the “funnel” being the
shoreline. The Conmicsion found Lot 6 is the most seaward and
visually prominent let within the subdivision. Eleven of the
lots 1¢ subdivision, including Lot 6, abut the shoreline.
On December 11, 2001, the cwner of neighboring Lot 9
appeared before the Conmissicn to seek @ Building Location,
Material and Design Review in accordance with SMA (U)-84-2. The
a
‘#9FOR PUBLICATION JN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTES
Commission unanimously voted that the ouner was required to
comply with the setback identified in SMA (U)-84-2 order, as
restated in the CC&Rs attached to the deed, and as illustrated on
the Developer's original proposal map dated July 1, 1983. The
July 1, 1983 map indicates @ setback on Brescia’s lot of
approximately 61 feet at the northeastern makei corner ranging to
about 71 feet at the northwestern makai corner.
on Septenber 3, 2002, Brescia’s attorney submitted a
letter to the Commission in which he stated, “Please consider
this letter as a request for all necessary permits and approvals
to allow the proposed single fenily residence on the property.”
Brescia sought “an Anendnent to SMA (U)-@4-2 to allow the
applicant ‘to deviate from the building setback line dened by
the Planning Department to be applicable to the lot. . .7 a
Class I Zoning Permit; and @ Shoreline Setback Variance.”
According to Brescia's application, a setback of approxinately 63
feet 2s shown on the July 1, 19€3 map would allow for a
triangular-shaped buildable area of approximately 4,974 square
feet. Within this area, Brescia must construct, in accordance
with the CCéRs, a residence of at least 2,500 square feet--
excluding garage, lanais, a required turnaround area, and septic
system.
4 Rules Section 5, entitled “shoreline Setback
Lines,” states:
Sherel.
County Sper reeches of
shew waves other than etore ang tice) waver,
‘*#47OR PUBLICATION I WEST'S HAWAI'I REPORTS AND PACIFIC REPCRTER##
except that such shoreline setback Lines shall be 20 feet
inland on any land parcel of record when eny one oF nore of
the following exist!
im wildsble arcel ie x
orelin anda
County reauirenente wherein the parcel is located
Eneivding but net limited to front end eide yard
setbacks, cross-slope requirenents, and terrein
Fequirencnt
shoreline cethacks esteblisned at [a] distance crester than chat
Fer oe 5 in con deh the
(Emphases added.)
Under the C2MA, = variance may be granted for private
facilities if the Conmission “finds in writing, based on the
record presented,” that the variance is “clearly in the public
interest(,]” or that “hardship will result to the applicant if
the facilities or improvements are not allowed within the
shoreline area[.]" HRS § 205R-46(a) (7)-(8) (2001). Although
‘ URS § 20SA-46 (2001) states in relevent pert:
(a) A variance nev be granted for a structure or
activity otherwise prohibited by this pare if the authority
Hinge in writing, bese that the
propeced structure or activity is necessary for oF anciiiary
(9) ” Erivate factiities or improvenents that are
clearly in the public interest
(6) Frivate facilities or improvenente which will
neither adversely affect besch processes nor
artificially fix the shoreline; provided that
the authority also finds thet
Eesult to the agplicant if the facilities or
Inprovesente are not allowed within the
shoreline areas
sha ined in qles adopter
Seereval listed in
Net sh Sn
teont snved
13
‘s9470R PUBLICATION IN WEST’ S HAWAI'I REPORTS AND PACIFIC REPORTERS:
the legislature in HRS § 20SA-46(b) assigned the Commission the
+ Kaua't
task of defining hardship with respect to SMA varianc
County has not defined “hardship” in its rules for the purposes
of evaluating shoreline setbacks.*
On Decenber 10, 2002, Brescia submitted a County of
Koua't, Department of Planning application form in order to seek
2 Building Permit and an Amendment to SMA (U)-84-2, oF in the
alternative, a variance.‘ The form contained a printed section
entitled “For Variance or Use Permits only,” and stat
cont inved)
ro 7
‘fon, and slens
lempheses adced.)
+ Section 12(b) of the Keue'l Rules, entitled “Administration of
These Fules anc Regulations,” states in relevent part!
The Agency, through its Director, shall receive and review
Plans for proposed structures, facilities, or activiti
that are prohibited within the shoreline setback upen the
rubniceicn of adequate plone and eta attached to = properly
executed application form requesting # variance through the
Flonning Cennicsion of the County of Kevai- ss
se rules and regulations
Applications for 2 variance from t
(2) guch structure, activity, or facility e in the public
interest: oF
bronceeg activity, orf
Hioreline setrack:
(Emphases added.)
+ in the ebeence of a definition of hardship" in the Haue's Rel
sn his answering brief thet, “[t]he County's Comprehensive
ing Orésnence (Cz0) similarly recognizes thet there ray be a need for &
ice in oppropriste circunetences, sion may grant
veriences . 1. [where] the strict application of the regulations cepriver
the property cf privileges enjoyed by cther property lowers] in the vicinity
ng tithin the cone District, 37 ne shone that he cennot make @
Feasorsbie use of the property i feng are opplied.”
‘**TOR PUBLICATION IN WEST’ HANAI'T REPCRTS AND PACIFIC REPORTERH#
NO
“Conditions justifying Variance or Use Permit application: (use
additional sheets as required)” As justification for the
variance,’ Brecia wrote, “[S]ee letter of [Brescia’s attorney),
dated Septenber 3, 2002,” referred to supra. Brescia’s attorney
stated in the September 3, 2002 letter that Brescia’s proposed
3,600" square foot residence would be “31 feet inland of the
certified shoreline at its nearest point(.]” The letter states:
In support and justification for his requests, (Brescia)
brings the following to the attention snd conssderetion of
the Cennission: . . . The Applicant's residence woeld nae be
the only residence in the subdivieson or aleng thet stretch
of coastline built as close to the shoreline,” the existing
Fesience on lot 4 of the subdivision is approximetely 20
fect from the shoreline.
(Emphasis added.) However, on appeal to this court Brescia
acknowledges in his answering brief that, contrary to his
Septenber 3, 2002 letter, setbacks in the area range from 35 to
80 feet. Further, Brescia also acknowledges that the setback on
neighboring Lot 4 is not the 30 feet represented in his
spplication to the Conmission, but is in fact 40 feet.
On January 2, 2003, the Conmiseion held a hearing, at
which time Appellants were granted intervenor status. Brescia’s
architect testified that utilizing a setback of approximately 60
feet as indicated by the developer's original proposal map dated
July 2, 1983, makes the triangular-shaped lot “almost become
unbuiidable. . . . [YJou cannot get a reascnable structure
on, Brescis reprecented the
fate feet. In hie opening brief
iat_he uss requesting s stevecure
Renever, in hie cpening brief
‘applied cn September 3, 2002 for
gle fenily resicence en Let 6" for 8 “propered 3,300 equare
operon
feet structure
1s
‘**+FOR PUBLICATION IN WEST’ S HAWAI'T REPORTS AND PACIFIC REFORTERM+#
there.” Brescia argued that, since no setback was illustrated on
the final subdivision map, the “Open District strip" referred to
in the SHA (U)-64-2 order 4s the line shown on the County Zoning
Naps. Rather than inposing a setback on Lot 6 of approximately ,
61 to 71 feet at each makes corner as does the Developer's
Setback, the County Zoning Map would impose a setback on Lot 6 of
about 9 to 22 feet at each makai corner. The County Zoning Maps
were adopted by ordinance as part of Section 8-2.2 of the Kaua'i
County cede (1987).
After having conducted a site visit to the property and
hearing oral argument from ell parties, the Commission denied
Brescia's application on June 10, 2003. On June 16, 2003,
Brescia filed a Notion for Reconsideration. On June 24, 2003,
the Comission denied Brescis's motion. On September 9, 2003,
the Comission entered its Findings of Fact, Conclusions of Law,
Decision and Order. The relevant findings of the 2003 order
state as follows:
2. The Wainthe Subdivieion IT. . . wae opproved
[Sma] Tee Permit SMA (0)-B6-2, and Subaivision
2 On Decenber 16, 133, the comission! issued tts
Afisndinas, conclusions, Dh0l anoroving SMA (0)-24=2.
“The [onmissicn's 2incangs! State the foliowina:
io." 1. , the Zoning for the property is
“neeicential District (R-é)" and Open District
(0), Pas Oven Distrsee strip se 65
dccis Feet vice. The property se within the
Teva] istrict.
shore of Faves hee long been
for ste natural fe ‘scene
“thetedore, to further protect the quality of
ccastai scenic and open space rescurces, ‘the
scbaivielon of the Feel preperty should and will
be subject te the following restrictions:
16
‘#*TOR PUBLICATION IN MEST’ § HAWAI'T REPORTS AND PACIFIC REPORTERS+#
ee
(©) Bp construction shall be allowed with
5.” the approval of Ma (0)!
which state in pare:
2 was subject to conditions,
2," " Bue to the visual seneitivity of the site in
relation to its ecenie location on the North
. Shor
a) Bs +
b) BID building vetbacks sheil'be meseured
from a corrent certified shoreline at tine
of develcpnent. No eart a
All of the shove recutrenente shell be established ag
restrictive covenants with er a .
‘subdivision
~The Auclicetion for SMA (v)-84-2 included the
Hielininary subsivigion map dated Saly tn S803 stich
sent tied che area Ceent lag tps Uoevalacar'e Setback)
‘Kelied uocn by the [coneissionl Sin | aaprevine oma
in | .". » (Brescia's) deed included the [CcéRe) imposed by
the [Coonission}, as required by SMA (O)-E-2.
32, On Decenber'11, 200%, ‘the Suliaing Location, ‘Materiel
and Design Review for Lot’ 9 of the Weiniha subeivicion (71),
ScE4=BE, THK 5-€°09-008 was before the [Conmission).— The
[Conmiesion], in reaffirming the original intent of SHA 10)-
84-2, unanincusly voted on cecesber 11, 2001 that the
applicant “shall comply with the set backs identifies in the
Findings of Fact, Conclusions of Law, Decision snd Order,
for SHA (U)~64-2; dated Decenber 15, 1963, and the eriginal
proposal map dated duly 1, 1563."
is. “according to (rescia's) seotes 2002 applics
leis i te
the (Cesnission) ‘at the January 26, 7003 public hearings a
celine seth
ified shoreline detec 36, t
Develosar's Settack] eau see =f 2,
suomiteed
‘sche prencked substvision sap dated Surg te taee
with the Applicetion for swh (U)-e42, xii] -silow [presesa:
aa aa acre ane
subnitted with the Bpplication for GW (0)-84-7 when
Restured from Alesles Rese ii 1 tal tetancy
scbroniestely 4.20 souere fect om
Whien fe construct a ingle family resioence,
7
*40POR FUBLICATION IN WEST'S HAKAI'T REPORTS AND PACIFIC REPORTER:
20, [Brescia) submitted on Affidevit attached to his
Opening Brief which stated he “wer informed by Kaual County
Officials, whom he did net pane, [that] the "shoreline
setback on’ Lot 6 was 20 feet inland of the certified
shoreline."
(Emphases added.)
Among the Commission's conclusions were the following:
1. The Hawai'i [COMA], HRS 2054-1, et. seas, controle
Gevelepment in the cosetal sone by the (Smal permit process,
5." Swi (0}-84-2 ie the primary and controlling permit for
the development of the Wainihe Subdivision II.
&"" The condstione upen which the approval of SMA (W)-84-2
was besed upen were incorporated into the [CCéRE] of the
deed (Brescia) received from [the Developer).
Heeiva x7 eects] wae Bot on noth
the rea 7 mets
rer z rocture aha
Estgtrate the open sone strip fronting the shoreline” and
shat =ipiaiiding locations, materials, and designs shall be
cbiset te Penni es 2
Eine_of building and soning nemit anlication.”
8." Patevant to the geale and objectives of the (C2MA], HRS
200Re1, et, sea, in order to preserve and protect the
quality ef cosstal ecenie snd open space resources, the
Planning Conniseicn in ite Findinge ef Fact, Conelgsions of
id Order, Sua (0]-¥0-2. dated December TE
subsitred with th
tetrate’s The [bevelener'e Setheck
‘Sine She ecasr arent ineenes aber ye teaeea aarp
aa ‘ the {co
sud wi-bane mas to preserve Wiew plan
Soo renee peace Se eae ea ae eegeal sands end
i] “te unidentified “Fava! County Offtesaie" did not have the
[aidninistrative suthority to sake the final decision on the
Jecation of [Brescia's) building, because that decision wae
reserved to the [Ccamissicn]«
BS." The (Connieeion], purscant to Section 9-3.6(d) (5) of
tthe Keva's County Code, 1987, © oenced, hee the authority
with respect te the revision er correction of approved fin]
subdivision mape as follows:
Errore, ciserepancies, of cversignte chell be revs
sfection of the
18
‘***FOR FUBLICATION IN WEST’ S HAWAI'I REFCRES AND PACIFIC REPORTER’
OO
16. The area fronting the July 1, 1963 [Developer's
Setback] was identified by [the Developer) and relied on by
the (Conniseicn) when st iesved ite Findings of Facts
Conclusions of Leu, Decisicn nd Order spproving SHA (0)-Bé-
2
1. dbs tin wt are
develaser's Sorbecit aiit tt th z
: Setar and coor a oot ele hee eae a te
3g." Prohibiting buridings within the aree fronting the
(Developer's Setback] identified in the Findings of Face,
Conclusions of Lew, Decision end Créer, for SMA (0)-84°2,
Gated December 18,1983, and on the propored eubdivieion’ map
Seted'July 1, 1968 submitted with the Application for SHR
(0)=86-2 ae ie oppiies to Lot €, t
Z le use reperty.
18. Feascnable use ir not necessarily the use most desired
by the onner of the property, and [erescie’s] ‘compliance
with 99 (0l-£4-2 allows for' the construction of 8
fubstantial house en the property witheut the opplicant
being denied reaccnable use of the property.
aa. “ny sion el iBreset id in
angular shared us
r intel Sant ‘Sepending
gm which celcuiaticn submitted by (Srescia] ie used. . =
2a. WBrescia’s] lot is the most seamard and visualiv
broninent lot within the subdivision. and coneteuetsen
Sut TEC tie srea's scenic and oper
fesse aoe snd za
(Emphases added.)
Finally, the 2003 order stated as follow:
1S upon the foregoing Findings of Fact and
fons of Lew, it is the Decision of the Planning
Consission that?
1.” [breseis's] reovest to mend Sua (U)-64-2 or orant
ez Sa ees
PDevelover's Setback! is deniea?
‘shall be prohitited from constructing
fronting the (Developer's Setback]
-d'in the Findings cz Fact, Conclusions of Lew,
Decision ang Orser, for =¥A (0) dated Decesber 15,
3983, end the proptsed subdivision mop dated July 1, 1963,
subsitted «ith the Application for SMA (O]=€(-2 which
prohibits eny structure fron penetrating the open zone strip
fronting the shoreline, and thie allowe [Sresele) ressconsele
ute of hie property.
(Enphesis added.)
n.
On December 12, 2003, Brescia filed a Notice of Appeal
as
}FOR FUBLICATION IN WEST’ HAMAI'T REPORTS AND FACIFIC REPORTER'S
An the court, On March 4, 2005, the court issued its findings,
conclusions, and Order, and Judgment pursuant thereto. The
court's order in effect found (1) the Open zone strip referred to
Ap the 4A (U)-84-2 order is the Open zone shown on the County's
Zoning Map, (2) Brescia had a right to rely on alleged
representations made by Planning Department employees as toa
purported setback boundary, and (3) Brescia cannot make
asonable use of his property if the Developer's Setback is
imposed.*
+ the court's findings included, inter alia, the following:
57. ‘The inposition of the [Develeper’s Setback) on
the Final supeivision Hap, under the guise of correcting the
[rap] exceeds the authority granted to the Conniseion under
£°553,8(c) (3) of the Havas County Code(], for it reflected &
change in interpretation 16 years after the fect and not en
error in éinension, discrepancy or oversight
5." The cee tone strip frontine the shoreline
Shounen the Cosnta'e Toning Map
32. “the [Developer's Settack] shown on the duly “63
Map inpoted a cetback of between lt and Tl feet from the
shoreline for Let € more then double or triple what ha
been represented as'being the applicable eetback fer the
subdivision to the public end Brescia.
be. “rhe 1¢_shown on the County’, i
=
57, “the {Developer's Setback) shown on the July *€3
applicable setbecke, resulted in a triangular builcstie eres
oh Let € of only ¢,203 square feet
iod.” Other improved lots in the innediate
neighterhied . -. were subject to shoreline eet
Fonging fron 0'e6 38 feet.
ke
30k.” |. . (rlppiicetion of the [Developer's Setback)
(cont anced...)
20
‘*4FOR PUBLICATION IN WEST’ § WANAI'T REPORTS AND PACIFIC REPORTERS
-continved)
‘to Lot 6 results in a buildable area of 4,203 equere feet,
oF only 26.78 of the lot~
‘ 113," Doe te the buildine constraints aforessid,
fe the # are feet tri fia
Eszry
115." the Commission's denial of the, variance lacks
support if the record.
8 added.)
The court's relevent conclusions were #¢ follows:
4. The “oven 21 Eronténe ine”,
pene fon the Coon Bap in
existence at the time, as supported by the relieble,
probetive and cubstantisl evidence en the whole recerd.
5.” The Cpen zene ax chown on the County's Dosing Map,
within whieh structures are prohibited, Se sufficient fo
hnect and ie net contrary to the cbsectivee of the. Seate
cama] and the {SHA} laws, ee supported by the relisble,
probative end cubstanticl evidence on the whole Tecere,
3.” ne Commission's finding that the Plenning
Connission in [the order granting SH (U}-€4-2) intended
thet the "open sone strip fronting the shoreline” be the
[Developer's Setback] shown on the Joly "62 Map, inetecd of
tthe Open zone shown on the county's Zoning Map and North
Shore Development Flan (Upeste NO. 1), wae clearly erroneous
in view of the reliable, probetive, ané substantial evicence
(oh the whole Fecore.
io, “the connissicn's actions on Decenber 11, 2001 in
its new intexpretation and epplication of @ setback line,
without any notice to and the opportunity to be heard by
Brescia and other effected lancemers, were rade in
viclation of their constitutional right ef ove proces
Pour ss
rebatis eviaens lest
Sezenearstes thet a
£ tS uihelg ang etriet
confermty therewith is required.
26." Brescia having met the etanderde for the grenting
cf @ varlence to enable the reseenstle vse of ict € in
accordance with privileges enjoyed by other iote in the
Inediate vicinity, the Con! Eronsously denies the
ueriance in view of the relisble, protetive, and svbetenti
evicence on the whole Tecere.
(eontinved. «1
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*#*
On April 4, 2005, Appellants filed their Notice of
Appeal with this court.
mr.
, on eppeat, Appellants argue that the court’s “entize
Findings of Feet, Conclusions of Law, Decision and Order... is
being appealed as it is wrong as a matter of law.” (Emphasis in
original.) Appellants argue that it was an abuse of discretion
or a clearly unwarranted exercise of discretion in violation of
HRS § 91-24(g) (€) (1993)? for the court to substitute its own
judgnent for that of the Commission when it reversed the
Commission's decision to deny Brescia’s application.
In response, Brescia argues that (1) “the
(Conmission’s] subsequent recognition 16 years later of the
[Developer's Setback) on the never adopted July ‘63 Map in liew
s clearly erroneous in view of the
of the [County Zoning Map],
reliable, probetive end substantial evidence on the “hole
record"; (2) “the Commission cannot impese and enforce a setback
Line which is not shown on the final subdivision map, as was
required by lew"; (3) “the action of the Commission cannot be
justified on the beeis of enforcenent of the CZMA"; (4) “the
Connission's decision that the renaining buildable area allows
Brescia @ reascnable use of his property is without support and
in error"; (5) “the refusal to amend the SMA conditicns or to
"(continues
Eapheses’ sede.)
+ See sntza,
‘s*4FOR PUBLICATION IN WEST’ S HAWAI'I REPORTS AND PACIFIC REFORTERY+#
grant a variance for the proposed dwelling was arbitrary,
capricious, and characterized by abuse of discretion”; (6) “the
Commission is estopped from enforcing a totally different
building prohibition than is set forth in the [SMA (U}-64-2
order)"; and (7) "Brescia had a vested right to proceed with the
construction of his residence,” and “the Commission's action to
recognize the line on the July ‘83 map as the applicable setback
Line violated Brescia’s constitutional due process right
Ww.
“tReview of & decision made by @ court upon its review
of an adninistrative 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.'” Leslie v. 84. of Appeals of County of Hawaii, 109
Mawas's 364, 291, 126 P.34 1072, 1078 (2006) (quoting Lanai Co.
nc. vs Land Use Comm'n, 108 Hawai'i 296, 306-07, 97 P.34 372,
3€2-€3 (2004) (other citation omitted)). The standards as set
forth in HRS § 91-14(g) (183) are applied to the agency's
decision. a Pa'akei 0 Ke'sina v, land Use Comm'n, 94 Hawai'i 31,
40, 7 F.3d 1068, 1077 (2000). HRS § 91-14(g) provides:
view of the record the court may affirm the
on of the agency er renand the cate with izetruct ions
for further proceedings; cr it may reverse cr nosify the
decizien and order if the substantial righte of
petitioners may have been prejudiced because the
Sdhinietrative findings, conciveione, decieions, or orders
(s) upon
" (2) In wicletion of constitutions! or stetutery
provisions) oF
(2) En excess ef the etatutery authority oF
juriediction of che agency: ef
Nace ypen unlawful procestres cr
Affected by other error of law cr
23
STOR PUBLICATION IN WEST’ § HAWAI'I REFORTS AND FACIFIC REFORTER*#*
(5) Clearly erroneous sn view of the reliable,
Prebetive, and substantial evicence on the whole
Fecore? oF
(©) Kebitrary, or capricious, or characterized by
abuse of cisereticn or clearly smsrranted
enereise of discretion.
“*Under HRS § 91-14(g), conclusions of law are reviewable under
subsections (1), (2), and (4); questions regarding procedural
defects under subsection (3); findings of fact under subsection
(5); and an agency's exercise of discretion under subsection
(6).'" Sierra Club vs Office of Planning, State of Hawa‘, 109
Hawai'i 411, 414, 126 P.3d 1098, 1202 (2006) (quoting In re.
Hawadian Elec, Co., 61 Hawai'i 459, 465, 918 P.2d 561, 567 (1996)
(other citation emitted) ).
“whn agency's findings are not clearly erroneous end
will be upheld if supported by reliable, probative and
substantial evidence unless the reviewing court is left with a
firm and definite conviction thet @ mistake has been made.’” Boe
va Hawai'i Labor Relations Bd., 105
655 (2004) (quoting Kilauea Neschborhood hes'n v. Land Us
‘ai'i 97, 100, 94 P.3d 652,
Comm'n, 7 Hew. App. 227, 229-30, 751 P.2d 1031, 1034 (1988).
[T]he courts may freely review an agency's conclusions of
low.'" Lanai co., 105 Hewai"l st 307, $7 P.3d at 383 (quoting
Role Heweii Div.-Cestle & Cocke, Inc. vs Ramil, 72 Haw. 419, 424,
794 P.26 1125, 1118 (2990) (other citation omitted)). “abuse is
apparent when the discretion exercised clearly exceeds the bounds
of reason or disregards rules or principles of law or practice to
the substantial detrinent of a party litigant.” Kimura vs
24
'FOR FUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER*
Kemalo, 106 Hawai'i 501, 507, 107 P.3d 430, 436 (2005) (internal
quotation marks and citation omitted).
In connection with his first argument, Brescia
is Little question that the [SMA (U)-
acknowledges that *[t]h
82-2 order] imposed a prohibition against building in the Open
zone strip fronting the shoreline of the Wainiha 11 subdivision.”
Brescia argues that the “[tJhe dssue is whether the ‘open zone
strip’ was determined by (1) the clearly existing
Open/Residential Line on the officially adopted County's Zoning
Map, or (2) the elusive [Developer's Setback) shown én the July
\€3 Map which was never adopted or even mentioned in the (SMA
(0)~84-2 order]." We conclude that the Commission's decision in
enforcing the Developer's Setback as shown on the July 1, 1963
subdivision nap is supported by reliable, probative, and
substantial evidence on the whole record and, thus, was not
clearly erroneous. Accordingly, the court's finding no. S@ that
“[elhe Open zone strip fronting the shoreline referred to in the
SMA decision and Order is the Open zone shown on the County's
Zoning Map" is clearly erreneous, and conclusion no. 4 which
states, inter alia, that “[t]he ‘Open zene strip fronting the
shoreline,’ . . . is the Open zone as shown on the County Zoning
Mep" is wrong.
Erescis states, “[E]xcept for the verbiage referencing
the Open strip fronting the shoreline, the [Commission in its SMA
(0)-€4-2 order] did not adept, approve, or incorporate by
28
'FOR FUBLICATION IN WEST’ § HRMAI'T REFORTS AND PACIFIC REFORTER*##
reference any of the maps presented in the proceedings.”
According to Brescia, inasmuch as the only official, map which
showed “any Open zoned strip along the shoreline was the County's
Zoning Map, adopted by the County under ordinance No. 239," this
is the only setback of which he had notice. Breecia maintains,
“IMJoreover, the County's North Shore Development Plan Update
(which {s also the County's Zoning Map) was adopted by the
(Commission) at a special meeting on September 28, 1983, only tuo
months before the issuance of [the SMA (U)-84-2 exder]." Thus,
Brescia asserts that Commission members were aware of the
contents of the North Shore Development Plan Update and, given
that the SMA (U)-@4-2 order refers to the “Open zoned portion” in
the past tense, it is apparent that the Commission wes referring
to the County Zoning Maps.
We first note, as previously stated, that the maps
submitted by the Developer in seeking a SHA Use Permit to develop
the subdivision indicated 2 Developer's Setback, which would
impose a shoreline setback in the area that would become Lot 6 of
approximately 61 to 71 feet st each makai corner. The maps and
the Developer's Setback shown thereon were part of the
Developer's application and the setback remained consistent
throughout the Developer's sutmissions.
‘The Developer also included in his application an
Environmental Assessment which stated, inter alia, that “(nJo
structures are allowed within 40 feet of the certified shoreline
end, therefore, the shoreline area will not be affected.” The
26
‘++FOR PUBLICATION IN MEST’ S HAMAI'T REPORTS AND PACIFIC REFORTERY*#
SMA (U)-84-2 order, in finding nos. 10 and 23, confirmed that the
“open District strip is approximately 40-75 feet wide,” and
that “Ino construction shall be allowed within the Open zoned
portion of the property along the shoreline.” Although no
reference 18 made to what the developer called the “Zoning
District Boundary Setback Line,” findings nos. 10 and 23 in the
SMA (U)-84-2 order plainly refer to that setback, in effect
incorporating the Developer's Setback by reference to the Open
district strip.” It is evident, then, that SMA (U)-G4-2
condition 2(b), stating in part that “[nJo part of any structure
shall penetrate the Open zone strip fronting the shoreline,”
refers to the lend seaward of the Developer's Setback. This
setback line indicates an approxinate 61 to 71 foot setback in
the area of Lot 6. Hence, Brescia’s argument that the “open
zoned portion” referred to by the Conmission in SMA (U)-E4-2 is
not the 40-75 fect strip specifically described in the order as
the “open district strip,” but is rather the area marked “open”
on the County Zoning Mep, is not persuasive.
The approximate 9- to 22-foot shoreline setback in the
area of Lot 6 indicated as “Open” on the County Zoning Map would
There ie no evicence in the record thet thie condition in SMR (O)~
84-2 wor contested or eppesied after ite ies
ng Director's
Tene on the
Zoning Desteiet
represented to
the Conpiseion noted
Ane” (Devel eps
Re to the Kort
a2 thet the
10 stated that the cpen district
FOR PUBLICATION JN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERt##
be less than the setback established in the SMA (U)-84-2 order,
and is thus inconsistent with that order. The court's finding
no. ‘$8 that “[t)he Open zone strip fronting the shoreline
referred to in the SMA Decision and Order is the Open zone shown
on the County's Zoning Map,” then, is clearly erroneous inasmuch
as the record lacks any substantial evidence to support such a
finding.
vt
Brescia’'s second argunent on appeal is that the
Commission cannot impose and enforce a setback line not shown on
the finel subdivision map, as required by law. For reasons
stated both supra and infra, we conclude as clearly erroneous the
court's finding no. 57 that “{t)he imposition of the [Developer's
Setback] on the Final Subdivision Map, under the gui'se of
correcting the final subdivision map, exceeds the authority
granted to the Commission under Section 9-3.8(c) (5) of the Kauai
County Code, for it reflected @ change in interpretation 16 years
after the fact and not an error in dimension, discrepancy or
oversight.“
BAe previcuely noted, Section $-2.8(e) ($) of the Kevatt County
cose, entitied “Errcrs and Discrepancies,” tater a2 follow
‘The epproval of the final subdivision mep by the Flenning
Connission shall net relieve the applicent of the
seeponeibility for any erzer in the dimensions cr other
Giecrepancies or cversighte. Errore, oiecrepancies, oF
oversights ehall be revised or corrected, open request te
the satisfaction of the Planning Comission.
Brescis suggests that the oniesion of the Developer's Setback on
the {ine subdivision rap cid not conetitote an error in ginereien oF
oversight of the type intenced for correction by fection $3
inty Code. As noted, the Connission, ih conclusion nes
(continues...
28
‘*+FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REFORTERS+®
Rs mentioned above, Section 9-3.8 of the Kaua'i County
Code requires that setback lines be indicated on the final
subdivision nap, however, no setback lines, including the
Developer's Setback, were indicated on the final subdivision map.
Pursuant to HRS § 205-26 (2001), “{nJo development shall be
allowed in any county within the [SA] without obtaining a permit
in accordance with this part.” Thus, within @ SMA, development
is controlled by a SMA permit. See Mahuiki, 65 Haw. dt 519 0.24,
654 F.2d at 663 n.16 (stating that “Iplermits required under this
act supersede 01 others, including any permits required from
state agencies such as the Lend Use Commission in conservation
and agricultural districts along the coast, so that the 1975
shoreline protection legislation for the first tine supersedes
state controls in an inportant area of environmental, concern”
(quoting 0. Mandelker, Environmental and Land Controls
Legislation 317-28 (1978)). Irrespective of the fact that the
final subdivision map did not indicate any setback lines as is
required by County ordinance, the Developer's Setback, as
required by SMA (U)-84-2, must be adhered to, Accordingly,
Brescia's second argunent is unavailing.
vit.
Brescie’s third argunent on appeal is that the action
PC. continues)
2003 order, stated that “pureuent to Sectson 9-3.8(8)($] of the Faus's County
Code, 1587; as anenced, (the Comission] hee the authority with respect te the
‘ction’ of epproved fanei eubdivieion rape.” ineenuch se we
‘Gecisien en ether grounce, we need net reach the
ancy in this cove wae of tne type encenpected
‘county cede.
29
Sphela the Conn:
ticn ef whetner the
En Seetien $-3,6(e) (3) of
*##7OR PUBLICATION IM WEST'S HAWAI'I REFORIS AND PACIFIC REPORTER'*#
—
of the Commission “cannot be justified on the basis of
enforcenent of the [CzMA]." Brescia contends that the Commission
“ignor fed] the plain language of [the SMA (U)-€4-2 order)” and
that “[t]he issue in this appeal is whether the (court) wae
correct in finding and concluding that the Conmission’s actions
under the circumstances were inconsistent with (the SMA (U)-84-2
order}.” Inasmuch as we conclude, as stated supra, that the
Commission's use of the Developer's Setback was consistent with
the plain language in the SMA (U)-84-2 order, as also reflected
in Brescia’s deed, the Commission's imposition of the Developer's
Setback was justified. Additionally, as Brescia recognizes, the
record clearly shows that as to the SMA (U)-84-2 order, the
“Commission duly considered, addressed and upheld the policies
and objectives of the CZMA, es well as its [SMA] requirenents(.]”
Thus, the court's conclusion no. 7 that “[t]he Commission’ s
finding that the Planning Comission in SMA (U)-@4-2 in 1984
intended thet the ‘open zone strip fronting the shoreline’ be the
[Developer's Setback) shown on the July ‘63 Map, instead of the
Open zone shown on the County's Zoning Map. . . , was clearly
erroneous” is wrong as @ matter of law.
Nonetheless, Brescia further contends that “[t]he
decision by the Commission to reject Brescia’s proposals and to
impose the [Developer's Setback] on Lot 6 with its 61% to
Ti-feet setback was in clear excess of the requirements end
objectives of the CMA. . . and the [Kaue‘i Rules].” (Enphesis
added.) Erescia does not cite any specific provision of the C2MA
30
+e+FOR FUELICATION IN WEST'S KAWAT'T REFORTS ARD PACIFIC REFCRTER:
or the Kaua't Rules in connection with this assertion. it is
observed, however, that HRS § 205-22 (Supp. 1970) and Section §
of the Kavs's Roles both pertain to the establishment of
shoreline setbacks. HRS § 205-32 stated in pertinent part that
“ [tine commission shall establish setbacks slong shorelines of
not less than thenty feet and not more than forty feet inlandl J"
(emphasis added.) Section § of the Hava'l Rules states in
relevent part thet “[s]horeline setback lines are estdblished
throughout the County of Kavai at 40 feet inland... , except
that such shoreline settack Lines shall be 20 feet Jolan .
[ulhere the buildable eres of the parcel is reduced to less than
50 percent . . . after applying the 40 foot shoreline setback
Line and all State and County requixenents[.J” (Euphasis sdded.)
© or form; to bring about or
“Establish” is defined as “[t]o
into existence[.]” Black's Law Dictionary 586 (8th ed. 2004).
On the plein language of the statute and the rule, the
establishment of these setbacks does not prohibit a developer
fron propesing a greater shoreline setback on a development than
those contained in HRS § 205-32 or Section 5 of the Kaua'i Rul
in an application for a SMA use permit. Likewise, the CZMA and
the Kaua'i Rules do not prohibit the Commission from accepting
such a proposal in approving @ SMA use permit. Of course,
generally, @ setback is nothing more than “[t}he minimum amount
of space required between @ lot line and a buslding line.”
Black's Lew Dictionsry at 1404 (enphasie added).
2
‘***FOR PUBLICATION Im WEST’ § HAWAI'I REFORTS AND PACIFIC REPORTERC##
In that regard, as previously mentioned, this is not
the first time in which this court has considered the Wainiha
Subdivision IT, See supra. In Mahuiki, this court overturned
the Commission's issuance of a SMA use permit after the
Commission failed to comply with the directives of the C2MA,
which required it “to make @ specific finding that the proposed
Geveloprent would ‘not have any substantial adverse environmental
ch adverse effect is clearly
or ecological effect, except as
outweighed by public health and safety’ before approving the SMA
use permit application.” 65 Haw. at 516, 654 P.2d at 881
(quoting HRS § 208R-26(2) (A) (1976))". Thus, this court vacated
the circuit court's order of dismissal and summary judgment in
favor of the Developer, and remanded the cese for proceedings
consistent with its opinion, Id. at 519, 654 P.2d at 683.
Subsequently, as Brescia states, the SMA (U)-64-2
Proceeding “was a re-application by the [Developer] for the same
Gevelopment following the reversal and remand in Mahuikif.]” To
reiterate, the Developer's first proposal was for a 22-lot
‘The current version of HRS § 205A-26(2) (Al (1976), HRE § 205A
26(2) (A) (2001) tater:
(2) No development shall be approved unless the authority
‘fret found:
(k) That the development will net have any
substential adverse environmental or ecologi:
effect, except a uch severse effect 12
Hininiles te the extent practicetle end cl
Cotwesghed by public health, safety, or
conpelling public interests. Such scverse
effects ene.
the potent
Gevelozsente, each cf
Bight net neve 8 tubs
‘seo PUBLICATION IN WEST'S HAMAI'T REFORTS AND FACIFIC REFORTER!:
subdivision. With his application, the Developer included a
proposed preliminary subdivision plan map, which designated the
Developer's Setback. After facing community opposition to the
proposed development, the Developer simultaneously submitted a
second proposal for a 20 lot subdivision, and a third proposal
for a 19 lot subdivision. Like the first proposal, both the
second and third proposals included a map indicating the
Developer's Setback. After continued opposition, the Develcper
submitted a fourth propose accompanied by a map again reflecting
the Developer’s Setback. On December 15, 1983, the Commission
approved SMA (U)-84-2, which contains the Developer's Setback.
As Brescia relates, “there was no appeal from the granting of the
[SMA (U)-€4-2.}" In that regard, pursuant to HRS § 205A-29
(2001), “{aletion on the special managenent permit shall be final
unless otherwise mandated by court order.”
Because plainly the C2MA and the Kaue'l Rules did not
prohibit the Developer from proposing the Developer's Setback,
and the Commission from accepting that setback in approving SMA
(0)-€4-2, the restrictive covenant containing the Developer's
Setback in the CCéRs and Brescia’s deed are valid. similarly, in
McDonald v. Pnporiz-Lven County Joint Bd. of Zenine Aopeals, 697
P.2d 69, 70-72 (Kan. Ct. App. 1965), the Court of Appeals of
Kansas held that the grant of 2 setback variance by the proper
municipal authorities did not have any effect upon a setback
, thus, affirmed the
established in a restrictive covenant
trial court’s grant of sunary judgment te the plaintiffs because
‘s*0TOR PUBLICATION IN WEST! § JUNAI'T REPORES AND PACIFIC REPORTER:
SSS
of a violation of a restrictive covenant setback provision. In
so holding, the McDonald court ebserved that “it is generally
recognized that . . . ‘[rlestrictive covenants do not supersede
or in any way affect the requirenents of an already existing
zoning ordinance, and conversely, @ zoning ordinance cannot
Gestroy, impair, ebrogate, or enlarge the force and effect of an
existing restrictive covenant.’ 1d, at 71 (citation omitted).
Accordingly, “*({z]oning ordinances, if less restrictive, do not
Giminich the legal effect of private restrictive covenants.”
Id, (citation omitted).
As Brescia recounts, he and his wife acquired Lot 6 by
warranty deed, which referenced the CC&Rs. As indicated
Previously, the CCéRs plainly state that “as a condition to final
subdivision approval for the Property by the [Connission},
certain restrictive covenants were imposed upon the Property,
which restrictive covenants are stated in Schedule 'B’ attached
hereto end nade a part hereof." The reason for such covenants as
the CCBRs wes the “desirel] to enhance and protect the value,
Cesizebility and attractiveness of the Property.” To reiterate,
the CCuRs also state that:
Stallone] tor the sutusl benefit and protection of all
Excverty shal] be held, leased, encumbered, conveyess serd,
sed, cecupred and smproved, i
ns brotection of the lintestionss restrict iene oon
Hig ccadiciene cer deren in thie besiaeesoety ora
Sugeare of cnteceiee tea eecrecene tae copes Uy
snd attigctiverces of the froperty. These iaitaione,
Sonaitione stall ron with th
Raving or who ecquire any Tight, Citie er
interest in the Ficperty or eny part thereof, their heirs,
36
‘s+sFOR FUELICATION IN MES2’S HAWAI'I REPORTS AND PACIFIC REPORTER®:
jonal representatives, successors and arsigns
Pe
(Emphases added.) As Brescia sets forth, “Schedule ‘BY [is] a
restatement of the conditions of approval in the (SMA (U)-84-2,]"
which includes the shoreline building restriction that “{nJo part
Gf any structuie hall penetrate the open Zone strip fronting thé
shoreline." As discussed supra, the Open Zone strip refers to
the land seeward of the Developer's Setback. In sum, contrary to
Brescia’s suggestion, the C2MA and the Kaua'i Rules did not
prohibit the Developer from proposing the Developer's Setback in
his application for SMA (U)-€4-2, and likewise the Commission vas’
not prohibited from accepting the Developer's Setback in
approving a SMA (U)-84-2. Accordingly, Brescia's third argument
is not cogent.
virr.
In connection with Brescia’s fourth argument regarding
reasonable use, as Appellants point out, the “requirement
prohibiting any building in the Open zone as well as the other
conditions of development were known or should have been known to
[Brescia] as they were incorporated into his deed, and he would
not obtain final approval for the building location on his lot
until the ‘time of building and zoning permit application.’” As
recounted previously, these restrictions were incorporated into
Brescia’s deed as restrictive covenants.
This court has “long held that where a deed makes @
specific reference to a restrictive covenant, the grantee is on
notice that his interest is subject to the terns of that
38
‘S*0FOR FUBLICATION IN WEST'S HANAI'T REPCRTS AND FACIFIC REPORTER’
eS
restrictive covenant.” Lee v, Puamana Cnty, Ass'n, 109 Hawai'i
561, 568, 128 F.3d 874, 681 (2006) (citing Pelosi v. Wailea Ranch
Estates, 91 Hawai'i 478, 489, 985 P.2d 1045, 1086 (1999) (“The
individual defendants in the present matter had constructive
notice, by virtue of their deeds, of the [ ] covenants.”
(Emphasis and brackets in original.)); Rawlins v. Izumo Taisha
Kuo Mission of Havaii, 3€ Haw. 721, 726 (1944) (stating that
equity will enforce a contract “containing restrictive covenants
which create equitable easements, such as restrictive covenants
in a deed or lease limiting the use of the lend in a particular
manner or prescribing a particular use which creates equitable
servitudes”)}. "*(I]t is a well-settled rule that in construing
deeds and instruments containing restrictions and prohibitions as
to the use of property conveyed, all doubts should be resolved in
favor of the free use thereof for lawful purposes in the hands of
the owners of the fee.’” Hiner v, Hoffman, 90 Hawai'i 168, 195,
977 F.2d 878, €85 (1999) (quoting In re Taxes of Johnson, 44 Hew.
519, 536, 386 P.2d 1028, 1038 (1968) (citation and internal
quotation marks omitted)) (brackets omitted). Also, “such ‘free
end unrestricted use of property’ is favored only to the extent
of applicable State land use and County zoning regulations.”
1d, at 195-96, 977 F.2d at 885-86 (quoting Collins v. Goetsch, $9
Haw, 481, 485 n.2, $83 P.2d 383, 357 n.2 (1978).
Brescia esserts that the Developer's Setback imposed by
the Commission, which as noted above results in a shoreline
setback of roughly 61 feet and 71 feet at each makai corner of
‘***FOR PUBLICATION IN MEST’ HAMAI'T REPORTS AND PACIFIC REFORTER*+#
Lot 6, denied Brescia reasonable use of his property and is
“without support and in error." In that regard, to repeat,
Brescia requested en amendment to SNA (U)-84-2 on the basis that
such an anendnent was needed in order to allow reasonable use of
his property:
5 . Although a
Special Managerent Aves Use Ferait has siresdy been leeved
for the eubgivicion, i-e., SMA (0) €4-2{], an anendnent to
the permit is ececsary to ceviate from the Building setbeck
ine deemed by the Planning Depertment to be applicable to
the let of approximately 10 fet
sherel sn
Inland of the certifies
‘The proposed residence ss '32 feet inland of the
shoreline at ite nearest point, snd
the setback
Line Uf determines to be 70 feet] Post be snended to
‘accommodate the orccosed residence to allow reasonable use .
shine crerante pe teresciete
(Emphasis added.)
As stated previously, the Commission denied Brescia’s
request and concluded as follows:
18. Pra ndings within Azentine eh
eleser identified in the Findings of Fact,
Tonciussons of Lew, Cecieien ang Order, for sh (U)-et-2,
Gated Lecenber 15,'18€3, ang on the propeeed subdivielon map
Gated uly 1, 1963 tonnitted with the Application fer sua
(O)s64-2 ae ie eppiies te Let'€, provides [prescia] with
At not necessarily the use most desired
[erescia's) conplisnce
stantial neu he-prezerty reecial &
Senied reascnable use of the proserty,
(Emphases added.)
Ts. Reasonable oi
by the owner of the property,
According to Brescia’s September 3, 2002 application,
as well as his January 28, 2003 written testimony to the
Commission, a setback of epproxinately 63 feet as shown on the
July 1, 1983 sap would allow for @ triangular-shaped buildable
area of approximately 4,974 square feet. As stated, Brescia
later revised this estimate, and in his Mey 6, 2003 Opening Brief
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to the Conmission related that the buildable area on which to
construct 8 single family residence would be 4,203 square feet.
Brescia asserts that 4,203 square feet of buildable area equates
to 24.78 of the Lot 6 area, As indicated previously, within this
buildable srea--whichever of Brescia’e estimates is used--he mist
excluding
Construct a residence of at least 2,500 square f
garage, lanais, » required turnaround area, and septic system,
Brescia’s architect, in apparent full recognition of these
requirenents, stated at the January 28, 2003 public hearing, “1
Gon't want to say its totelly unbuildable.”
Tt As well established thet “mere diminution of market
value or interference with the property owner's personal plans
and desires relative to his property is insufficient to
Snvalidete a zoning ordinance or to entitle him to @ varsancel.]"
City of Eastlake v. Forest City Enters. Inc., 426 U.S. 668, 674
n.8 (1976) (internal quotation marks, citations, and brackets
omitted). In Kor! ddhist Dee le of Hawes’
Sullivan, €7 Hawai'i 217, 235, 953 P.2d 1915, 1333 (1998), this
court found that an applicant for a variance “failed to establish
that it could neke no regsonsble use of the land or its (hlall
without building the [hJall to s height of seventy-five feeti,]”
t initially submitted
given that the record indicated the applii
plens reflecting a construction design for the hall of sixty-six
feet in height. (Emphasis added.) This court stated that
reasonable use of the land, in this case within the meaning of
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‘S#0FOR PUBLICATION J MESI’S KAWAII REPORTS AND PACIFIC REPORTER
the city charter, 1s “not necessarily the use most desired by the
owner.” Id, at 234, 959 P.2d at 1392 (citation omitted).
Inasmuch a8 the Commission in finding no. 15 found that
according to Brescia’s own application letter @ shoreline setback
of approxinately 69 feet would allow the applicant trianguler-
shaped buflding ares of approximately 4,974 square feet, and
whereas Brescia’s oun architect testified that utilizing the
Developer's Setback did not necessarily make the lot unbuildable,
the Commission could rationally conclude that Brescia did not
establish that he could not make reasonable use of the property
based on the Developer's Setback. Thus, it was error for the
court te hold in conclusion no. 25 that “[t)he record on the
whole, through reliable, probetive and substantial evidence, also
clearly denonstrated thet Brescia could not make reasonable use
of Let 6 Af the [Developer's Setback) is upheld and strict
conformity therewith is required.” Because substantial evidence
existe in the record to ndicate that the setback inposed by the
Commission will permit Srescia to construct a residence of at
least 2,500 square feet of Living area, the Connission could have
retionally determined thet Brescia retained the reasonable use of
nis property.
x
Brescia's £4fth argunent on oppeai is that the
Cennission’s refusal to anend the SMA conditions or to grant a
varience for Brescia’s propesed dwelling, which would approach
and
within 31 feet of the shoreline, was arbitrary, capriciou:
39
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characterized by abuse of discretion, In HRS § 205A-46(a) (8)
entitled “Variances,” the legislature provided that the counties
may grant variances based on hardship. As noted supra, the
Rules what constitutes
Commission has not defined in ite Kaua'
“hardship” for the purposes of evaluating shoreline setback
variances. In the absence of such a definition, Brescia and the
Commission appear to have proceeded on the basis of evaluating
whether a setback variance was necessary in order that Brescia
retain “reasonable use” of his property.
We observe initially that, as mentioned supra, Kaua'é
Rules, Section 12(b), states that the application for a variance
shall be accompanied by “accurate written statements to
substantiate that hardship will be caused." (Emphases.
See gunca note 6 and accompanying text.
us _.fereas the fect thet Hous's County hae net adopted & definition
of Therdship" for the purposes of evaluating requests for shoreline setback
et 15 not raised ch appeal, the inpact cf this cnieeion need not be
Other counties have included in their criteria for establishing
“hardahip" for purposes of granting @ shoreline setback variance the factor of
whether @ variance is necessary to provice the applicant reasonable use of his
GE, her property. For exanple, the Revised Ordinances of Honolulu, Chapter 22
‘Shoreline Setzacks,” Section 23-1 Stleg “Criteria fer grenting @
dence,” states in relevant part?
(3) Herdehip stancerd.
(A) A structure or activity may be granted &
Yeriance upon grounss Gf herdehip if:
(i) "The sppiicant would be deprive
ble use of the lena if required to
Eenpiy fully with the shoreline setback
Grdinance end the shereline setback roles;
(ii) The applicant's proposal is due te unique
cfr et and does not draw inte
question the resscnabienese cf this
Chapter end the ehereline setbeck rules
3
(JH) The properel is the practicoble
alternative which sett conforms to the
BAIRGSe of this chenter and the shoreline
(eentinved,..)
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added.) In support and justification of his request, Brescia
asserts that “[o]ther inproved lots in the immediate neighborhood
t” and that
range in size from 27,674 to 13,671 square £1
“[e}hese regularly shaped lots were subject to shoreline setbacks
ranging from 60 to 38 feet of the certified shoreline”; nis 3,300
square foot proposed residence would not be the largest house in
the subdivision; and "S26 of the proposed residence would be nore
than 40 feet from the shoreline.”
To reiterate, the Commission denied Brescia’s request
to amend SMA (U)-84-2 or grant a variance based on its findings
and conclusions. As discussed, the Commission could have
properly determined that, even with the imposition of the
Developer's Setback, Brescia is not deprived of resonable use of
his property. See supra. Furthermore, as Brescia explains, the
SMA (U)-84-2 proceeding in 1963 was a “re-application by the
[Developer] for the same development following the reversal and
(.. .continvea)
setbeck rol
ded.) Also, County of Hawai'i Planning Commission, Rules of
(emphases
ore, ‘Section G10 entitled, "Criteria for Approvel of @
Practice and Proc
Variance," states!
ndard
rocture cr activity nay be granted @
veriance open grounds of haraship only if:
(i) "the spplicent wouie be senriven of
. se ef the
comply fully with this
(4) The request 42 due to unique cir
1 Goes not Grew into question the
Fearorablerese of this rule? ene
(3) Harcenip st
a
(448) The Seaueet Se the practic sernative
nth Seat conte ee
(Enphares added.)
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BAWAI'T REPORTS AND PACIFIC REPORTER**#
FOR PUBLICATION IN WEST
remand in Mahuikil.]" As Brescia indicates, following this
court's decision in Mahuiki, the Conmission “could not have been
but ‘painfully aware of the importance given to the CZMA by [this]
as
court in Mahuiki” during the SHA (U)-84-2 proceeding. Thu:
Brescia recounts, “(t]he record accordingly clearly shows that
the [Connission] duly considered, addressed and upheld the
policies and objectives of the C2MA, as well as its [SHA]
requirenents” in SMA (U)-84-2.
Significantly, as Brescia relates, “there was no appeal
from the granting of (SMA (U)-84-2]." Again, pursuant to HRS
§ 205A-28, “[a]ction on the special management permit shall be
final unless otherwise mandated by court order.” In that regard,
ye recently observed that “the legislature expressly granted
ve
to the [Commission] the authority to cerry out the cbjectives,
policies and procedures of the C2MA’s SMAS.” Moraan v. Planning
Dept., County of Kevai, 104 Hewai'i 173, 164, 86 P.3d 982, 993
(2004) (citing HRS § 205-27 (2001)). Thus, “[iJn order to carry
out this express responsibility, the [Conmission] must have
authority to enforce the conditions of a SMA Use permit.” Id.
Moreover, as reflected in the Conmission’s findings,
the application for SMA (U)-84-2 included the preliminary
subdivision map which identified the Developer's Setback relied
upon by the Commission in approving SMA (U)-84-2. The approval
84-2 was subject to conditions, including that
of SMa (
“Ib)
review and epproval at the tine of building and zoning permit
ilding locations . . . shall be subject to [Commission]
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'FOR PUBLICATION IN MEST’ S HAWAI'I REFORTS AND PACIFIC REPORTER
application[,]" “(nlo part of any structure shall penetrate the
open zone strip fronting the shoreline[,]” “{t]he setback from
Mealea Road and Alanc'o Read shall be a minimun of 20 feet(,1”
“[a]i1 other front yard setbacks shall be 15 feet{,]” and “[t}he
side yard setbacks shall be a minimum of 10 feet.” The approval
of SMA (U)-84-2 required that the conditions of the permit “shall
be established as restrictive covenants within each deed at the
tine of subdivision.” Additionally, the requirements and
conditions of SMA (U)-84-2 were in fact included in the CCURS
recorded on February 20, 1992. the recorded CcuRs were
incorporated into Brescia‘s deed. Brescia then clearly had
notice of the requirements and conditions of SHA (U)-84-2 when he
acquired his property.
Hence, inasmuch es the objectives and policies of the
CIMA axe “parencunt in any determination involving the use of
land in a special management axeal,]" Mahuiki, 65 Haw. at 518,
654 P.2d at 682-83 (citations omitted), the Connission upheld
these objectives and policies in issuing SMA (U)-64-2, and the
requirenents and conditions of SMA (U)-84-2 were incorporated in
Brescia’s deed as restrictive covenants, the Conmiesion had
rational crounds for denying Erescia’s request to snend SMA (U)-
24-2, or for 2 variance. Under the circumstances of this case,
the Commission did not “clearly exceed[] the bounds of reason or
disregard|] rules or principles of law or practice to the
substantial detrinent of a party litigant.” Kimura, 106 Hawai'i
4a
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SS
at 507, 107 P.3d at 436 (internal quotation marks and citations
omitted) .
Consequently, the court's finding no, 115 that “[t}he
Commission's denial of the variance request [to build out to
within 31 feet of the shoreline) lacks support in the record” is
clearly erroneous, especially in light of the fact that the court
steelf acknowledged An finding no. 102 thet “other improved
lots in the inmediate neighborhood were aubject to shoreline
setbacks ranging from 80 to 38 feet." Finally, in this regard,
conclusion ne. 26 which states, in part, that “the
the court
Commission errenecusly denied the variance in view of the
relieble, probative, and substantial evidence on the whole
record,” is wrong as a matter of lew.
x.
Brescia’s sixth argunent on appeal is that the
Commission is estopped from enforcing a “totally different
building prohibition than is set forth in the [SMA(U)-64-2
erder]." More specifically, Brescia asserts that the Commission
should be bound by the 20-foct setback he clains the Planning
Department represented te be appliceble. We held that the
estoppel doctrine is net applicable.
In the context of this case, equitable estoppel is
Eesed cn @ chenge cf position on the pert of a lend
developer by rubstantial expenaiture of money in connection
with hie project in relience, net selely on existing zoning
Jews or oh good faith expectancy that his development will
be pernittes, Est on i efeurence on which he tata
tie prozect has net Toning requitenents,
‘ovals will be forthcoming in ave course,
ronesd with tne prosect.
ry
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Life of the Land Inc,, v, City Council of the City & County of
Honolulu, 61 Haw. 390, 453, 606 P.2d 866, 902 (1980) (emphases
added). Estoppel “cannot be applied to actions for which the
agency of acent of the governsent has no authority.” Tumer vs
Chandler, 67 Hawei's 230, 224, 955 P.2d 1062, 1066 (App. 1998)
(quoting Filipe v, Chang, 62 Haw. 626, 634, 618 P.2d 295, 300
(1980) (other estation omitted)) (emphasis added). It ds well
established that zoning which terminates inchoate rights to
develop land is a legitimate exercise of the police power. see
County of Kavas v. Pac, Standard Life Ins. Co., 65 Haw. 318, 336-
37, 683 F.2d 766, 779 (1962) (citation omitted). “Zoning
oppel is not intended to protect speculative business risks.
Thus, an expenditure made in compliance with underlying zoning
but before final discretionary action will be disregarded for
estoppel purposes.” Id, at 332, 653 P.2d at 777 (citing Life of
the land Inc., 61 Haw. at 455, 606 P.2d at 903).
Brescis meinteine that “for the past 16 years, the
County had understocd and represented to the public that the
le setback was 20 feet." As support for this contention,
appli
Brescia submitted a letter written to a neighboring property
owner by Deputy Planning Director Sheilah Miyake, in which the
sh
ine setback for the neighbor's property was confirmed to be
20 feet according to the Kaua'i Rules. Brescia states that “[a]t
the tine of and pricr te acquiring Let 6 for more than $900,000,
Brescia and his agents inquired and were informed by nenbers of
x Lot 6 was 20
the Kaua'i Planning Department that the setback
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feet inland of the certified shoreline.” According to the
Commission, Brescia submitted an affidavit “which stated he ‘was
informed by Kavai County Officiale’, whom he did not name, [that]
the: shoreline setback on Lot 6 was 20 feet inland of the
certified shoreline.”
But as this court noted in Keno’ v. Kene, 106 Hawai'i
270, 298, 103 F.3d 929, 264 (2005), “Lalgents of the government
must act within the bounds of thelr authority: and one who deals
with then assures the risk that they are so acting.’” (Quoting
Sanare de Cristo Dev, Co., Inc, v, United States, 932 F.2d 681,
894 (20th Cir. 1991).). The authority to establish setback lines
within the SMA, as stated in Brescia’s deed, rests with the
Commission. 1t is well accepted that a public enployee not
vested with decision making authority may not bind the state in
its exercise of the police power. See Godbeld v, Manibes, 36
Haw. 206 (1942) (holding that a state cannot be estopped by the
unauthorized acts or representations of its officers).
More importantly, the esteppel argunent is unavailing
given the fact that Schedule “B,” Condition 8 in Brescia’s CC&Rs
states, inter alia, that ~ sed setbacks sh
the Plannin sii ne
teulew if the design of a residence warrants a greater setback.”
(Emphasis added.) Thus, Brescia was on notice thet the
Commission retained the discreticnary authority to impose @
greater setback.
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Nonetheless, the court in finding no. 77 found that
“Brescia had the Fight to rely on the representations of the
County Planning Department as to the applicable setbacks for the
subdivision." This is not a finding of fact, but is rather a
conclusion of law. This court “reviews conclusions of law de
novo, under the right or wrong standard.” 2's Enters. Inc. v
Del Rosario, 111 Hewai'i 484, 489, 143 P.3d 23, 28 (2006)
(citation omitted). Because the authority to establish setback
lines within the SMA, as stated in Brescia’s deed, rests with the
Commission, the court's conclusion that Brescia had a right to
rely on the representations, if any, of the Planning Depertment
as to the setback, is wrong. Hence, Brescia’s estoppel argument
must necessarily fail.
xI.
Brescia’s final argument on appeal is that he had a
vested right to proceed with the construction of his residence,
and that the Commission’s recognition of the line on the July
1983 map as the spplicable setback line violated Brescia’s
constitutional due process rights. We conclude that Brescia vas
not vested with a property interest sufficient to implicate due
process protection, but in any event, he was afforded due process
in this case.
Both the federal and state Due Process Clauses include
protection from deprivation of property without due process of
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Jaw, See U.S, Const. amend, XIV, § 1; Haw, Const. art. 1, §
5. These guarantees apply when a constitutionally protected
property interest is at stake. See Bd, of Recents v. Roth, 408
U.S. 564, 569 (1972); seach De: . City Co
City & County of Honoluly, 70 Haw. 361, 376, 773 P.2d 250, 260
(1989). A property interest protected by the due process clause
rules or
“stem[s} from an independent source such as state 1a
understandings that secure certain benefits and that support
clains of entitlement to those benefits.” Roth, 408 U.S. at 577.
‘A property interest will be seen to exist “if discretion is
Limited by the procedures in question, that is, whether the
procedures, if followed, require a particular outcome.” Crown
Point 1, LLC v. Intermountain Rural Elec, Ass'n, 319 F.3d 1211,
1217 (20th Cir. 2003) (citing Hyde Park Co. v, Santa’ Fe City
Council, 226 F.3d 1207, 1210 (10th Cir. 2000)). See also Jacobs
Wa City of Lawrence Kenses, 927 F.2d 1111, 1116 (10th Cir. 1991)
Brescia contends that when the Commission applied the
more restrictive setback line reflected on the July 1, 1983 map
11 neke or enforce any law which shall abridge
coer or insunities of citszene of the United
nor shall any State deprive any person ef life,
Liberty, or property, without eve precest of Jal)
Rewes'd Cet
caste
tution, entitled “De
son shall be deprived of life, liberty or property
without due process of low, ner be Censed the equal
Pretection cf the laws, nor be denied the enieyaent of the
Person's civil rights cr be diserimsnetes ageinet in the
enercise thereof Eecause of Face, religion, ‘sex er ancestzy.
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on neighboring Lot 9 at a hearing on December 11, 2001, Brescia’s
Gue process rights were violated because his parcel was likely to
be subject to the same July 1963 map setback line but he was not
given notice of that hearing or an opportunity to be heard. As
this court hes stated, “these interests
teke many forms.” Int'l Bhd, of Painters £ Allied Trades v
Befitel, 104 Hawai'i 275, 263, 88 P.3d 647, 655 (2004) (internal
property interests--may-
quotation marks and citation omitted). “But, the range of
interests protected by procedural due process is not infinite.”
Id, (internal quotation marks and citation omitted). Recounted
earlier, see supra, SMA (U)-04-2 wes issued under HRS chapter
205A and a restrictive covenant in Brescia’s deed stated thet
[increased setbacks shall be required . . . if the design of a
residence warrants 2 greater setback.” Inasmuch as Brescia’s
deed relsted thet the Conmission reteined suthority to anend the
setback at the time of building permit review, Brescia was not
vested with @ property interest in building a particular
structure.
A similar procedural due process claim in relation to a
land vse decision wae considered in Clark v. City of Hermosa
Beach, $6 Cel. ptr. 24 223 (Cal. Ct. App. 1996). Clark held
that, even though the landowner had received a conditional vse
pernit te build a two-unit condominium, the planning conniesion
still retained the discretion to “inpose standards above the
minimums designated by the zening ordinance to improve the
quality of development and te mitigate any environmental
48
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impacts.” Id, at 241 (internal quotation marks, citation, and
emphasis omitted). In finding no legitimate “claim of
entitlenent to a structure having any particular dimensions,”
that court explained as follows:
‘The Clarks [(Landesners)) do not (and cannot) claim that the
City has" infringes their snterest in constrsctSng © home per
se.” The City aid not bar the Clarks from belicing these
Ecidoninium project sltogethery it denied their application
withoot prejucice te submitting @ revised plan reflecting
the Council's concerns about height, let coverage, snd
sable open space. Thus, the interest at issue ie nat that
of a lenuowner to constrict a roof over his head) rather, it
‘is the Clarke’ inverest in building s structure having the
specitic dimensions they find ceslrable:
Id
Hence, in the instant case, irrespective of the actions
taken by the Commission at the earlier hearing relating to the
neighbor's property, Brescia was not vested with a sufficient
property interest to invoke @ due process violation. He was on
notice that the triangular-shaped parcel he was purchasing,
located in the State’s restricted SMA, was a “visually sensitive
(parcel] in relation to its scenic location on (Kauai’s) North
Shore,” and from the CCéRs in his deed, that “increased setbacks
(could) be required by the Planning Comission at [the] time of
zoning and building permit review[.J" Here, as in Clark, Brescia
cannot claim an entitlement to situate his residence in any
particular location, or claim an entitlenent to a particular
ed residence. As in Clark, Brescia is not being denied the
right to build a hone; rather, the interest must be classified as
“en interest in building a structure having the specific
Gimensions” which Brescia finds desireble. Id, ‘The discretion
50
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left in the Commission to increase the setback defeats any
expectation that Brescia’s application must be opproved as
submitted.
Brescia cites Ridenour v, Jessamine County Fiscal ct.,
842 8.W.2d $32 (Ky. Ct. App. 1992), for his claim that he was
deprived of @ property interest without due process of law.
Ridenour, however, Ss distinguishable. In Ridenour, after
conducting @ £011 public hearing, a planning conmission issued
findings and a recommendation for approval of the applicant's
requested zoning change. Id, at $34. A secondary governnent
body with final decision-making authority conducted a review of
the planning cormission’s decision, and was to confine itself to
the record presented to the commission. Id, The secondary body,
however, did not in fact confine itself to the plenning
conmission record--end, further, did not inform the applicant of
the meeting at which his request would be taken up. Id. That
court held that, “(blecause the [secondary governnent body]
elected to review the reconmendation of the plenning commission
solely on the record of [the comission],” it was improper to
consider matters outside the record. Id, at 535. Unlike in
Ridenour, in this case the Conmission was not conducting a
secondary review, and was not required to ccnfine its
deliberations to any previously established record. Further,
unlike in Ridenour, Brescia was given notice of the Conmission
meeting at which his zoning request would be teken up, and a full
opportunity to be heard.
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Brescia's reliance on Medeiros v, Hawaii County
Planning Comm'n, € Haw. App. 183, 797 P.2d $9 (1990), is
unpersuasive. In Medeiros, the appellants owned property
directly abutting land on which the county planning commission
approved the drilling of 4,000-feet deep holes in the geothermal
resource subzone. Id. at 190, 797 P.2d at 63. Appellants
challenged the issuance of the permit on due process grounds.
Id. at 193, 197 P.2d at 65. In finding no due process violation,
the Intermediate Court of Appeals noted that whether appellants
were vested with a property interest sufficient to trigger
protection was arouable, end indeed did not reach this question.
Id, at 194-95, 797 P.2d at 65.
Brescia proffers that the Commission's imposition of
the Developer's Setback on the neighboring property “was a fait
accompli to Brescis’s prejudice and in violation of his rights.”
This contention is not meritorious. Brescia was given a full
public hearing before the Conmission made its ruling on Lot 6.
At the public hearing Brescia was able to present testimony to
support his request for a variance. The Connission, along with
Brescia, Planning Cepertment staff, and menbers of the public,
Conducted @ site inspection of the property. It is manifest thet
the Commission did receive evidence concerning Brescia’s request
for a variance. The record supports, for the reasons stated in
this decision, thet the Commission was cbliged to follow C2MA
policies and its construction ef SMA (U)-84-2 which established
setbacks in the subdivision at approximately 40 to 75 feet, was
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supported by reliable, probative, and substantial evidence in the
record. While the variance scught was ultimately denied, Brescia
nonetheless received the due process to which he was entitled.
Thus, the court's conclusion no. 10 that “[t]he Commission's
actions on Decenber 11, 2001 in its new interpretation and
application of @ setback line, without any notice to and the
opportunity to be heard by Brescia and other affected landowners,
were made in violation of their constitutional right of due
process," was wrong 2s a matter of lew.
xr.
For the foregoing reasons, we vacate the court's
March 4, 2008 judgment, and remand this case to the court with
instructions to enter judgment thereon affirming the Conmission’s
Septenber 9, 2003 order.
‘On the briefs: Pies © Pinca aries
Herold Bronstein for
defencants/appellees-
appellant: Yous. Beye
Walton D.Y. Hong for
plaintiff /appellant-
appellee.
83
|
7fd10162-0707-4e4a-9d7b-c49131574235 | Coulter v. State | hawaii | Hawaii Supreme Court | Law LIBRARY.
No. 27025
IN THE SUPREME COURT OF THE STATE OF HAWAI‘T
MICHAEL EDWARD COULTER, E 5
Petitioner/Petitioner-Appellant ©
vs.
STATE OF HAWAT'Z,
Respondent /Respondent-Appellee
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(SPP NO, 03-1-00387 CR. NO. 02-1-1513)
DEI APPLICATION
(By: Duffy, J., for the court")
Petitioner/Petiticner-Appellant Michael Edvard
Coulter's application for a writ of certiorari, filed on
April 23, 2007, is hereby accepted and will be scheduled for oral
argument. The parties will be notified by the appellate clerk
regarding scheduling.
IT IS FURTHER ORDERED that the parties shall, within 21
days from the date of this order, file a supplemental brief
addressing the following issues:
Whether an individual has a right to due process in the
procedures for determining their minimum term of imprisonment,
under either the United States Constitution or the Hawai'i
S considered by: Moon, C.J-, Levinson, Nekayans, Accbs, and Oafty, 3
Constitution. If so, what constitutional due process guarantees
must appl:
‘The supplemental briefs shall not exceed 15 pages.
DATED: Honolulu, Hawai'i, May 29, 2007.
FOR THE COURT:
Geer, gs
Associate Justice
Phyllis J. Hironaka,
Deputy Public Defender,
for petitioner /petitioner-
appellant on the application
|
1062b9a1-aa40-4e39-8ed3-ea9b4d2e3ee0 | State v. Frisbee. Concurring Opinion by C.J. Moon [pdf]. Dissenting Opinion by J. Nakayama [pdf]. ICA s.d.o., filed 09/12/2006 [pdf]. S.Ct. Order Accepting Application for Writ of Certiorari, filed 01/09/2007 [pdf]. | hawaii | Hawaii Supreme Court |
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he
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
00 ~-
STATE OF HAWAT'Z,
Plaintiff-Appellee-Respondent,
aqam
FRANK FRISBEE,
Defendant-Appellant-Petitioner.
s
No. 27079
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(Cr. No. 0-1-1685)
APRIL 30, 2007
MOON, C.J., LEVINSON, ACOBA, AND DUFFY, JJ., MOOK, C.J.,
CONCURRING SEPARATELY, AND NAKAYAMA, J., DISSENTING
OPINION OF THE LEVIN:
on December 11, 2006, the defendant-appellant-
petitioner Frank Frisbee filed en application for a writ of
certiorari urging us to review the summary disposition order
(S00) of the Intermediate Court of Appeals (ICA) in State v
Exisbee, No. 27079 (September 12, 2006) [hereinafter, “the ICA‘s
$00"}, affirming the January 18, 2005 judanent of the circust
court of the first circuit, the Honorable Victoria S. Marks
presiding, convicting Frisbee of and sentencing him for the
counts set out infra in section
We accepted certiorari because the ICA's SDO is
inconsi
nt, gee Hawai'i Revised Statutes (HRS) § 602-59(b) (2)
8, §§ 1 and 3
upp. 2004), amended by 2006 Haw. Sess. L. Act
OR PUBLICATION 18 WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER +++
at 409, with State v. Matias, 102 Hawai'i 300, 75 P.3d 1191
(2003), as discussed infra in section IIT. We therefore hold
that Frisbee was entitled to a jury instruction on the
possibility of merger pursuant to HRS § 701-109(1) (e) (1993).¢
Accordingly, we vacate the ICA's SDO and renand with instructions
fox the ICA (1) to vacate the circuit court's January 18, 2005
judgment and (2) to remand to the circuit court for a new trial.
1. BACKGROUND
on August 14, 2000, Frisbee was charged by complaint
with, inter alia, one count of kidnapping in violation of HRS
$ 707-720(1) Ld) (1993) (Count 1) and one count of kidnapping in
violation of HRS § 707-720(1) {el (1993) (Count 11), both
allegedly committed in the City and County of Honolulu on or
about August 3, 2000.7
From November 20 through December 3, 2002, the circuit
court conducted a jury trial. In his application, Frisbee
RE § 701-209(2) provider sn re
vent part
linen the sane conduct of 2 defendant may establish an
clenent ef nore than one sffense, the defendant may be prosecuted
for each offense of which sven conduct is an elerent. he
Gefendant may net, honever, be convicted of mere than one offense
ge
iej ine oftence se defined ae continuing course of
conduct and the defendent’s course cf conduct wae
Uninterrupted, unlese the law provices that specific periods
of conduct constitute separate offenses.
RS € 707-720(2) provices in relevent part: "A person comite the
oftense of klcnapping if the person intentionally or knowingly restreine
nother person with intent tet... ie) inflict bedily insury open el
Tor] (e) Terzorize that person or thira person
aph (a) is fulfillea by the intent to either "[1)nfliet bodily
injury upen [2] person or subject that perecn te s sexiel offence,” the
language cf the Complaint tracked cnly the “bodily injury” prong.’ Conmaze HRS
8°03" 92012) te
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appears to concede arquende that certain trial testimony would
support at least one of the counts:
[the complaining witness Cher Chang] went with [Frisbee] to
the Kan Shopping Center, where [Frisbee] told her to get out
Gf the car Chang opened the car door snd began to get oot
Sf the car. Ae she was getting out of the car (Frisbe
Grebbed ner by her heir and pulled her back inside the car,
Shang sat in the cer and continved to ride along with
Trrisbee) -
They next went to a house by the Eagle Cafe near .
Kolin Valley. [Frisbee] get out of the eruck and Chang
Stayed ineige then chey went to a Second house and there
Trriabee} hed her get cut and go inside with him(s] Chang
went and dic net pretest. [Frisbee] told Chang to Kies hin
Sno stuff and tell, him that she loved him, ond he made her
tlse'his. “River thet he began to choke Chang.
‘They left the house and went to a Chevron gas’ station
to get some chips. Ghang went into the gas station
Wich [esictecl |’. cheng ran out of the stere and junpec
inte ancther cor w"TFriebee) ren after chang, grabbed
her ot ren the Car by her aair and put her back ante his
iptidbee) drove around and ended up at Sand Island.
[als they Grove around [Frisbee] began te tell chang
indt’ne was going to shoot [ber] and ner sons.
‘hc"Sind Jeland Chang trieg to go inte che back of the
sw, 1. {Als she did (Frisbee) began to hit her in the
From our review of the entire record, it does not
appear that Frisbee registered any objection to the jury
instructions at trial, nor do Frisbee’s opening brief or his
application cite any such objection -- in fact, Frisbee’s
proposed version of the instructions related to Counts I and IT
was materially identical to the version that was ultimately read
to the jury.
‘The pertinent snetructions, a2 read and given te the jury, stated:
in Count 1... ys + « Frisbee) 4s charged with the
cffense of Kignapping.
‘Ri persen connite the offense of Kidnapping Sf he
intentionslly ef snowingly reetreins another persen with intent te
inflict bodily injury upon thst person
‘There ave three material elenents of the effense of
Kicnepping, exch of which the prosecution must prove beyond &
Pesrerable deus
tees )
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on December 3, 2002, the jury found Frisbee guilty as
charged of Counts 1 and 11.
On January 10, 2005, Frisbee moved the circuit court
“to [d]ismiss Count I or IT. . . or to have the Counts . . .
merged into a single offense as it constituted @ single course of
uninterrupted conduct.” The plaintiff-appellee-respondent State
of Hawai'i (hereinafter, “the prosecution”) replied that “there
was a factual basis for the jury to convict [Frisbee] of more
than one count of kidnapping,” to wit:
[Chang and Frisbee) were in a vehicle that was being driven
by [Frisbee]. (He) told (her) to get out by the Kam
Shopping Center. As (she] did so, [he] pulled her back in
by her hair... Later ony - . [he] used both of Bis
hangs and choked (her].. «for abeut two minutes and told
her te kite bim, He made (her) kiss his.
‘aiter he choked [Chang], [Frisbee] drove to a Chevron
station. [He] exited the vehicie to buy sone food. [Chang]
fan away from the vehicle and get inte the car of &
stranger . [Frisbee] followed her and pulled her out
-continves)
These, Three elements, are:
‘That, cn or about the 3ré cay of August 2000,
[Fricbee] restraines . - - Cheng; ena
Thet (Frisbee) did so intentionslly of knowingly: and
That [Frisbee] dig so with the intext te inflict Beaily
insury open = = + Chang.
In Count 11 . Feigbee|] is charged with the
of Kidnapping
1 perscn connics the offense of Kidnapping if he
intentionally of knowingly Feetresne encther persen with intent to
cereorize thet person.
There are saree materiel elenente of the offence of
Kidnapping, each of which the prosecution must prove beyond
‘enable’ debt
‘These tnree elenents are
nee, enor about the cf August 2000,
[frisbee] restrained. oa
[frisbee] eid se sttentionsily ex knowingly; and
[Frisree] aig so with the intent to terrorize.
9
y between the verdict and sentencing was due to: (1) te
ec by frisbee to fineh s course at Cane Ce
[2] three contanvencer because of withora
++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER +++
of the stranger's cer by her hair, (le) dragged her back to
Bie venicle. (He) threstened to shoot [her] and her
At its January 18, 2005 hearing, the circuit court orally ruled
as follows:
‘The first incident, if you will, cccurred at or near Kam
Ehepping Center where (Chong) tried to leave the car. «
Frisbee gresbes herl] by her heir, polled her back into Ale
Car, Ivthink at one point choked her as well.
eters che conpisining witness jumped into
ancther cor, ..”, Frisbee pulled her out of that car and
then ‘threatened her sna ner son
Se what we have axe cifferent tines, different acts at
ditterent locations | = =
Accordingly, the circuit court denied Frisbee's
January 10, 2005 motion. On January 18, 2005, the circuit court
entered its final judgnent convicting Frisbee of, inter alia,
Counts I and IT. On January 24, 2005, Frisbee filed his timely
notice of appeal.
on direct appeal, Frisbee (1) reiterated the position
taken in his motion to dismiss and (2) further argued that the
circuit court “err[ed) by not instructing the jury on the
question of a merger of the charges.”* (Emphases omitted.) In
ite S00, the ICA affirmed the circuit court’s judgment. (Citing
Matias, 102 Hawai'i at 206, 75 P.3d et 1197; State v. Alston, 75
Haw. 517, 531, 865 P.2d 157, 165 (1994); State v, Libero, 103
Hawai'i 490, 501-02, 83 P.3d 753, 764-65 (App. 2003); State ve
Momoki, 98 Hawai'i 188, 194-95, 96 F.3d 1, 7-€ (App. 2002).) On
December 11, 2006, Frisbee timely filed the present application.
on January 9, 2007, we accepted certiorari.
bee never objected at trie) to the
eto have constroed Frisbee's secend
Court shold neve instructed the Suzy on
snetructions ee 8h
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During oral argument, Frisbee and the prosecution
maintained their respective positions as to the significance of a
“temporal break” between the initial restraint and the arguable
escape and “recapture” of Chang at the gas station. Frisbee
argued that, “even if [Chang] attempted to get away” at the gas
station, Frisbee’s whole course of conduct amounted to
“essentially just the one act.” Apparently in the alternative,
Frisbee reiterated that the question whether Frisbee's criminal
conduct was interrupted is one of fact for the jury. The
prosecution posited that Chang's fleeing created an interruption
between Counts I and II as a matter of law, i.e., would not
support a jury finding of uninterrupted conduct. We commented
that the prosecution’s closing argunent repeatedly characterized
the entire incident as “the kidnapping,” singular, see infra
section III.A, but the prosecution replied that, during his
opening statement and elsewhere, the prosecutor et trial
portrayed Frisbee’s conduct 2s consisting of two separate acts.
11. STANDARD OF REVIEW
When jury instructicns or the oaission thereof
are at issue on appeal, the standard of review ie
Instructions given are prejudicially incufficient,
elronecur, inconsistent, ev misleading. Erroneous
ground fer ri
Exon the ole thet the error wee not
Frejudicsal. helrrer is not to be viewed in
Sletion sie considesea purely in the sberract. It
Sost be examined ip the light of the entire
Proceedings and giver the effect wnich the whole
Pecers enews st to be entstles. In trat context, the
Feal question Becenes whether there iss feascrable
feceibility that errer might have contributed to
Ecnvicticn, If there ie such a reasonable possibility
Sng crininel cese, then the erzer ie not hermiess
beyena a reesonebie doubt, ane the juggrent of
conwictsen en ftnay have been Berea must be set
44+ FOR PUBLICATION IN MEST'S YANAT'I REPORTS AND PACIFIC REPORTER *
Gensaiven, 108 Hawai's 289, 292-93, 119 P.3¢ 597,
EG0-07 (20081 (anternal citations, ‘quctation marks,
fngentations, ena paragraphing cnittedy bracketed material
aases) (7 £)e8 Shanvans, 101 Hewai's 309, 385,
eorrsa sits S23 (2008)
in (State v. }Eberly, [107 Hewett
425 (2008);) we observed that 7
9, 112 B.3d
__. Iw]here instructions were net objected to at
ieiei, "TE'Ehe appellant overcenes the presumption that
{he instroct ions were correctly stated, the rule is
that. such erroneous instructions are presuaptively
Edrafol eng ese e ground for reverse] unless it
aifizeatively sppeare fron the Fecord se 5 whole that
the error was not prejudicial
Ide at 250, 112 P.3¢ at 736.
State v. Nichols, 121 Hawei'i 327, 334-35, 141 P.3d 974, 981-82
(2006) (some brackets added and some in original).
TIT. DISCUSSION
In hie application for writ of certiorari, Frisbee
basically reargues his direct appeal: (1) that the circuit court
erred in denying his January 10, 2005 motion to merge Counts I
and 11; and (2) thet the circuit court “errled) by not
instructing the jury on the question of a merger of the charges.”
(Emphases omitted.) In particular, Frisbee aroues that “there
was only one act of kidnapping and the initial act of pulling
Chang back inte the car to terrorize merged inte the act of
inflicting harm . . . at the Chevron gas station. . . . The two
separate acts . . . were all part of the ongoing criminal
offense. . . .” (Quoting HRS § 701-109, see supre note 1; State
vs Ganal, €1 Hawai'i 388, 384, 917 P.2d 370, 396 (1996); State v.
Hoey, 17 Hawai'i 17, 3€, 881 F.2d $04, 525 (1994); Alston, 75
Hew, at S31, G65 P.2d ot 165; State v. Freeman, 70 Haw. 434, 442,
774 P.2d 686, 892-93 (1989); State v. Capric, 85 Hawai'i $2, 104,
P.2d 933, 945 (App. 1997)) (citing State v. Castro, 69 Hew.
RAWAL'T REPORTS AND PACIFIC REPORTER +#¢
04 oR PUBLICATION I WES?"
633, 786 P.2d 1033 (1986).) Elaborating on his second point of
error, Frisbee asserts that the circuit court should have
ascertained by interrogatory whether the jury found that the
kidnapping(s) constituted “a single act over a period of time[]
or two separate acts.” (Quoting State v. Culkin, 97 Hawai'i 206,
214-15, 35 P.3d 233, 241-42 (2001).)¢
However indirectly he arrives there, the bottom line of
Frisbee’s position is that the circuit court and, hence, the ICA
erroneously ruled cut the possibility that Counts I and II were
grounded in “the same conduct,” see HRS § 701-109(1), thereby
mandating, at 2 minimum, that the circuit court instruct the jury
regarding merger. We agree with Frisbee.
A, In Light Of The whole Record, There Is A Reasonable
Possibility That The Jury Instructions were
Prejudicially Insufficient, Erroneous, Inconsistent, Or
Misleading,
We believe that HRS § 701-109(1)(e), see supra note 1,
entitled Frisbee to have the jury apprised of the possible merger
of Counts I and IT.
HRS § 701-208(11 (e), see supra note [1], interposes a
constraint on multiple convictions arising from the sane
criningl conduct. the statute “reflects 9 policy te Limit
the possibility of multiple cenvictions and. extendes
Sentences when the defendant har basically engaged in only
fone course of criminal conduct directed at one criminal
Qeel{]" See Commentary on HRS § 701-103,
<Frisbeets application, with ite seventeen-page body, exceeds the
rmexinun length permitted by Hawai Rule of Appellate Procedure 40.1(a). ("The
2 caIz pages a). On
2006, ‘we crdered Fristee’s counsel to show cause why he should
hot be sanctioned for violating this rule. He vespended presptly and
Contritely, anc, sccorcingly, we tock no further action. In any case, the
of Frisbee's application ade little substance beyone ¢
tion te Ggikin, wnscn repeste tne permissive stengers for plain error in
Jury inetructione, 97 Rawal at 216, 38 Pidd et 243, of which we are freshly
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Whether # course of conduct gives rise to more
than one crine [within the seaning of HRS § 70)—
Yo8(2) (el). depends in part on the intent and cbjective
Of the defencent.. The test to determine whether the
Gefendant intended te commit nore than one offense is
Whether the evidence discleses one general intent or
Giscloses separate sng distinct intents. where there
{e"Gne intention, one general impulse, and one plan,
there 4s bat one offense. All factual issues involved
Ants cerereination aust be decided by the trier of
Hoey, 77 Hawal's (at) 27 n.(18, 861 F.2d [at
514 n.{)8 |. + iqueting Buston, 75 hee. (st) 532, 865
Bete iat) des 2 e). Fane's’ 76i=10911) te), however, does
hot opply where & defendant's ections constitute separate
Offenses under the law. See State v. focpii, 68 Haw. 246,
261, 710 Pi2d 1193, 1197 (2385)
Matias, 102 Hawai" at 305, 78 P.3d at 1196 (some citations
omitted) (sone brackets added and sone in original) (emphasis in
original).
In the present matter, the question whether Frisbee's
arguably two acts of “pulling Chang) back inside the
car”/*put [ting] her back inte his car precipitated one course of
criminal conduct or two was never submitted to the jury. We
believe that this contravened the letter and the purpose of HRS
§ 701-109(1) (e). In other words, a reasonable juror could find
that Frisbee executed one continuous “restrain[t],” see HRS
$ 707-720(1), supra note 2, which, as the jury should have been
instructed, would bar Frisbee’s conviction of multiple kidnapping
charges. One “restrainit},” even if accompanied by both colors
of intent enumerated as HRS § 707-720(1) (d) and (e), cannot
support tug convictions of kidnapping. Moreover, because of the
wording of the complaint, see supra notes 2 and 3 and
acconpanying text, even two separate “restrain[ts]” would have to
be accompanied by two distinct requisite stetes of mind -- e.a.,
the prosecution could not apply the intent to terrorize to both
oR PUBLICATION IN WEST! HANAL'X REPORTS AND PACIFIC REPORTER ++#
vrestrain{ts]” unless one of the “restrainits]” were also
undertaken with the intent to inflict bodily injury.
Not only did the circuit court not sua sponte instruct
the jury regarding merger, but the prosecution further mddied
the waters between Counts I and 11 by never electing which
kidnapping count , which of the supposedly distinct
wrestrain[ts]" (one at Kam Shopping Center and the other at the
gas station, see supra section I) was committed with the intent
to terrerize and which was accompanied by the intent to inflict
bodily injury. Moreover, the prosecution appears to have
conflated the circunstantial evidence supporting the intent to
terrorize with the circumstantial evidence supporting the intent
to inflict bodily injury.
During his opening statement, the prosecutor stated in
pertinent part:
[Frisbee) decided during thie! tine (ne and chang)
were together that he was not geing to let her do anything
ithe thet he would shew her uho wae in contrcl- They drove
constantly after that all over Honelule
They stopped ats gus station to get some food,
Chang at. that tine tried te escepe. She... ran to (3
: US (Frisbee) saw her going tot
anc trying to escape, [Me] went outside fren the store,
grenbes Shang fron the cer, end pulled her beck inte
the 0.
Yelena
Finally they ended op back at
injne prosecutien will aek you te return @
finding Of guilt eh tne counte of Kidnapping» ss = One
cunt snvelves the intent te do begily fern...
Tenang aiyow thet he caused her to feel pain. The
second court’... invelves the intent te terrorize.
Cheng by culling ber heir, keatane her ug, threatening her
ane her Tansty,
(Emphases added.)
10
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On direct examination, Chang testified that, after the
episode wherein Frisbee “pulled [her] back in” “by Kam Shopping
Center,” he said to Chang, “I'm not going to play any games with
you.” Then, Chang testified, after Frisbee and Chang stopped at
two houses and the Eagle Café, he choked her. Later, after Chang
ren away, “[Frisbee] came and he grabbed [her] by [her] hair,
pulled [her] out! of the stranger’s car], and shoved [her] back
into the [SUV]. According to Chang, he then told her she “ain't
going anywhere,” accompanied by a vile obscenity, Then, before
“ended up at Sand Island,” Frisbee
“chang and Frisb
“[t]hreaten(ed Chang] end stuff. . . . He threatened to shoot
[chang] and [her] son.”
Finally, in closing argument, the prosecution did not
foreclose the factual possibility that there was but one
continuous course of conduct:
They Went to the Kam Shopping Center.
‘and ae (Chang) use getting out, (Frisbee)
grebbed her and pulled ner back into the SUV. And this ta
here the sianeceine besine
~ «ANG, You Know {fom the instructions that we
reed tO You there are tee types of Kidnapping i
this cose =~ stent to terscrize and the intent to cause
bodily injury tov... Chang. We'll discuss both of these.
Bot thie is the initiation of the Kidnanping . . . -
They continued to érive sround | |) “she
tried toletcape . «when they went to @ gas station...
Ae that point, [Trisbee) wos... buying sone foodi) |
charg! fen to the cer cf ¢ stronger and tried to get
ini “[Feittee] ssw ner. fie went after hie prey. :
isened with her vet. He went to get her, and he pulled
her back by her naar.
ihe this stace of the Kid ns
Lchancl -cocurses yet only Bt the carticvlar episooe Bue
Tass fer tise Ree He enoh
Th the tate evening hears, [Fristee) finaly
sterpes beating Cheng. He itcppec the SUV at Sand
‘++ voR PUBLICATION IN MEST’ 8 HAWAI'I REPORTS AND PACIFIC REPORTER ++
[Frisbee] terrified her. And that is one of the
kidnappings that ie charged in this case, the intent to
ineviewe poypicer evicence of Chang's insurtes.1
ve ith regards to the two counts of
Kidnapping ‘~"kidnapping with intent to terrorize bodily
injury (eic] beyond e reasonable doubt, (Frisbee) is guilty
of both of those. Bodily injury «+ it’s pain. And
‘ (Frisbee) caused ber pain numerous tines when he was
ing her up
(Emphases added.) In its rebuttal argument the prosecution
summarized the charges against Frisbee thusl;
Count 1, Kidnapping. . . . [T]he restraint .
been proven beyond 2 reasonable doubt.
object of that restraint... . And this is
charge involving bedily injury te... Chang in the Beating
he gave her.
‘EoUiie IJ, once again... (Frisbee) restrained . .
Chang. But this tine, with the intention of terrorizing
a chang. And throughout her statenent, she tela you she
wat teared of him after things turned sour’ at the Kew
‘Shoeping Center fit terrorized her.
11! Chang wes consistent in talking about the bodily
spsury at Thriteee] Sntlicted pen her, “the terror thet
(Emphases added.) Admittedly, the choking and the
“threaten[ing]” occurred sequentially, but the prosecution never
established an unmistakable boundary between the allegedly two
acts of “restrain(t].”
We do not imply any impropriety or conscious deceit by
the prosecution. The prosecution may have made an understandable
strategic decision to present its case as 2 seamless narrative
about a relentless predator. Nonetheless, in light of the
reasonable possibility that the Kam Shopping Center events and
the gas station events comprised only “one intention, one general
impulse, and one plan,” the factual question of merger should
have “belen) decided by the trier of fact.” See Alston, 75 Haw.
+ 865 P.2d at 165 (emphasis omitted), quoted in Matias, 102
at
419+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
Hawai'i at 305, 75 P.3d at 1196; State v, Arceo, 84 Hawai'i 1, 18,
928 P.2d 843, 860 (1996); Ganal, @1 Hawai'i at 379, 917 P.2d at
391 (1996); State v. Vinge, &1 Hawai'i 309, 319, 916 P.2d 1210,
1220 (1996); Hoey, 77 Hawai'i at 27 n.9, 38, 881 F.2d at 514 n.9,
525; State v. Kealoha, 95 Hawai'i 365, 377, 22 P.3d 1012, 1024
(app. 2000) .
We are puzzled by the ICA's unelaborated citation of
Matias, inasmuch as thet case is on point and compels an outcome
favorable to Frisbee. In Matias, the defendant was convicted
under the “place to keep firearms” statute and of ownership or
possession of @ firearm by s felon, 102 Hawai'i at 301, 303-05,
75 P.3d at 1192, 1194-96. We noted that, with respect to both
offenses, the charged conduct -- the “possessilon of]” 2
particular object under the same general circunstances -~ was
identical. See dd, at 306, 78 P.3d at 1197. Of course, as an
attendant circumstance required by both statutes, that particular
object happened to be a firearm, but, more importantly, both
offenses arose out of the same elemental “conduct,” ise, what
the defendant gig with the cbject, namely, “possess{ed]” it. See
ids at 303, 306, 75 P.3d at 1194, 1197. Accordingly, we held,
convicting the defendant of both charges without the jury having
been received @ mexger instruction plainly offended HRS
§ 701-109(1) (e). Id. at 306, 75 P.3d at 1197.
on the other hand, while the defendant in Momoki wa
charged with two offenses arising out of the same general act of
Griving, the crimes’ conduct elenents differed. Seg 98 Hawai'i
at 198, 46 P.3d at & (reasoning that the intent to drive under
the influence of drugs, “no matter how egregious the case,” does
FOR PUBLICATION IN WEST! § HAWAI'T REPORTS AND PACIFIC REPORTER +1
not equate to or “subsune(]” the intent to drive without due
care) (quoting HRS § 701-109(1) (e)). The ICA concluded that “a
general intent to” conmit one of the crimes does not “inevitably
include{} an intent to conmit the latter” and, consequently,
affirmed the convictions. Jd, While the ICA grounded its
discussion in intent, the material difference between the charged
offenses lay in their respective conduct elements; i.e, the mere
act of “driving,” with “the influence of . . . drug(s]” as an
attendant circumstance, is not “the sane conduct” as the
defendant’s “serving” among lanes, see id. at 190, 46 P.3d at 3,
notwithstanding that “driving” and “swerving” could occur
simultaneously. By comparison, in the present matter, the
culpable conduct in both Counts 1 and II was Frisbee’s
“restrain[ing]” of Chang.
Finally, we respond to the ICA’s SD0"s citation of
Likero. Insofar as Libero implies that an appellate court may
determine de novo whether a “defendant's course of conduct was
uninterrupted” as 2 matter of law, we hold that it was wrongly
decided. In Liberc, the defendant had been convicted of
attempted murder and assault. 103 Hawai'i at 493-94, 83 P.3d at
756-57. He had confessed to the following chain of events:
[the cefendant) nit (the victim] «(the victim) fell
and ig net get up. (The defendant] tock off the bottom
Rolg-cf [the victin]*s clothes. [3he defendant] thought he
Nentes to nave sex with [tne Victim), but then he “didn't
went [the victim] got up and [the defendant) hit her
asain =
Ad, at 495-86, 83 F.3d at 758-59. On appeal, the defendant
argued, inter alia, “that the circuit court should have issued
merger and unanimity instructions to the jury.” Id. at S01, 83
P.3d at 764. The ICA sunmarily reasoned that, while the assault
4
‘i++ FOR PUBLICATION IN WEST'S IAWAI'T REPORTS AND PACIFIC REPORTER ***
and attempted murder charges vere based on the same general
behavior of “hit[ting]” this particular victim, they did not
arise out of an uninterrupted course of conduct: “The State
fulfilled its obligation to prove that (the defendant] committed
‘separate offenses under the law’ by showing that [he] at one
point intended only to harm [the victim] and at another point
intended to cause her death.” See id, at 501-02, 83 P.3d at
764-65. The ICA thereby ignored the reasonable possibility of an
HRS § 702-109(1)(e) violation and our oft-repeated admonition
that “the factual question of merger” is one for the trier of
fact.
B. The Jury Instructions were Plainly Erroneous.
We realize that Frisbee neither objected to the
instructions as read nor requested his own version of a merger
instruction. Nevertheless, Hawai'i Rule of Penal Procedure $2(b)
allows for an appellate court to redress “[p]lain errors or
defects affecting substantial rights” and “*[wle have recognized
that [plain] error occurs when the trial court's instructions to
the jury fail to preclude the return of guilty verdicts which
violate the statutory mandate of HRS § 701-108,’" see supra
note 1, Matias, 102 Hawai'i at 306, 75 F.3d at 1197 (some
brackets added and some in original) (quoting Alston, 75 Hew. at
529, 865 P.2d at 164). In light of our case lew enunciating the
trial court’s responsibility for oversight of jury instructions
regardless of attorneys’ failure to object, see Michols, 112
Hewai'S at 225 6 n.S, 336, 337 6 n.6, 141 P.3d at 982 6 n.5, 963,
984 & n.€ (quoting State v. Haanio, 94 Hawai'i 405, 418, 16 F.36
246, 286 (2001); State v, Astronome, 95 Hawai'i 76, 62, 18 F.3d
as
{9+ FOR PUBLICATION JN WEST’§ HAWAI'T REPORTS AND FACIFIC REPORTER +44
938, 944 (App. 2003)], we believe that the ICA gravely erred by
failing to remedy an instructional error that is not harmless
beyond @ reasonable doubt. We do not contend that merger is
foreordained, ives, that @ reasonable end properly instructed
juror could not find an “[] interrupt (ion]” of Frisbee's course of
conduct. Nevertheless, given the reasonable possibility that the
jury's verdict led to two convictions for “the same conduct,” we
hold that the circuit court’s failure to charge the jury with
respect to merger contravened HAS § 701-109(1)(e) and was not
harmless beyond @ reasonable doubt.
IV. CONCLUSION
In light of the foregoing analysis, we (1) vacate the
ICA’s judgment, (2) vacate the circuit court's January 18, 2005
judgment, and (3) remand to the circuit court for a new trial,
see Matias, 102 Hawai'i at 306, 75 P.3d at 1197.
Daniel H. Shimizu,
Deputy Prosecuting Attorney,
for the plaintiff-appellee-
respondent State of Hawai'i
Richard 0. Gronna, for the Bee ALecrinsen
defendant-appellant-petitioner
Frank Frisbee
Yorn 6 Océ by
1é
|
05afa5c4-b2de-492b-8c34-ba64d861c359 | State v. Basuel | hawaii | Hawaii Supreme Court | No. 27080
IN THE SUPREME COURT OF THE STATE OP HAWArT “
z
STATE OF HAWAI'I, Respondent /Plaintift-Appellee cals
RICHARD J, BASUEL, Petitioner/Defendant-Appellant .
oo
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. No. 02-1-2725)
ORDER REJECTING APPLICATH: WRIT OF CERT)
(By: Moon, C.J., for the court")
uel 's
Petitioner/defendant-appellant Richard J.
application for writ of certiorari, filed on May 12, 2007, ia
hereby rejected
DATED: Honolulu, Hawai'i, gune 5, 2007.
FOR THE COURT;
* considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, ov.
aang
|
170efa3a-3bd8-454e-a794-323a0e4e8b69 | Livingstone v. Jones | hawaii | Hawaii Supreme Court | No. 28132
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
LAW LIBRARY
JOHN D. LIVINGSTONE, Respondent-Petitioner-Appellee,
-neopondent-nopei,
SHANNON N. JONES, Petitiones
OS
APPEAL PROM THE FAMILY COURT OF THE SECOND ciKCOIT
(UCCJEA NO, 04-1-0003 and UIFS NO. 05-1-0033) 2
sper neers ware oF 2G
(By: Noon, C.J. for the court?)
Petitioner-respondent-appellant Shannon Jones"
application for writ of certiorari filed on March 30, 2007 is
hereby rejected.
DATED: Honolulu, Hawai'i, April 26, 2007.
FOR THE CouRT: & FR
%
Wi Justice \a J
Vor ws
‘considered by: Moon, C.J., Levinson, Nakayana, Acoba
SEAL
and Duffy, Jy.
|
fb10a038-7f5b-48ad-ab51-6a44b98516d3 | State v. Zorzi | hawaii | Hawaii Supreme Court |
wo. 27323
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
a
STATE OF HAWAI'I, Respondent/Plaintiff-Appellee
vs.
VILAYPHAN ZORZI, Petitioner/Defendant-Appellant
a
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(FC-CR. NO. 05-1-1013)
MIs: 2 NOR WRIT 108
(By: Acoba, J., for the court’)
he Application for Writ of Certiorari filed on
une 19, 2007 by Petitioner/Defendant~Appellant Vilayphan 2orzi
is hereby dismissed as untimely.
DATE!
Honolulu, Hawai'i, June 21, 2007.
FOR THE COURT:
‘SIMEON R. ACOBA, JR.
Associate Justice
Considered by Moon, C.J. jayana, Acoba, and Duffy, 39.
aw
|
2abd4065-b060-49f4-b0d1-1b97d13f3ce8 | Ruley v. State | hawaii | Hawaii Supreme Court | No. 27668
7
IN THE SUPREME COURT OF THE STATE OF HAWAI‘T , Bi
age
Yay (002
JERRY RULEY, Petitioner-Appellant,
Sant 37 Pi
coi
82H
oat
STATE OF HAWAI'I, Respondent -Appellee.
Se
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(S.P.P. NO. 05-1-0064)
(cR. NO. 0-1-0548)
JON FOR WRIT OF CERT
ER REJECTING APPLY
(By: Moon, C.J., for the court)
Petitioner-appellant Jerry Ruley’s application for writ
Of certiorari, filed March 22, 2007, is hereby rejected.
april 27, 2007.
FOR THE COURT:
DATED: Honolulu, Hawai'i,
Keith 8. Shigetoms,
for petitioner-appellant,
on the application
son, Nakayars, Acobs, and Duffy, 37
: Coe, tes
Considered by: moon,
|
d335551d-c1d3-4bc6-a9fb-679f629f6d3a | State v. Schmidt | hawaii | Hawaii Supreme Court | No. 26486
ea Lom
STATE OF HAWAI'I, Respondent-Appellee,
Me Hg sg;
na
vs.
THOMAS SCHMIDT, Petitioner-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(BC=CR NO. 03-1-266K)
APPLICATION
(By: Nakayama, J., for the court")
Petitioner-Appellant’s application for writ of
certiorari filed on March 12, 2007, is hereby rejected.
+ April 25, 2007.
DATED: Honolulu, Hawai’
FOR THE COURT:
Ruut On ewieqare
Associate Justice
R. Steven Geshell for
petitioner-appellant
on the application
Moon, C.J-, Levinson, Nakayana, Acobs, and Duffy, JJ.
considered by:
|
1fb1a265-bb57-4714-b2ca-77af4d2bcf0b | State v. Rippe | hawaii | Hawaii Supreme Court | no. 28225 2
‘TIMOTHY L, RIPPE, Respondent-Defendant-Appellee
CERTIORARI TO THE INTERNEDIATE COURT OF APPEALS
(CR. NO. 06-1-0223)
ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI,
VACATING ORDER DISUISSING AFFEAL ND
(RRM SEE inschs Nakayama, Acoba, and Daffy. 20.)
Petitioner-appellant State of Hawai'i applies for a
writ of certiorari to review the Intermediate Court of Appeals
January 19, 2007 order dismissing the State's appeal for lack of
appellate jurisdiction. the Intermediate Court of Appeals
concluded that the circuit court abused its discretion in
granting the State's motion for an extension of time to appeal
the circuit court's August 24, 2006 order suppressing evidence
‘he extension was sought and granted to permit the circuit court
to hear the State's motion for reconsideration of the suppression
order, but the Intermediate Court of Appeals concluded that the
motion for reconsideration was not authorized by the Hawai'i
Rules of Penal Procedure and therefore the filing of such motion
id not constitute good cause for extending the time to appeal
pursuant to HRAP 4(b) (5) and the Stat
S appeal of the
suppression order was untimely,
‘The circuit court had inherent power to reconsider its
suppression order (see HRS § 603-21.9(6) (1993); Kawamata Farms v.
United Aari Products, 86 Hawai'i 214, 242, 948 P.2a 1055, 1083
(1997)) and such power has been recognized by the Hawai'i
appellate courts (see e.g. State v. Brandimart, 68 Haw. 495, 497,
720 P.24 1009, 1110 (1986); State v, Bohannon, 102 Hawai'i 228,
233-35, 74 P.3d 980, 985-87 (2003); State v. Ortiz, 4 Haw. App.
143, 148-49, 662 P.2a 517, 523-24 (1983), aff'd 67 Haw. 181, 683
P.2d 22 (1964); State v, Matsunaga, 62 Hawai'i 162, 165-66, 920
P.2d 376, 379-80 (App. 1996), cert. denied, 82 Hawai'i 360, 922
P.24 973 (1996). Reconsideration of the suppression order was
sought by the State for the legitimate reason that suppression
was granted on the point of law raised one day before the
suppression hearing for which the State had no opportunity to
respond. ‘The circuit court's inability to hear the motion for
reconsideration before expiration of the time for appealing the
suppression order constituted good cause for extending the tine
for appeal pursuant to HRAP 4(b)(5). Extending the time for
appeal was not an abuse of discretion and the State's appeal of
the suppression order was timely. Therefore,
37 IS HEREBY ORDERED that the application for a writ of
certiorari is accepted.
37 IS FURTHER ORDERED that: (1) the Janvary 19, 2007
order of the Intermediate Court of Appeals dismissing No. 28225
for lack of appellate jurisdiction is vacated and (2) No. 28225
ie remanded to the Intermediate Court of Appeals for disposition
on the merits.
DATED: Honolulu, Hawai‘i, April 26, 2007.
fp =
Dera Cree ne
| *
er
|
bb03c79b-800f-413d-bae5-cd99f431b128 | State v. Dennehy | hawaii | Hawaii Supreme Court | 1#* NOT_FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER ***
No. 26902
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
APPEAL FROM THE FIRST CIRCUIT COURT
(CR. NO. 04=1-1807)
SUMMARY DISPOSITION ORDER
(By: Moon, C.J, Levinson, Nakayama, Acoba, and Duffy, JJ.)
STATE OF HAWAI'T, Plaintif£-Appellee, 2
vs. Sr 3 2
JASON DENNEHY, Defendant-Appellant. gee SE
3S c
s
8
Defendant-Appellant, Jason Dennehy ("Jason"), appeals
from the first circuit court's! Septenber 24, 2004 judgment
convicting him of the offense of Abuse of Family and Household
Members, in violation of Hawai'i Revised Statutes (“HRS”) § 709-
906,? and sentencing him to one hundred eighty days of
incarceration, two years of probation, and fees totaling $200.00
+ the Honorable Patrick W. Border presided.
in relevant part, a8 follows
+ ARS § 709-906 (Supp. 2004) provid
709-906 Abuse of fanily or household mesbere; penalty.
(1) Te shall be unlawful for any person, singly or in concert, to
physically abuse # family or household nenber or to refuse
Compliance with the lawful order of @ police officer under
Subsection (4). The police, in investigating any complaint of
abvse of family or household member, upon request, may transport
the sbused person to a hospital or safe shelter.
For the purposes of this section, “fanily or household
menber" means spouses of reciprocal beneficiaries, former spouses
Of reciprocal beneficiaries, persons who have a child in common,
parents, children, persons relsted by consanguinity, and persons
Jeintly residing or formerly residing in the sane duelling unit.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
for abusing? his wife, Shannon Elaine Dennehy ("Shannon"). On
appeal, Jason presents the following points of error: (1) there
is insufficient evidence to support his conviction of the offense
of Abuse of Family and Household Members; (2) the circuit court
erred by sentencing him without the benefit of a presentence
investigation and report; and (3) the circuit court erred by
precluding him from using a firearm in his military training,
including target practice.
Upon carefully reviewing the record and the briefs
submitted by the parties and having given due consideration to
a
the arguments advanced and the issues raised, we hold tha
the record contains sufficient evidencet to support Jason's
2 “(as ordinarily used(,] abused means to maltreat and connotes
such treatment as Will injure, hurt or damage a person.” Seate ¥, Nomira, 79
Hawai'i (13,416, 903 P.2a 718, 721 (app. 1995) (citations omitted) (sone
Brackets added and sone in original)
+ wren reviewing the sufficiency of the evidence, this court hi
previously set forth the following standazd of review!
We have long held that evidence adduced in the trial court
must be considered in the strongest light for the prosecution when
the appellate court passes on the Legal sufficiency of such
evidence to support ® convsetion; the same standard applies
ether the case was before a Judge or a Jury.” The test on appeal,
is not whether guilt is established beyond a reasonable doubt, but
whether there vas substantial evidence to support. the conclusion
Of the trier of fact. "substantial evidence” as to every material
Glenent of the offense charged 1s credible evidence which is of
sufficiency quality and probative velue to enable s person of
Feasonable caution to support # conclusion.
State v, Vilielme, 105 Hawai'i 197, 202-03, 95 P.3d 952, 957-58 (2004) (block
Guote formatting renoved) (internal citations omitted) (some internal
Quotation marks omitted) (Brackets omitted)
2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER,
conviction; (2) the circuit court did not abuse its discretion
by refusing to consider a presentence investigation and report
prior to sentencing Jason;* and (3) Jason failed to preserve an
5 Viewed in the Light most favorable to the pri the
evidence adduced st trial demonstrates that! (1) Shannon and Jason got into
fan argonent during the early morning hours of July 5, 2004; (2) Jason got
Gpset when Shannon told him, "i'm really tired, Let's just go to bed. It's
Feally late, and let's just go to sleep()"; and (3) Jason punched Shannon in
the Back of the head, pushed her down the stairs, and choked her and held her
own untél Jason's friend, William Milligan, intervenes,
* of particular relevance is HRS § 706-601 (1993 6 Supp. 2004),
waich provides as follows:
8706-601 pre-sentence diagnosis and report. (1) Except as
provided in subsections (3) and (4), the court shall order «pre:
Eentence correct ional diagnosis of the defendant and accord due
Consideration to a written report of the diagnosis before imposing
Sentence where:
a)” The defendant has been convicted of a felony; or
{b) The defendant {a less than twenty-two years of age and
has been convicted of 2 crime
(2) The court gay order a pre-sentence diagnosis in any
other case.
(3), wich the consent of the court, the requirement of «
pre-sentence diagnosis may be waived by agreonent of both the
Sefendant and the prosecuting attorney.
(i) The court on its om motion may waive a pre:
correctional diagnosis where:
(ah A’ptlor pre“seatence diagnosis, was, conpleted within
Ont year preceding the senvencing in the instant case?
(o) The Sefentant ie Being sentenced for murder or
Attempted aurder in any degrees oF
(c) The sentence was agreed to by the parties and approved
by the court under rule 11 of the Hawai! rules of
penal procedure.
[Emphasis added.) Insofar as the present matter does not involve 2 felony
conviction of 8 defendant who is less than twenty-two years of age, the plain
Tenguage of HRS § 706-601 (2) places it within the circuit court's discretion
ko order presentence investigation and report.
‘Although Jason asserts that a presentence investigation and report
would have afforded the court some information regarding vston’s "law-abiaing
past, hie character and attitude, . . . need, availability and viability of
Progtenning, counseling ond the hardship to (he) and his family with respect
ko the effects on his allitary cereer and incepacitation while imprisoned(,]"
the record ingéeates that the court was already aware that (1) Jasea hed no
prior criminal history, (2) Jason was in the military, and (3) Jason was
harried with at least one child, the court made clear that whatever
Saditionel information s presentence investigation and report would have
Uncovered would not have Outweighed or mitigated the punishment it felt was
pecessary light of the seriousness of the offense = J.e., the fact that’
3
(OT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ¢**
adequate record on appeal and thereby waived’ his argument that
the circuit court erred by precluding the use of weapons in his
military training based upon 18 U.S.C. § 922(g)(9).* Therefore,
Shannon's 1ife was placed in great peril. Accordingly, Jason has failed to
Genonstrate that the circuit court sbused its discretion by refusing te
consider a presentence investigation and report.
7 aasonts point of error is problematic insofar as he relies on the
circuit court's minutes to establish that the circuit court's November 5, 2004
“Order Pertaining to Bail” was founded upon 18 U-5.C. § 822 (9) (9)- According
ro Havai't Rules ef Appellate Procedure Rule 10(a) (2005), the record on
appeal consists of the followin:
(2) the original papers fled in the court or agency
appealed from:
(2) ‘eeitten jury instructions given, or requested and
Fefused or modified over objection
(3) Genibste admitted into evidence or refused:
(G) the transcripts prepared for the record cn appeals
(5) inva criminal case where the sentence is being
appealed, a sealed copy of the pres
Snvestigation report; ang
(6) the indexes prepared by the clerk of the court
appealed fron:
Circuit court minutes are not considered @ part of the record on appeal, and
they may not be cited.” See Doe v. Grosvenor Center Assocs., 104 Hawai'i 500,
505 n.3, 92 F.3d 1010, 1015 n.3 (App. 2006) (noting “that documents, such as
clerk minstes and letters to snd from the court, that are in, attsched to, oF
apprehended to the lower court record but which have not been *filed” in the
IGner court record as evidenced by the court clerk's file stamp, ave not part
of the record on appeal ()") (citing Hebb v. Harvey, 103 Hawai 63, 66, 79
F.3d 681, 684 (App. 2003)). ‘Hence, Jason has failed to crystallize nis
argument’ by preserving an adequate record on appeal. absent the clerk
Binutes, the record nerely indicates that the circuit court changed its mind
and precluded Jason from possessing or controlling dangerous weapons,
Effectively preventing him from participation in military eraining drills
“nich regelre the use of such wespons. Jason offers no argunents cutside the
Scope of 18 U.5.C. § 922(9)(3) as to why such s bail condition is improper.
Accordingly, the point of ezror is not properly presented and may be deemed
waives.
+ 28 u.s.c. § $22(g)(9) states as follows:
(g) Tt shall be unlawful for any person...
(9) who has been convicted in any court of @
miscencancr crime of conestic wiolence, to ship oF
Eransport in interstate or foreign commerce, oF
jess in or affecting commerce, any firesrm or
4
‘+* NOT _FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER *
IT IS HEREBY ORDERED that the judgment from which the
appeal is taken is affirmed.
DATED:
Honolulu, Hawai'i, April 18, 2007.
on the briefs:
Stuart N. Fujioka of
Nishioka & Fujioka
for defendant appellant
Jason Dennehy 7
sonja f. eculien,
Deputy Prosecuting Attorney, iste CONC rre~
for plaintiff-appellee
Stave of Hawal's OD
ammunition; or to receive any firearm or ammunition
Which has been shipped of transported in interstate or
foreign
|
c39976f0-db23-40d8-846a-8a00db50e4ae | Hawaii Home Infusion Associates v. Befitel, Director, Department of Labor and Industrial Relations, State of Hawaii. Concurring Opinion by J. Acoba [pdf]. S.Ct. Order Denying Motion for Retention of Oral Argument, filed 04/16/2007 [pdf]. | hawaii | Hawaii Supreme Court | YOR PUBLICATION IN WEST'S WAWAI'T REPORTS AND PACIFIC REPORTER ***
IN THE SUPREME COURT OF THE STATE OF HAWAT‘T
-— 000 ---
HAWAII HOME INFUSION ASSOCIATES, Plaintiff-Appellant,
DIRECTOR, DEPARTMENT OF LABOR AND
NELSON B. BEFITEL,
INDUSTRIAL RELATIONS, STATE OF HAWAI'I;
INC.; ADJUSTING SERVICES OF HAWAII, INC.
KUHIO MOTORS,
‘and MAJESTIC INSURANCE COMPANY, Defendants-APpelppes,
gz
and =
z -
EDWARD SHEPHERD, Defendant. a =
= b
No. 27256 fe ©
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CrapurT —
(Civ. No. 04-1-0616-04) s
APRIL 16, 2007
MOON, C.J., LEVINSON, NAKAYAMA, AND DUFFY,
AND RCOBA, J., CONCURRING SEPARATELY
OPINION OF THE COURT BY LEVINSON, J.
‘The plaintiff-appellant Hawaii Home Infusion Associates
33.5
(HHIA) appeals from the first circuit court’s March 28, 2005
judgnent, the Honorable Karen S. S. Ahn presiding,’ awarding
summary judgment in favor of the defendants-appellees Nelson B.
director of the State of Hawaii's Department of Labor
“the director"),
Befitel,
and Industrial Relations (DLIR) [hereinafter,
Kuhio Motors, Inc. (KM), Adjusting Services of Hawaii, Inc.
(hereinafter,
(ASH), and Majestic Insurance Company (MIC)
Pollack presided through August 1, 2004,
the Honorable Richerd #
Ancluaing over the disposition of the notion to dismiss discussed antr.
‘04 FOR PUBLICATION IN WES:
TUWATT REPORTS AND PACIFIC REPORTER +
collectively, “the Appellees”] and against HHIA and dismissing
“[a}11 other claims and all other parties.”
On appeal, HHIA challenges the circuit court’s judgment
insofar as it effectively barred its appeal from the director's
decision to the Labor and Industrial Relations Appeals Board.
For the reasons discussed infra in section 111.B, we
hold that the first circuit court lacked subject matter
jurisdiction over HHIA’s declaratory action and, accordingly,
vacate the judgnent below and remand with instructions to dismiss
HHIA‘s complaint.
1. BACKGROUND
On April 2, 2004, HNIA filed a “petition”? for
declaratory relief in the first circuit court, inter alia,
challenging, on “substantive due process” and separation-of-
powers grounds, the provision of Hawai'i Administrative Rules
(HAR) § 12-15-94(d) (2001) that bars appeals from certain billing
dispute resolution decisions.’ As bases for the first circuit
We will treat the petition as @ complaint because civil actions
are to be conmences by s complsint.” Inte Smith, 68 aw. ¢66, 468, 719 P.2d
4355, "399 (a9ee) (eiting Hawai's Rule of Civil Procedure 3) But gag Mawas'l
Revises statutes § 91-7(a) (1983). (referring to the party bringing the
declaratory actich ae “petitioner”).
> iam § 12-15-94(¢) provides in relevant part:
In the event a reascnsble disagreement relating to specific
charges cannct be resolved, the . + Provider of service may
Fequest intervention by the director’.".- The director shall
Send the porties a notice and the parties shall negotiate during
the thirty-one celengar caye following the date of the
notice... . If the parties fail te cone to an agreement during
he thizty-cne colendar caye, then fourteen calendar daye
Eoliowing the thirty-one sey negotiating periea, either party may
Tfe'ehe director to review the dispute .
Send the parties # second notice requesting the
parties file position statements The sirecter shail
Feview the positions of : administrative
(continued...)
‘144 FOR PUBLICATION IN MEST’ HAWAI'I REPORTS AND PACIFIC REPORTER
court’s jurisdiction, HHIA invoked Hawai'i Revised Statutes (HRS)
§§ 91-7 (1993)* and 632-1 (1993) (concerning, inter alia, circuit
courts’ jurisdiction over declaratory actions). According to its
complaint, HRIA’s “principal offices” are located in Lihv'e, in
Kaua'i County, which is coextensive with the fifth judicial
circuit, see HRS § 603-1(4) (Supp. 1994). HIA “renders medical
care, medical services, and medical supplies . . . to home-bound
patients on the island of Kaua(‘]i” and, in particular, prepared
and monitored the delivery of a “specially formulated” medicinal
compound to a worker’s compensation claimant, the defendant
Edward Shepherd. A billing dispute among HHIA, ASH, and MIC
ensued, and the director “ordered the parties” into the billing
dispute process described in HAR § 12-15-94(d). BIA asserted
that the director’s resulting decision was adverse to it and that
HAR § 12-15-94(d) unconstitutionally deprived it of the right to
an appeal therefrom.
On June 21, 2004, the director moved to dismiss HHIA’s
complaint on the grounds that it “was filed in the wrong
2(.. .continued)
eclosion without hearing, ‘The decision of the director is
1a] and not sppealable.
«ass § dity of rules,”
provides in relev
7, entitled “Declaratory judgment on
part
ceclaration
(a) Any interested person may cbtein = Judicti
fection (b)
as to the valsaity of an soency Fule es proviged
font, or exceeds the
y of the agency, of was adopted without
Compliance with etaeutory ruleraking procedures.
(Emphases added.
FOR PUBLICATION IN WEST'S HAKA'T REPORTS AND PACIFIC REPORTER **¢
circuit.” (Quoting HRS § 91-7(a).) (Citing HRS § 603-37.5
(concerning “[c]ure or waiver of [venue] defects”); Hawai'i Rules
of Civil Procedure (HRCP) Rules 7 (concerning “form of notions”)
and 12.") See also KW’s, ASH's, and MIC’s Answer at 4 (*[HRIA)’s
claims are barred . . . because of . . . lack of jurisdiction.”).
HHIA responded that the director's motion amounted to a challenge
of venue rather than subject matter jurisdiction and was
therefore untimely inasmuch as the director did not object to
venue in his answer or in a pre-answer motion. (Quoting HRCP
Rule 12(b) and (h), see supra note S.) HHIA argued in the
alternative that, were the director to claim that his motion
asserted a challenge of jurisdiction rather than venue, he would
+ the tite of the director’s motion and the substance of his
accompanying memorandum seen to suggest transfer to the fifth circuit as an
aiternative renecy.
+ nce Rule 12, entitled “Defenses and objections -- when and how
presented -- by pleading or motion . ‘provides in relevane part:
(b) How presented. Every defense, in law or fact, to a claim for
relief in any pleading... shall be asserted in the responsive
leading thereto if one is fequlred, except that the following
Sefenses may at the opticn cf the plesder be made by motion? (1)
Sack of jurisdiction over the subject matter, (2) lack of
jurisdiction over the person, (3) improper venue .
aking any of these defensee shail be made before pil
further pleading is perni
0h) Waiver or preservation of certain defens
(2) Aefense of lack of jurisdiction over the persen{ or]
improper venue ie vatved .. . (8) if it is neither made
by notion under ‘this role nor included in a responesve
pleading or an amendment. thereof permitted by Role is(e) to be
mace ss a ratter of course.
| Wihenever it appears by suggestion of the parties or otherwise
that the court lacks jurieciction ef the subject matter, the
court shall dismiss the action
Inasmuch af the director cited HRCP Rule 12 generically, and based upon the
substance of his motion, his esserted grounds for dismissal could be improper
Venue, lack of jurisdiction over the subject matter, or Both. In ary case,
the inprecision of the director's notion cannot blind oe to juriedictionel,
Sefects, which we correct, sua sponte if necessory, ae infsa secticn 11.4.
4
44+ FOR PUBLICATION I WEST'S HAWAI'T REPORES AND PACIFIC REPORTER +++
be mistaken inasmuch as “venue is generally not a jurisdictional
factor in Hawai(‘]i.” (Citing Life of the Land v. Land Use
Comm'n, $8 Haw, 292, 294-95, 298, 568 P.2d 1189, 1191-94 (1977).)
Construing ite argument generously, HHIA seems to have asserted
that, rather than creating a territorial limitation on subject
matter jurisdiction, HRS § 91-7(a) augments HRS § 603-36(5)
(1993), granting the plaintiff the option to litigate in the
plaintiff's own donicile notwithstanding the general venue rule
to the contrary.”
* obviously, thie merely begs the question whether the director
moved for dlamissal on jurisdictional or venue grounde- In any case, sesuming
there was s defect of cubject matter jurisdiction, the circuit court was
empowered to netice it and dismiss the complaint aus sosnte. See, e.g.) RCP
Rule 12th) (3), supga note 5.
+ RS § 603-36, entitled “Actions and proceedings, where to be
brought," provides in relevant part:
Actions and proceedings of civil nature within the
Jurisdiction of the circuit courts
isi <<. other than those specified above shall be
Erdugntl)] o's if there is nore than one defendant, an
fhe eircoit in unich the claim for relief ercee unless a
majority of the defendants are doniciled in another circuit,
Subereupen the action may be brought in the cireuit where the
majority of the defendants are domiciled
+ WHIA's argument reads
Pisinly, the phrase “by bringing an action against the
agency! in the cireuit court of the county in wnien [the]
petitioner resides of hae ite principsl place of tusinese(*)
Soul have fo purpose if... agencies hielid the right to waive
Senue as ether defendant] do... [T]he general vense
provision(,] . « - (HRS $] 603-3615) | . . establishes the circuit
Mbere the Cleim'of reilef arose or where the gefendant is
Soniciles ae the proper cireuit for filing. Recoraingiy, (the
Gjirecter . . - woule hold the power to waive venue were ie hot
for tne venve provision in [HRS] §[ ]91~7(a)- The right te fle
in the county in whieh [the pletitioner is domiciled plainly
protects (che pletitioner’s convenience. - + +
the Legislature intendes ERS § 91-7 to renove
not create then. The defendant |] in a(n HRS) §{ 192-7
is always a governmental agency... - If the concept
is applicable to state agencies, certeinly they must
Teontinued. «1
‘+ FOR PUBLICATION I WEST'S HAMAL'T REPORES AND FACIETC REPORTER #++
The director's July 2, 2004 reply countered “that HRS
§ 91-7 pertains to jurisdiction and is not a matter of venue.”
He cited this court's observation, in Life of the Land, that
“(t)he circuit court . . . has jurisdiction to render declaratory
judgments under HRS §[} 91-7," 58 Haw. at 295, $68 P.2d at 1192
(emphasis added)." The director further implied that, inasmuch
as BRS § 91-7 is distinct from HRS ch. 603, pt. IV (1993) and
§ 608-7 (Supp. 2002), concerning venue in the circuit and
district courts, respectively, “it should not be assumed that
[HRS] § 91-7 contains @ ‘venue’ provision.” Finally, the
director seems to have argued that a geographic reference in the
statute under scrutiny “does not automatically” preclude its
construction as a limitation on jurisdiction. (Quoting Hawaiian
Tel. Co. vs Agsalud, 67 Haw. 39, 40, 675 F.2d 777, 778 (1984).)
On July 9, 2004, the circuit court conducted a hearing
on the dizector’s motion to dismiss, the transcript of which is
not in the record, cf. Hawai'i Rule of Appellate Procedure 10(a)
“the record on appeal shall consist of ...: ... (4) the
transcripts prepared for the record on appeal . (enphasis
"1. seontinved)
Spe donsciled . . . in the seat of government in (the City
yet} Honeiviui, hence, in the firet circuit, see HRS
1954)]! The purpose underlying -
Thue suet have been the elimination of @ barrier te
ctions challenging the validity of agency rules.
jer of the venue provision would create barriers
hoceing the nest conventent cizeust for fling
(Emphasis in original.) (Footnote omitted,
“he decided Life of the Land on unrelated grounds, to wit, that
SIA), ag the ciresie coure smplieitly founs, there [ve]ze indispensable
parties,” tne circuit court should have enceavored to join such partiee,
Possible, before dismissing the action outright. Seg 58 How. at 298, 568 F.2¢
elise
‘#4 FOR PUBLICATION ZN WEST'S HAWAI'T REPORTS AND FACIFIC REPORTER ¢¥¢
added). In its July 21, 2004 order, the circuit court denied the
Sirector’s motion. The circuit court proceeded to the merits
and, on January 3, 2005, granted the director's December 2, 2004
motion for sunmary judgment, and denied HHIA‘s October 1, 2004
motion for sunmary judgment. Accordingly, on March 28, 2005,
after disposing of HHIA’s motion for reconsideration, the circuit
court entered final judgnent in favor of the Appellees and
against HHIA and dismissed all other claims and parties. on
April 26, 2005, HHIA filed its notice of appeal.
II. STANDARDS OF REVIEW
AL Subject Matter durisdict
Inasmuch as we are guided by the principle that, “[i)¢
a court lacks jurizsiction over the subject apttor af’ a
Proceeding, any judgment rendered in thet procesding 1
¢ [and thet,) therefore, such a question 2 walle at
y stage of the case, . . «(we ss are) obliged to firet
[elnsure that (the carcult court) ‘hald subject steer)
Jurisdiction. [*]
Tamashiro v, Dep't of Human Servs., 112 Hawai" 368, 398-99, 146
P.3d 103, 113-14 (2006) (some brackets in original and some
added) (quoting Bush v. Hawaiian Homes Comm'n, 76 Hawai'i 128,
133, 670 P.24 1272, 1277 (1994).
B. Statutory Interpretation
Ic]The interpretation of a stetute is a question of
1a reviewable ge nov. (")" State ve grees. S4uawsil 3
30, 928 P.26 843, 852 (1596){ Linternal guctetion signels
omittea) |
Furthermore, car statutory construction is guided by
established’ rules:
hen construing # statute, our forenost
obligation is te ascertain snd give effect to
the ure, which Sa to be
obtained primarily from the language contained
in the statute itself. And we must read
statutory Language in’ the com
statute ena construe it ins
with ite purpose.
nner consistent
“tee pom PUBLICATION IN WEST'S IOWAS'T REPORTS AND PACIFIC REPORTER ***
men there is doubt, doubleness of
mesaing, or indistinetiveness or uncertainty of
wettxpseseion used in # statute, en ambiguity
ah Godetruing an ambiguous stetute, “[e]he
neoning of the enbsguous words nay be sought by
BeskiNiag the context, with which the ambiguous
Berber Dicoses, and sentences may be compared,
eee Ee Secertain thei true meaning.” HAS
SUSIE) Tclgss |. Moreover, the courts mey
Serort to extrinaie alge in determining
LeGilative intent. One avenve is the use of
TegLslative history ae an interpretive tool.
sat rf J, €4 Hawai's (138+)
EL Seas ieeo,} $50 (in9971) (quoting Skate ee
G0 wawes's &, 1€-19, 90¢ P.zé 693, 503-08
THEE crackete and eiipeis points in original)
[Eecthote omittes). this court may also consider
ESR Heaton end gpirit of the law, and the cause
CATR SSE05 fhe Tegisleture to enact ix... to
SEE GP UES eros meaning.” HRS $1-2812) 972. =
Sisto in gard materia, oF upon the sane subject
IICtEAEREH Ee Sonetrve wath reference to each
‘Siker.' whet se clear in one statote may be called
SEES Jn Mig'eo explain what is doubtful in another.”
RE § 2-16 (3993).
| 107 Hawei'i 215, 220, 112 F.3d 68, 74 (2005)
Fae EEL aaded and sone in criginel) (one ellipsis
LUSCH ES Ctne in cricinal)) (quoting state v. Kaua, 102
Wa 473,, 679-480 (20031) nt
Sof unjust result, see State v. Haugen, 106 Hawad's
{84 toe), this court is bound to give
Uiiest' te the plain meaning of Unenbiguovs stavutery
SESSSoeS se may cay sesort to the use of legislative
Navery when interpreting en ambiguous statu
Peseta "Se Rowell ses, 472, 24 Fe3d 662, 668 (2001)
Courbat v. Dahane Ranch, Inc,, 111 Hawai'l 254, 260-61, 141 P.3d
427, 433-34 (2006) (emphasis omitted) (some brackets and ellipses
added and some in original).
A, Introduction
tive issue before us is whether HRS
The dispo:
$ 91-7(a), se@ supra note 3 -- under which HHIA “may” challenge
an administrative rule through a declaratory action “in the
circuit court of the county in which [HHIA) . . - has its
‘t+ FOR PUBLICAPION IN WEST'S HAWAI'I REFORTS AND PACIFIC REPORTER +++
principal place of business,” i.e., the fifth circuit
court (hereinafter, “the county rule] -~ (1) endows the fifth
circuit court and only the fifth circuit court with subject
matter jurisdiction over HHIA's action, or (2) merely expands the
general venue rule set forth in HRS § 602-36(5), see supra
note 7. If the latter is true, the director's motion was
untimely ané, accordingly, any venue defect was waived. If, on
the other hand, the county rule is a restriction on subject
matter jurisdiction, we must notice the first circuit court’s
lack of subject matter jurisdiction aua sponte and vacate its
decision.
The uncertainty of the meaning of the county rule
springs from (1) its use of the word “may” rather than “shall”
and (2) its silence with respect to whether the petitioner's
domicile controls venue or jurisdiction. HRIA might argue that
HRS § 632-1 confers jurisdiction that is not conditioned upon any
geographic factor: “In cases of actual controversy, courts of
record, within the scope of their respective jurisdictions, shall
have power to make binding adjudications of right... . Relief
by declaratory judgnent may be granted in civil cases...”
However, the phrase “within the scope of [the courts’] respective
jurisdictions” simply begs the question of whether, in the case
of HRS § S7-I(a), @ given cixcuit court’s jurisdiction is
contingent upon the plaintiff's domicile in the corresponding
county.
Illustrative authority from Hawai'i sources is succinct
at best, but, in light of (1) the redundancy of the county rule
Af interpreted as a venue provision, (2) our interpretation of @
+ FOR PUBLICATION IN MEST’S HAWAI'I REPORTS AND PACIFIC REPORTER +++
similar statute in Hawaiian Tel. Co., and (3) the fact that the
county rule accounts for only the convenience of the plaintiff,
contrary to the usual purpose of a venue statute, we hold that,
for purposes of declaratory actions brought pursuant to HRS
§ 91-7(a), the circuit court of the plaintiff’s domicile is the
only circuit court that may exercise jurisdiction over the
subject matter.
B. Analveie
Admittedly, the legislature could have drafted the
county rule using the word “shall” rather than “nay,” so as to
make its mandatory jurisdictional effect clearer. Nevertheless,
we believe that “may,” in the context of the county rule, implies
that bringing a declaratory action in the plaintiff’s home forum
is an alternative to (1) seeking injunctive or monetary relief or
foregoing litigation altogether, not (2) seeking declaratory
judgment, but in another venue.
When it drafted the county rule, the House Judiciary
Committee took as its point of departure the Model State
Administrative Procedure Act of 1961, § 7 (superseded 1981), 15
U.L.A. 262 (2000 & Supp. 2006), which provided that “(t]he
validity or applicability of a rule may be determined in an
action for declaratory judgment in the [District Court of . . .
County]" (emphasis added) (some brackets added and some in
eriginal) (ellipsis in original), 15 U.L.A. 262. See Hse. Stand.
Comm. Rep. No. 8, in 1962 House Journal, at 654-55, 6587 Hse.
Stand. Comm. Rep. No. 83, in 1959 House Journal, Ist Spec. Sess.,
-26, 229. The committee report, which is itself ambiguous
ith respect to the significance of “may” and whether the
10
e+ POR PUBLICATION IN WEST'S HAWAI'T REFORTS AND PACIFIC REPORTER ***
designated county is an optional venue or a mandatory situs of
jurisdiction, reads in relevant part
[Slection 7{) of the . . . Model [APA] has been amended to
provide that an interested perecn may obtain a declaratory
Socgnent where the rule is invalid en the grounds [now set
forth in Wks § $1°7(b)]._ Ae to where a proceeding can be
inetituced, an interested person may bring an action where
he resides, or in the cese of 2 corporation where its
principal place of business is located
See Hse. Stand. Comm. Rep. No. 8, in 1961 House Journal, at
654-55, 658. We do not believe that the legislature, which
retained the word “may” ae used in the Model APA, intended to
bestow an extra benefit upon HRS § 91-7 plaintiffs that they
“may” ignore if they prefer to sue outside of their own
doniciles.
Nevertheless, whether the county rule is “mandatory” or
not, in and of itself, does not settle the question whether the
plaintiff’s failure to file in the prescribed county is a fatal
jurisdictional defect or a venue defect capable of being waived.
We agree with the director's implicit position thet
subject matter jurisdiction, not just venue, may be partitioned
along county lines. In Hawaiian Tel. Co., we construed similar
[plaintiff] may file X in the county in which ¥" syntax as
mandatory and jurisdictional. In that case, we considered the
first sentence of HRS § 363-38 (Supp. 1977), which provided that
an unemployment benefits claimant “gay file an appeal from [a]
determination or redetermination at the office of the department
of labor and industrial relations in the county in which the
claimant resides or in the county in which the claimant vas last
employed” (emphases added), and expressly held that filing a
notice of appeal in the wrong circuit wes @ defect of
jurisdiction and not venue. See 67 Haw. at 40, 678 P.2d at 778.
n
‘+44 FOR PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REPORTER ++
Accordingly, we upheld the circuit court’s dismissal of the
appellant's appeals from decisions of the Department of Labor and
Industrial Relations. 1
We likewise agree with HRIA that HRS § 603-36(5)
delineates permissible venues and is not a geographic limitation
on jurisdiction, which befits its codification in HRS ch. 603,
pt. IV, concerning “venue” in the “circuit courte.” Kaus va
County of Kauai, 47 Haw. 271, 386 P.2d 860 (1963), illustrates
the distinction between HRS §§ 91-7(a), see supra note 3, and
603-36(5), see supra note 7. Kaui concerned 1957 Haw. Sess. L.
Act 194, 47 Haw. at 272, 386 P.2d at 882, which was @ forerunner
of HRS § 603-36(5). We construed Act 194 as a venue statute
and, accordingly, remanded for determination of the factual
question of whether the defendant county had waived its venue
objection. See id. at 274, 276, 386 P.2d at 662-83. We opined
that Act 194 “could not have been intended to go to jurisdiction
over the subject matter as it permits an action to be brought
where the defendant is domiciled without regard to the place
where the cause of action arose.” Id. at 276, 386 P.2d at 883
that
(emphasis added). The inverse is true of HRS § 91-7(a)
the eppropriate forum for litigation under HRS § 91-7(a) is
predicated solely upon the plaintiff's residence and without
* Act 194 provided én subst
ALL civil ection other than those specified (earlier in
Revised Laws of Hawai § 218-21) shail be brought in the circust
where the couse of ection arose or where the eft
Gonicileds provides, however, if there be more than one defendant,
then suen acticn shall be Brought in the cizesit in which the
cause of action arcee unlese @ majority of uch cefendante are
Goniciled in sncther circuit, whereupon such action ney be brought
En the circuit where such mejoriey of defencante are comiciles
ive part
1957 Baw. Sees. L. at 226 (emphasis omitted)
w
‘s+ YOR PUBLICATION IN MESI’S HAWAL'T REPORTS AND PACIFIC REPORTER
regard to either the agency’s convenience or the nature or
location of the parties’ interaction strongly suggests that the
county rule is one of jurisdiction and not venue, Cf. id. at
276, 386 P.2d at 884 (“Considering the sweeping nature of [Act
194,] no policy other than protection of defendants from
harassment can be discerned. . . . {ilJhat is for the protection
of a defendant may be waived by him.”), followed by Alamida vs
Wilson, $3 Haw. 398, 400-01, 495 P.2d 585, S88 (1972).
IV. CONCLUSION
In Light of the foregoing analysis, we hold that =
plaintiff seeking “a judicial declaration as to the validity of
an agency rule,” pursuant to HRS § 91-7, must “reside[] or halve]
its principal place of business” in the county in which the
adjudicating circuit court sits; initiating an HRS § 91-7 action
in the wrong cireuit is a defect of jurisdiction mandating
dismissal. Accordingly, we vacate the first circuit court's
judgment and remand with instructions to dismiss HHIA's
declaratory action.
On the briefs: Gorm —
Frank Yop, drs, and
Arleen b. Joutson and :
Rafael G. Del castillo Lem Pheer
of Jouxson-Meyers & Del *
fastiiic, for the Gane
plaintiff-appellant Ceveces Co (are.
Rawail Hone infusion Associates
Staci 1. Teruya and Frances Boome Paes
E. i, Lum, Deputy Attorneys
General, for the defendant
appellee Nelson 8. Befitel,
Director of the Department
of Labor end Industrial
Relations, State of Hawas's
FOR PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REPORTER +1
Sidney J.¥. Wong and
Darlene ¥. F. Itomura, of
Wiong & Oshima, for the
defendants-appellees
Kuhio Motors, Inc.,
Adjusting Services of Hawaii, Inc.,
and Majestic Insurance Company
1“
|
cb938410-f40e-416e-9bad-0f26716f22c8 | Grandinetti v. Oshiro | hawaii | Hawaii Supreme Court | No. 28407
12 aw Looe
IN THE SUPREME COURT OF THE STATE OF HAWAL'T
FRANCIS ANTHONY GRANDINETTI, IT, Petitioners
82:2 Hy
STANTON C. OSHIRO and CIRCUIT COURT OF THE THIRD CIRCUIT,
Respondents.
ORIGINAL PROCEEDING
(CR. NO. 93-141)
RDF
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 33.)
Upon consideration of petitioner Francis Grandinetti,
II's “application for an appellate injunction and supervisory
da petition for a writ of
mandamus remedy,” which is de
mandamus and the papers in support,
fails to demonstrate a clear and indisputable right to the relief
requested and petitioner is not entitled to a writ of mandamus.
See Kema v. Gaddis, 91 Hawai'i 200, 204-205, 982 P.2d 334, 338-
329 (1999) (A writ of mandamus is an extraordinary remedy that
will not issue unless the petitioner demonstrates a clear and
indisputable right to relief and a lack of alternative means to
redress adequately the alleged wrong or obtain the requested
it appears that petitioner
action.). Therefore,
IT IS HEREBY ORDERED that the petition for a writ of
mandamus is denied.
DATED: Honolulu, Hawai'i, March 21, 2007.
Francis Grandinetti, It,
prose, on the petition
MiaGhdornse
Piascien Canon Tt
(CP
Goren 6g +
ase
|
9fa39ad1-7e8e-4a2d-9cd0-8ebe13be50f9 | State v. Domingo | hawaii | Hawaii Supreme Court |
No. 27295
IN THE SUPREME COURT OF THE STATE OF HAWAT'L
OMns
CERTIORARI TO THE INTERMEDIATE COURT OF APP! &
(Crim. No, 03-1-0331) &
ORDE! 2:
(By: Levinson, J., for the court’)
Upon consideration of the defendant-appellant-
petitioner Craig Allen Domingo's March &, 2007 application for a
weit of certiorari, the application is hereby rejected.
DATED: Honolulu, Hawai'i, April 9, 2007.
FOR THE COURT:
STEVEN H. LEVINSOR
Associate Justige™
Keith 8, shigetomi, for the
defendant-appellant-petitioner
Craig Allen Domingo,
on the application
Aceba, and Duffy, 33
Jered by: Moen,
|
badc42a5-1279-4861-8c2a-7a621efb58db | Ranches v. City and County of Honolulu | hawaii | Hawaii Supreme Court | No. 27846
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
JERRY RANCHES AND RIZALINA RANCHES,
Petitioners/Plaintiffs-Aappellants
vs.
CITY AND COUNTY OF HONOLULU,
Respondent /Defendant-Appellee
m
and
o
DOE_CORPORATIONS.
DOE PARTNERSHIPS 1-10; DOE NON-PROFIT ENTITIES 3-107 =
JOHN DOES 1-10; JANE DOES 1-11
‘and DOE GOVERNMENTAL ENTITIES 1-10, Defendants
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. NO. 04-1-1274)
FOR WR:
RE CEPTING
Acoba, J., for the court)
(By?
The application for writ of certiorari filed by
Petitioners/Plaintiffs-Appellants Jerry Ranches and Rizalina
Ranches on May 16, 2007, is accepted and will be scheduled for
oral argument. The parties will be notified by the appellate
clerk regarding scheduling.
DATED: Honolulu, Hawai'i, June 22, 2007.
FOR THE COURT:
SIMEON R. ACOBA, JR.
Associate Justice
+ Considered by Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 37.
Ian L. Mattoch and
Mark F. Gallagher (Law
Offices of Ian L. Mattoch),
on the application, for
petitioners/plaintiffs-
appellants.
Marie Manuele Gavigan,
Deputy Corporation
Counsel, City and County
of Honolulu, on the
for respondent/
No. 27846 - Ranches v, City
Order Accepting Application for Writ of Certiorari - page 2
|
05247003-19f0-4ef1-9a29-d30f554b722f | State v. Williams | hawaii | Hawaii Supreme Court | No. 27286
el
IN THE SUPREME COURT OF THE STATE OF HAWAHE|
STATE OF HAWAI'I, Respondent /Plaintif£-Appel
10:2 Hd O} Yai L002
THOMAS WILLIAMS, Petitioner/Defendant-Appellant
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CASE NOS. 00424005M and TB35: 04/08/05)
ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI
(By: Duffy, J., for the court’)
Petitioner/Defendant-Appellant Thomas Willians’
application for @ writ of certiorar!, filed on March 15, 2007,
hereby accepted and will be scheduled for oral argument. The
parties will be notified by the appellate clerk regarding
scheduling.
DATED: Honolulu, Hawas's, April 10, 2007.
FOR THE COURT:
Gare racer th
Associate Justice
Matthew S. Kohn
for petitioner/defendant-
appellant on the application
Considered by: Moon, C.J., Levinson, Nakayama, Accba, and Duffy, JJ.
aad
|
0534ec7d-2f0d-4aa7-b777-2fd072c837fd | State v. Laeda | hawaii | Hawaii Supreme Court | wan LIBRAR
No. 27134
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
STATE OF HAWAI'I, Respondent /Plaintiff-Appellee
WAYNE C. LABDA, Petitioner/Defendant-Appellant
CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 03-1-0382)
(By: Duffy, o., for the cours")
Petitioner/Oefendant-Appellant Wayne C. Laeda’s
application for @ writ of certiorari, filed on March 20, 2007, is
hereby rejected.
DATED: Honolulu, Hawas‘i, april 17, 2007.
FOR THE couRT:
Come, Pays:
Associate Justice
Deborah L. Kim,
Deputy Public Defender,
for petitioner/defendant-
appellant on the application
GEOR Li dav Lou
gas
* considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.
|
bce281cb-9ddf-461f-aee7-e1d59b321ebc | Hawaii Home Infusion Associates v. Befitel, Director, Department of Labor and Industrial Relations, State of Hawaii | hawaii | Hawaii Supreme Court | No. 2726
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
HAWAII HOME INFUSION ASSOCIATES, Plaintiff-Appellant,
vs.
ang &
EDWARD SHEPHERD, Defendant.
(civ. No. 04-1-0616-04)
ORDER DENYING MOTION FOR RETENTION OF ORAL ARGUMENT
(By: Levinson, J., for the court’)
This court having considered the April $, 2007 motion
of the defendants-sppellees Kuhio Motors, Inc., Adjusting
Services of Hawaii, Inc., and Majestic Insurance Company for
retention of oral argument, the motion is denied. Therefore,
XT IS HEREBY ORDERED that no oral argument will be
heard in this matter.
DATED: Honolulu, Hawai'i, April 16, 2007.
FOR THE COURT:
STEVEN B. LEVI
Associate Justi
On the motion:
Leighton K, Oshima and
Darlene ¥. F. Itomura, of
Wong & Oshima, for the
Gefendants-appellees Kuhio Motors, Inc.,
Adjusting Services of Hawaii, Inc.,
and Majestic Insurance Company
ered by: Moor,
Levingen, Na
Acobs, and Duffy, 90.
|
756dc3a2-266c-4142-ae16-102e88adb660 | Jelks v. Hawaii Paroling Authority | hawaii | Hawaii Supreme Court |
LAWL
No. 28293
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
KENNETH JBLKS, Petitioner-Appeliant-appel lapis)
aware psoLING ArTMoRIEY, enarz oF muaripels
Respondent s-Appellees-Aappellees.
——_-
APPEAL FROM THE CIRCUIT COURT oP THE FrRst crfturn =
(CIV. NO. 06-1-0808)
oF _ceRrr
(By: Moon, C.J. for the court’)
Petitioner-appellant-appellant Kenneth Jelks
application for writ of certiorari filed on april 2, 2007 is
hereby rejected.
DATED: Honolulu, Hawai'i, April 26, 2007.
FOR THE COURT:
Considered by: Moon, ¢.J., Levinson, Nakayama, Acoba, and Duffy, 33
|
5d50ac8d-eb41-4bd4-bf85-94b1a1401267 | Office of Disciplinary Counsel v. Blakley | hawaii | Hawaii Supreme Court | No, 28494
IN THE SUPREME COURT OF THE STATE OF HAWAT'Z
OFFICE OF DISCIPLINARY COUNSEL,
Petitioner,
J.B. MAYLA BLAKLEY,
Respondent .
(ORIGINAL PROCEEDING)
(ODC NOS. 02-026-7224, 05-127-8279, 06-05-8345, 06-066-8406)
ORDER OF DISBARMENT
(By: Moon, €.J., Levinson, Nakayama, Acoba, and Duffy, 33.)
upon consideration of the Disciplinary Board's Report
and Recommendation for the Suspension of J. E. Mayla Blakley and
Respondent Blakley’s lack of objection thereto as exhibited by
her failure to file an answer to the Petition as permitted by
Rule 2.7(c) of the Rules of the Supreme Court of the State of
Hawai'i (RSCH) or to request briefing as permitted by RSCH Rule
2.7(€), it eppeare that Respondent Blakley violated RSCH Rules
2.2, 1.2(a), 1.3, 2.4(a), 1.406), 2.28(a) (2), 1.250b), 1.158(e),
2,15(4), 2.25(9) (7), 2.18(h), 1.26(a) (2), 1.16(4), 3.2, 3.4(€),
8.1(b), 8.4(a), €.4(e), and 8.4(4) of the Hawai'i Rules of
Professional Conduct. It further appears that Respondent Blakley
has departed from the State of Hawai'i, and making discipline
effective thirty (30) days after entry of this order, see RSCH
Rule 2.16(c), would be pointless. See Office of Disciplinary
Counsel v, DeMello, 61 Haw. 223, 225, 601 P.2d 1087, 1088 (1979).
aan
‘Therefore,
I? IS HEREBY ORDERED that the Disciplinary Board's
Report and Recommendation is rejected, and Respondent J. E. Mayla
Blakley is disbarred from the practice of law in this
jurisdiction, effective upon entry of this order. See Office of
ie! , 85 Hawai'i 212, 225, 941 P.24 295,
298 (1997) ("misappropriation of client funds by the client's
attorney warrants disbarment absent strong mitigating
circunstances*) .
IT IS FURTHER ORDERED that, as conditions for
reinstatement,
1. Respondent Blakley shall pay restitution in the
amount of $9,440.80 to Wayne Brumfield.
2. Respondent Blakley shall pay any costs of these
proceedings as approved upon timely submission of a bill of
costs, and shall comply with the requirements of RSCH Rules 2.16
and 2.17.
DATED: Honolulu, Hawai'i, August 14, 2007.
carole R. Richelieu, ha
chief disciplinary counsel “Sect Lcwise
for petitioner <
Pests Co Natagaven
J.B. Mayla Blakley,
respondent pro se a
Gore. Dey th +
|
95123fce-9d9e-4fe6-b1f3-4b1892153636 | State v. Pebenito | hawaii | Hawaii Supreme Court |
No. 27598
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAI'Z, Respondent/Plaintisf-nepellge
vs. “2s
ALEJANDRO M. PEBENITO, Petitioner/Defendant-Ay ant
CERTIORARI TO THE INTERMEDIATE count OF APPEAS
(CR. NO, 4-1-1532) 8
i API cen
(By: Duffy, J., for the court)
Petitioner/Defendant-Appellant Alejandro M. Pebenito’s
application for a writ of certiorari, filed on September 26,
2007, is hereby rejected.
Honolulu, Hawai'i, November 6, 2007.
FOR THE couRT:
Von €. Dotty = a
Associate Justice \w
Leon ws
DATEI
Shawn A. Luiz
for petitioner/defendant-
appellant on the application
* Considered by: Mocn, C.J., Levinson, Nakayama, Acobs, and Duffy, JJ.
aad
|
dafbd963-b61c-4bbd-8c19-46850b388e92 | State v. Steger | hawaii | Hawaii Supreme Court | No. 26709 3
ays
a
280 THE SUPREME COURT OF THE STATE OF HaNATIL'
216
We O4 Yav cooz
Bn 2)
HAWAI'I, Respondent/Plaintif£-Appelle:
STATE
KURTIS LEE STEGER, Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 02-1-0557(1))
LICATH oF "
(By: Moon, C.J., for the court")
Pet itioner/defendant-appellant Kurtis Lee steger’s
application for writ of certiorari, filed March 19, 2007, is
hereby rejected,
DATED: Honolulu, Hawai‘i, April 10, 2007.
cynthia A. Kagiwada, FOR THE COURT:
for petitioner/
defendant -appellant, Te
on the application Lt DX
£ duatig 2)
Be op ws
Levinson, Nakayama, acoba, and putty, ov.
» considered by: Moon, ¢.J.
O32
|
88a111ff-7a37-4a2d-a1ab-862e782a7d5f | State v. Souza | hawaii | Hawaii Supreme Court | LAW LIBRARY
no. 27599
IN THE SUPREME COURT OF THE STATE OF HAWAI'L
STATE OF HAWAI'I
Plaintif£-Appellee-Respondent,
vs.
ons
ALBERTA K. SOUZA,
befendant-Appellant-Pet itioner.
g
5
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 04-1-1183)
B BE
(By: Levinson, J., for the court’)
upon consideration of the application for a writ of
certiorari filed on February 23, 2007, by the defendant-
appellant-petitioner Alberta K. Souza and the opposition to
petitioner Alberta A. Souza’s petition for writ of certiorari
filed on March 6, 2007, by the plaintiff-appellee-respondent
State of Hawai'i, the application is hereby rejected
DATED: Honolulu, Hawai'i, March 22, 2007.
FOR THE CouRT:
STEVEN H.
Associate
Eric A. Seitz
for Alberta K. Souza,
defendant-appellant-petitioner
on the application
Lawrence A. Goya,
Senior Deputy Attorney General,
for State of Hawai'i, plaintiff
appellee-respondent ‘on the
‘opposition
Considered by: Levinson, Nekayens, and Duffy, J3., Circuit Judge
iison, in place of Moon, God-, recused, and Cirevit Jage Border, in place of
|
cc9d5868-8150-463d-9463-6fa11578e97c | Bento v. Valley Isle Motors | hawaii | Hawaii Supreme Court |
‘tee NOT FOR PUBLICATION TK WEST’ HAWAI'T REPORTS XND PACIFIC REPORTER *
no. 26962
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
ee
JOSEPH R. and ROSE A. BENTO,
Plaintiffs-Appellees,
VALLEY ISLE MOTORS,
Defendant /Cross-Claimant-Appellant/Third-Party Plaintiff-
Appellant,
and
SAFE-GUARD PRODUCTS, INTERNATIONAL, INC.,
Defendant /Cross-Claim Defendant-Appellee, |!
and
om
RED SWAN, INC.,
‘Third-Party Defendant-Appellee,
91:6 Wy 91 way ogg
and
DOE DEFENDANTS 1-50,
Defendants/Third~Party Defendants.
(los. 26961, 27004, & 27325)
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIV. NO, 03-1-0114(2))
y DIS ORI
(py: Moon, C.d., Levinson, Nakayana, Acoba, and Duffy, JJ.)
In these consolidated appeals, defendant/
cross-claimant-appellant/third-party plaintiff-appellant Valley
Isle Motors, Ltd. (Valley Isle) appeals in No. 27325 from the
May 2, 2005 judgment of the circuit court of the second circuit,
the Honorable Shackley Raffetto presiding, dismissing all of
‘44 NOT FOR PUBLICATION IN WEST'S HAWAT'T REFORTS AND PACIFIC REPORTER #44
Valley Isle’s clains against defendant/cross-claim defendant-
appellee Safe-Guard Products International, Inc. (Safe-Guard) and
third-party defendant-appellee Red Swan, Inc. (Red San).
Valley Isle also separately appeals, in Nos. 26961 and
27004, from the November 8 and Decenber 6, 2004 orders of the
circuit court, the Honorable Shackley Raffetto presiding, finding
the two settlements between the plaintiffs-appellees Joseph R.
and Rose A. Bento and Safe-Guard and Red Swan, respectively, to
be in good faith,’ pursuant to Hawai‘ Revised statutes (HRS)
§ 663-15.5 (Supp. 2008).?
On appeal, Valley Isle challenges the applicability of
RS § 663-15.5 to the dispute, pointing out that Act 300° ~;
+ on January 26, 2006, this court consolidated Nes. 26961, 27004,
and 27325 under No. 26961.
covebligerss
2 as § 663-15.5, entitled “Release; joint tortfeasor:
good faith settlenent,” provides in relevant part
(b) For purposes of subsection (a) (setting forth the
rights of nen=seteling Joint tortfeasors and co-cbligors with
Fegara to Settlenent agreements], any party shall petition the
Sure for a hearing cn the issue of good faith of » settlement
guterea inte by the plaineif! dna one or more slleged
fortfeasors|.)
ig) “n' determination by the court that 2 settlenent was made
tn good faith shail
(1) Ber any other Joint tortfesser or comcbiicor from any.
further clains ageinst the settling tort fessor or com
celigor, except those based on a written indennsty
agreenent; and
(2) Rasule in a dismissal of 211 crose-clains filed
against the settling joint tortfeasor or co-cbliger,
ekcept those sased on @ uritten indennity agreement
le) A party aggrieved By court Getersination on the sesue of
good faith may eppeal the deterninetion. «+
> Act 300, section € provi his act
shall apply to. . _ [ejny relesse, disnicesl or covensnt given after this act
tenes effect, regerdless of the date of the occurrence of the underlying
clain, except for clains arising out of a contract made pricr to January 1,
(continted...)
‘ses not FOR PUBLICATION 18 WEST! 8 HAWAI'T REPORTS AND PACIFIC REPORTER
which was later codified as HRS § 663-15.5 -- states that the Act
shail not apply to “claims arising out of a contract made prior
to Janvary 1, 2002 and alleges that the Bentos’ claims arise out
of a contract entered prior to that date. Valley Isle also
argues that the settlements did not meet the good faith standard
of HRS § 663-15.5 as set forth in Tover v. Adams, 102 Hewai"t
399, 77 P.3d 83 (2003).
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 affirm the
judgment and orders of the circuit court for the following
In Troyer, this court considered the effect of Act
300, section 6(1). The Trover majority concluded:
First, reading Act 300, § €(1) in card materia
with Act 300, § 6(2), s8e gubra note [3], which
Tneteuete that the Act applies to “contract clains
Where. tne contract wae nade on or after January 1,
bea," st ie reasonable to construe the exclusion’ of
Seleine srising cut of a contract mace pricr to
Sanvary 1, 2002" tinply to exclude from the purview of
the Act the type of lsins thet the following
Subsection includes, the only difference being the
Gate ef the underlying contract.
in Light of the foregoing, we conclude thet Act
300, § €(1) sinply excludes from the Act's purview
Feleases, ciamissals with or without prejudice, oF
Egvenenes pet te sve or net to enforce # judgment
Siven toe co-obiiger on an alleged contract debt
Gite the"contract wae nade pricr to January 1, 2002
fere ie ne logical reason to censtrue the exclusion
nore broadly.
(sescontinued
202.1" See 2O0T aw, Sens, L, Act 300, $6 € and 7 at 677, effective June 28,
2001, this persion of act 300 wes not included in the codified language of
ns § cei-is+5, gen gucra note 2
{7+ NOT FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER +
102 Hawai'i at 412-13, 77 P.3d at 96-97. Therefore, because it
is clear from the evidence in the record that neither the clains
asserted by the Bentos against Valley Isle and Safe-Guard nor the
potential claim of the Bentos against Red Swan were claims
against co-obligors on an alleged contract debt, they are not
excluded from the purview of HRS § 663-15.5 by Act 300,
section 6(1).
The circuit court did not abuse its discretion in
determining that the settlenents reached by the Bentos with
Safe-Guard and Red Swen were in good faith, inasmuch as: (1)
there remained substantial questions of liabilitys (2) the
settlement involved the disgorgement of all revenues received by
the settling parties from the conduct in question: (3) the
circuit court could have reasonably concluded that the amount
paid in settlenent was in reasonable relationship to the relative
fault of the settling parties: (4) there was no evidence that the
settlement was collusive or intended to harm Valley Isle: and (5)
Safe-Guard's promise to procure insurance naming Valley Iele as
an additional insured did not comprise @ written indemnity
agreenent by Safe-Guard within the meaning of HRS
§ 663-15.5(6) (1), see Vesta Ins. Co. v. Amoco Prod. Co., 986 F.2d
961, 986 (Sth Cir. 1993) (an indemnity clause in = contract for
services does not make the indemniter an insurer); Kinney v. @
Lisk Cou, S86 N.E.24 1090, 1092 (N.Y. 1990) (“An agreement to
Procure insurance is not an agreement to indennify or hold
harmless, and the distinction between the two is well
recognized.”) (emphasis in original) (internal citations
+4 NoT FOR PUBLICATION 111 WEST'S HAWAI'T REPORTS AND PACTFIC REPORTER ***
omitted); Robley v, Corning Cnty, Coll., 521 N.¥.S.2d 861, 863
(app. Div. 1987) ("A contract to procure or provide insurance
coverage is clearly distinct from and treated differently then an
agreement to indemnify.) .
Therefore,
If IS HEREBY ORDERED that the judgment and orders from
which the appeals are taken are affirmed.
DATED: Honolulu, Hewais, April 16, 2007.
on the briefs: Grim
Lisa Woods Munger
(of Goodsill Anderson BlGLoaso
Quinn & Stifel) and
Renee M.L. Yuen
for the defendant-appellant Bice Crete ture
Valley Isle Motors
Lane Hornfeck McKay and JO tN
Terence J. O'Toole
(ef Starn O'Toole Marcus Geer
& Fisher) for the ~ rhe
defendant-appellee
Safe-Guard Products, Inc.
charles R. Prather
(of Deeley King & Fang)
for the defendant-appellee
Red Swan, Inc.
Paul Alston, Bruce Wekuzawa, and
Peter Knapman (of Alston, Hunt,
Floyd s Ing) for the
plaintitfs-appelle
Soseph R. and Rose A. Bento
|
09798127-44b0-4b68-a18f-22125e15a503 | Kilohana Resident Council v. Justice | hawaii | Hawaii Supreme Court | "* NOT_FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
No. 26412
IN THE SUPREME COURT OF THE STATE OF HAWAT‘T
vs
f
KORENA K, JUSTICE, Defendant-Appellant, g#~
and
We 6- Yd¥ LOZ
CONCHITA C. SOMERA, Defendant.
a
‘aohi¥a w
APPEAL FROM THE DISTRICT couRT oF THE Frast cracHlr
(CIVIL CASE NO. 1RC02=1-6802)
(By: Hoon, ¢.9., Levinson Makayane, Reobe, and Duffy, 39.)
Defendant-Appeliant Korena K. Justice (*Korena*)
appeais tron the judgment of the District Court of the Firet
Circuit (“district court”) filed September 18, 2003, pursuant to
hich a writ of summary possession against her iesued.? On
appeat, Korena argues that the district court erred by failing to
credit her affirmative defense to sunmary possession, which vas
chana Resident Council (*KRC*)
violated certain provisions of the federal Fair Housing
thet Flaintiff-appellee
Amendments Act of 1988 (“FHA”), 42 U.S.C. § 3601 et seq., and
Hawat’
Revised Statutes ("HRS") Chapter 515 (relating to
discrimination in real property transactions) by refusing te
svegnent
to Flaines#!
the appea
y ane effective to appee! both
3008
sosment
oad
*** NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
permit @ chihuahua named Biker to remain in her apartment as an
emctional-support aninal to alleviete her mental illness.
upon carefully reviewing the record and the briefs
submitted by the parties and having given due consideration to
the argunents advanced and the issues raised, we hold as follows:
(2) Assuming without deciding that Korena may present
en affirmative defense to summary possession by demonstrating
housing discrimination under the FHAA, Korena hae not
demonstrated @ violation of the FHAA, because she did not show
that Biker’s presence was necessary to afford her an equal
opportunity te use and enjoy her dwelling.
ie first note that Korena asserts that the following
portion of the district court's oral ruling is an erroneous
conclusion of law subject to the right/wrong standard of review:
timony, that's defendant
the reports of beth gocters, the
fet is helpful, but not #
ropriate to create an
‘Such exception would
oF tervice dog.
See Aluminum Shake Roofing, Inc. v. Hiravasu, 110 Hawai'i 248,
252, 131 P.3d 1230, 1234 (2006). MWe disagree, and hold that the
[clourt
medical
exception
Sheluae
district court's ruling is a conclusion of law presenting mixed
Questions of fact and law because, inter alia, the district
court's ultimate conclusion that Biker was “not a medical
necessity nor reasonably appropriate te create an exception to
the no pet [house rule] was intrinsically dependent upon the
facts end circumstances of the case. Thus, the appropriate
tandard of review is the clearly erroneous standard.
luminum Shake Rooting, id.
We observe that the U.S. Court cf Appe:
for the Ninth
Circuit has adopted @ four-prong test for determining whether @
‘++ NOT_FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *
landlord has failed to reasonably accommodate a “handicapped”
tenant under FHAA.’ Pursuant to United States v, California
Mobile Hone Park Momt, Co., 107 F.3d 1374, 1380 (9th Cir. 1997)
("Mobile Home 11"),
Lin oxcer} [e)e establish her claim, (Kerena] [was) required to
show thet: (1). (Korena] suffers from a bandicap as defined in 42
Grsrc. $ $602 (hb) [ (2000) 7! (2). IKRC) knew of {Korena’s] handicep
of should reasonably be expected te know of it; 3] accommodation
eLine handicap “may be necessary” to afford [Kcrenalan equal
Scpertunity to-tse snd entoy the auellings and (4) MRC] refosec
fo nake such acconmedaticn
(Emphases added.) (Footnote added.) (Citing, inter alia, 42
U.S.C. § 3604(£) (3) (B) (2000) and quoting the “may be necessary”
language therefrom.) As to definition of “necessary,” the Mobile.
Hone II court approvingly quoted the Sixth Circuit, which
interpreted “necessary” “to mean that [claimants] ‘must show
that, but for the accommodation, they likely will be denied an
equal opportunity to enjoy the housing of their choice(.)'” Ide
‘The following FHAA provisions axe relevent to this appesl.
42 0.8.0. § 3608(£) (1) (2000) (relating to, inter alia,
‘riminaticn in the fentel or sale of mousing) makes’ Sf uniawfar
[tle Giscrininate in the sale or rental, or to otherwise
unevastebie er ceny, 9 swelling to ony buyer cx renter be
handicap of
(A) that buyer or renter,
(8) 8 person resieing in er intending te reside in chat
ouelling efter it ie so e016, rentes, or mede available: or
irs
¥y perscn aesccistes with thet buyer or renter.
MEephacis edded.) 42 U-8.c. § 360¢(4)(
ake reasonable acccamodet i
cefines “ctecrinination”
es, policies, practices, or
‘eftora Such person
+ NOT _FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER,
(quoting vie parenthetical Smith § Lee Assocs., Inc, v, City of
Taylor, 102 F.3d 781, 795 (6th Cir. 1996)) (emphasis added) .
Turning to the third Mobile Home II prong (necessity of
the reasonable accommodation), Korena argues that allowing Biker
to remain in her household at the Kilohana Apartments was
necessary to afford her an equal opportunity to use and enjoy the
apartment because “the benefit to Korena of being allowed to keep
Biker in her home was immense given the undisputed fact that
Biker substentially ameliorated the effects of Korena’s
disabilities.” However, assuming arguendo that this benefit to
Korena was both “undisputed” and “immense,” said benefit is
irrelevant to the question of whether Biker’s presence was
“necessary” under the FHAA. In other words, Korena’s argument
does not suffice as a showing that but for Biker being allowed to
live at the Kilohana Apartments, Korena will likely be denied an
equal opportunity to enjoy the housing of her choice. Mobile
Home 11, 107 F.3d at 1380 (quoting via parenthetical City of
Tayler, 102 F.3d at 795)
Moreover, Korena does not challenge the following
findings of the district court:
The [clourt further notes] that (Biker) came into the
Eictive only tho yeare age. Eases on Or, Marvit's testimony that
the dog cr fet is Not reasonably of medically a necessity,
futher, nis seeeSSony chee the liners
(Emphasis added.) The district court expressly credited Marvit’s
testimony and found that Korena’s mental illness (ise., her
Gisebility) was responsive to medication with or without Biker.
(OT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
These unchallenged findings are binding on this court, and the
district court’s finding of fact that Korena’s treatment did not
depend on Biker’s presence negates the element of necessity under
the FHAA. We are therefore not left with a firm and definite
conviction that a mistake has been committed. See Aluminum Shake
Roofing, 110 Hawai" at 252, 131 P.3d at 1234, Inasmuch as the
district court did not clearly err as to the aforementioned
conclusion of law pr
inting @ mixed question of law and fact,
S82 GuDKA at 2, we therefore hold that Korena’s first argument is
without merit.
(2) After careful review, we hold that Korena’s state
law point of error (ostensibly based upon HRS Chapter 515) is
waived. Korena’s azgusent on appeal is in all material aspects
entirely premised upon her federel, FHAA claim. On the other
hand, Korena does not present any discernible argument relating
to her state law claim. See HRAP Rule 26(b) (7) (2004) (argunent
must contain “the contentions of the appellant on the points [of
error] presented and the reasons therefor, with citations to the
authorities, statutes and parts of the record relied on{)” or the
predicate point of error may be deemed waived)
Citicore Mortasce, Inc. v. Bartolome, 94 Hawai'i 422, 433, 16
P.3d 627, 838 (App. 2000) (“[e]n appellate court does not have to
address matters for which the appellant has failed to present
discernible argune:
(citations omitted)). Therefore, the
dist:
court’s judgment for possession filed September 18, 2003
is affirmed.
» thet ave net
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
(2) Because (a) we affirm the district court’s
judgnent for possession filed September 18, 2003, and (b) Korena
presents no challenge to the district court’s judgment filed
January 15, 2004 awarding KRC attorney's fees and costs, we hold
that the district court's January 15, 2004 judgment awarding KRC
attorney's fees and costs is affirmed. Therefore,
IT 1S HEREBY ORDERED that (1) the district court's
judgnent for possession filed Septenber 18, 2003 is affirmed, and
(2) the district court’s judgment avarding KRC attorney's fees
and costs filed January 15, 200¢ is affirmed.
DATED: Honolulu, Hawai'i, April 9, 2007.
on the briefs:
Michael , Kalish
(of Legal Aid Society of Hawai'i)
for Defendant-Appellant
Korena K. Justice tiraRCeccuse
Alvin 7, Ito
for Plaine tt-nppellee Been 6 Teaco one
Kiloha
Resident Council
|
769ead55-4e12-4b28-95c3-e0f70f86f0d4 | Engel v. Administrative Director of the Courts | hawaii | Hawaii Supreme Court | ‘+8 NOT FOR PUBLICATION IN WEST'S JAMAI'Z REFORTS AND PACIFIC REFORTER®*#
No. 26852
uae
IN THE SUPREME COURT OF THE STATE OF HAWAI'E:»
veal
TIMOTHY J. ENGEL, Respondent-Petitioner-Appellapt:
ADMINISTRATIVE DIRECTOR OF THE COURTS, STATE OF HAWAT'L,
Respondent-Appeliee.
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(Jud. Rev. No. 04-0013; ADLRO Case No. 04-01497;
Arrest Rep. No. 04-164758)
‘SUMMARY DISPOSITION ORDER
(By: Moon, C.J., Levinson, Nakayama, and Duffy, JJ,
and Acoba, J., concurring ‘and dissenting separately)
‘The respondent-petitioner-appellant Timothy J. Engel
appeals from the August 30, 2004 judgment of the district court
of the first circuit, Honolulu Division, the Honorable William A.
Cardwell presiding, affirming the Administrative Driver's License
month revocation of his
Revocation Office's (ADLRO) thr
Griver’s license.
on appeai, Engel contends that the district court erred
in affirming the hearing officer’s decision inasmuch as: (1)
notwithstanding the similarity of Exeites v. Admin, Dir, of the
courts, $2 P.3d $93 (2004) [hereinafter,
“Exeitas 1”), Engel was entitled “to his own hearing on the ADLRO
access restrictions and . . . to public hearing” on the merits
04 Hawas's 4
of the administrative revocation; (2) “the lack of a uniform
conmon procedure” in ADLRO hearings deprived Engel of “due
Process of law. . . [and] viclated the mandate of (HRS
(3) the field sobriety test
ch.} 2918, [pt.] 111” (Supp. 200:
(FST) results were inadnissible inasmuch as they “were [(a}]
‘+44 NOT FOR PUBLICATION IN WEST'S HAWAY'T REPORTS AND PACIFIC REFORTERS+®
administered shortly efter Engel had been involved in a major
accident” and (b) “not . . . in accordance with (National Highway
(4) the
Traffic Safety Administration (NKTSA)] requirenents’
Intoxilyzer supervisor's sworn statement wes inadmissible
inasmuch as it does not “establish[] that the Intoxilyzer used in
this case had been properly maintained”; (5) before consenting to
the breath test, “Engel was never told that [(a)] he had a legal
right to refuse,” (b) the ADLRO would have to find “reasonable
suspicion te stop” and “probable cause to believe [the]
respondent [operated 2 vehicle under the influence of an
intoxicant (QVUII)]" as well as actual intoxication, and (c) the
revocation of Engel’s driving privilege would extend to mopeds
and vessels; and (6) the Notice of Administrative Revocation
(NoAR) did not explain the difference between administrative
revocation and criminal suspension. (Emphases in original.)
(Citations omitted.)
Upon carefully reviewing the record and the briefs and
having given due consideration te the arguments advanced and the
issues raised, ve affirm the district court’s August 30, 2004
judgment for the following reasons:
(2) In Freitas 1, as in the present matter, the
respondent Darcy C.K. Freitas alleged that, “[jJust before the
hearing . . . , @ woman entered the ADLRO office and asked to
attend [the] hearing. The receptionist told the woman that the
woman would have to show identification and sign in or she would
not be permitted to attend the hearing. The woman refused to
either identity herself or sign in and, thus, was refused entry.”
104 Hawai'i et 484, 92 P.3¢ at 994. After temporarily remanding
+44 Non FOR PUBLICATION IN WEST'S HAMAT'E REPORTS AND PACIFIC REPORTER**#
to afford Freitas a hearing before the ADLRO, we
hiel1d (1) that the ADLO's identification and sign-in
Procedure serves an inportent government interest in
Securing ADLAG hearings, (2) thet the eecurity procedure is
Unrelated to the content of the information discicses. at
ADLO hearings, anc’ (3) that there is no less restrictive
ray te mect the goal of securing ADLRO hearings. As euch,
the ADLAG'# identification and sign-in procedure Goes
hot inpernssesbly infringe open Freitas’s constitution:
Tight to public hearing
Sco Freitas v, Admin, Dir, of the Courts, 108 Hawai'i 31, 33, 40,
126 P.3d 673, 675, 682 (2005) (hereinafter, “Ereitas I1”]. Both
Engel and the ADLRO hearing officer effectively acknowledged in
the July 12, 2004 hearing that the sign-in procedure imposed upon
the unidentified wonan in the present matter is the same as that
validated by the ADLRO and this court in Freitas II.! We see no
reason to waste tine retreading Freitas Il, either theoretically
or by granting Engel his own hearing on the same issue. See
Minnich v. Admin. Dir. of Courts, 109 Hawai'i 220, 227, 124 P.3¢
965, 972 (2005); y n. Dt 108 Hawas"s
78, 83, 117 P.3d 108, 124 (2008).
(2) Regarding Engel’s cbjection to the ADLRO’s hearing
procedure, we struggle to pinpoint the defect and its purported
TENGE) Exeitas|_1) noted that there ie 2 right to
nave alhearing on the Sorcalied secursty procedures bere.
eksiNG OFFICER: . . . 1 om aware of the 6:
reling in Ereitae|_I]. I an elec eware that the
rene Court
Lit woul be et
‘the matter er wilt
ipethepe thet hearing wilt
‘Supreme Court
a
1g interest of net being rereti
Ereitas']) ie rescives beca
Sdenve think it makes ser
gin every cose ‘oh the fine issue
lenphoses ecdes.)
‘4+ Nor FOR PUBLICATION IN MEST’S KAWAI‘: REFORTS AND PACIFIC REFORTER'#®
harm. In his concise statenent of points of error, Engel does
not allege any prejudicial consequences of the ADLRO's procedure.
Eventually, in his argument section, he implies that the ADLRO
erred in aditting Officer Robert Cavaco's April 24, 2004 arrest
report inte evidence, but the means by which Engel’s own six-step
procedure would have ameliorated the supposedly incorrect
admission of evidence eludes us. He implies that this court
faslure
should draw a negative inference fron the legislatur:
to enumerate “arrest reports” as a type of admissible evidence,
but nowhere does he explain how his on procedural steps would
preclude consideration of Officer Cavaco’s arrest report.?
In any case, we disagree with Engel’s self-serving
reading of HRS § 2918-38. HRS § 291E-38(d) (3) at least implies
ceive” evidence and
that the hearing officer has discretion to
determine its weight. Accord Desmond v. Admin, Dir, of the
Courts, 91 Hawai" 212, 218, 220, 982 P.2d 346, 352, 354 (App.
1998) (construing pricr law) ("*(T]he technical rules of evidence
applicable to judicial proceedings generally do not govern agency
proceedings, and need not be observed so long as evidentiary
rules which are applied are not applied in an arbitrary or
oppressive manner that deprives a party of his or her right to a
-1") (quoting 2 Am. Jur. 2¢ Administrative Law § 345
(1994)), rev'd on cther grounds, 90 Hewei'i 301, 302, 978 P.2d
fair hearin
738, 740 (1999). Moreover, subsections (g) and (h) do not
purport to be an affirmative enumeration of admissible evidence
Engel's underlining of “competent” in his
he Goes not believe the arzeet report to De
yikes us a: @ sonexhat substantive question, net only
MOT FOR PUBLICATION IN WEST’ HAMAI'E REFORTS AND PACIFIC REFORTER®+#
or to exclude evidence outside their purview, Even Engel’
argument seens to concede that, if its “evidentiary value” so
warrants, the hearing officer is empowered to admit an arrest
report. Ses also Dunavay, 108 Hawai'i at 84, 117 P.3d at 115
(where appellant “nade no showing that . . . the arrest report
wlas) irrelevant or prejudicial,” holding that, “while the
hearing officer is not required by statute to admit the arrest
108 Hawai'i at 46 n.19, 116 P.3d at 688 n.19 ("HRS § 2818-36 does
report, she did not reversibly err when she did so”
not prohibit the adnission of a police report... . Moreover,
the fact that HRS § 291E-3(6] (h) refers only to sworn statenents
«and not police reports(] does not necessarily indicate a
legislative intent to [exclude] police reports . . . , assuming
their relevance ané non-prejudicial nature.”).
(3) (2) We are unpersuaded by Engel’'s argunent thet the
accident rendered the ensuing FSTs utterly inadmissible. Aside
from the vast prosecutorial obstacles that would spring from
rule excluding all post-accident FSTs, such a rigid holding would
(4) incorrectly divest the hearing officer of her or his
avthority to “[rJeceive and determine the relevance of evidence,”
gee HRS § 281E-38(d) (3), and (44) Sonore Minnich, in which we
rejected the driver's argunent that his FST results were
inadmissible, inter alia, because he “had been involved in a
major car accident,” 109 Hawai'i at 226, 124 P.3d at 971.
ret| insured) and thet he wee fine.
the accident haa an effect cn the SFTE."
Tn the present setter, while Engel o2d
‘ove that he woe unetarred by the aceise th Officers
ie8) Be “Engel ois =
{44 NOP FOR PUBLICATION IN WEST'S WAWAI'T REPORTS AND PACIFIC REPORTERS#®
(b) At least with respect to the walk-and-turn test,
the NHTSA manual directs that officers’ field notes may document
“conditions that may interfere with suspect’s performance”
alongside other factors indicating intoxication. Appending such
qualifiers would cbvicusly be unnecessary if any such
“condition{]” obliterated the test report's admissibility
altogether.
Admittedly, the Intermediate Court of Appeals (ICA), in
State v. Ito, 90 Hawa‘ 225, 978 P.2d 192 (App. 1999),
categorically rejected the district court's finding of probable
cause inasmuch as (i) the language of the NHTSA manual disavowed
the FSTe’ validity when the tests deviate from “standardized
. . elements,” and (ii) the investigating officer admitted that
the horizontal gaze nystagmus test (HGN) “nay have been
sincomplete.'” See id. at 244-45, 976 P.2d at 210-11 (emphasis
omitted). Nevertheless, in the present matter, it is undisputed
that Officer Timothy Tenney held the HGN stylus “approximately 18
inches in front of [Engei's) face” and that he used some form of
k-and-turn test, if only s naturally occurring
Line for the
one. The hearing officer was satisfied (1) that eighteen inches
from Engel's face “approxinate(d]” twelve to fifteen inches fron
his nose, and (4) thet Engel’s loss of balance would have
occurred even with an “actual” line, whatever thet is. Moreover,
Engel reads the NHTSA manual incompletely and inaccurately. The
NHTSA menval adaite “that the (JFSTs will not always be
administered under ideal conditions,” but notes that, “[e]ven
then adninistered under less than ideal conditions, they will
d useful indicators of impairment.
generally serve as valid
s+ not FOR PUBLICATION IN WEST'S HAWAr'T REPORTS AND PACTPIC REPORTE
Slight variations from the ideal . . . may have some (e]ffect on
the evidentiary weight given to the results. However, this doe
not necessarily make the [JFSTs invalid.” In regards to the
walk-and-turn test, the parties overlook the manual’s express
conment that the line used can be “real or imaginary,” although
it must be “s designated straight line.”
(4) (2) We disagree with Engel’s assertion that Kevin
Bailey's April 21, 2004 sworn statement did not “establish[] that
the Intoxilyzer . . . had been properly maintained” (emphasis in
original), @ precondition to admissibility under HRS
§ 2918-36(a) (2) (C). In Park ys Tanaka, 75 Haw. 272, 279, 859
P.2d 917, 921 (1993), the ICA held that “the statement that
‘[t}he Intoxilyzer used ha[s] been in proper working order when
the test wae conducted’ presupposes that the supervisor tested
the machine and that it was working properly, thus fulfilling the
requirenent cf HRS § 286-257(8) (2) (C)” (now HRS
§ 2916-36(a) (2) (C))- Id, at 278-79, 889 P.2d et 921 (emphasis
added) (brackets in original); see also Miller v. Tanaka, 80
69, 910 P.2d 129, 140 (App. 1985). The same can be
a's 358,
said for Esiley’s statement that “(t]he Intoxilyzer was operating
accurately in compliance with (HARI § 11-114-2" (emphasis added),
which requires monthly accuracy verification irrespective of
whether the Intoxilyzer’s use on an actual suspect is imminent.
(b) Next, in his argument section, Engel urges that
castro nin. D: rts, 97 Hawai'i 463, 40 P.3d 865
(2002), was wrongly decided and “makes 2 mockery of State v
Wilson, 92 Hawal'l 45, 987 P.2d 268 (1999), and its progeny,”
inaemuch eg “a valid chemical test or refusal [is] a...
S04 NOP FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*#*
prerequisite to ADLRO jurisdiction.” In the present context,
Engel’s argument can only mean that the Intoxilyzer supervisor's
failure to use a form of the word “maintenance” in his April 21,
2004 statement stripped the ADLRO of jurisdiction altogether.
Ironically, Engel fails to even hint at this argunent
in his concise statenent of the points of error as required by
Hawai'i Rules of Appellate Procedure (HRAP) Rule 28(b) (4),
compelling us to “disregard{]" it. In any case, Dunaway and
Ereites 11 squ
test result over 0.08 or a refusal to take a chemical test is not
ely rejected this argument, holding “thet a valid
a jurisdictional prerequisite for a(n] . . . administrative
license [revocetion] hearing.” Dunaway, 108 Hawai"i at 64, 117
P.3d at 115 (quoting Freitas II, 108 Hewai'i at 46, 116 P.3d at
688).
(5) (2) In Dunaway, we held that the HPD-3968 need not
expressly inform respondents that they may refuse to be tested.
See 108 Hawai'i at 60, &5 6 n.12, 86-87, 117 P.3d at 111, 116 &
n.12, 117-18. “[T]he [HPD-396B] . . . adequately convey[s) that
refusal [i]s the alternative and, thus, the opposing option to
consenting to a test.” Id, at 8, 117 P.3d at 116. In the
present matter, the HPD-396B contained the same language as that
discussed in Dunawev. Consequently, we hold that Engel was fully
apprised of his options and the associated consequences.
(b) Engel appears to argue thet the HPD-3968 should
have alerted him that revocation would require net only a
“failed” breath test or @ refusal but also reasonable suspicion
and probable cause. In Dunaway, we confronted this same argument
and soundly rejected it. The “HPD[-)39€B need not notify drivers
4 oF FOR PUBLICATION IN WEST'S HIANAI'T REPORTS AND PACIFIC REPORTER'®*
that the police must establish reasonable suspicion to stop and
probable cause to believe a driver is O[V]UI(1] in an
administrative license revocation hearing, in the absence of a
statutory directive to thet effect." Id, at 86, 117 F.3d at 117.
In the present matter, Engel plainly fails to identify such “a
statutory directive.”
(c) Dunaway alse azgued, as does Engel, that he was not
Ja
made aware that a “moped” or a “vessel” could be consid
wvehicle” for administrative revocation purposes. We were
unpersuaded:
Under BRS § 261E-1, Ya ‘vehicle’ includes a motor, vehicle,
moped, anc'a vessel." “Vehicle” ie defined as a "means of
Cereying or ty: ing genething." Webster's Tenth
Eellegiate Dictionary 1308 (1993). We believe the term
“vehicle” se a term of croinery usage and i2 bread encugh te
inform @ person of ordinary intel
include a neane of ground transportation such as a Roped.
Therefore, Dunaway's claim that he was unaware that 2 moped
was 8 vehicle must fai)
(the) HFD[~) 3865 S260
term “vehicle” includes a "ve
thet the term yenicle also refers te “s'venicie. «
haters of the crate.” Thie ie consistent with SRS § 2816-1,
nich staves that “a ‘vecel’ neane all description of
Metercraft that are ured and ere capable of berng used as
teens cf transportation on or in the water.” fence, the
HPo(=]396E|"e] referencee te “e venscle .. . in the waters”
TMeula refer tee neons of transportation empleyed in
ine hater. Therefore, Ounewey wae not exreneously interned
ae to the word "venicie.”
Dunaway, 108 Hawai'i at 66-87, 117 P.3d at 117-18 (footnotes
omitted) (sone brackets and ellipses added and sone in original).
(6) The NoAR patently distinguishes between an
administrative revocation and s criminal OVUII proceeding. It
explains, under the heeding “CRIMINAL PROSECUTION” (emphasis in
original), that “[t]he administrative revocation process is a
civil administrative proceeding that is separate and distinct
from criminal prosecution, Criminal charges filed pursuant to
+ Nor FOR PUBLICATION 2% MEST’ S HAWAI'T REPORTS AK PACIFIC REFORTER!+#
HRS §| )291E-61 may be prosecuted concurrently with the
administrative proceeding.” We previcusly recognized the vacancy
of the assertion “that [the] HPD[-]3968 does not adequately
explain the distinction between administrative revocation and
criminal suspension,” in the case of Dunaway, who was represented
by the same counsel es Engel. See Dunaway, 108 Hawai'i at 60,
62, 87, 117 P.3d at 121, 113, 118. We find this argument to be
ly and palpably without merit as to indicate bad
faith on the pleader’s part such that argument to the court was
quired," see, #.g., Child Support Enf, Agency v, Doe, 109
Hawai'i 240, 253, 125 P.3¢ 461, 474 (2005) (quoting Rhoads vy.
Okamura, 96 Hawai'i 407, 414, 49 P.3d 373, 380 (2002), and, were
it not for the fact that Dunaway was filed after Engel’s briefs,
not
we would consider this point of error “frivolous” so as to
warrant notice under HRAP Rule 38. We hope that Dunaway has done
away with this baseless challenge. Therefore,
IP IS HEREBY ORDERED that the judgment from which the
appeal is taken is affirmed.
DATED: Honolulu, Hawai'i, March 28, 2007.
on the briefs:
Timothy J. Engel MAL eae~
S
cee Le Pceea © Spawn ren
Deputy Attorney Genered,
for the respondent-appellee Boe Dale bo
Administrative Director of
the Courts, State of Hawai'i
10
|
737fd6b8-fd4f-4281-9996-b95eed39bcc9 | In re United Public Workers, AFSCME, Local 646, AFL-CIO | hawaii | Hawaii Supreme Court | “** NOT FOR PUBLICATION ***
no, 27962
3
IN THE SUPREME COURT OF THE STATE OF HAWAI'Y 2
eee
© 0. 05-1-1388,
In the Matter of UNITED PUBLIC WORKERS, AFSCME, Local 646,
AFL-C10, Complainant-Appellant, Cross-Appeliee
and
LARRY J. LEOPARDI, Chief Engineer, Acting Director, Facility
Maintenance, City and County of Honolulu; CHERYL OKUMA-SEPE,
Director, Department of human Resources, City and County of
Honolulu; and JEREMY HARRIS, Mayor, City and County of Honolulu,
THOMAS LENCHANKO, District Road Superintendent, Department of
Facility Maintenance, City and County of Honolulu; and CYNTHIA
JOHANSON, Department Coordinator, Department of Facility
Maintenance, City and County of Honolulu (2005-124),
Respondent s-Appellees, Cross-Appellants,
and
HAWAIT LABOR RELATIONS BOARD, BRIAN K. NAKAMURA,
‘SPRINGER and KATHLEEN RACUYA-MARKRICH,
Agency-Appellees, Cross-Appellees.
EMORY J.
SIVIL No. 05-1-1391,
In the Matter of UNITED PUBLIC WORKERS, AFSCME, Local 646,
AFL-CIO, Complainant-Appellant, Cross-Appellee
and
LAVERNE HIGA, Chief Engineer, Acting Director, Facility
Maintenance, City and County of Honolulu; KENNETH NAKAMATSU,
Director, Department of Hunan Resources, City and County of
Honolulu; and MUF1 HANNEMANN, Mayor, City and County of Honolulu;
THOMAS LENCHANKO, District Road Superintendent, Department of
Facility Maintenance, City and County of Honolulus and CYNTHIA
JOHANSON, Department Coordinator, Department of Facility
Maintenance, City and County of Honolulu,
Respondents-Appellees, Cross-Appellants,
and
ase
*** NOT FOR PUBLICATION ***
HAWAII LABOR RELATIONS BOARD, STATE OF HAWAII,
Agency-Appellee, Cross-Appellee
APPEALS FROM THE FIRST CIRCUIT COURT
(CIV. NOS, 05-1-1388 and 05-1-1391)
ORDER DISMISSING “yoTTc! 0 THE SUPREM! 7m
Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon review of the “notice of appeal to the suprene
court” filed on March 9, 2007 by United Public Workers, AFSCHE,
cal 646, AFL-CIO (UPW), it appears that UPW purports to appeal
to the supreme court from a March 7, 2007 order of the
Intermediate Court of Appeals granting @ stay pending appeal
Pursuant to HRAP 8. UPW purports to appeal pursuant to HRS $$
380-10 (1993) and 602-5 (1993), but those statutes, as amended in
2004, do not authorize a
March 7, 2007 order of the Intermediate Court of Appeals. See
RRS $§ 380-10 (Supp. 2006) and 602-5 (Supp. 2006), Therefore,
IT 18 HEREBY ORDERED that UPW's March 9, 2007 “notice
appeal to the supreme court of the
of appeal to the supreme court” is dismissed.
DATED: Honolulu, Haws
“4, Maren 29, 2007,
|
398774ef-4fde-4602-8843-6b03c88bfd00 | Tortorello v. Tororello | hawaii | Hawaii Supreme Court | No. 27459
IN THE SUPREME COURT OF THE STATE OP HAWAT'T
Jd 91 a3 coa2
RENEE A. TORTORELLO, Petitioner/Petitioner-appel lee,
Leu |
WILSON TORTORELLO, JR., Respondent /Respondent-Appellant.
ee
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(PC-DA NO. 05-21-1453)
RDER NG APPLICATION IT OF CERTIORARI
(By: Noon, C.5., for the court")
Petitioner/petitioner-appellee Renee A. Tortorello’s
application for writ of certiorari, filed January 16, 2007, is
hereby accepted.
DATED: Honolulu, Hawai'i, February 16, 2007.
FOR THE COURT:
‘Theodore ¥. H. Chinn,
for petitioner/petitioner-
appellee, on the
application
* considered by: Moon, C.J., Levinson, Nakayama, Acobe, and Duffy, aJ.
aa
|
aa0546fd-671e-4ea9-af15-15154debb064 | In re Department of Human Services v. Luke | hawaii | Hawaii Supreme Court | No, 28436
IN THE SUPREME COURT OF THE STATE OF HAWAT'I
In the Interest of ae
Fz
£
c
DEPARTMENT OF HUMAN SERVICES, 3
STATE OF HAWAI'I, Petitioner,
THE HONORABLE LINDA K.C. LUKE, JUDGE OF
THE FAMILY COURT, FIRST CIRCUIT, Respondent.
ORIGINAL PROCEEDING
(FC=8 NO. 03-09189)
ORDER DISMISSING PROCEEDING
Moon, C.J., Levinson, Acoba, and Duffy, JJ., and
18 Judge Nakamura,
(By:
Intermediate Court of App®
in place of Nakayama, J., unavailable}
upon consideration of the stipulation withdrawing the
petition for a writ of mandamus, which is deened a motion for
dismissal pursuant to HRAP 42(b),
IT IS HEREBY ORDERED that the motion is granted and
this proceeding is dismissed.
IT IS FURTHER ORDERED that the stay of the hearing that
was scheduled for March 12, 2007 in FC-S No. 03-09189 is vacated:
Hawai'i, March 20, 2007.
ope
Vic Phares
[PL
Cres «, bao
ey Us Piehorrmen
DATED: Honolulu,
|
017ac376-a586-4edb-9119-72f154ae0956 | Savini v. University of Hawaii. | hawaii | Hawaii Supreme Court | ‘tee FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
ee
IN THE SUPREME COURT OF THE STATE OF HAWAT'L
— 000 —-
Sees
SOSAIETE L, SAVINI and BETTE SAVINI, Plaintiffs-Appell
UNIVERSITY OF HAWAI'I, Defendant-Appellant,
and
JOHN DOES 1-10, JANE DOES 1-10, DOB PARTNERSHIPS 1-10,
DOE CORPORATIONS 1-10, DOE NON-PROFIT ENTITIES 1-10,
‘and DOE GOVERNMENTAL ENTITIES 1-10, Defendants.
—_—_— Sse
wo. 26747
if cane
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 01-1-1052-04)
MARCH 19, 2007
MOON, C.J., LEVINSON, NAKAYAMA, ACOBR, AND DUFFY, JJ.
INION couar By LEVINSON,
‘The defendant-appellant University of Hawai'i (UH)
appeals from the first circuit court’s July 12, 2004 order, the
Honorable Gary W.B. Chang presiding, denying UH's April 7, 2004
(1993) and
motion (citing Hawai'i Revised Statutes (HRS) § 662
Hawai" Rules of Civil Procedure (HRCP) Rule 12(b)"), to dismiss
HRS § 662-4, entitled “Statute of Limitations,” provides: "A tort
claim agsinst the State’ shell be forever barred unless action is begun within
feo yeare after the claim accrues, ea
1 ee isis fin 1a ss
aD te eit coded. |The legislature added the emphasized text on June
HPibic. Sue 1976 aw, Ses. L. Act 219, $$ 16 anc 23 et 539, 541.
ECE Rule 12(b] permite certain defenses or objections to be raised by
notion rather than in ® responsive pleading, including "(1) lack of
(Continued. .
na
FOR PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REFORTER *#*
the June 5, 2001 first amended complaint of the plaintiffs-
appellees Sosaicte L. and Bette Savini (hereinafter, “the
Savinis"].
On appeal, UH asserts that the Savinis’ claim for
relief is barred by HRS § 662-4 inasmuch as more than two years
elapsed between the onset of the Savinis’ injuries -- which, UH
asserts, triggered the “accrual” of their claim -~ and the
Savinis’ initiation of their lawsuit more than three years later.
As we hold dniza in section III.B.5, the Savinis’ claim
did not accrue until the quantum of the medical care they
actually received exceeded the medical-rehabilitative limit set
forth in HRS § 431:10C-306(b) (2) (1993).* It follows that the
2(.,scontinued)
jurisdiction over the subject matter” and “(6) failure to state = claim upon
hich relief can be granted.”
HRS § 431:10C-306, entitled "Abolition of tort Liability,”
Provided in relevant part
(2) Except as provided in eubsecticn (bi, [the Hawai'i Motor
Vehicte insurance Lav, ilkS ch. 431, ert, 10G;] abolishes tort
Hability of the following persons with ‘respect to accidental harm,
arising from motor vehicle accidents oocureing An this Stats
{1) ‘Ouser, operator, Sr user of an insured motor vehicles of
(2) Operator or user of an uninsured motor vehicle uho operates of
uses such vehicle without reason to believe st to be an
Unineured motor vehicle.
(b) Tort Liability is not abolished as to the following
persons... in the following cireunstances:
i2) injury occurs to such person in a motor vehicle accident in
which the amount paid or accrued exceeds the medical
Fehabilitative Linit established in [HRS §] ¢31:10¢-308 for
expenses provided in [HRS §) 431:10C-103(10) {Al and
(B)[) (eongerning personal injury protection benefits) |
Effective January 1, 1998, the legislature repealed the floating medical-
rehabilitative Limit, fixed the threshold st $5000.00, and further. snended HRS
5°431:106-306 in respects. inmatersol to the present matter. Sex 198? hax.
L. Act 251, $843, 51, and 70 at 542, 551, 553. Effective July 20,
the legislature defined nore preciaely the amounts to be included in the
(continued...)
‘+4 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
circuit court correctly denied UH’'s motion to dismiss and,
accordingly, we affirm the circuit court’s July 12, 2004 order.
1. BACKGROUND
‘The Savinis allege that, on Novenber 13, 1997, UH
professor Thomas T. Bopp, while driving a vehicle owned by the
State of Hawai'i (hereinafter, “the State”) at Honolulu
International Airport, struck and physically injured Sosaiete
and, hence, inflicted emotional distress on Bette. ‘These facts
[hereinafter, “the accident”]* were alleged both in the Savinis’
April 3, 2001 complaint for damages against the State and Bopp
and in their June $, 2001 first amended complaint, which was
materially identical except that it changed the named defendants
by substituting UH for Bopp and the state.
on April 7, 2004, UH moved to dismiss the Savinis’
action pursuant to the State Tort Liability Act (STLA), HRS
ch. 662, in particular HRS § 662-4, and HRCP Rule 12(b), see
supra note 1. In particular, UH argued that the Savinis “were
required to file their claim within two years of the date of the
“ (Citing Waugh v. Univ, of Hawaii, 63 Haw. 117, 128,
accident
(continued)
calculation of expenditures and, effective July 20, 1998 and January 1, 2002,
further anended HRS § €31/10c~s06 in innaterial respects.” Seg 2001 Haw. Se
L, Act 157, $6 31 and 39 at 401, 404; 1998 Haw. Sees. L. Act 275, §§ 22-23 and
33 at 934, "940.
» Nowhere do UH oF the Savinis discuss any specifica of the accident
alleged injuries, nor are they particularly relevant to this
appeal. Inasmuch as UH raised the statute of limitations ae a defense and the
Seviniz aio not produce any colorable evidence that their injuries were latent
for a period following the accident, of that UK's torticus conduct was
Continuing, we a#eune that the Savinis were injured and should have know they
were injured, if at all, mediately upon the cecurrence of the accident.
3
‘04 FOR PUBLICATION IN WEST’ S KAWAI'T REPORTS AND PACIFIC REPORTER
621 P.2d 957, 966 (1961); Bissen v, Fuiii, 51 Haw. 636, 638, 466
P.2d 428, 431 (2970); Rumball v. State, Civ. No. 04-1-0038K (Haw.
3d Cir. May 4, 2004); Brub v. Bedish, Civ. No. 03-1-0500-03 (Haw.
Ast Cir. Oct. 22, 2003); Wollman v, Gross, 637 F.2d S44, 547 (8th
Cir. 1980); Mendiola v. United States, 401 F.2d 695, 697 (Sth
Cir, 1968); United States v. Webb Trucking Co., 141 F. Supp. $73,
575 (D, Del. 1956).) In their memorandum in opposition, the
Savinis urged (1) that “accrue” and “occur” are distinct terns
and concepts, as construed by this court and by the Mississippi
Supreme Court, (2) that, regardless of the date of the accident,
their “claim” did not “accrue,” within the meaning of HRS
§ 662-4, until the medical-rehabilitative limit set forth in HRS
§ 431:10C-306(b) (2), see supra note 2, was exceeded, and (3) that
the medical-rehabilitative limit constitutes a threshold quantum
of resultant medical expenses beneath which motor vehicle
accidents are generally' characterized as “no-fault” such that,
as a matter of law, tort liability does not attach to personal
injuries. (Quoting Teller v, Teller, 99 Hawai'i 101, 110, 53
P.3d 240, 249 (2002) (quoting In re Akana, 42 Haw. 415, 444
(2958) (Stainback, J., dissenting) (“The dictionary gives the
following definition for the word ‘accrue’: ‘To come into
existence as an enforceable claim to vest as a right; as, a
cause of action has accrued when the right to sue has become
vested.’")); Stubbs v, Miss, Farm Bureau Cas, ins, Co., 625 So.
< None of the parties discuss the “verbal threshold,” ARS §
431:100~306(6) 11) to. (3), (Supp. 2001), whereby sufficiently serious and
Permanent injuries lof death) are deemed to trigger tore Liability without
Proof that the sonetary threshold has been exceeded. We proceed on the
Sscumption that the verbal ehreshols dese not apply to the present matter.
4
FOR PUBLICATION IN WEST’ S HAWAT'T REPORTS AND PACIFIC REPORTER +++
2d 8, 15 (Miss. 2002) ("*Occur’ and ‘accrue’ are not synonymous,
legally or otherwise . . . .”).) The Savinis noted that HRS
§ 431:10C-315* provides that the limitation period “runs from the
date of the accident or . . . of the last no-fault payment, (*]
whichever is later.” Further to the foregoing, the Savinis
asserted that, as of April 3, 1999, two years prior to the filing
of their original complaint, Sosaiete’s workers’ compensation
carrier had expended only $1244.06 on his behalf, i,e,, less than
the monetary threshold, which was $13,900.00 at the time of the
accident, see Hawai't Administrative Rules § 16-23-10(c) (1999).
The Savinis attached an “Exhibit A,” which appears to be a
statement of workers’ compensation benefits paid on Sosaiete’s
behalf, and 2 declaration of the Savinis’ counsel purporting to
authenticate the exhibit. In its reply, UH added that, inasmuch
as the legislature, in 1976, amended HRS § 662-4 expressly to
protract the STLA’s limitation period te six years in medical
malpractice cases involving a plaintiff's late discovery of the
injury, see supra note 1, but did not create “any exception for
RS § €31:100-315(b) (1993), amended py 1997 Haw. Sess. L. Act
251, $5 49 and 70 at 545, 853, provided in relevant part:
No suit arising out of a motor vehicle accident shall be
brought in tort more than the Later of:
(1l'two years after the date of the sotor vehicle accident upon
which the claim is bared; (or)
ia) two years after the date of the last payment of workers!
compensation benefits arising from the
moter vehicle accident:
Effective July 20, 1998, the legislature amended 2 different subsection in
immaterial respects. S26 1998 Haw, Sess. L. Act 275, $6 28 and 37 at 935-36,
540.
‘Presumably, the Savinis mean to include workers’ compensation
benefits," inasmuch aa their Exhibit A implies that they crossed the monetary.
threshold by virtue of the workers’ compensation payment of October 23,2000.
5
+ POR PUBLICATIGN IN WEST! S HAWAI'I REFORES AND PACIFIC REPORTER +4
+ automobile accidents,” the legislature did not contemplate
extending the Limitation peried beyond two years after the
occurrence of the accident itself.
At its June 1, 2004 hearing, the circuit court ruled in
relevant part as follows:
[tine cause of action does not accrue until... the
plaintiff reaches the thresh Jold and this record does not
Ingicate when the thresh [Jold was met.
T'think st indicates that (the Savinis] halve]
Ancurred at least $17,000... . of expenses, but 1t doesn’t
show when in tine the tort chresn(Jole amcust of
[#)13, (9100. - + was set... + Im interpreting that
word ‘acerued” to begin » | | Gpon that point in tine when
the plaintsff sneurs of ie pasa the thresh{Jolé amount of
posfeult [sic =~ presumably, "workers" compensation,” 536
SUBEA note 6,) benefits.
Accordingly, the circuit court's July 12, 2004 order denied UN's
motion to dismiss, concluding that “[a] claim against [UK]
arising out of a motor vehicle accident does not ‘accrue,’ and
“the two-year statute of limitations . . . does not begin to
run(,] . . + unt{l medical/rehabilitative expenses incurred by
the injured person exceed the applicable tort threshold.” on
August 5, 2004, the circuit court ordered that UM could pursue an
interlocutory eppeal from its July 12, 2004 order, see HRS
§ 641-1() (1993). On August 9, 2004, UH filed its timely notice
of appeal.
‘+4 FOR PURLICATION IN WEST’ § HAWAI'I REPORTS AND PACIFIC REPORTER
TT. STANDARDS OF REVIEW
Denial Of Summary Judament?
ie review the circuit court’s grant or denial of
summary Jusgnent de nous.
inion. Kens, 94 Hawaii 213, 221, 11 F.3d 1, 8 (2000)
The standard for granting * motion for summary judgsent ie
settles:
(slummary judgment is appropriate if the
pleadings, depositions, answers to
Unterrogatories, and admissions on file,
together with the affiaavits, 1f any, show that
there ig no genvine issve as to any materia
If, on motion to dismiss for failure of the
Pleading to state 2 Claim upen which relief can be
Srenteds matters outside the pleading are presented to
ane not excludes by the court, tne notion shall be
Treated as one for summary judgment and disposed of as
provided in (MRCP) Rule 56 ss
WRCP Rule 12(b). HRCP Rule 96, entitled “Summary Judgment,” provides in
relevant port
(e) . . . The Sudgnent sought shall be rendered forthwith if
the pleadings, ‘depositions, enewers to interrogatories, and
Sonisaions on file, together with the affidavits, if any, show
that there is no genoine ‘sue as to any msterial fact and tht
the moving party is entitied to's Judgment as a matter of Lew.
ei | |. (oiefense required... . when 2 motion for
sunnary Judgment 2 made and supported as provided in this rule,
an adveree party nay not rest upen the mere allegations or denials
Of the adverse perty's pleading, but the adverse party" s respons
by afficarite or 2s otherwise provides in this role, must set
forth specific facte showing that there is a genuine issue for
tele +
In the present matter, the Savinis’ on mencrandun in opposition to U8's
notion £0 dianise drew the circust court's attention te facts beyond the scope
Of thets complaint, and the circuit court relies upon the allegation that the
Sovinis’ PIP benefits hed accrued pieceneal. Ch.
Bently 29 Hawalt 215, 321, 972 F.26 1081, 1087 (i993) (where “there [wa]s no
[nications . . that the cézcuit court... relied upon any facte that were
hot alleged if the » - + complaint,” holding thet mere “references to facts,
Soteide the plescings” in the defendant’s notion to dismiss did not
Stransfore” it inte a motion for sunmary Judoment); Buw. Au, 62 Haw. 210,
214, 626 F.2d 173, 177 (1981) (where “ehere [wals no indication in the record
Gf unether the trial court considered the interrogatories in making its
String." holding that “notion to dismiss was not transformed into one for
Sunnary judgment”). Accordingly, we apply the summary Judgnent standard of
feview rather than Limiting ourselves to the allegations set forth in the
complaint
04 FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER ***
fact and that the moving party is entitled to
Judgment as 2 matter of low. A fact is material
if proof of that fact would have the effect of
establishing or refuting one of the essential
Glenents of a cause of action or cefense
Seserted by the parties, The evidence must be
Slewes in the Light nest favorable to the.
ronvmoving party. In cther word#, we must view
Sil of the evidence and the inferences drawn
therefrom in the light most favorable to the
party opposing the motion.
Id, (citations and internal quotation marks omitted).
Qusrubin z Thronas, 107 Hawai'i 48, 56, 109 P.3d 689, 637
(200s) (quoting Durette x. Alcha Plastic Recycling, Inc,
108 Hawai't 490, B01, 100 P-3a 60, 71 (2008) (quoting
SAMRGHEe._Euu, 105 Hawai'i 112, 137-26, 94 P.3d 667, 672-73
(2004) (quoting Kahale v. Citys County of Honolulu,’ 104
Hawai'i 341, 344, 90 P30 233, 236 (2008) (quoting SCI Mant.
Sore, ve Sima, 101 Hawai'i 438, 445, 71 P.3d 389, 396 (2O0sT
(quoting Coon’. City ¢ County of Honolulu, 98 Hawai't 233,
244-45, 47 Pe3d 348, 359-60 (2002) TT)
Willis v. Swain, 112 Hawai'i 184, 188-89, 145 P.3d 727, 731-32
(2006) (brackets in original).
B. Statutory Interpretation
“the standard of review for statutory construction is
established. The interpretation of e statute is 3
wel
uertion ef law which this court reviews de now.” Liberty
Sit, Five Ine. co, -v, Dennison, 108 dawai'® 360, 304,120,
Posgaiis, iis (200s) tqucting
Geous, 103 Hana" 206, 211, 62 Pasa 386, 351 (2003))
internal quotation marks cmitted). In ‘so doing, this court
must adhere to the well-established rule of statutory
Senstruction that the “forenost obligation is to ascertain
Gnd give effect. to the intention cf the legislature, which
if to be cotained primarily fron the language contained in
the statute itself.” Gravy, Admin, Diz. of [the] court, 84
Houal't 138, 148, 931 P-2a 580, S90 T1e87) (eltations
oaitted)
Wright v. Home Depot U.S.A., Inc., 111 Hawai'i 401, 407, 142 P.3d
265, 271 (2006).
On appeal, UH begins with a disquisition on sovereign
immunity, implying that to hold that the Savinis’ claim did not
8
‘ee FOR PUBLICATION IN WEST’ § HANAZ'T REPORTS AND PACIFIC REPORTER **
accrue until they exceeded the medical-rehabilitative limit would
exceed the scope of the State’s (and, hence, UH’) consent to
suit get forth in the STLA, HRS ch. 662:
= The Language of the no-fault statutes at issue
here do not puspore to change the SILA's statute of
Visitations(, HRS § 662-4, gee supre note 1]
injhe two-year statate of Linstation { (iH
presumably’ means “the Savinie’ cleis”)) “accrue(d]” at the
Eine of the motor vehicle accident. Any attempt to
manipulate (HRS § E62-4] by changing the legal meaning of
Ngccrual” to accommodate one’s sense Of public policy
offends (1s) plain language - . - (2]te protections
Should not be watered down Sy anyone other than the state
Legislature:
(Quoting Haw. Const. art. x, § 5 ("[UH] is . . . established as
the state university and constituted a body corporate.”); HRS
§§ 304-2 (1993) (same), 304-6(a) (Supp. 1999) (*[UH] shall be
subject to suit only in the manner provided for suits against the
State... . All defenses available to the State, as well as
all limitations on actions against the State, shall be applicable
to (uH].“):* Tavlor-Rice v, State, 105 Hawai'i 104, 120-12, 94
P.3d 659, 665-66 (2004); Fought & Co., inc, v, Stee] Ena’a &
Erection Co., 87 Hawai'i 37, $5, 951 P.2d 487, 505 (1998); Waugh,
63 Haw. at 125, 621 P.2d at 965; Oahu Ry, & Land Co, v, United
States, 73 F. Supp. 707, 708 (D. Haw. 1947).) (Citing Chun we
Bd_of Ts, of Emplovess’ Ret. Sys., 106 Hawai'i 416, 106 P.3d
339 (2005).) UK’s points of error reduce to @ single issue:
whether the Savinis’ claim accrued at the time of the accident or
when the amounts paid or accrued by virtue of Sosaiete’s injury
* on ouly 1, 2006, the legislature effectively moved the quoted
portions of HRS $§ 304-2 and -€{a) to the newly crested HRS $§ 304K-103 and
PfoR (als respectively. See 2006 Haw. Sese. 1. Act 75, $§ 2 and 23 at 146-47,
aie
‘+4 FOR PUBLICATION IN MEST’ S HAMAI'T REPORTS AND PACIFIC REPORTER ++
exceeded the $13,900.00 monetary threshold, see supra section Cc.’
UH argues:
"at the tine
[t]he two-year statute of Limitation “accrus
Of the moter vehicle sceident
fins § 662-4 does not provide for any delay of the
enget of the. . period. - by .. «the Hawai'i Motor
Venicie tasurance (Llaw(, sini Gh. 431, ave. 20c]
Adniteadly, if thie Court were to reverse the ruling
of the eizoust dourt |. . ana hold that the tuo year
Statute of Linitation is strictly interpreted, there would
bea "gap" for... persons who do not meet the dollar
level Ehreshoid prior to the expiration of the two years.
However, tne proper forum to address this gap is the
Legislature
UH contends “that it is obvious that the term ‘accrue’ in this
context means th[e] date of the . . . accident.” (Quoting Wauah,
63 Haw. at 128, 621 P.2d at 968; Wollman, 637 F.2d at 547.)
(Citing Bigsen: Mendiola, 401 F.2d at 697; Webb Trucking, 141 F.
Supp. at 575.) Quoting Whittington v, State, 72 Hawai'i 77, 79,
806 P.2d 957, 958 (1991), UH adds that we have previously
“refused to extend HRS § 662-4.”
In their answering brief, the Savinis counter that HRS
§ 662-4's use of the term “accrues” contemplates that the two-
year period began when they had a viable claim for relief over
* ory as the State of Hawai'i, as amicus curiae, expresses it,
Sidloes the tort threshold Lax, [HRS § 431:i0C-306(B) (2)y gee subKa note 2,] a
law of general applicability that does not expressly incluse the state,
iepiieaiy expand the waiver of sovereign innunsty snd spplicable statute of
Limitatigns in the STA?” (Citing, e.gcy Tavlor-Rice; Vail v.Eaplovees’ Ret
Sua 78 tow. 42, 58, 056 P28 1950, 1855 1299); Retecinatan Z-Seate, 7
Naw,’ 77, 78, 606 P.24 957, 958 (1991); Big teland Smaly Ranchers? Asera
State, 60 Haw. 228, 236, $88 P.2d 430, 436 (1876)7 A.C. chock s. Kaneshiro, $1
How, 82, 451 F.2¢ 809 (1969); Marks v._AN tiga, 48 aw, "92, 96, 395 F.2d 620,
622 (3368); SOME efi F.20 474,477 (23 Cir. 1968)?
442 Fe20- 1299, 1303 (eh Csr, 1971); Qahe By &
Leng ce, 73 f. Supp. at 108; Carter v. Cross, 373 So. ad E1, 82 (Fla. Dist.
cee App. 1979); Stephens v. Dixen, S36 N.n.2a 755, 759 (wicn. 1995); Jackson
eu pans. $30 NeEvza 1262, 2282 (NeY- 1986).)
10
FOR PUBLICATION TN WEST’ § WAWAI'T REPORTS AND PACIFIC REPORTER *
which the cireuit court had jurisdiction, ise., when the workers’
compensation insurer's outlays exceeded the sum of $13,900.00.
‘hey reiterate that HRS § 431:10C-315, see supra note 5, provides
that the applicable limitation period “runs from. . . the
accident or . . . the last no-fault payment, (sic, see supra
note 6,) whichever is later.” Furthermore, they urge that UH
misconstrues Waugh, which “recognized” “the date when harm
occurred and the date when a claim accrued . . . as being two
potentially different dates.” (Quoting 63 Haw. at 127, 621 P.2d
at 968.)
B. analysis
1. Intreduction
In general, “[a] cause of action for negligently
harming a person . . . is complete when the harm occurs.”
Restatement (Second) of Torts § 899 cmt. c¢ (1979 & Supp. 2006).
However, a harmful incident and the “accru[ai]” of a resulting
claim for relief may be temporally distinct under certain
circumstances, such as where the tortious conduct is of a
continuing character or the plaintiff's discovery of the cause of
action is justifiably forestalled. See, e.g, Blair vs Ing, 98
Hawai'i 247, 264, 21 P.3d 452, 469 (2001) (quoting Havs v. City &
County of Honolulu, 61 Hawai'i 391, 293, 917 P.2d 718, 720
(1996)). The question before us -~ whether the accrual of a tort
claim, particularly against a sovereign defendant, is delayed
until the accumulation of medical expenses exceeding the monetary
threshold -- is one of first impression in Hawai'i.
u
}+ FOR PUBLICATION IN WEST’ § WAMAI'T REPORTS AND PACIFIC REPORTER
In other jurisdictions, “the statute of limitations may
- run even if the . . . certain sum of money that must be
exceeded before recovery may be had[] has not been attained.”
Martin J. McMahon, Annotation, When Statute of Limitations
Commences to Run on Automobile N u
Claim, 36 A.L.R.dth 357, 362 (1985 & Supp. 2007); see also Lee R.
Russ in consultation with Thomas F. Segalia, Couch on Insurance
§ 12)
‘even though the monetary threshold has not been fully satisfied,
2 (3d ed. 2006) (“The injured person may maintain suit
provided it is clear that additional medical expense will be
incurred and that the plaintiff will then exceed the
threshold.”). Nevertheless, we conclude that, under Hawai"i lew,
a plaintiff who relies on the medical-expense threshold as
opposed to a verbal threshold, see supra note 4, has no claim at
all, and the statute of limitations does not begin to run, until
the plaintiff has actually received the requisite amount of
“reasonably necessary” medical-rehabilitative treatment, as
manifested through bills received or paid.
2. Fora viable tort claim to accrue under the monetary=
x collateral
source providing benefits to the plaintiff, must have
actually incurred expenses that exceed the statutory
Shreshold.
‘The plain language of HRS § 431:10C-306(a), see supra
note 2, indicates the legislature’s intent to “abolish{]” tort
liability derived from motor vehicle accidents except in cases of
serious injury, leaving motor-vehicle-tort plaintiffs “generally”
to “seek reparations from his [or her] own insurance company,”
the insurer “of the vehicle in which [#/Jhe was a passenger,” or,
12
FOR PUBLICATION TN WEST’ § HAWAI'T REPORTS AND PACIFIC REPORTER +
in the case of an injured pedestrian, “an insurance company
covering any vehicle which caused injury to him” or her. See
Sen. Conf. Comm. Rep. No. 4, in 1973 Senate Journal at 636; Hse.
Conf. Comm. Rep. No. 13, in 1973 House Journal at 1219. In
carving out the exceptions in HRS § 431:10c-306(b), the
legislature created the monetary threshold so that, even without
satisfying the “verbal threshold,” see supra note 4, tort
Liability for a plaintiff's injuries would arise so long as the
plaintif£ could denonstrate that the injuries were sufficiently
costly.” See generally $-47 Damages in Tort Actions
§ 47.04(1] [a] (LexisNexis 2006) (“The theory is that, once an
injury requires a certain amount of treatment, it will be deemed
fa serious one even though it may not be specifically listed as a
‘serious injury’ under the verbal threshold.”). To that end, HRS
§ 431:10C-315(b), see supra note 5, which UH conspicuously omits
0c-306 (b)
from its arguments, operates in tandem with HRS $ 43
extending the plaintiff’s limitation period until unrealized
medical expenses have accumulated and the gravity of the
plaintiff's injury and, hence, the presence or absence of a claim
for which relief can be granted, is ascertainable. In other
words, HRS § 431:10C-306 enables, indeed requires, would-be
plaintifts to “wait and see” whether their expenses will be great
enough to shift responsibility to another party. ‘The claim
having “accrued” at such time after the accident as the monetary
We said as much in Ho vs Leftwich, #8 Mawas't 251, 258, 965 F.2d
793, 800 (1998). ("[T]he provisions of HRS $ 451:10C-306 . . . permit()
celculation of expenses for the purpose of satisfying the threshold
Feguirenent either on the basis of those already aid or those merely
acarusd.” (Eaphases acced.).
3
‘+4 FOR PUBLICATION IN MEST’ S HAMAT'T REPORTS AND PACIFIC REPORTER
threshold requirement is satisfied, HRS §§ 431:10C-315(b)
generally allows the plaintiff to bring a lawsuit for up to two
years after “(2) motor vehicle insurance(,] . . . optional
additional benefits[,] . . . (3) . . - workers’ compensation|,
and] public assistance benefits . . . have ceased.”
In sum, construing HRS $§ 431:10¢~306(b) (2) (2993) and
431:10¢-315(b) 80 as to postpone “accrual” of claims based upon
the medical-rehabilitative limit is necessary to effectuate the
legislature’s “aboli(tion]” of most motor vehicle tort lawsuits.
For a plaintiff to sue based on the mere expectation that
expenses might exceed the medical-rehabilitative threshold would
be to pursue a cleim that the legislature has expressly
abolished. Moreover, the possibility of an eventually ripe claim
does not justify a premature complaint: not even the best expert
witness can ensure that such an inchoate claim will accrue before
the plaintiff convalesces or dies due to causes unrelated to the
alleged tort.
3. UB =
crual date claim.
Furthermore, the “wait-and-see” rule applies regardless
of the sovereign status of the defendant. We agree with UM that,
when the legislature amended the STLA in 1976 so as to lengthen
the limitation period for medical malpractice claims, see supra
note 1, it similarly could have extended, but did not, the life
of motor vehicle tort claims. Nonetheless, this observation is
of no avail to UH inasmuch as, until they reached the medical~
rehabilitative limit, the Savinis’ claim had not “accrued.” To
construe the STLA’s usage of “accrue” any more narrowly would be
a
ses FOR PUBLICATION IN WEST'S HAWA'T REPORTS AND PACIFIC REPORTER *¥4
to resuscitate a class of tort claims that the legislature
abolished.
Nevertheless, the defendant's sovereign status could be
relevant under circumstances not present in this case. Had the
Savinis waited more than two years after the monetary threshold
had been satisfied to file their lawsuit, UH could have relied on
HRS § 662-4 as a statute of repose, regardless of whether two
years had elapsed since “the last payment of workers’
compensation,” of, HRS § 431:10C-315(b) (3). In other words, HRS
§ 662-4 may accord a sovereign defendant some protection beyond
that of HRS § 431:10C-315(b), but it is of no consequence in the
present matter. Sosaiete having apparently exceeded the medical-
rehabilitative limit on October 23, 2000, see supra note 6, HRS
§ 662-4 afforded the Savinis two years from the accrual of their
claim
Lue., through October 23, 2002 =~ within which to file
their lawsuit. Accordingly, their April 3, 2001 complaint and
June 5, 2001 first amended complaint were timely filed.
4. Ui's discussion of case law is unpersuasive,
UH founders on extrajurisdictional interpretations of
statutes that are materially distinct from those under scrutiny
here. “Hollman stands on all fours with the instant case” is
quite an overstatement; neither it nor Mendiola nor Webb Trucking
involved a statutory tolling or delay provision, a medical
threshold, or any comparable statutory exception to a general
abolition of tort liability. In Wollman, the United States Court
a5
"+ FOR PUBLICATION IN WEST’ S HAMAI'T REPORTS AND PACIFIC REPORTER ++*
of Appeals for the Eighth Circuit" affirmed a federal district
court's dismissal of the plaintiffs complaint on the grounds
that it “had not been presented within two years of . . . the
accrual of the claim as required by (28 U.S.C. 2401(b)).”
637 F.2d at 546. The plaintiff sought a judicial extension of
the limitation period on the grounds that, while he knew that the
defendant worked for the federal government, he did not know “of
the legal significance of this fact,” i.e., that the government
might have been liable. See id, at 547-49. Specifically, the
plaintiff relied upon the “blameless ignorance” doctrine and the
rule of United States v. LePatourel, $93 F.2d 827, 831-32 (8th
Cir. 1979), which effectively delayed the onset of @ limitation
period pending the resolution of a “novel question of law.” See
Ad at 547-48. ‘The defendant's arguable sovereign status was
irrelevant to the court's conclusion that the plaintiff's belated
development of his respondeat superior theory did not constitute
“blameless ignorance” or trigger the LePatourel rule. See id, at
548, 549 6 n.6. On the other hand, in the present matter, it is
uncontroverted that Sosaiete was receiving workers’ compensation
benefits through at least November 20, 2000, and would be
entitled to a full two-year extension from that date pursuant to
HRS § 431:10C~315(b) (3), see supra note 5, were UH's sovereign
immunity not at issue.!?
B Fedorel jurisdiction was predicated upon the defendants conduct
as an employes of the federal government. See 637 F.2a at S46.
Nor is Whittington pertinent to the present matter. In that case,
we rejected the plaintift’s argument that the statute of limitations was
teilea during his infancy, Lneamuch as the tolling provision linited itself te
(continsed...)
16
[FOR PUBLICATION IN WEST’ § HAMAI'T REPORTS AND PACIFIC REPORTER +##
Waugh is similarly inapposite. UH urges that,
according to Waugh, because the Savinis “*knew or should have
known’” about their injuries as soon as Sosaiete was struck, the
claim “accrued” at that moment. (Quoting 63 Haw. at 128, 621
P.2d at 966.) Essentially, UH attacks a straw man by arguing
that the “discovery” rule, see supra E.2.a, does not toll the
Limitation period in the present matter. It is uncontested that
the Savinis possessed immediate knowledge of their injuries.
Their entitlement to a delayed onset of the limitation period did
not spring from any ignorance of fact but, rather, from the delay
between the onset of Sosaiete’s injuries and the accumulation of
sufficient medical expenses to create an exception to the no-
fault paradigm, thereby giving rise in the first instance to
potential tort liability on UH's part.
5. Conclusion
In the present matter, UH was not liable to the
Savinis, if at all, until Sosaiete’s injuries had provoked more
than $13,900.00 in actual, incurred expenses. According to
Exhibit A, Sosaiete exceeded the medical-rehabilitative limit
within the two-year period prior to the filing of the Savinis’
complaint. Consequently, the Savinis’ claim had accrued by the
time they filed their complaint but not more than two years
(continued)
action(s) specified in [HRS ch. 657, pt. I,” expressly excluding the STLA,
tnder which the Whistinaten pleinei#é Sued. ‘72 Haw. at 77-76, 606 P.2d at
Se7sse. In contrast, SRS § 431:10c-218(p) (3), does net facially exclude STA
aetiens.
vv
(++ FOR PUBLICATION IN WEST'S HANAI'T REPORTS AND PACIFIC REPORTER *#+
prior. That being the case, the complaint was timely in
accordance with HRS § 662-4, gee supra note 1.
We recognize that today’s holding might inconvenience
future parties who would prefer to litigate early under
circumstances where it is virtually certain’ that the
plaintiff's injuries will give rise to medical expenses over
$5,000.00 (the current threshold, see HRS § 431:10C-306(b) (4)
(2005)}, but will not do so until considerable time has elapsed.
Such a scenario would be exceptional and capable of amelioration
by the legislature." See generally 2-19 No-Fault & Uninsured
Motorist Auto Insurance § 19.60 (LexisNexis 2006); Stackhouse v
Schneider, 559 A.2d 306, 308 n.5 (D.C. 1989) ("*{I]f there is a
perceived need . . . to set ain] . . . outer time limit... ,
the proper way to do so is by a statute of repose.) (quoting
Bussineau v. President 6 Dirs, of Georgetown Coll., 518 A.2d 423,
436 (D.c. 1986).
Tv. CONCLUSION
In light of the foregoing analysis, we hold that the
Savinis’ two-year limitation period under HRS § 662-4, see supra
note 1, began to run as soon as (1) the Savinis had incurred or
8 Again, sesuming neither tragedy nor cure intervenes.
A few states' statutes currently permit the plaintiff to satisfy
the monetary threshola based upon the expectation of future expences.
fg, S94) Pansase in Tort Actions, gupta section £.2-b, $47.04 (a}{a] teiting
Ky. Fev. Stat. Ann, § 304,39°060 (2) (b)7 Minn. Seat. § 668.51(3) (a) (1)); Montag
yp Beraan Blusatone Coy, 366 A.2d 1363, 1362-63 (NJ. Super. Ct. Law Div.
57) (wnere ehreshola required that “expense incurred or
equal or exceed $200.00, agreeing with plaintiff's position “that the cause of
Sctlon dig not accrue Uistil she actually inevrred or should have knows
She gould incor s 200 in ‘medical expenses” (emphases adced)); Correll v,
Gasrelie, 404 N..8,26 636, 637-86 (Sup. Ce. 1378)
18
+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
paid actual expenses sufficient to exceed the medical-
rehabilitative limit and (2) Sosaiete’s workers’ compensation
benefits had ceased. Accordingly, we affirm the circuit court's
duly 12, 2004 order denying UH’s motion to dismiss.
on the briefs:
Francis 7. 0’Brien,
for the plaintiffs-appellees
Sosaiete L. Savini and
Bette Savini
Robert A. Nash, of the Office
of the General Counsel of the
University of Hawai'i, for the
defendant-appellant University
of Hawai'i
Deirdre Marie-Tha,
Deputy Attorney General,
for the amicus curiae
State of Hawai'i
ore
ML
Rasta Coruna Ores
Om
Yan < Dudiys
|
ee52b56c-e3ae-427d-9d5e-c5bb0d288097 | Taniguchi v. Association of Apartment Owners of King Manor, Inc. | hawaii | Hawaii Supreme Court | ‘s++POR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REFORTER®*#
IN THE SUPREME COURT OF THE STATE OF HAWAI‘T
000.
GLENN TANIGUCHI, Plaintiff-Appellant
ASSOCIATION OF APARTMENT OWNERS OF KING MANOR, INC.,
‘2 Hawai'S Non-Profit Corporation, IRVIN KING,
BETTY TAKAHASHI, HENRY KENNEDY, LYNN SCHNEIDER,
AUDREY ASAHINA, Defendants-Appellees
and
JOHN DOES 1-107 JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; and DOE ENTITIES 1-10, Defendants
wo. 27500 4a 2
Be 3
APPEAL FROM THE FIRST CIRCUIT couRT 2212
(CIV. NO. 04-1-00403) aed
ae 3
ge
APRIL 12, 2007 a 8
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY ACOBA, J.
Plaintiff-Appellant Glenn Taniguchi (Appellant) appeals
from the August 24, 2005 judgment of the circuit court of the
first circuit (the court)’ granting the Motion for Summary
Judgment of Defendants-Appellees Association of Apartment Owners
+ the Honorable Victoria S. marks presided
aad
‘+*4FOR PUBLICATION IM WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER
of King Manor, Inc. (the Association), Irving King (King), Betty
Takahashi, Henry Kennedy (Kennedy), Lynn Schneider, and Audzey
Asahina (collectively, Appellees] end denying Appellant’s October
13, 2004 Motion to Set Aside the Order and June 14, 2008 Motion
for Partial Summary Judgment as to Appellant's First Cause of
Action.
We hold that (1) Hawai'i Revised Statutes (HRS) § 514A-
82(a) (14) (Supp. 2005), which prohibited a resident manager of a
condominium from serving on its board of directors, originally
enacted as HRS § 514-20 on June 9, 1976, 1976 Haw. Sess. L. Act
239, §§ 3,7 at 758-59, does not apply to the Association inasmuch
as the Association’s original bylaws were recorded prior to the
enactment of HRS § 514-20, (2) the inclusion of Section 3.01 in
the Association's First Restated Bylaws pursuant to HRS § S14A-
82 (a) (14), which prohibited a resident manager of a condominium
from serving on the Board of Directors of the Association (the
+ Rs § $14A-82(2) (14) relating to “Contents of bylaws” «
a] The bylaue should provide for at least the
following
{24)" No resident manager of a condominium shall serve
on its board of directors{-J
uns _§ $14R-82(a) (14) was subsequently repealed by 2004 Haw. Sess. L. Act 164,
$26 at £13.
Effective July 1, 2005, a similar restriction exists in HRS
§ 514B-107(b) (2006), sich pertains te "Sosrd: limitations.” 2004 Haw. Sess,
L, Act 166, § 2 at 765. HRS’ § £14B-107(b) states, "No resident manager oF
employee of § condominium shall serve on its board.”
2
‘s+4f0R PUBLICATION IN WEST’ § HAWAI'T REFORTS AND PACIFIC REPORTER*#*
Board), exceeded the purview of HRS § 514A-82.2(b) (1993)?
eatoment of declaration and bylaws,”
> ns § st4ncs2.2, entitied “
stated in pertinent part
(a) Notwithstanding any other provision of this
chapter or of any cther statute or instrument, an
Sesociation of apartment owners may at any tine restate the
Seclaraticn of condominium property regime of the project or
tthe bylaws of the association to set forth all amendnente
thereof by 8 resolution adopted by the board of directors.
we)
the declaration of condominium property regime
of the project or th hs
Geclarsticn or bylaws eg may be required in order te confors
sith the provisions of this chapter ox of any other statate,
brgimance, tule or reaulation enacted by any aoveromentel
iinority bys resolution -adopred py the boars of
‘Gitectors. end the restated declaration or bylaws shall_be
etuliy etfective tor ali curpases as if adopted by the
Vote or written consent of the spartment owners; provided
nat sny declaration of condominium property regime oF
bvlsus Peststes pursuant to this subsection ehsil identity
‘Sach corticn so restated and-ahali contain a statement hat
hese portions hal onses Of
rainance, Fale, aindment
‘and that in the event of any conflict, the restated
Sbelaration or bvlsve shall -be subordinate tothe cited
Stscute, ordinance, rule, op reculetion.
(emphases added.) HRS § S142-€2.2 was subsequently repealed by 2004 Haw.
Sess. L. Act 164, § 26 at #13.
‘on duay 1, 2005, HRS § 5148-109 (2006), entitled “Restatement of
declaration and bylaws,” took effect. 2008 Haw. Sess. i. Act 164, $2 at 767.
Rs § siaB-109 sta
1a) Notwithstanding any other provision of this
chapter or of any other stetute or instrument, an
aececiation at any tine may restate the declaration or
Bylaws of the asscclation to set forth all amendments
thereto by a resolution adoptes by the boar
(b) Subject to section $14B-25, an association at any
tine may restate the declaration or bylaws of the
‘sockation to amend the declaration or bylaws as may be
feguired in order to conform with the provisions of this
chopter or of any cther statute, ordinance, or rule enacted
by any governmental authority, or to correct the percentage
of common interest for the project so it totals one hundred
per cent, by a resclution adopted by the boerd. If the
Eestated declaration is to correct the percentage of conon
Ineerest for the project so that it toteis one mundred per
cent, the proportion of each unit owner's percentage of
Connon interest shell renin the sane in relation to the
‘other unit owners. The restated declaration or bylaws shall
be as fully effective for all purposes as if adopted by @
vote or written consent of the unit owners
‘ny declaration or bylaws restated pursuant to this
ction shall?
subs
(continved.-.)
FOR PUBLICATION TH WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER**#
relating to restatement of bylaws, (3) Appellant’s purported
‘material facts” pertaining to the Board’s failure to disclose to
members of the Association (a) “the true nature of the
controversy” herein, (b) “the exact language of the provisions in
controversy," (c) “the rationale for each provision in
controversy,” (d) the Board's position “against adoption of the
provision in controversy," (e) the Board’s “inten{tion] to use
any proxies granted to them,” and (£) that the “failure to ratify
the bylaws could mean the (AJssociation would have to bring this
controversy to the courts,” viewed in a light most favorable to
Appellant, do not raise a genuine issue of material fact that the
Board breached a fiduciary duty of disclosure owed to menbers of
21. seontinved)
A) Identity each portion 20 restated:
(2) Contains statement that those portions have
been restated solely for purposes of information
and convenience:
(3) Tdentify the statute, ordinance, or rule
implenented by the amenduent} snd
(4) Contain a statenent that, in the event of any
cenflict, the restated declaration or bylaws
Shall be’ subordinate to the cited statute,
Ordinance, or rule.
{c) upon the adoption of 8 resolution pursuant to
subsection (a) or (b), the restates declaration or bylaws
Shall set forth all of the operative provisions of the
Gecloration oF bylaws, a8 amended, together with a statement
that ‘the restated declaration or bylaws correctly sets forth
without change the corresponding provisions of the
Geclaration or byla snded, and that the restated
Geclaration or bylavs supersede the original declaration or
bylaws and all pricr anendeents thereto. If the restated
declaration corrects the percentage of common interest os
proviced in subsection (b), the restated declaration shel]
biso snend the recorded conveyance instrumente that govern
the unit owner's interest in the unit
(a) ‘The restated declaration or bylaws must be
recorded and, upon recordation, shall supersede the original
declaration Or bylaws and all prior anendnents thereto. In
tthe event of any conflict, the restates declaration oF
bylawe shall be subordinate to the original declaration or
bylaws and all prior anendsents therete.
4
‘s+4f0R PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERS
the Association, (4) in any event, there is no effective remedy
for Appellant's breach of fiduciary duties claims and the claim
that the president of the board solicited proxies in violation of
HRS § 514A-62(b) (4) (Supp. 2005),* (5) and, furthermore, such
+ was $ s14n-82,(b) (4) relating to “Contents of bylaws,” stated:
(b) tn addition to the requirenents of subsection (al,
the bylaws shell be consistent with the following
provisions:
isi" Wo resident manager or managing agent shall
Boticit, for use by the manager oF managing
agent, any proxies from any apartment omer of
fhe absocisticn of ommers that employs the
Fesigent manager or nanaging agent, nor shall
the resident manager or managing agent cast any
proxy vote at any associaticn meeting except for
the purpose of establishing a quorum. Any board
Of directors that intends to use association
funds to distribute proxies, including the
Stendara proxy form referred to in paragraph
(Si, shall first post notice of its intent to
distribute proxies in prominent locations within
the project at least thirty days prior to its
Gistribueion of proxies; provided that Sf the
board receives within seven days of the posted
request by any owner for use of
Setoctation funds to solicit proxies accompanied
By'a statenent, the board shall mail to all
Sumers esther:
Th). A’proxy form containing the names of all
owners who have requested the use of
sociation funds for soliciting proxies
accompanied by their statements) or
(B) Acprony’ form contssning no names, But
accompanied by a list of names of al]
omers who have requested the use of
Staociatien funds for soliciting proxi
and their statements,
The statement shall not exceed one hundred
words, indicating the owner's qualifications to
Serve’ on the bosrd snd reasons for wanting to
receive proxies(-)
the provisions of this subsection shall be deened
incerporated into the bylaws of 211 condominium projects
existing as of January 1, 1988, and all condominium projects
Greated efter that cate
HRS § 514A-82(b) (4) was subsequently repealed by 2004 Haw. Sess. L. Act 164, §
26 at 623, Currentiy, HRS § 5148-123 (2006) entitled, "Association meetings:
voting; proxies,” governs proxies:
FOR PUBLICATION 8 WEST’§ HAWAI'I REFORTS AND PACIFIC REPORTER:
elaine do not fai1 under the exception to the mootness doctrine,
and (6) viewed in a Light most favorable to Appellant, there is
no genuine issue of material tact that the Second Restated
Bylave, adopted without the provisions disputed, are defective.
Therefore, the court properly granted Appellees! notion
for summary judgment, and properly denied Appellant's notion to
set aside the order and notion for partial summary judgaent.
Accordingly, the August 24, 2005 judgnent of the court is
attirned.
h
a
on Septenber 8, 1968, the Association was created under
the provisions of the “Horizontal Property Act,” chapter 1078,
Revised Laws of Hawai'i 1955, with the filing of its Declaration
of Horizontal Property Regine in the Bureau of Conveyances (the
Bureau). Also on that date, the Association recorded its
original bylaws with the Bureau. The original bylaws did not
restrict a resident manager of the condominium from serving on
the Board.
on June 8, 1976, the Hawai'i legislature adopted Act
238, which anended the former HRS § 514-20 entitled “Contents of
bylaws,” and added the following underscored language:
indy ‘ua cenident mamacer of 1 condoniniun shalt serve
1976 Haw. Sess, L. Act 239, § 3 at 756-59 (emphasis added). The
legislature specified that Act 239 “not affect rights and duties
6
‘**+FOR PUBLICATION IN WEST'S RAWAI'T REFORTS AND PACIFIC REPORTERS
that matured, penalties that were incurred, and proceedings that
were begun, before [June 9, 1976).” 1976 Haw. Sess. L. Act 239,
85 5, 7 at 760.
on January 1, 1978, the legislature repealed HRS
chapter $14, “Horizontal Property Regines.” 1977 Haw. Sess. L.
Act 98, $$ 3, § at 181. Also as of January 1, 1978, HRS chapter
514A, “Horizontal Property Regimes,” was enacted as a restatement
cf HAS chapter $14, without substantive change. 1977 Haw. Sess.
L. Act 98, §§ 1, $ at 162, 181. The former HRS § 514-20 was
renunbered as HRS § 5144-82. Stand. Comm. Rep. No. 271, in 1977
Senate Journal, at 970.
on October 7, 1985, the Association recorded its “First
Amendment to the By-laws of King Manor” in the Bureau.
On January 16, 2001, the Board resolved to restate its
bylaws, entitled “Firet Restated sylaws,” pursuant to HRS § S14A-
82.2.
on February 21, 2001, the Board recorded the First
Restated Bylaws at the Bureau. The First Restated Bylaws
organized into one document all existing provisions in the
Agsociation’s original bylaws as well as the October 7, 1985
First Amendment. As pertinent here, these bylaws added Section
3.01 which provided, “No resident manager shall serve on the
Board of Directors,” purportedly to comply with HRS § 514A~
82(a) (14), which as stated previously, was originally adopted as
s++70R PUBLICATION IN WEST’ § HAWAI'I REPORTS AND PACIFIC REPORTER*#*
Act 239 on June 9, 1976.° 1976 Haw. Sess. L, Act 239, § at 758
59, Also on February 21, 2001, all pre-existing menbers of the
Association were mailed a copy of the First Restated Bylaws.
8.
on September 16, 2001, after the Association had
experienced problens with several of its resident managers, the
Board hired two of its existing mexbers, King and Ruby Clairmont
(Clairmont), to share the job of resident manager. AS
compensation, King was permitted to occupy the apartment provided
for the resident manager, and Clairmont received the salary of
the resident manager. While working as resident managers of the
condominium, King and Clairmont continued to serve as members of
the Board, with King continuing in his capacity as board
president.
Thereafter, Appellant, an attorney and menber of the
Association, approached the Board about Section 3.01 of the First
Restated Bylaws which as noted above states, “No resident manager
shall serve on the board of directors.“
on September 28, 2001, the Association's attorney, John
Morris (Norris), answered the Board’s inquiry as to “whether a
resident manager of a condominium project can serve on its board
5 the First Restated Bylaws included other provisions that we
purportedly added to comply with the requirements of HRS § 514A-B2(3)-
Rowever, those provisions are not at issue
< e noted above, this language was added to comply with HRS § 514A-
eae)
s+4P0R PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER‘
of directors.” Morris opined that as applied to the Association,
‘a resident manager of a condominium project can serve on its
board of directors.” Morris specifically concluded that (1) HRS
§ 514A-82(a) (14) only applies prospectively and, therefore, did
not apply to the Association, and (2) because HRS § 514A~
82 (a) (14) did not apply to the Association, it could not be
included in the First Restated Bylaws, restated pursuant to HRS §
514A-82.2, as it was not required by law.
on August 14, 2002, members of the Association were
sent statements from William Enriques (Enriques), King,”
Clairmont, and Kennedy, candidates for the Board.
on September 17, 2002, Appellant sent a letter to the
Board which stated that in his opinion, the Board should present
the members of the Association with the First Restated Bylaws
“for approval or disapproval at the next annual [A] ssociation
meeting.”
on October 3, 2002, the Board sent 2 letter to menbers
of the Association pertaining to “amendment to bylaws.” The
letter stated,
‘The Statement of King reads:
This year’s election is a critical one for King Manor.
Elther we continue the progress we have nade in recent
years, of we Tisk returning to the days when the Board of
Directors was plagued by fractious disagreements among its
enters. The Curvent nenbers of Board of Directore are
Gedicated to making King Menor a better building. I urge
S11 omere to re-elect {Claimont], [Kennedy] and me to che
board. If re-elected, I will pledge to continue my efforts
to'nake King enor a better investment for everyone
°
‘*APOR PUBLICATION IN WEST! S HAWAI'T REPORTS AND PACIFIC REPORTERY#
[Alssociation’s prior attorney in 2001, approved by
the board, and recorded, y+ A problem hes now
arisen because of certain changes which were made in
the restated bylaws, The law permite. the board to
restate the declaration and bylaws, without owner’
approval, only to include: (3) ali changes alzeady
approved by the omners) and (11) any changes zequired
Eplew., aay other changes mugt be approved by the
‘Unfortunately, the restated bylaws for Kina Manor
sroent of the owners can vote to
include those provisions in the restated bylaws. Since and
[sic) several Owners have asked that the ommers be allowed
te vote on those provisions at the annual eetingy and since
the board has agreed to that request, the issue will be
presented for 2 vote at the upcoming annual sesinar (on 15
Ecteber 2002), 20 the omners can decide.
Hor your information. the following prov:
pat can be aneroved by G5 percent of the cmners!
oarg Sotins Stat ne-residentnanacei can senis_oa the
B
or against then at the
\Se review those sections and be ready to vote for
invel meeting.
(Some enphases added and sone in original.)
At the Aesociation’s annual meeting held on October 15,
2002, the menbership voted against including the provisions from
RS § 514A-62(a) in the First Restated Bylaws, which as noted
before provided that “(nJo resident manager shall serve on the
board of directors.” Also at the October 15, 2002 annual
meeting, King, Clairmont, and Kennedy were elected to the Board.
On November 4, 2003, the Board resolved to restate the
bylaws a second time in a document entitled “Second Restated
Bylaws." As set forth by Appellant, the Second Restated Bylaws
“stripp(ed] from the bylaws the ban [regarding a resident manager
10
‘+++POR PUBLICATION I8 WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERS*#
serving on the Board] at the center of this controversy and other
provisions from HRS § 514-82(a) that were enacted into the
statute after the King Manor was established in 1968.”
In February 2004, Clairmont sold her apartment. she
resigned from the Board and as resident manager effective
February 7, 2004.
on March 3, 2004, Appellant filed a Verified Complaint
against Appellees praying for declaratory and injunctive relief
in Counts I through IV as follows:
1. That, [the clourt issue 2 ruling declaring that
{ihe Association's First Restated! By-Laws, recorded on
February ci. 200L, te the leasl-and valid GyeLave thar
Article iL “section 2.01, page $, restricting a resident
funager trea servine on the posrd of directors = Jeaaily
Ealid snd subsect to enforcement
21° “ohge (the cloure issue 2 ruling declaring that
notwithstending the legality of the restated By-Lawe of [the
Resociation), (Mina) az President of the Board of Directors
and former board menber and resident manager [Clairpontl, 3s
S'nenber|] of the Soard of Directors of (the Associstion],
fers without authority to assume the positicn ef resident’
anAGers unless and uotil such time, that the most current
Eecorded By-Lawe of ithe Besociation| permitted resident
Si “that Tene cloure issue s ruling declaring that
he bos
d, in carrying out their duties for the reasons
n'count IIT prior and, order the seats of board
who sanctioned the pricr alleged acts vacated and
the holding of 2 new election to fill the vacant seats.
ao” hat [the cloure issue a ruling declaring that
nal ind forner board member a
= rior to the cctober 2002 annus] me
Sng nullity the nomination for and election to board of
Girector seat of [King] at the October 2002 annual meeting
and, order that (Enrigues] is elected to the board of
Gizectars as ne was one of only two Valid nominations for
the three open seats on the board at the October 2002 annual
cing.
(Emphases added.) At the time of filing, the Association was
regulated under HRS Chapter 514A, “Condominium Property
a
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERS
Regimes,
On March 11, 2004, the Board recorded the Second
Restated Bylaws of the Assoctation at the Bureau pursuant to HRS
§ 514R-82.2.
By March 22, 2004, the Board hired 2 new resident
manager to replace King.
on March 29, 2004, Appellant filed his First Amended
Verified Complaint. Appellant prayed for the declaratory and
injunctive relief as requested in his Verified Complaint in
counts 1 through IV, and also added Count V in which he prayed
that the court “issue a ruling invalidating [the Association’ s]
‘Second Restated By-Laws’ filed on March 11, 2004 and recorded
after being served this declaratory action and, restoring as the
lawful governing document of [the Association] the (First
Restated Bylaws] recorded on February 21, 2001.”
On August 18, 2004, Appellant filed five separate
motions for partial summary judgment as to Counts I through V of
his Verified Complaint (as amended in his First Amended Verified
Complaint).
+ RS chapter 514A was scheduled for repeal on July 1, 2006, by 2005
Hew, Sess. Ly Act 3%, § 6 at 237, but 2006 Haw. Sess. Ly Act 273, $3) at
1145, repealed 2005 Haw. sess. 1. Act 93, § 6 at 237, deleting the repeal of
RS Chapter 514h. parts and sections of HRS chapter’ S14A that were repealed
by other acts remain repeale:
Effective July 1, 2008, Act 164 sought to “vpdate, clarity,
organize, deregulate, and provide for consistency and easy of use of the
condoninium property’ regimes law," as directed by 2000 Haw. Sess. L. Act 213.
2004 Haw, Sess. L. Act 164, § 1 at 7S€.. Thus, the legislature ancnded the HRS
by adding a new chapter, HAS chapter Si46, algo referred to as the
"Condominium Property Act.” 2006 Haw. Sete. Le Act 164, § 2 at 156.
12
‘seefOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER**#
On September 14, 2004, the Association filed a
‘wenorandum in Opposition to (Appellants) Motion for Partial
Sunnary Judgment.”
on September 23, 2004, the court held a hearing on
Appellant's motions.
on October 13, 2004, the court filed its “Order Denying
[Appellant's] Motions for Partial Summary Judgment as to
[appellant's] First, Second, Third, Fourth, and Fifth Causes of
Action filed on August 18, 2004.” In the order, the court
2. Summary judgment as to Appellant’ s] First Cause
of Action is denied because a
suche: tors te includ Stan
Seiad iat, SLameteiah Oddy Stem gaa) (6), SAAB C0) 18) dn
s-restatenent of the Dvlawe of (the Association
Fecorded in the Bureau Of
‘a5 Document Nos 2001-023376
Zr Suamary jusgnent as to (Appellant's) Second
Couse of Action is denied becu
wweyances of the Stat
‘of Hawai
2 ns iste
3 Summary judgment
of Action ie denied because the
‘to INppelient’s] Third Cause
Ioteetine. they ask
dated February 13, 2001 and recorded in the Bureau of
Conveyances of the State of Hawsil se Document No. 2001~
02534
Sumary judgment as to (appellant's) Fourth
Cause of Action i denied because
facts to prove that Tk
3. Summary Judgment as to (Appellant's) Fifth Cause
of Action ie denied because the spartnent omers voted at
Eovineluce TERS §) S14a-82(0) (22), Sidhee2(@) 10), s14R~
Sora) (6), or #14A-82(a) (18) in the restatenent of the
Dulaws of” (the Assossation Ls c
Kestatenent of the bylaws to inplenent that decisions and
13
FOR PUBLICATION IN WEST’ S HAWAI'T REPORTS AND PACIFIC REPORTER*+#
2 require thy rm
Eelane-of (the Ressoistionl- therefore,
Licland of the Arsociation of Apartment Owners of King
Sonor, dated Maren 10, 200¢ and recorded in the Bureau of
Conveyances of the State of Hevali as Cocument No. 2008
Os076E were properly restated by the Board and properly
sisned by (King) on behalf of the Board.
(Bmphases added.)
On June 6, 2005, Appellees filed a “Motion for Summary
Judgment” on the basis that because the court had “ruled against
[Appellant] as a matter of law on his Motions for Partial Summary
Judgment on [Appellant's] First, Second, Third, and Fifth Causes
of Action filed herein on August 18, 2004” and “ruled against
[Appellant] on his Motion for Partial Summary Judgment on his
Fourth Cause of Action filed herein on August 18, 2004{,1”
“{t)here {were} not remaining genuine issues of material fact and
[it was] therefore entitied to the entry of summary judgment.”
On June 14, 2005, Appellant filed his “Motion to Set
Aside the Order Filed Herein on October 13, 2004 and
[Appellant's] Motion for Partial Summary Judgment as to
[Appellant’s) First Cause of Action (Restatement of Bylaws
Effective on February 21, 2001, pursuant to HRS § 514A-
82.2(b))."*
+ subsequentiy, cn July 6, 2005, Appellant filed his "Henorandum in
Opposition to {Appellees!) Motion for Summary Judgment .”
Also'on July &, 2005, the Association filed its “Meorandum in
Qpposition to {Appellant's} Motion to Set Acide the Order Filed Herein on
obtober 15, 2008."
On July 14, 2005, the Association f{led ite “Memorandum in Reply
to [Appellant's] Memorandum in Opposition to [Appellees’) Motion for Summary
Sodgnent Filed on June 6, 2005."
On July 15, 2005, Appellant {led his “Reply Memorandum in Support,
of [Rppellent"'s] Netich to Sét Asice the Order Filed Herein on October i3-
2004 ang for Partial Sunnary dodgnent ax to (Appellant's) First Cause of
u
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on duly 19, 2005, the court held a hearing on
(2) Appellees’ June 6, 2005 Motion for Summary Judgment, and
(2) Appellant's June 14, 2005 Motion to Set Aside the Order and
Notion for Partial Summary Judgment.
on August 24, 2005, the court granted Appellees’ June
6, 2005 Motion for Summary Judgment, and denied Appellant’s June
14, 2008 Motion to Set Aside the Order and Motion for Partial
Sunmary Judgment. Also on that date, final judgment was entered
in favor of Appellees and against Appellant as to all claims."
On Septenber 15, 2005, Appellant filed his Notice of
Appeal.
m.
Rppellant raises the following four points of error on
appeal:
ay) 2
‘By ruling ase setter of Lev, that
the prospective provisions in HRS § 518\-82(a) do not’ apply
to established associations that pre-date the enactrent of &
provision therein and, that HRS §"518K-82(a) (14) does not
apply to King Manor because the [A]ssociation was
etablished in Septenber of 1968 before the enactment of the
of 1976, gather than suing ona
provision in Ju
inpaized,
1(3)) the (court) erred in cranting summary iudament
for [AaneLlessi as tc [Ropellants) [blreach of (fiduciary
idluties claim a: there existed triable issues of material
“on September 7, 2005, Appellees filed a ‘Motion for Attorneys?
Fees and Costs.” Appellant responded on Septenber 15, 2005 with his
“Memorandum in Opposition te Appellees” Motion for Attorneys” Fees and Costs.”
on Septenber 27, 2005, Appellees filed its “Reply Menorandun” for their
Septenber 7, 2005 noticn., On Septenber 30, 2005, Appellant filed his “First
Supplenental Menorendum in Oppositicn to Motion for Attorneys’ Fees and.
Costs.” On Novenber 30, 2005, the court denied Appellees" Motion for
Attorneys’ Fees ana Coste
as
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fact, such as whether the board acted with the utmost o
HSnate anc-asad faith towerde the senberehip when they
Sorpessiy and intentionally limites information to members
bout the controversy and effectively blocked attenpts 2
{appeilane] to nave the matter ended by way of member
Eatification of the bylaws on record at the (Bur
ofthe st =
prohibited « resicent manager from soliciting proxie:
Snd/or voting those provies at an association meeting, for,
there remained genuihe iasues of material fact, which
‘consisted of whether the jeter sent by the resident
Eatusar, seating Ris qualifications and desire to be
Feelected to he boars of directors for the contested
election held at the October 15, 2002 annual meeting, that
was included in the sane nailing as the notice of annual
Reeting and blank proxy forns,
T(4)] The tcourt! ered in oranting summery tudanent
for_1appellensi as to (Appellant“al claim chat the so-called
‘Sikp Restated vlan were defective and should be stricken
from the (Bureat), because there remained cenuine issues of
Esterial fact to be sdiudicsted, suchas Ti) wnecher the
sighing of the document by the oresident woo held 2 conflict
‘ot interest in the matter as resident aanacer, (21 whether
‘the Lack of prior board adoption of the restatenent, and (2)
whether the lack of statutory authority for the changes:
Eetlectag in the restatement, were fatal errors to che’
‘document.
(Bmphases added.)
Appellant requests that this court *(1) reverse and
vacate the [court's final judgment], (2) remand the case for
entry of an order granting partial summary judgment in favor of
[Appellant) as to Count I of the complaint . . . and {deny
Appellees’) motion for sunmary judgment, and (3) remand the c
for trial on all other counts.”
ut,
“an award of summary judgment is reviewed de nove unde:
the same standard applied by the circuit court.” French v.
Hawaii Pizza Hut, Inc, 105 Hawai'i 462, 466, 99 P.3d 1046, 1050
16
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(2004) (citing Amfac, Inc, vs Waikiki Beachcomber Inv, Co., 74
Haw. 85, 104, 839 P.2d 10, 22 (1992)) (other citations omitted).
The standard for granting a motion for summary judgment is well
settled:
[Slunmary judgment 42 appropriate if the pleadings,
Geporitions, answers to interrogatories, and adnissions on
fhe. together with the affidavits, if any, show thae ghere
26 Sensing issue se-co-any material fact and that che
ay
fect iz material 1 proof of that fect would have the effect
of establishing of refuting one of the essential elements of
Scouse of action or defense asserted by the parties. Zhe
Snoving earty. In other words, we mst view all of the
Evidence and the inferences draun thererrom in the Light
frost. favorable to the party opposing the motion.
Rremer v, Weeks, 104 Hawai'i 43, $1, 85 P.34 150, 158 (2004)
(quoting Fed, Credit Union v. Keka, 94 Hawai'i 213, 221, 11 P.3d
1, 9 (2000) (citations, internal quotation marks, and some
brackets omitted)) (emphases added) .
v.
As to issue (1), applying his proffered definition of
“prospective,” Appellant maintains that resident managers have
been prohibited from serving on the Board (a) pursuant to HRS §
514-82) (14) since the statute's enactment on June 9, 1976, and
(b) pursuant to Section 3.01 of the 2001 First Restated Bylaws,
restated pursuant to HRS § 514A-82.2(b).'! He argues that .
because no resident manager sat on the Board prior to June 9,
1976, and the right to do so was not granted in any of the
bre appears that Appellant argues that Section 3.01 of the First
Restated gylave wes properly included pursuant to the restatement procedure
Th, specifically, HRS $ S1¢A-82-2(b)
vv
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Association’s legal documents, no vested rights were impaired on
June 9, 1976. Thus, Appellant contends that when King “assumed
the resident manager position on September 16, 2001, without
first relinguishing his board seat, he violated the ban in HRS §
514A-82(a) (14) and Section 3.01” of the First Restated Bylaws.”
It is observed that “prospective” is defined as
“[elffective or operative in the future[.]” Black's Law
Dictionary 1259 (8th ed. 2004). On the other hand,
Ag to issue (1), Appellant contends that “HRS § 514A-82(a) applies
to established condoniniuns’ ‘prospectively’ so long as it dose not impair
vested rights,” insofar as (1) "{appellees) entirely misconstrue(a) the
meaning of the terms, ‘prospective,’” (11) “[tJhe Language of 28S § S1¢h-
62 (a), is unmistakably clear in requiring all associations to adhere to the
bylaw provisions therein,” (1i1) “(llegisiative history does not grant a total
exenption for established associations, unless one defines ‘prospective’ a
Appellees,” (iv) "(t]he correct legal definition for ‘prospective’ is
supplies by this Court in lecel precedent, (s) *(alpplying
63 Haw, 540, 692 P.2d 649 (2961) ] and T
Bet Sug wT Chanal, €2'waw. $52 (1958),] to HRS § 514R-82, [Op. attn'y Gen.
GS-6 [19951] Fela that estabiished associations are to comply with regulations
i HRS § 514a-62 unless vested rights or past transactions are affected,” (vi)
“[t]he recentiy enacted recodi fication of #RS Chapter Sita rejects
(Appeliees’} detinition for ‘prospective,’” and (vil) “(Appellees'} definition
Sor ‘prospective’ ust be rejected for it produces abeurd reavits(,]” inasmuch
as (a) “[appeliees} will make it virtually impossible for the legislature to
Fegulate practices in an established sesociaticn,” (b) *(Appeliees’]
interpretation will balkanize condominium regines across the State.
Appellant's arguments as to (i)-(1v) appear to be appropriately
summarized by‘ issues (1) (a) and (b), as designated in the text. See supra.
Ke to Appellant's argument (¥), it must be observed that
“attorney General’s opinions are highly instructive but are not bindine upon
0 104 Hawal't 98, 207 n18,
88 Fad €23, 632 n-15 (quoting Kepoo v. wateon, 87 Hawai'l 31, 99 1-3, 952
P.2d'379, 387 n.8 (1998)) (emphasis added). In 1ight of the discussion intra,
Depellant’s argument as to the attorney general opinion 48 cnpersuasive
he to Appellant’ s argument (93), Appellant cites te
wMilson, 85 Hawal'l 217, 221, 91 F.2d 300, 04 (1997), in a toctesee ae
asuerts that this “court may look to subsequent amendnente of a statute to sid
in the interpretation of @ pricr statute.” However, ‘oes not
support Appellant's assertion. Moreover, in light of the Giscusaion iofra
based on the plain language of HRS § S14h-82, as well az its legislative
history, it 18 unnecessary to address Appellant’ s sesertion.
For the sane easons es pertaining to argurent ivi), it is
unnecessary to address Appellant's argument (vii) regarding “absurd ret
ute.
ae
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“retrospective” or “retroactive” is defined as “extending in
scope or effect to matters that have occurred in the past.” Id.
at 1343, This court has embraced Justice Story’s definition of a
“retrospective law":
Every statute which takes away or iapaize vested riche
acouired under existing Javs, oF crestes a new obligation,
imposes a new duty or attaches anew disability in respect
transact one of considerations sifeady past. aust be
desned xetroapective.
Graham, 63 Haw. at $45, 632 P.2d at 652 (internal quotation marks
and citations omitted) (emphasis added); see alsc Chang, 42 Haw.
at 524 (stating that “[a] retroactive or retrospective law, in
the legal sense, is one that takes avay or impairs vested rights
acquized under existing laws, or creates a new obligation,
imposes 2 new duty, or attaches a new disability in respect of
transactions or considerations already past” and that a statute
“is retroactive only when it is applied to rights acquired prior
to its enactment” (internal quotations marks and citation
omitted)).
Here, assuming arquendo that no vested rights would be
impaired as Appellant asserts, if HRS § 514A-82(a) (14) were
applied as Appellant requests, the statute would nevertheless
have “retrospective” application under this court’s established
case law. See Graham, 63 Haw. at 545, 632 P.2d at 652; see also
Chang, 42 Haw. at $31. Appellant's definition of prospective
fails to consider that even if a statute does not impair vested
rights, such 2 statute may have retrospective effect if it
a9
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“creates a new obligation, imposes a new duty or attaches a nev
disability in respect to transactions or considerations already
past[.]” Graham, 63 Haw. at 545, 632 P.2d at 652 (internal
208 also
quotation marks and citations omitted) (emphasis added)
Chang, 42 Haw. at 534.
As set forth by Appellees, “[a) condominium property
regime is created when a developer executes and records a master
deed, declaration, and bylaws pursuant to HRS §§ 514A-20
((2006)"} and 514A~€2 [(1993)."J” Further, “(iJn drafting the
bylaws for a project, the developer's attorney must review the
section of the law that details what provisions must be written
into the project’s bylaws (i.e., HRS § S14A-62).” Then, “[t}he
developer's attorney writes into the project's bylaws every
provision that HRS § 5148-82 requires to be included in the
bylaws, as set forth at that specific time.” Appellees state
HRS § 5144-20 entitled “Condominium property regimes,” states,
lhenever the sole omer or sll of the ommers including
all of the lessees of = property expressly declare, through
the execution and recordstion of s master deed, Cogether
vith 2 declaration, which declaration shall ses forth th
Farticulars enumerated by section SI4AcI1, the sole owner's
their desire to subsit the property to’ the regine
ablished by this chapter, there shall thereby be
established 2 condominium property regine with respect to
the property, and thie chapter shall be applicable to the
property. If the aster ceed 1g slresdy recorded, the
recordation of the declaration if sufficient to achieve the
ins § 514A-81 entitied “Bylaws,” stated, “The operation of the
property shall be governed by bylaws, @ true copy of which shall be recorded
in the same manner a= the declaration. No amendment to the bylaws 43 volia,
bnless the anendnent is duly recorded." "ARS S S19M-€1 was repealed by 2004
Haw. Sess. L. Act 164, § 2€ at 813. Bylaws of condominiums are now governed
by'lins § s14b-208 (2006)
20
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that “[a]t that point, the provisions of the project documents,
including the bylaws, are fixed, and once they are recorded, they
are covenants running with the land that are agreed to by every
member of the condominium association upon the purchase of their
respective units.”
If it were said that HRS § $14A-82(a) (14) applied to
the Association, even though the Association was created on
September 9, 1968, prior to the enactment of HRS $ S14A-
82(a) (14), such an application would “impose[] a new duty or
attach{] a new disability in respect to transactions or
considerations already past[.]" Graham, 63 Haw. at 545, 632 P.2d
at 652 (internal quotation marks and citations omitted). Thus,
the statute would be given retrospective effect. See id.
vr.
But it is well settled that “all statutes are to be
construed as having only @ prospective operation unless the
Purpose and intention of the legislature to give them a
retrospective effect is expressly declared or is necessarily
implied from the language used.” Robinson v, Bailey, 28 Haw.
462, 464 (1925) (internal quotation marks and citation omitted!
sce also Ince Medeiros Testamentary Trust & Life Ins. Trust, 105
Hawai'i 284, 293, 96 P.3d 1098, 1107 (2004) (“The common law rule
disfavors retroactive application of laws. This rule is codified
in HRS § 1-3 (1993), which provides that ‘[nJo law has any
retrospective operation, unless otherwise expressed or obviously
2
‘++F0R PUBLICATION IN MEST’ HAMAI'T REPORTS AND PACIFIC REPORTERS
intended.’ (Citation omitted.)); Graham, 63 Haw. at 546, 632
P.2d at 653 ("No law has any retrospective operation, unless
otherwise expressed or obviously intended.” (Citations
omitted.)).
Former HRS § 514-20(15) and HRS § 514R-82(a) (14), on
their face, do not “expressly declare(]” or “necessarily inpl{y]”
a retrospective operation. Robinson, 28 Haw. at 464. Moreover,
the legislative history of HRS § $14-20(18) and HRS § 514R-
82(a) (14) does not “expressly declare[]” or “necessarily
implly]" a retrospective operation. Robinson, 2 Haw. at 467.
The parties do not dispute that HRS § 514A-82(a) applies
“prospectively.” Thus, HRS § 514A-62(a) is “[e]ffective or
operative in the future{,]” Black's Law Dictionary at 1259,
namely from June 8, 1976, the date on which the statute was
originally enacted under the former HRS § 514-20. 1976 Haw.
Sess. L. Act 239, § 3 at 758-59; see also Yamaguchi v. Queen's
Ned. Ctr., 65 Haw. 64, 89, 648 P.2d 689, 693 (1982) (concluding
that “the statute be given prospective effect only, as there
exists no indication in either the statutory language or the
accompanying committee reports that the legislature intended a
different result” (citation omitted)). Accordingly, because the
Association was created and its bylews recorded prior to the
enactment of the former HRS § 514-20, the bylaw requirements of
22
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RS § 140-82 (a) cannot be said to apply to the Association.
‘Thus, Appellant’s argument as to (1) (a) must be rejected.
vin.
As to Appellant’s argument (1) (b),"* as indicated
previously, HRS § 514A-82.2(b) stated in relevant part,
An association of apartment owners may at any tine restate
the bylaws of the association :
eas aay be der ‘sith éhe
Provisions of thie chapter or of any otner statute .. . by
adopted by the board of directors,
fetered oe we for all
as‘ if adopted by the vote or written consent of the
Spaftnent owners) provided that any. - . bulges restated
Porevant co thie sebsection shall adantify each portion so
Festated and shall contain a statenent that these sortiens
fave been restated solely for the curpases Of information
& hat ia aay condi
(Emphases added.) Pursuant to the plain language of HRS § 514A~
82.2(b), an association’s bylaws may be restated “to amend the
% —Contrastingly, HRS § S14A-€2(b), enacted on June 26, 1987, 1987
haw. Sess, tL. Act 277, $8 °2,,5 at €43-47, 16 to be applied “retrospectively.”
‘The final sentence of HRS §'514A-62(b) provides that [t]he provisions of this
Subsection shall be deemed incorporated into the bylaws of ai] condominium
es i ‘hd ali condoainium projects created
EHler that cate. (Emphasis scded-) “Shall,” as used in BRS'§ 514A-82(b), 1s
Usually construed a8 “must.”
Haval, Jos Wewai't 364, 393, 126 Pe3a‘T071, 1020 (2006) (vas used In
Hiatotes, contracts, of the like, this vord (‘shall'] is generally imperative
Gr'nandatery.” (Citation omitted.)). Hence, by using the term “shall,” the
Jegisiature mandated that the provisions of “this subsection(,]~ HRS § S14k-
aSie], are “dened incorporated into the bylaws of all condoniniuns existing
ae of Janvsry 2, 1988[.]" By virtue of this command, the statute
Unequtvoeslly inatracts that HRS § £14A-82(b) apply retrospectively and
stftend() in’ scape or effect to matters thet have occurred in the past.”
Las ‘at 1343. “In this regard, because “(t]he statutory
BASE iE Pisin end unambiguous, our sole duty 1 to give effect to its
Plain. snd cbvicus meaning.” Kepo'o v. Kane, 10€ Hawai'i 270, 265, 103 F.3d
B35, "ess (2008) (internal quotetion Barks and citation omitted).
Ag to Appellant’ s argusent (1) (b), Appellant asserts that the
prohibition against Fesident managers from sitting on the Board in the First
Restoted bylawe "wos but a nere formality” and that the prohibition had been
ineffect since June 8, 1976.
23
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+ ++ bylaws as may be required in order to conform with the
provisions of [HRS chapter S14A]."
However, as discussed supra, HRS § 514A-82(a) (14) does
not apply to the Association. For if it did, the provision would
have retrospective effect, despite not “expressly declar{ing)"
or “necessarily inpllying]" a retrospective operation. Robinson,
28 Haw. at 467. ‘Therefore, the addition of Section 3.01 of the
First Restated Bylaws which prohibited a resident manager from
serving on the Board vas not “required in order to conform with
the provisions of [HRS chapter S14A].” HRS § 514A-€2.2(b). The
addition of Section 3.01 in the First Restated Bylaxs exceeded
the purview of the plain language of HRS § 514A-€2.2(b) and,
thus, cannot be deemed to be included in the restatement. See
Kepo'e, 106 Hawai'i at 285, 103 P.3d at 954. Accordingly,
Appellant's argument as to (1) (b) must be rejected.
vant.
As to issue (2), Appellant essentially argues that the
fiduciary duty that the Board owed to the members of the
Association under HRS § 514A-82.4 (1993)" is “the same fiduciary
© ps § s14n-82.4, entitied “uty of directors," stated, Each
of epartnent owners a fiduciary duty in he
performance of the director's respontibslities. \(Eapheses added] Tt eshoule
be noted that SRS § 51¢A-82.4 was repesied by 2004 Haw. Sess. L. Act 164, 8 26
at as,
As of July 1, 2005, HRS § £148-106(a) entitled “Board; powers and
1" contains the same tern, “élduciary duty,” and states,
ut
Except as provided in the declaration, the bylaxt
subsection (bl, of other provisions of this chepter, the
board may act in all instances on behalf of the association.
In the performance of their duties, officers and menbers of
the board shall owe the association « Ziduesary duty end
(continued. ..)
24
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duty . . . imposed on an agent towards his principal” and, thus,
the Board was obligated to make “full, fair, complete and timely
disclosure of all relevant and material facts.” Appellant argues
that the following “material facts,” viewed in the light most
favorable to Appellant, demonstrate the Board's breach of
fiduciary duty:
{The Board faiied) to [(a)] include an explanation 2s to the
‘Live nature of the contravergy, (BT)
‘acl Llenavage of the provisions in controversy, [el
(i3)} inform nenbers of the (Bloare’s position on the
matter, nanely,
Provisions in controversies they were in solation at the
Hine ct mas ¢ Sidaescias iat - = eli saz pembers chat
esbers for the upeoning Resting, Se-eote coun ny Siete
* katitication of the bulaua in order, to, end the
Conbtoversy and, TT] inform sembere that ¢allure to ratify
ing controversy inte the-course, and ((9))
bend se ehat_tn ag in the mi
ang possibly held by other board meabers.
(Emphases added.)
1x.
vit is @ well established rule both in Hawaii and in a
najority of the States that the relation of directors to the
corporations they represent is a fiduciary one.” Hawaiian Int’)
Eins. v. Pablo, $3 Haw. 149, 153, 488 P.24 1172, 1175 (2972)
(citations omitted). Further, “[a] corporate officer is an agent
for his corporate principal.” Wi sv. Ow 469
+ scontinued)
fenercise the degree of care and loyalty required of an
officer of director of 2 corporaticn organized under chapter
a0.
(Bephasis added.)
25
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P.2d $83, $85 (Wash. Ct. App. 1970). Inasmuch as a condominius’ s
board of directors is similar to a corporation's board of
directors, a condominium board menber is also an agent for his
condominium principal (i.e, the membership of the association).
See Courts at Beachaate v. Bird, 545 A.2d 243, 248 (N.J. Super.
Ct. Ch. Div. 1988) (discussing “the modern corporate entity known
as the condominiun” (citation onitted)).
In this regard, Appellant asserts that “full, fair,
complete and timely disclosure of all relevant and material facts
is necessary for an agent . . . to meet his [or her] duty,” and
quotes the following:
Hawaii courts recognize that *(a]n agent's fiduciary duty
watch carries with ie the duty of
finely discleaize of eatecial cacch, 15 snong the most
Emportant cbligations sn oor Tegal
Hawai'i 162, 175, 931.26 604 thpp. (emphasis
eased) ‘hs explained by the Hawaii Supreme Court,
Wan agent 19 dubject to a duty to use reasonable efforts to
give nis principal information which is relevant to affairs
entrusted to him and whieh, as the agent has notice, the
principal would desire to have.” use, The
Kelisy, 68 Haw. 371, 377, 115 P.24 €08 (1986)
(Quoting Matsuda v. Wada, 101 F. Supp. 2d 1315, 1324 (D. Haw.
1999) (emphasis added)).
“Material fact,” in the context of fiduciary duti
is not defined by either party. In general, a “material fact” is
defined as “(a] fact that is significant or essential to the
issue or matter at hand.” Black's Law Dictionary at 629. In
this regard, as to purported material fact (a), disclosure of the
“true nature of the controversy” (i.e., the issue itself) is
apparently “significant or essential to the issue or matter at
26
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hand.” Id, However, the Board’s October 3, 2002 letter to the
membership, on its face, included an explanation of the
controversy. Fact (a), therefore, is not 4 material fact
genuinely in issue for purposes of summary judgment. See Bremer,
104 Hawai'l at $1, 85 P.3d at 158.
With regard to facts (b) and (c), HRS $ 514A—
82(b) (2) (B) stated in pertinent part, that “[t]he proposed
bylaws, rationale, and ballots for voting on any proposed bylaw
shall be mailed by the board of directors to the owners . . . for
vote or written consent without change[.]" Contrary to
Appellant’s argument, (b) is not a genuine issue, see Bremer, 104
Hawai'i at 51, 85 P.3d at 158, because the membership was
directed to the language of the provisions in controversy, as
indicated by the Board’s October 3, 2002 letter, stating, "You
should already [sic] copies of the restated bylaws{.)”
Similarly, (c) is not @ genuine issue, see id., because the
menbership was also provided the rationale behind the vote within
the same October 3, 2002 letter, which stated, “Several apartment
owners have asked that the owners be allowed to vote at the
upcoming annual meeting to approve the restated bylaws. The
board has agreed to that request and authorized this letter to
provide some background on the request.”
With regard to purported factual issues (d), (e) and
(£), Appellant fails to cite to any evidence in the record, any
case law, or any statute to support his claims, nor to establish
2
how his allegations vould amount to “material facte” requiring
disclosure. In that regard, “[t]his court is not obligated to
sift through the voluminous record to verify an appellant's
inadequately documented contentions.” Lanai Co. v. Land Use
Comm'n, 105 Hawai'i 296, 309 n.31, 97 P.34 372, 385 n.31 (2004)
(citations omitted). Accordingly, Appellant fails to demonstrate
that genuine issues of material fact exist with respect to
purported material facts (d), (e), and (f). See Bremer, 104
Hawai'i at 51, 85 P.3d at 158.
x
Finally, with regard to item (g), BRS § $14A-82(b) (5)
(Supp. 2005) stated,
A director who hee a conflict of interest on any sesue
Before the bourd
ull disclose the nature of the conflict
si interest srior to ¢ vote on that issue at the Doara
Binites of the meeting shall record the
esting, and the
act that disclosure wae BagsT)
(Emphases added.) The phrase “conflict of interest” was not
defined in the statutes in existence at the time of the October
15, 2002 Annual Meeting. However, the phrase is defined as “[al
real or seeming incompatibility between one’s private interests
and one’s . . . fiduciary duties.” Black's Law Dictionary at
319. Appellant argues King “{plersonally benefitted from his
Tt should be noted that HRS § 5148-125(£) (2006), entitied
eetings” states in relevant part,
“conflict of interest”, as used in this subsection, means an
issue in which s director has s dizect personal or pecuniary
interest not conon to cther mesbers of the association
general definition found in Black's Law
This definition is consistent with
Dictionary quoted above.
28
seepOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REFORTER®
See
dual roles as @ compensated resident manager and a board menber.”
Although HRS § $148-82(b) (5) refers to a “board
meeting,” the Board should have disclosed King's potential
conflict of interest to the membership prior to the menbership’s
vote on the issue. As Appellant argues, the Board’s October 3,
2002 letter to the menbership did not do this, and the minutes of
the October 15, 2002 Annual Meeting failed to “record the fact
that 2 disclosure was made.”
xt,
But in connection with purported material facts (a)-
(g), Appellees contend that regardless of any alleged breach of
fiduciary duty by the Board, “(t]he issue is now moot (because
olver three years have passed and three elections for the Board
have been held since the 2002 annual meeting of the
Aesociation(.1" The court did not render @ decision as to
Appellees’ mootness argument.
Appellees cite Adams v. Nevers, 620 N.B.2d 1298 (I11.
app. Ct. 1993), to argue that “{e]hallenges to a private
association's election are generally mooted by the occurrence of
subsequent elections." In Adams, the Appellate Court of Illinois
noted that the plaintiffs did not disagree with the general
principle that “challenges to a private association's election
are mooted by occurrence of subsequent elections|[,]” but argued
that “the ‘public interest exception’ to the mootness doctrine
should allow them to pursue their claim.” Id. at 1305-06 (citing
29
‘+APOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER'*#
Kohan v. Rima children, 430 N.E.2d 139, 141-
42 (ILL. App. Ct. 1961) ("Since the 1981 election has already
taken place, it has ineluctably rendered moot the 1980
controversy, which is the only election involved in this appeal.”
(Citations omitted.))).
‘This court has said,
Tt is established in Hawai'i that a case 1s moot where the
question co be determined is abstract and does not rest on
Seisting facts or rights. Thus, the mootness doctrine 13
properly invoked where evente nave so affected the relations
Betheen the parties that the two conditions for
Susticiability relevant on appeal ~~ adverse interest and
tftective renedy ~~ have been conpronised.
Okada Trucking Co, v. Bd, of Water Supply, 99 Hawai'i 191, 195-
96, 53 P.3d 799, 803-04 (2002) (brackets, internal quotation
marks, ellipses, and citations omitted). Applying the foregoing
in the instant case, subsequent events have “so affected the
relations between the parties” that there is no longer an
effective remedy for Appellant's claims.” Id, (internal
quotation marks and citations omitted). By the time Appellant
filed his complaint on March 3, 2004, almost one-and-a-half years
after the October 15, 2002 Annual Meeting, the next annual
% tn his Reply Brief, Appellant raises the following argument in
response to Appellees’ mostness argunent
Upon prevailing, {Appellant} in part will seek fines,
Pegular and punitive damages, and an order removing
(Sndividvel Appellees) from office end barring their
participation fron board activities for a specified period
SF tine.
However, insofar as Appellant's statenent concerns procedural
measures he intends to take upen the determination and completion of the
teuis not a part of this appeal. Accordingly, whether the
precesing statenent amounts to sn “effective tenady" need not be addressed.
Eee Okada, 99 Nawel't at 195-96, 53 P.3d at 803-04 (internal quotation marks
30
POR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACEFIC REPORTERS+*
ee
meeting had taken place, King was no longer board president, and
Clairmont had left the Board and the Association. Also, within 2
week of Appellant's complaint, the Second Restated Bylaws were
recorded, and within a month, 2 new resident manager had been
hired to replace King. For the foregoing reasons, Appellant's
request for a “declaratory ruling stating that the individual
[Appellees] of the Board failed to meet their fiduciary duties”
with regard to the October 15, 2002 Annual Meeting is no longer
an “effective renedy."* Id, (internal quotations marks and
citations omitted).
However, this court has said that “an exception to the
noctness doctrine [exists] in cases involving questions that
affect the public interest and are ‘capable of repetition yet
evading review."" Id, at 196, 53 P.3d at 804 (citations
omitted). Here, Appellant's second issue on appeal does not fall
under the exception. See id, As to the public interest, first,
the matter is apparently private in nature inasmuch as it
concerns a dispute within a private condominium association.
Second, it is not necessary in this case to decide Appelle
alleged breach of fiduciary duty for the guidance of future
public officers, Inasmuch as the question of @ breach is based
on factual circumstances particular to every controversy, a
determination in this case would likely provide only limited
guidance to public officials in the future. Finally, any
% —tnesmuch as there is no effective remedy, the other factors need
31
4s+470R PUBLICATION IN WEST! § HAWAI'I REPORTS AND PACIFIC REPORTER***
perceived ambiguity in HRS § 514A-82.4 is remedied by HRS § 5148~
106 (2006),” which clearly delineates what a condominium board's
fiduciary duty entails. Accordingly, Appellant's breach of
fiduciary duty claim is moot.
xrI.
Ag to issue (3), Appellant contends that “[v]iewing the
{August 6, 2002 ‘statement of Irvin King’) letter sent by [King]
in his reelection bid to the board in the light most favorable to
(appellant,] . . . [King] solicited proxies in violation of HRS §
514A-82(b) (4)." HRS § 514K-82 does not define “proxy” or
“solicitation,” however, @ “proxy solicitation” is generally
defined as “[a] request that a corporate shareholder authorize
another person to cast the shareholder’s vote at 2 corporate
meeting.” Black's Law Dictionary at 1263.
on its face, King’s statement does not explicitly
solicit proxies. However, Appellant asserts that “[a]
communication to shareholders may constitute a proxy
solicitation, even if it does not contain an express request for
aproxy, if it is part of a continuous plan intended to end in
solicitation and to prepare the way for success.” (Quoting
‘Shamrock Holdings, Inc, v. Polaroid Corp., 709 F. Supp. 1311,
BRS § $148-106(a) (2006) entitled “Board; powers and duties,”
states An relevant part,
In the performance of their duties, officers and menbers of
(Emphesie added.)
32
‘sesfOR PUBLICATION IN WEST'S HANAI'T REPORTS AND PACIFIC REPORTER**1
a
1327 (D. Del. 1989) (internal quotation marks and citations
omitted) (emphases added)). According to Appellant, “the purpose
of the communication and the circumstances present, [also] need
to be taken into account in determining if @ solicitation
occurred{.]” In this regard, Appellant maintains that King
submitted his statement specifically because he intended to
solicit proxies in compliance with HRS § 514A~62(b) (4) (B).*
As indicated supra, however, Appellees argue that
“{zjegardless . . . of any alleged solicitation of proxies by
. King in 2002, the issue is now moot [because o]ver three
years have passed and three elections for the Board have been
held since the 2002 annual meeting of the Association[.]” For
the reasons stated supra, Appellant’s contention as to issue (3)
is also moot.
XIII.
As to issue (4), Appellant contends that the Second
Restated Bylaws are “premature and defective” inasmuch as the
Second Restated Bylaws (a) “were not previously adopted by a
majority of board members present at a duly called meeting of the
board, as is required of all association actions, and HRS § 514A-
82.2(b)," (b) was “signed by the president/resident manager,
who held an undisclosed conflict of interest” because “[hJe stood
to personally benefit because the altered bylaws stripped the
® see gunra note ¢
this reflects Appellant's entire argument as to (4) (a)
33
"FOR PUBLICATION IN WEST’ § HAWAI'I REPORTS AND PACIFIC REPORTERS**
provision banning him as the resident manager from sitting on the
board,” and (c) “did not comply with HRS § 514A-82.2(b), which
requires that any changes to bylaws pursuant to the board acting
alone and without prior association approval, must include within
the bylaws, the legal authority for the changes made to the
bylaws.
With regard to argument (4) (a), Appellant's contention
that the Board had not previously adopted the Second Restated
Bylaws prior to recordation at the Bureau is not properly
preserved for review by this court, insofar as it is advanced for
the first time on appeal. See State v, Moses, 102 Hawai'i 449,
456, 17 P.3d 940, 947 (2003) (“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.” (Citations omitted.)). Moreover, Appellant's
allegation is not supported by reference to the record.
Accordingly, Appellant’s argument (4) (a) is waived. See Tauese
State, Dept, of Labor & Indus. Relations, 113 Hawai'i 1, 26,
147 P.3d 785, 810 (2006) (stating that “[tJhis court may
‘disregard [2] particular contention’ if an appellant ‘makes no
discernable argument in support of that position’” (quoting
Norton v. Admin, Dir, of the Court, 80 Hawai'i 197, 200, 908 P.2d
545, 548 (1995) (citations omitted)) (brackets in original)).
% this reflects Appellant's entixe argunent as to (4)(b).
‘This reflects Appellant's entire argument as to (4) (c)
34
‘s+4POR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTERS**
SSS
As to argument (4) (b), Appellant asserts that King
“stood to personally benefit because the altered bylaws stripped
the provision banning him as the resident manager, from sitting
on the board of directors.” Appellant does not cite any
authority, statutes, or parts of the record to support his
argunent. Thus, Appellant's argument as to (4) (b) is waived.
see id. Moreover, as previously discussed, the provision
restricting a resident manager from serving on the Board was
included in the Association's First Restated Bylaws, but should
not have been included pursuant to HRS § S14A~82.2, See supra.
Lastly, with regard to argument (4) (c), HRS § 514-
82.2(b), to reiterate, stated in pertinent part,
[ajny declaration of condominium property regime or bylaws
restated pursuant to this subsection
on eb pd ona stat tho
Portions hive been festated solely tor curposss of
Sforition ane convenience: identifying the statute
She that in the event of any conflict, the
Geclaraticn or bylaws shall be subordinate &
Statute, ordinance, rule, or regulation.
(emphasis added.) Contrary to Appellant's claim, the Second
Restated Bylaws’ endnotes “identify each portion so restated” as
well as “identifiy) the statute . . . implemented by the
amendnent” (€.a4, “(4) This Section 3.05 was amended to comply
with Section $14A-62(b) (1), Hawai'i Revised Statutes, as
amended”). HRS § $14A-62.2(b). For the foregoing reasons,
Appellant's argunent with respect to issue (4) fails to
demonstrate @ genuine issue of material fact exists that the
35
‘s*+F0R PUBLICATION I WEST’ § HAWAI'T REPORTS AND PACIFIC REPORTER*+#
Second Restated Bylaws are defective. See Bremer, 104 Hawai'i at
51, 85 P.3d at 158.
xiv.
Accordingly, the August 24, 2005 judgment of the court
is affirmed.
on the briefs: It”
Michael J. Park, Glenn 7. .
Taniguchi, and Peter YL: Mie A Lamar
Pong for plaintiff:
appeliont. entee Care) sre
John A. Morris and
Gordon 'M. Arakaki
(Bkimoto € Morris) for
defendants-appellees.
|
0b036687-331b-41fa-8891-7cdb2ec162bc | State v. Kalai | hawaii | Hawaii Supreme Court |
LAWLIBR
No. 27217
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
and
STATE OF HAMAY'E, Reepondent-Appeliee s
ve. a
RENNY K. RALAT, Petitioner-Appellant S82 SG
BP op &F
BoP
PELE K, KOTANI, JR., Defendant.
CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 03-1-1215)
Po JECTING AP! ye WAIT OF
(By: Nakayama, J., for the court’)
Petitioner-Appellant's application for writ of
ted.
certiorari filed on February 27, 2007, is hereby ri
Honolulu, Hawai'i, March 20, 2007.
DATED:
FOR THE COURT:
Rua Orauensamor [2
Associate Justice
Jeffrey A. Hawk for
petitioner-appellant
on the application
Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, J
‘Considered by:
|
11d8c61c-6258-47d4-b77c-3c107d62edb7 | Han v. Kang | hawaii | Hawaii Supreme Court | LAW LIBRA
8
E
No. 27865
ams
oats
PAUL KANG, COLDWELL BANKER COMMERCIAL PACIFIC
PROPERTIES, LTD., COLDWELL BANKER REAL ESTATE CORPORATION,
Defendants-Appellees
and
DOES 1-10 and PARTNERSHIPS, CORPORATIONS and/or ENTITIES 1-10,
Defendants.
APPEAL FROM THE FIRST CIRCUIT COURT
(Civil No. 03-1-0309)
~ for the court")
(By: Hoon, C.
upon consideration of plaintiff-appellant Son Gi Han’s
*request to the Suprene Court of Hewaii to preside over this
appeal," which is deened an application for transfer to the
suprene court, the papers in support and the record, it appears
that this case does not meet the criteria for mandatory or
discretionary transfer. See HRS § 602-58 (Supp. 2006) .
‘Therefore,
XT IS HEREBY ORDERED that the application for transfer
is denied.
Honolulu, Hawai'i, March 14, 2007.
FOR THE COURT:
Le Justice
Levinson, Nakayama, Acoba, ané Duffy, 39
DATE!
"considered by: Moon, ¢.3-,
|
2bb70a58-7496-485a-99b6-2ea137fe3cf4 | Office of Disciplinary Counsel v. Woo | hawaii | Hawaii Supreme Court | No. 26441
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
CB HY £2 ui
OFFICE OF DISCIPLINARY COUNSEL, Petitioner,
i
CHRISTOPHER S. B. WOO, Respondent.
oDC 07-025-8485, 07-026-8486, 07027-2487 3 °
ORDER OF TRANSFER 70 INACTIVE STATUS
Jd.) and
(By: Moon, C.J., Levinson, Acoba, and Duffy,
Intermediate Court of Appeals Judge Fujise,
J. recused)
sina
2
in place of Nakayam
upon consideration of the Office of Disciplinary
Counsel's Motion For Transfer Of Respondent To Inactive Status
Due To Incapacity, the memorandum, affidavit and exhibit thereto,
and the record, it appears that Respondent Christopher S. Woo, by
submitting the letter of Boyd J. Slomoff, M.D., dated January 10,
2007, has asserted he is suffering from a disability that makes
it impossible for him to defend himself in disciplinary
proceedings. Therefore,
IT IS HEREBY ORDERED thai
(1) This case is remanded to the Disciplinary Board
for institution of proceedings pursuant to Rule 2.19(b) of the
Rules of the Supreme Court of the State of Hawai'i ("RSCH");
(2) Respondent Woo is immediately transferred to
inactive status, pursuant to RSCH 2.19(c), due to disability
until a determination is made of Respondent Woo’s capacity to
continue the practice of law in the RSCH 2.19(b) proceeding:
(3) The pending disciplinary investigations in op
Nos. 07-025-8485, 07-026-8486, and 07-027-8487, may proceed, as
provided in RSCH 2.19(h), provided that no disciplinary
ante
proceeding shall be commenced and any pending disciplinary
proceeding against Respondent Woo shall be held in abeyance while
Respondent Woo remains on inactive status pursuant to RSCH
2.19(¢); and
(4) This oder shall be effective upon entry.
DATED: Honolulu, Hawai'i, March 23, 2007.
carole Ry Richelieu,
Chief Disciplinary Counsel,
Mie yinso—
Borns
Crane €, Bats he
Bean hn rym
|
85ef3574-7b4c-4549-96e0-c05c52dc47f0 | State v. Wachi | hawaii | Hawaii Supreme Court | No. 26477
4 00a
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
STATE OF HAMAZ'I, Respondent-Plaintif£-Appellee:
YOUI WACHI, Petitioner-Defendant-Appellant
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(FC-cR NO. 03-12-1833)
(By: Moon, C.J., for the court")
Petitioner-defendant-appellant Yoji Wachi's application
for writ of certiorari, filed February 5, 2007, is hereby
rejected.
DATED: Honolulu, Hawai'i, February 23, 2007.
Earle A. Partington, FOR THE COURT:
for petitioner
defendant -appellant,
on the application
* considered by: Moon, C.J., Levingon, Nakayama, Acoba, and Duffy, ay.
axis
|
a9735b38-31d3-45e2-8488-c32294c250b8 | Office of Disciplinary Counsel v. Cook | hawaii | Hawaii Supreme Court | No. 28300
IN THE SUPREME COURT OF THE STATE OF HAWAT'Z
OFFICE OF DISCIPLINARY COUNSEL, Petitioner, g
vs. Se 2
ae OS
RICHARD B. COOK, Respondent. ER oa
ove 06-074-8414
65:8
(ay: Moon, C.J., Levinson, Nakayame, Acoba, and Duffy, JJ.)
upon consideration of the Office of Disciplinary
counsel's ex parte petition for issuance of reciprocal discipline
notice to Respondent Richard B. Cook, pursuant to Rule 2.15(b) of
the Rules of the Supreme Court of the State of Hawai'i ("RSCH"),
the menorandun, affidavit, and exhibits thereto, and the record,
it appears that: (1) on June 16, 2006, the Supreme Court of
Louisiana suspended Respondent Cock for three years for his
violation of Rules 3.1 (meritorious claims and contentions), 4.4
(respect for the rights of third persons), 8.4(a) (violation of
the rules of professional conduct), and &.4(d) (engaging in
conduct prejudicial to the administration of justice) of the
Louisiana Rules of Professional Conduct; (2) RSCH 2.15(b)
requires issuance of notice and entry of an order imposing the
same or substantially equivalent discipline, or restrictions or
conditions upon the attorney's license to practice law in the
State of Hawai'i, unless Respondent Cook shall show cause under
RSCH 2.15(c] as to why imposition of the same or substantially
equivalent discipline should not be imposed; (3) Respondent Cook
did not respond to our December 20, 2006 notice and order; and
o2ts
(4) a similar discipline in this jurisdiction is suspension for
three years. Therefore,
IT IS HEREBY ORDERED that Respondent Richard B. Cook is
suspended in the State of Hawai'i for three years.
Notwithstanding RSCH 2.16(c), Respondent Cook's suspension is
effective upon entry of this order.
IT IS FURTHER ORDERED that Respondent Cook’ s
reinstatement in the State of Hawai'i ie conditioned (1) upon
payment of all costs of this proceeding, (2) compliance with the
conditions imposed by the Supreme Court of Louisiana, and (3)
reinstatement to the practice of law in Louisiana.
DATED: Honolulu, Hawai'i, March 6, 2007.
Carole R. Richelieu,
Chief Disciplinary Counsel,
for petitioner
Richard B. Cook, Bea., Gi
Fespondent pro 3¢ Blo
Dunc Ocean oro
PS
Yorn. Anitgs
|
772f4242-d01c-4b95-9c15-dbfc44d34636 | Taylor v. Winston | hawaii | Hawaii Supreme Court | No. 26433
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
MICHELLE L. TAYLOR,
Petitioner/Plaintiff-Appellant
aa
HAMILTON WINSTON, M.D.,
Respondent /Defendant-Appellee 5
6:1 Hd S- BvH LUO
and
DOES 1-10, Defendants
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(cIV. No. 01-12-1489)
(By: Acoba, J., for the court")
‘The Application for Writ of Certiorari filed on
February 6, 2007 by Petitioner/Plaintiff-Appellant Michelle L.
Taylor is hereby rejected.
DATED: Honolulu, Hawai'i, March $, 2007.
FOR THE COURT:
IMEON R. ACOBA, JR.
Associate Justice
John $. Edmunds, Ronald J.
Verga, and Joy $. Omonaka
(Edmunds & Verga), on the
application for petitioner/
plaintiff-appellant.
Arthur F. Roeca, April Luria,
and Jodie D. Roeca (Roeca,
Louie 6 Hiracka), in
‘opposition, for respondent/
defendant-appellee.
Considered by Hoon, C.
sy Vevineon, Nakayans, Acobs, and Dvfty, 22.
|
799382b0-93cf-4c88-a059-bd87565244be | Dudoit v. Clifton | hawaii | Hawaii Supreme Court | No. 27933,
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
Zhd 91 aaycome
VIOLET YUEN SHIM DUDOIT, TRUSTEE,
Petitioner/Plaintiff-Appellant
arte
FRANK CLIFTON and MARINA CLIFTON,
Respondent s/Defendants-Appellees
z S.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(crv. No. 05-1-0393)
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
(By: Duffy, J., for the court")
Petitioner/Plaintiff-Appellant Violet Yuen Shim Dudoit,
filed on
Trustee's application for a writ of certiorari,
January 16, 2007, is hereby rejected.
DATED:
Honolulu, Hawai'i, February 16, 2007.
FOR THE COURT:
Ween Dey fr
Associate Justice
Roger C. Lerud
for petitioner/
plaintiff-appellant
on the application
Moon, C.J., Levinson, Nakaysna, Acoba, and buffy, 09.
* considered by:
|
c064b735-1b1b-4c53-acc1-2d67a36e6beb | State v. Murray | hawaii | Hawaii Supreme Court | No. 27549
Hd - NOP L002
IN THE SUPREME COURT OF THE STATE OF HAWAI'T.
Be
STATE OF HAWAI'I, Respondent /Plaintift-appellée
JAMES MURRAY, Petitioner/Defendant-Appellant
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(FC-CR. NO. 051-0086)
war:
a
for the court")
(By: Acoba, J.,
Petitioner/Defendant-Appellent Janes Murray's
application for writ of certiorari, filed on April 27, 2007, is
accepted and will be scheduled for oral argument. The parties
will be notified by the appellate clerk regarding scheduling.
Honolulu, Hawai'i, June 4, 2007.
FOR THE COURT:
Aba R. ACOBA, JR,
Associate Justice
DATED:
C.J.) Levinson, Nakayama, Acoba, and Dofty, JJ.
* considered by Me
gas
|
bbe69821-d09d-4bc6-802f-78f50650aed1 | Douglas v. State | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
No, 27060
i
Met ana
an
2
i
WS
IN THE SUPREME COURT OF THE STATE OF HAAS
SEI lid €2 634 092
KEITH SCOTT DOUGLAS, trustee, and BONNIE
DOUGLAS, trustee, Plaintiffs-Appellante,
ve.
STATE OF HAWAI'I; EAST MAUI IRRIGATION COMPANY, INC.,
a Hawai'i corporation; Defendants-Appe! lee:
and
JOHN DORS 1-20) JANE DOES 1-20; DOB PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; DOE ENTITIES 1-10; AND
DOE GOVERNMENTAL UNITS 1-10; Defendant:
APPEAL FROM THE SECOND CIRCUIT COURT
(CIV. No. 02-1-0006(3))
WY DISPOSITION ORDE
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
‘The instant appeal arises out of a quiet title action
involving disputed boundaries of adjoining parcels of real
property owned by plaintiffs-appellants Keith scott Douglas and
Bonnie May Douglas, as trustees of the Keith and Bonnie Douglas
Living Trust (hereinafter, collectively, the Douglasesl,
(the State), and defendant
defendant-appellee state of Hawai'i
East Maui Irrigation Company (EMI)
Following a jury-waived trial, the
on the north shore of the
sland of Maui, Hawai'i
Circuit Court of the Second Circuit, the Honorable Joseph &.
ams
*** NOTFOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
Cardoza presiding, entered final judgment on November 4, 2004 in
favor of the state.
The Douglases appeal from the final judgment,
challenging the trial court’s July 27, 2004 findings of fact
(Fors) and conclusions of law (CoLe). The Douglases also appeal
from the trial court's Decenber 2, 2004 order denying their
motion to alter or amend the final judgment. on appeal, the
Douglases essentially contend that the trial court erred in its
determination of the boundaries of the Douglases’ parcel of real
property that adjoins the State’s parcel of real property.
Upon carefully reviewing the record and the briefs
submitted and having given due consideration to the argunents
advanced and the issues raised by the parties, we resolve the
parties’ contentions as follows.
(2) The Douglases challenge FOF No. 3 (relating to the
cultivation of taro on the subject property (i.e., the property
awarded pursuant to Land Commission Award (LCA) 6510 U, apana
2)), claiming that this finding is erroneous because “the native
and foreign testimony describe the land as both kalo and kula
(taro and pasture).* However, there is substantial evidence,
which the trier of fact found to be credible, that “kula’
describes a “field for cultivation” and not a pasture for
See Ince Doe, 95 Hawai'i 183, 196-97, 20 P.3d 616,
629-30 (2001) (stating that testimony of a single witness, if
*** NOT FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
found credible by the trier of fact, suffices as substantial
evidence to support an FOF).
(2) The Douglases next challenge FOF Nos. 7, 9, and 10
(relating to the peninsula). Inasmich as “[ilt is well-settled
that an appellate court will not pass upon issues dependent upon
the credibility of witnesses and the weight of the evidence(,]"
Eisher v. Fisher, 111 Hawai'i 41, 46, 137 P.3d 355, 360 (2008)
(internal quotation marke and citation omitted), and the
foregoing findings are dependent upon credibility and the weight
of the evidence, we conclude that FOF Nos. 7, 9, and 10 are not
clearly erroneous.
(3) The Douglases also claim that FOF No. 18 (relating
to Registered Map No. 2377) is clearly erroneous. FOF No. 15,
however, is supported by substantial evidence in the record
Moreover, ‘it is axiomatic that reconciling conflicting testimony
is beyond the scope of appellate review[.]" naka v. Onaka, 112
Hawai'i 374, 384, 146 P.3d 89, 99 (2006) (citations omitted).
Accordingly, FOF No. 15 is not clearly erroneous.
(4) The Douglases argue that FOF Nos. 27 and 18
(relating to the correct location of the poalima) are clearly
However, there is substantial evidence in the record
to support the trial court’s findings that (1) the correct
jure John Gower's metes
location of the poalima is needed to me
and bounds description of the subject property on the ground (FOF
No. 17) and (2) the correct location of the poalina is its
*** NOTFOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
See Inte
location as depicted on the 1926 EMI map (FOF No.
Poe, 95 Hawai'i at 196-97, 20 P.3d at 629-30; aee also Shoemaker
v. Takai, 57 Haw, 599, 601-02, 562 P.24 1286, 1288 (1977)
(concluding that expert testimony of a land surveyor constituted
substantial evidence to support the trial court's finding with
respect to a boundary determination). Accordingly, POP Nos. 17
and 18 are not clearly erroneous.
(5) The Douglases challenge FOF No. 19 (relating to
Bruce Lee's depiction of the poalima). Hawai'i Rules of
Appellate Procedure (HRAP) Rule 26 (2006) provides in relevant
part that “[ploints not argued may be deemed waived.* RAP Rule
28(b) (7). Here, the Douglases do not elaborate as to how “sub-
findings” A through B of FOF No. 19 are clearly erroneous. There
is no mention of FOF No. 19 in the Douglases’ “argunent* section.
Consequently, we conclude that the Douglases’ contention with
respect to FOF No. 19 is deemed waived.
(6) The Douglases challenge FOF No. 20 and COL No. 7
(relating to the movement of the subject property's boundaries as
shown on the 1926 EMI map). As the State points out in its
answering brief, however, it appears that the Douglases’
arguments regarding FOF No. 20 and COL No. 7 were made for the
first time in the Douglases’ motion to alter or amend the final
judgment (motion to amend). Indeed, the Douglases do not dispute
such in their reply brief. tt is clear that their arguments made
in the motion to amend “could and should have been presented by
*** NOT FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
[the Douglases] at trial.” At trial, the parties presented
extensive, conflicting expert testimony regarding the precise
location of the subject property. During re-cross examination,
Randall Hashimoto testified that the northern boundary of the
subject property “falls very close to the top of the sea cliff.”
At that point, the Douglases’ counsel could and should have
developed Hashincto’s testimony as to the exact location of the
northern boundary. Cf, State v. Hashimote, 47 Haw. 185, 210, 389
P.2d 146, 159-60 (1963) (stating that cross-examination is “a
leading and searching inquiry of the witness for further
disclosure touching the particular matters detailed by him in his
Girect examination, and it serves to sift, modify, or explain
what has been said, in order to develop new or old facts in a
view favorable to the cross-examiner") (internal quotation marks
and citation omitted). Moreover, the parties presented
conflicting expert testimony as to the paraneters of Hanawana
Stream, which concerned the location of the western boundary of
the subject property. Consequently, the Douglases’ argunents
relating to FOF No, 20 and COL No. 7 were untimely made for the
firat tine in their motion to amend. Accordingly, their
challenge to FOF No. 20 and COL No. 7 fails.
(7) Lastly, the Douglases contend that the trial court
erred in denying their motion to anend. Although not entirely
clear, the Douglases appear to argue that the State improperly
*** NOT FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
changed its position during the trial and that the state is
judicially eatopped from changing ite position.
We have previously noted that a purported motion to
amend is “a de facto motion for reconsideration,” when such
motion fails to raise (1) any new arguments that could not have
been presented or made in the earlier proceeding or (2) newly
discovered evidence. Leslie v. Estate of Tavares, 91 Hawai'i
394, 396 n.1, 984 P.2d 1220, 1222 n.1 (1999) (citations omitted).
However, “(t]he purpose of a motion for reconsideration is to
allow the parties to present new evidence and/or arguments that
could not have been presented during the earlier adjudicated
motion." Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Hawai'i
85, 114, 839 P.2d 10, 27 (1992) (citations omitted). Moreover,
“[rleconsideration is not a device to relitigate old matters or
to raise arguments or evidence that could and should have been
brought during the earlier proceeding." Sousarie v. Miller, 92
Hawai'i 505, 513, 993 P.2d 539, 547 (2000) (Zootnote and
citations omitted)
Here, the Douglases are utilizing their purported
motion to amend as a device to relitigate old matters and to
raise arguments that could and should have been brought during
the earlier proceeding. First, the Douglases had previously
raised the argunent that the State "should not attempt to proffer
evidence implicating that it is entitled to any affirmative
relief in this action” in their fourth motion in limine prior to
*** NOTFOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
trial. The trial court, however, already fully addressed the
Douglases’ contention at the hearing on the Douglases’ fourth
motion in limine, essentially stating that it was unnecessary for
the State to have filed a counterclaim in order to defend its
position in the instant quiet title action initiated by the
Douglases. Second, as the State points out, the Douglases failed
to object to Hashinoto’s testimony on moving the subject property
seventy-three feet eastward on the basis of judicial estoppel.
Consequently, the Douglases are utilizing their purported motion
to amend as a device to raise an argument that could and should
have been brought during the earlier proceeding. Accordingly, we
hold that the trial court did not abuse its discretion in denying
the Douglases’ motion to amend. Therefore,
IT IS HBREBY ORDERED that the trial court's Novenber 4,
2004 final judgnent and December 21, 2004 order denying the
motion to amend are affirmed.
DATED: Honolulu, Hawai'i, rebruary 23, 2007.
on the briefs:
Janes P. Brumbaugh and
Brien R. Jenkine, for .
plaintiéfe-appeliante Bt Ph canis
Pamela K. Mateukawa and Santa or ares
Sonia Faust, Deputy “
Attorneys General,
for defendant -appellee
state of Hawai
men €. Buty
|
7aad22f4-f77e-4278-8827-9d14ae703082 | Kanekoa v. Kanekoa | hawaii | Hawaii Supreme Court | LAW LIBRARY
No, 28202
IN THE SUPREME COURT OF THE STATE OF HAWAT'Z
KAHIKINA M. KANEKOA, gi 8
Plaintite/Third-Party Plaintift-Appeitee.g8),
MUBERT U. KANEKOA, Defendant-Appellant $5/ a=
§ e
a
end
GRACE INTERNATIONAL CORPORATION,
a Nevada corporation, Third-Party Defendant.
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-D No. 03-1-2405)
(By: Moon, C.J. for the court")
Petitioner-appellant Hubert Kanekoa’s application for
writ of certiorari filed on February 2, 2007 is hereby rejected
DATED: Honolulu, Hawai'i, March 14, 2007.
FOR THE COURT:
‘considered by: Moon, C.J-, Levinson, Nakayama, Accba, ané Duffy, JJ
|
514ed207-0c61-47b1-a884-b9accd094505 | State v. Dunbar | hawaii | Hawaii Supreme Court | No. 27424
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
—
STATE OF HAWAI'I, Respondent-Appellee,
JOHN P. DUNBAR, Petitioner-Appellant. ~:/
—
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO, 04-1-0450)
5- @2jpoaz
nme
(By: Nakayama, J., for the court’)
Petitioner-Appellant’s application for writ of
certiorari filed on January 12, 2007, is hereby rejected.
February 8, 2007
DATED: Honolulu, Hawai'i,
FOR THE COURT:
Pecaes OOo say te
Associate Justice
John ®. Dunbar,
petitioner-appellant
Pro se, on the application
‘considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 33
|
3ccbe43f-6549-4937-b634-5e87a2577201 | Office of Disciplinary Counsel v. Noguchi | hawaii | Hawaii Supreme Court | No. 23979
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
OFFICE OF DISCIPLINARY COUNSEL, Petitioner,
GEORGE K. NOGUCHI, Respondent. &
Se a
EP =
Ese my
5 &
In re Application for Reinstatement of
Sua
GEORGE K. NOGUCHT, Petition
(ove 97-09-5203)
(sy: Moon, C.J., Levinson, Nakayama,
‘Acoba, and Duffy, JJ.)
upon consideration of Petitioner George K. Noguchi’s
“petition for reinstatement,” it appears that: (1) Petitioner
Noguchi resigned from the practice of law in lieu of discipline
fon January 16, 2001; (2) RSCH 2.17(c) provides that petitions for
reinstatement by a disbarred attorney shall be filed with the
rved upon Counsel; and (3) Petitioner
Disciplinary Board and
Noguchi filed his petition for reinstatement with the supreme
court, Therefore,
IT IS HEREBY ORDERED that the petition for
reinstatement is dismissed without prejudice to Petitioner
Noguchi filing the petition with the Disciplinary Board and
serving it upon Counsel, as provided by RSCH 2.17(c).
DATED: Honolulu, Hawai'i, Pebruary 22, 2007.
or
Lei friise—
Prssctes CON encay are
emo
Cae deegon-
|
1f4222a4-80c6-48af-9f65-85dd5811cbcf | State v. Davalos. ICA s.d.o., filed 07/11/2006 [pdf], 111 Haw. 73. S.Ct. Order Accepting Application for Writ of Certiorari, filed 12/01/2006 [pdf]. | hawaii | Hawaii Supreme Court | ‘s++F0R PUBLICATION IN WEST'S HAWAI'I REFORTS AND PACIFIC REPORTERS#*
IN THE SUPREME COURT OF THE STATE OF HAWAI‘T
‘o0o---
STATE OF HAWAI'I, Respondent/Plaintiff-Appellee
vs.
HANIN DESWYN DAVALOS, Petitioner/Defendant~Appellant
and
PATSY B. KAHAUNAELE, Defendant
8
Wo. 27270
CERTIORARI TO THE INTERMEDIATE COURT OF APPEAtS
(CR. NO, 04-1-0844)
FEBRUARY 28, 2007
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY ACOBA, J.
Petitioner/Defendant-Appellant Hanin Deswyn Davalos
(Petitioner) filed an application for writ of certiorari? on
Pursuant to Hawai" Revised Statutes (HRS) § 602-59 (Supp. 2006),
fa party may appeal the decision of the intermediate appellate court (the ICR)
only By an application to this court for s wit of certiorari. Seo HRS § 602~
59(a).. In determining whether to accept or reject the application for writ of
Certiorarl, this court reviews the ICA decision for!
(2) Grave errors of law of of facts or
(2) Gbvious inconsistencies in the decision of the [ICAI
ith that of the supreme court, federal decisions, or
its own ‘decision,
land the nagnitue of such errors or inconsistencies
Gictating the need for further sppesl
(continued...)
qa
‘s+4POR PUBLICATION IN MEST’ § HAMAI'T REPORTS AND PACIFIC REPORTER
October 23, 2006, requesting that this court review the Summary
Disposition Order (SDO) of the Intermediate Court of Appeals (the
IcA),? affirming the April 4, 2005 judgment of the first circuit
court (the court)? convicting Petitioner of promoting a dangerous
drug in the second degree (PD02), Hawai'i Revised Statutes (HRS)
§ 712-1242(2) (c) (1993). Respondent/Plaintiff-Appellee state of
Hawai'i (Respondent) did not file a response to Petitioner's
application. On February 15, 2007, oral argument was held.
We hold that (1) there was substantial evidence upon
which to conclude that Petitioner was a distributor of drugs, see.
HRS § 712-1240 (1993),? in violation of HRS § 712-1242(1) (2):
(2) however, Petitioner was entitled to a procuring agent defense
instruction inasmuch as (a) a jury instruction must be given on
every defense if there is any support in the evidence “no matter
how weak, inclusive or unsatisfactory the evidence may be,” State
\(, seontinued)
biks § 602-59(b)." “The grant or denial of a petition for certiorari is
Giscretionary with this court. ggg HRS § €02-£9(a)-
+ the Summary Disposition Order was Sssued by Chief Judge Janes 8.
nd Associate Judges John §.K. Lim and Craig #. hekamus
>The Honorable Virginia Lea Crandall presided.
«ins § 722-2242(2) (c) stated as follows
(2) A person commits the offense of promoting =
Gangerous Grug in the second degree if the person knowingly:
(c) ° Distributes anv danserous drug in any amount.
(Esphesis added.)
+ RS § 712-1240 states in pertinent part
“To distribute” means to sell, transfer, prescribe,
give, of deliver to another, ox to leave, Derter, oF
exchange with snother, or £0 offer of sgree to co the some.
2
‘s++fOR PUBLICATION IN MEST’S HAWAI'I REPORTS AND PACIFIC REPORTER!
vs O'Daniel, 62 Haw. 518, 527-28, 616 P.1d 1383, 1390 (1980);
(b) @ defendant’ s participation in the negotiation of a drug
traneaction or in the touching of the drugs or money involved
does not in and of itself foreclose a procuring agent defense;
(c) the determination of whether a defendant is considered to be
an agent of the buyer is @ factual question ordinarily for the
fact finder; and (d) there was support in the evidence for a
procuring agent defense in the instant case.
I
Initially it may be observed that under the procuring
agent defense, “‘one who acts merely as a procuring agent for the
buyer is a principal in the purchase, not the sale, and,
therefore, can be held liable only to the extent that the
purchaser is held liable.’” State v. Balanza, 93 Hawai'i 279,
264, 1 P.3d 281, 286 (2000) (quoting State v. Reed, 77 Hawai'i
72, 18, 881 F.2d 1218, 1225 (1994)).* A buyer or the agent of
‘the procuring agent defense ie not an affirmative defense. see
uns § 701-115(3)" (1999) explaining thet "[a) defense is an affirmative
defense if: (a) [i]t de specifically #0 designated by the (Hawal'l Penal)
Code or ancther statute; or (b) [i]f the Code or ancther statute pleinly
Fequires. the defendant to prove the defense by « preponderance of the
evidence”). Hence, like all nenvaffirnstive defenses, tne prosecution must
Gisprove the defense beyond a reasonable doubt. ges Commentary to HRS § 701-
{15° (2583) "explaining that the Hawai'i Penal Code “places an initial burden
on the defendant to cone forward with tone credible evidence of facts
Consticuting the defence, unle "those facts ere suppiied by the
prosecution's witnesses. he to the burden of persuasion, =. + (1]n the ca
Of defenses which are not affirmative, the defendant need Cniy ra:
Feasonsble doubt es to the defendant's guilt.”
‘Thereafter, “the prosecution must prove beyond @ reasonable doubt
fects negotiving the defense.’ The prosecution in fact does this when the jury
believes its case and disbelieves the cefense.” State v, Gabrilla, 10 Haw.
Bop. 446, 455, 677 P.24 891, od-95 (2994) [internas qootataon marke,
citation, and’ ellipses points caitted) (concluding that “[i)f affirmative
Gefenaes’ are not involved and the defendant introduces evidence of » defens
the Gefendant becomes “entities to an acquittal if the trier of fact finde
(continued...)
‘*+0¥0R PUBLICATION I8 MEST’ HAWAI'I REPORTS AND PACIFIC REPORTERS#*
the buyer cannot be convicted of distributing a dangerous drug,
HRS § 712-1242(1) (c), since “‘to buy’ [or to offer to buy]
clearly falls outside the meaning of ‘to distribute’ as that term
is defined in HRS § 712-1240." State v. Auli, 76 Hawai‘ 317,
323, 993 P.2d 168, 174 (1995)
On April 30, 2004, Petitioner was charged by complaint
with PDD2, HRS § 712-1242(1) (c). ‘The matters following were
adduced at trial. Officer Wilson Atud (Atud) related that on
April 21, 2004, he was involved in an undercover operation at the
Jack-in-the-Box restaurant in Wahiawa and had been given “buy
money” to purchase illicit drugs. Atud testified that he
approached Petitioner and asked, “You get?” or something to that
effect which, according to Atud, is street vernacular for
“£iguring out if someone’s got drugs to sell.” Petitioner then
asked, “How much?” and after Atud responded “$20,” Petitioner
instructed Atud to wait.
Petitioner saw codefendant Patsy Kahaunaele and asked
Af she had any drugs to sell. Kahaunaele replied that she had a
“quarter gram [bag] for $30." Kahaunaele owed Petitioner $10, so
Petitioner offered to contribute the $10 that Kahaunaele owed him
with the $20 from Atud to purchase the $30 bag, to which
Kahaunaele agreed. According to Atud, Petitioner returned and
instructed Atud to follow him around the corner. Petitioner told
*{..-continuea)
thet the evidence, when considered in the light of any contrary prosecution
evidence, raises a reasonable coubt 22 to the defendant's guilt’= (quoting, HRS
701-115 (2) (31)
‘s*4FOR PUBLICATION IN MEST’ S HAWAI'I REPORTS AND PACIFIC REPORTERS**
the officer he knew somebody with a $30 bag and that he wanted
$10 worth of drugs out of that bag. Atud and Petitioner agreed
that the officer would “get the 20” and Petitioner would “get the
10” “breakdown of the bag.”
Atud testified that Petitioner pointed out Kahaunaele.
Atud handed the $20 bill to Petitioner, which Petitioner then
passed to Kehaunaele. Kahaunaele then handed a napkin to
Petitioner, which Petitioner passed to Atud. A ziploc packet of
crystal methamphetamine was wrapped in the napkin.
Petitioner testified that after speaking to Kahaunaele,
he returned to Atud and explained to him that he knew a person
who was selling a $30 bag, but that he would put in $10 of his
own money so that they could jointly purchase it. Atud agreed.
When they walked over to Kahaunaele, Petitioner introduced Atud
as “the person I’m putting in with.” Atud gave Petitioner the
$20, which he handed to Kahaunaele, Kahaunaele then handed the
d it to Atud.
napkin containing the drugs to Petitioner, who pas:
As they were walking away, Petitioner testified that he asked
Atud for his $10 worth of drugs. Atud told Petitioner to follow
him to his car, where Petitioner was arrested.
At the close of the case of Respondent and at the close
of evidence, the defense moved for judgments of acquittal, which
were denied. During the settling of jury instructions, the
defense proposed an instruction on the procuring agent defense.
The court refused the instruction over objection. The jury found
'*FOR PUBLICATION IN WEST’ S HAKAI'T REPORTS AND PACIFIC REPORTER***
Petitioner guilty. On April 4, 2005, Petitioner was sentenced.
on May 3, 2005, Petitioner filed his notice of appeal.
qr.
Before the ICA, Petitioner argued that (1) Respondent
“failed to adduce sufficient evidence to prove that [Petitioner]
knowingly distributed a dangerous drug as required by HRS § 712-
1242(1) (c) because HRS § 712-1242(1) (c) does not proscribe the
act of buying crystal methamphetamine” and (2) the “court
reversibly erred by refusing to instruct the jury on the
procuring agent defense.”
‘The ICA affirmed the conviction, stating in its
July 11, 2006 SDO as follows:
After a cedulous review of the record and the briefs
submitted by the parties, and giving careful consideration
‘goments Scvanced and the iseues raised by the
lege we resolve (Petitioner's) pointe of err on appeal
i. "Evigence was adduced at trial sufficient to enable
person of reasonable caution to conclude that [Petitioner]
Exansferrea crystal methamphetamine to an undercover police
officer on behalf of the seller~
2.."mne circuit court oie not err in refusing
(Petitioner's) jury instruction on the procuring agent
Gefense because the evidence aadyced st tris] did not prove
only 2 sale.
S00 at 1, 2.
qn,
In his application Petitioner raises two questions:
1. wether the ICA gravely erred in holding that
there mag sufficient evidence adduced at trial to enable @
person of reasonable caution to conclude thet (Petitioner)
had distributed crystal methanphetenine to an undercover
police officer on Behalf ef the seller?
2. Whether the ICA gravely erred in holding that the
circuit court oid not ext in refusing [Petitioner's] Jury
instruction on the procuring agent defense, besed on the
ICK's determination thet the evidence saduced st trial did
ot prove cnly Sele?
‘*++F0R PUBLICATION IN WEST'S KAWAI'T REPORTS AND PACIFIC REPORTER*##
wv.
As to the first question Petitioner contends (1) “HRS
§ 712-1242(1) (c) states that a defendant commits the offense of
promoting a dangerous drug in the second degree if the person
knowingly *(d]istributes any dangerous drug in any amount”;
(2) “*[d}istribute’ is defined as ‘to sell, transfer, prescribe,
give, or deliver to another, or to leave, barter, or exchange
with another, or to offer or agree to do the same’"; (3) “the act
of buying is not included in distributing,” citing Aluli, 78
Hawai'i 317, €93 P.2d 168; (4) “[aJt the close of [Respondent's]
case, [Respondent] contended that the ‘hand-to-hand transfer’ of
the drugs from [Petitioner’s] hand to Atud constituted the
‘distribution’; (5) “[hJowever, . . . no distribution occurs
when drugs are physically transferred from one joint owner to
another,” (citing State v. Moore, 529 N.W.2d 264, 266 (Iowa 1995)
(citing United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977))7
People v. Edvards, 702 P.2d 555, 561 (Cal. 1985) (en banc);
(6) “[Petitioner] was a joint purchaser of drugs with Atud . . .
using the $20 cash from Atud and the $10 IOU he contributed”; and
(7) “even Atud’'s testimony establishes that immediately after
Kahaunaele gave the drugs to Atud, [Petitioner] asked for his $10
share.” Hence, Petitioner maintains that “the . . . court erred
as a matter of law in denying (Petitioner's) motion for judgment
of acquittal because the act of purchasing drugs does not
constitute an act of distribution under HRS § 712-1242(1) (c)."
‘*#4OR PUBLICATION IN MEST’ HAWAI'I REPORTS AND PACIFIC REPORTERS+®
vy.
Respondent argues that (1) “Atud testified . . . he
asked [Petitioner] if he had any crystal methamphetamine to sell,
[Petitioner] inquired, “How much?”; (2) “Atud handed [Petitioner]
2 twenty dollar bill, which [Petitioner] gave to Kahaunaele”;
(3) “Kahaunaele then handed [Petitioner] a napkin containing the
crystal methamphetamine, which he gave to (Atud]”; (4) “a juror
could have reasonably inferred that [Petitioner] was the
Gistributor or seller of the drugs.” According to Respondent,
“{Petitioner] participated in the negotiation of the purchase
price and quantity, when he asked [Atud) how much he wanted[,)
+ + + [he] subsequently proceeded to acquire the . . .drugs and
in the process physically handled both the money and the crystal
methamphetamine[,] . . . suggest{ing] that [Petitioner] was a
partner with Kehaunaele[,]" and, “[a]s such, no reasonable juror
could have found that [Petitioner] did not, at the very least,
act on the seller's behalf.”
vr.
On appeal the test for the denial of a motion for
judgment of acquittal is that applied to determine sufficiency of
‘the evidence to support the conviction. See State v, Okumura, 78
Hawai" 363, 403 n.15, 894 P.2d 80, 100 n.15 (1995) (stating that
“[alithough different language is sometimes used to describe the
standard of review when the denial of a motion for judgment of
acquittal is appealed, the test on appeal is actually identical--
HAWAL'T REPORTS AND PACIFIC REPORTER
‘++470R PUBLICATION IN WES:
if there was sufficient evidence to support the conviction, the
motion for judgment of acquittal was properly denied; if there
was insufficient evidence, the denial of the motion was error”
(citation omitted)). “Substantial evidence as to every material
elenent of the offense charged is credible evidence which is of
sufficient quality and probative value to enable a person of
reasonable caution to support conclusion.” State v. Aplaca, 96
Hawai'i 17, 21, 25 P.34 792, 796 (2001) (citations omitted).
Viewing the evidence as stated above, i.e., in a light most
favorable to Respondent, and in full recognition of the trier of
fact’s role, it may be concluded that the evidence was sufficient
to enable a reasonable juror to conclude guilt. Id, at 21, 25
P.3d at 796 (citations omitted). Inasmuch as there was evidence
sufficient to convict Petitioner of PDD2, we consider whether
there was trial error, as posited in Petitioner's second
question. See State v. Wallace, 80 Hawai'i 382, 413, 910 P.2d
695, 726 (1996) (stating that “[rjeversal for trial error, as
distinguished from evidentiary insufficiency, . . . is a
determination that a defendant has been convicted through a
judicial process which is defective in some fundamental respect,
Sug. . . . incorrect instructions” (quoting Burks v. United
States, 437 U.S. 1, 15 (1978).
vit.
As to the second question, Petitioner argues that the
court’s refusal of the procuring agent defense instruction was
‘**47OR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*
error. Petitioner reasons that (1) “[t]he principle behind the
procuring agent defense is that ‘one who acts merely as a
procuring agent for the buyer is a principal in the purchase, not
the sale, and, therefore, can be held liable only to the extent
that the purchaser is held liable(,]’ Balanza, 93 Hawai'i at
285, 1 P.3d at 287"; (2) “[Petitioner] testified that he had been
a joint purchaser of the drugs from Kahaunaele, not her agent”?
(3) “it was Atud who approached [Petitioner] and solicited the
purchase”; (4) “(Petitioner) said that he would try to find
someone who was selling”; (5) “there was no evidence that
[Petitioner] made any profit off of the sale or that he received
a ‘cut’ from Kehaunaele”? (6) “Atud confirmed that (Petitioner)
asked him, not Kahaunaele, for his $10 share of the drugs”;
(7) “a reasonable juror could have concluded that [Petitioner]
was not acting on behalf of the seller, Kahaunaele”; (8) under
Daniel, 62 Haw. at 527, 616 P.2d at 1390, a defendant in a
criminal case “is entitled to an instruction on every defense or
theory of defense having any support in the evidence[.]”
As to the second question, Respondent maintained in its
(1) “*{wJhen jury instructions or the
answering brief that:
omission thereof are at issue on appeal, the standard of review
is whether, when read and considered as a whole, the instructions
given are prejudicially insufficient, erroneous, inconsistent, or
misleading’” (quoting State v, Valentine, 93 Hawai'i 199, 204,
998 P.2d 479, 484 (2000)) (citations omitted); (2) in State v
10
**47OR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER®}
Kim, 71 Haw. 134, 136, 785 P.2d 941, 942 (1990), “the defendant
+ admitted to accepting money from the agent and delivering a
napkin which she knew ‘maybe contained cocaine’” (brackets
omitted); (3) in Reed, 77 at 75-77, 881 P.2d at 1221-23, “the
defendant negotiated the terms of the deal with the undercove
officer, took the officer’s money, delivered the cocaine... ,
and . . . admitted to providing the officer with cocaine”; (4) in
Balanza, 93 Hawai'i at 289, 1 P.3d at 287, “[this c]ourt opined
that ‘under the evidence adduced in Kim and Reed, a reasonable
juror could have found that the defendants were, at 2 minimun,
acting on behalf of the sellers” (brackets omitted); (5) in
Balanza, in which this court deemed the evidence insufficient to
convict, this court had noted that “the defendant ‘did not
participate in the negotiation of the purchase price and
quantity, nor did he come into contact with the money or the
drugs’” (quoting Balanza, 93 Hawai'i at 289-90, 1 P.3d at 287-88)
(footnote omitted); (6) in this case Petitioner did participate
in negotiations and delivery of the drugs and, thus, (7) “the
[court’s] instructions . . . were not prejudicially insufficient,
erroneous, inconsistent, or misleading.”
vii.
The instruction requested by Petitioner was as follows:
It is a defense to Promoting 2 Dangerous Drug in the
Second Gegree that the defendant war merely acting 2 the
procuring
Ripe: a procuring agent for the
buyer is'a principal in the purchase, not the sale, and,
therefore, can be held 2iable only to the extent thet the
purchaser is held liable.
ua
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REFORTER**+
If you find that the defendant was merely acting as
the procuFing agent for the buyer, then you must find th
Gefensant not guilty of Promoting’ Dangerous Orug in the
Second degres
According to Respondent, “(during the settlenent of jury
instructions, . . . [Petitioner] conceded he did come into
physical contact with the money and the drugs in this case.
[Respondent] maintained that the procuring agent defense was
unavailable to [Petitioner] insofar as: (1) [Petitioner] and the
undercover officer agreed on a price and quantity, and
(2) [Petitioner] physically handled the money and the drugs.”
‘The court refused the instruction on such grounds:
THE COURT: Court refuses the instruction over the
objection of [Petitioner] having reviewed
ang the factors set forth therein and the facts of this case
With respect to [Petitioner] == negotiated the purchase with
jotermined the anount the officer wanted
those negotiations and dia actually physically touch both
the money and the drug.
Respondent asserts, again relying on Balanza, that “the evidence
adduced at trial proved [Petitioner] participated in the
distribution and/or sale of crystal methamphetamine. .
[Petitioner] was, at a minimum, acting on behalf of Kahaunaele.”
Respondent argues that because
(Petitioner! proceeded to acquire the desired drugs
ang in the process, aa in Ein ond Bese
ee we)
Feasonable jurcr could have found that [Petitioner] did not,
athe very least, act on the seller's behalf{]. =. (and)
the procuring agent defense wes not available to
[Peefesoneri=
(Emphasis in original.)
In opposition, Petitioner in his opening brief had
maintained that “[Petitioner] was entitled to instructions on the
‘+#+FOR PUBLICATION IN WEST’ S HAWAZ' REPORTS AND PACIFIC REFORTERY+#
procuring agent defense because a reasonable juror could have
concluded that [Petitioner] merely acted to purchase drugs.”
Petitioner points out that “in (Balanzal, the (court held, ‘in
the absence of a bill of particulars, where the evidence adduced
at trial proves only a sale and a reasonable juror could find
that the defendant did not act on the seller's behalf, the
defendant is entitled to @ jury instruction on the procuring
agent defense.’” (Quoting Balanza, 93 Hawai'i at 288, 1 P.3d at
290.) Petitioner concedes that in Balanza this court said:
Unser the evidence adduced in Kim and Bead, a reasonable
Juror souls have found that the defendants wer
Aininuns acting on behalf of the sellers: However in the
Present case, Ealanza did not participate in the negotiation
SL the purchase price and quantity, nor did he come into
Physical contact with the money or the cocaine. Under these
Edgeunstances, the procuring agent defense should have been
available to hin.
(Quoting Balanza, 93 Hawai" at 287, 1 P.3d at 290.) However,
Petitioner argues that “evidence that [Petitioner] ‘was involved
in. . . negotiations end did actually physically touch both the
money and the drug,’ does not mean that a reasonable juror could
not find that [Petitioner] was not acting on behalf of the seller
and thus, was not grounds for depriving [Petitioner] of the
defense.” Petitioner maintains that the question is one of fact
for the jury, citing the following:
It is inportant to note thet the determination of whether @
defendant is considered to be an agent of the buyer is
generally # question for the jury, not the judg
Therefore, as long ss there is “some reasonable view of the
evicence”’ that s defendant acted purely on behalf of a buyer
of drugs, & judge is required to submit the agency defense
fo the jury in those Jurisdictions accepting the defense.
(Quoting Scott W. Parker, An Argument for Preserving the Agency
13
}FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*+#
Defense as Anplied to Prosecutions for Unlawful Sale, Delivervia
nd Possession of Drugs, 66 Fordham L. Rev. 2649, 2657 (May
1996).) Within that framework Petitioner argues that negotiation
and contact with the money and drugs would not be inconsistent
with Petitioner acting as an agent for the buyer:
The evidence showed that [Petitioner] physically handled the
rugs and the money because he was acting as a Duyer of
‘drugs along with [Atud), The ssaue of whether (Petiticner)
negotiated the price and quantity on behalf of Fahaunasle
showld have been up to the jury as the trier of fact to
decide, not the judge. A reascnable juror could have
concluded that (Petitioner) dia not act on the seller's
behalf, and merely acted to purchase drugs
m
In Balanza, this court stated that in Kim and Reed “the
respective trial courts were correct, based on the evidence
adduced at trial, to refuse @ procuring agent instruction.” 93
Hawai'i at 287, 1 P.3d at 289 (emphasis added). According to
this court, “(u)nder the evidence adduced in Kim and Reed, @
reasonable juror could have found that the defendants were, at a
minimum, acting on behalf of the sellers.” Id. Referring to the
facts in Balanza, it was said, “However, in the present case,
Belanza did not participate in the negotiation of the purchase
price and quantity, nor did he come into physical contact with
the money or the cocaine. Under these circumstances, the
procuring agent defense should have been available to him.” Ide
at 287-86, 1 P.3d at 289-90.
This court did state that “where the evidence adduced
at trial proves only a sale and a reasonable juror could find
that the defendant did not act on the seller's behalf, @
14
/#*FOR PUBLICATION IN WEST’ HAMAY'I REPORTS AND PACIFIC REFORTERS**
defendant is entitled to @ jury instruction on the procuring
agent defense.” Id. at 288, 1 P.3d at 290.” However, the
> th Ate S00 the ICA affirmed the court “because the evidence
adduced at trial did not prove gnlya sale.” S00 at 2. (emphasis added).
$8 Haw. 834, 298, S6 P.2d 1370, 1373 (1979), this court
Retnowledged that “appellant hed acted not for himself, but for the undercover
police officer in purehsring the cocaine (and) invoke(4) as a defense, the
theory of the procuring agent.” Tt was nevertheless held that the procuring
agent defense ‘would be inapplicable aginst a charge of knowingly snd
Oniawfully distributing a dangerous drug in violation of Section 1242(1) (c) of
the Code-” “Id, at 240, $66 Pi2a at 1573 (emphasis added) (citation omitted)
Subsequently, State v. Erickson, 60 Haw. 8, 9 S86 P.2d 1022, 1023
(1978), inaicated that where the prosecution had given’a bill of particulars
thet. "Confined the State to proof that appellant ‘offered or agreed to
Sell(,}’" “the State is Limited to proving the particulars specified in the
BLL." (citations omitted.) Recognizing that "to sell does not mean to buy
fand that one who acts es the agent of the buyer... does not commit the
cefense of selling the crugl,]* id. at 10, S86 P.2d at 1024, this court
Goncluded that because “the State wes limited by the bill of particulars to
proving a ‘sale',” ig. at il, “the ‘procuring agent’ defense which we held in
(kelsey), supra st 235, 566 P.28 et 137%, to be unavailable under a charge of
distributing @ drug Le evailable to appellant(,)" Exickaan, 60 Haw, at 10, 586
Pda at 1028.
‘Kim confirmed that Exickson decided that in light of the bill of
particulars, "he charge [of distribution} could net be proved by evidence of
Sny act other than a sale” and, thus, this court “accept (ed) the procuring
Agent defense where a sole ie charged(.J”" However, in Baad, 77 Wawa at. 73,
Ge1 F.2d at 1225, it wes said that “we held in Kelgcy that the procuring agent
defense, which negates aolya sale, was inapplicable to a charge of
Gistribsting a dangerous drag.” (Esphases onitted and enpheels added.)
(Citation caitted.) Bead indicated that “the procuring agent defense becomes
available only when a bill of particulars alleges that the defendant
Sietributes a dangerous drug exclusively by selling it(.]” Id. st £0, 881
Pda at 1226
‘he view that the procuring agent defense wee available only if
the defendant wes charged with a sale, however, was altered by Aluli-
held that the term "co cistribute in ARS §-712-1240 [(which included “to
feli"}} die not include ‘to Buy’ or ‘to offer to buy.'” luli, 78 Hawai at
525, 099 Pr2d at 17. Because distribution in ite various prescribed forms
(including selling) did not include buying or offering to buy prohibited
Grogs, the purchase of such contraband waa catside the scope of conduct
failing within the definition of distribution. Consequently, the purchase of
Gruge, shether by the principal of the principal's agent (Lies, the procuring
agent), could be raised as 2 defense to's charge of cistribution under HRS §
‘erizko. tn Balanag, this court reiterated that “[t]he procuring sgent
Gefense rensins svaileble where the efendant 1s charged with the sele of
Sroge|+]" 93 Hawel's at 267, 1 P.30 at 269, and ebrogated the requirement that
S'biil of particulars alleging » sale was a necessary prerequisite to the
Considerstion of the defense at trial
he reiterated in the text, Balanza did declare that “where the
evidence acguced at trial proves only'e sale and a ressonable juror could find
that the defendant did not act on the seller's behalf, the defendant i
entitled to's jury instruction on the procuring agent defense.” 1d. at 286, 1
P.3d at 290. That statenent, in light cf Alull, was not = limitation on the
Consideration cf the defense by the fact finder, but a vestige of the “ale”
fSnguage stening from the bil) of paresculars context in Ersckson and
Teontinved. -)
In
/"FOR FUBLICATION IN WEST’ § HAMAI'T REPORTS AND PACIFIC REPORTER’
holding referred to “these circumstances,” making the outcone
rest on the specific facts of each case. In analyzing Kim and
Reed, this court also referred to “the evidence received at
trial.” Id. at 269, 1 P.3d at 291. Acting conscientiously, the
court in the instant case apparently viewed the reference in
Balanza to Balanza not participating in the negotiation of the
transaction, or coming into contact with the money or the drugs
as precluding the defense.
x.
To clarify, the question of whether a defendant was
acting on the seTler‘s behalf or on the purchaser's behalf rests
on the specific facts of the case. Generally these are questions
of fact for the fact finder -- in this case, for the jury. See
2.02, People v, McGhee, 677 P.2d 419, 422 (Colo. Ct. App. 1983)
(stating that “the jury, as the sole judge of credibility, must
determine the validity of the procuring agent defense” (citing
People v. Smith, 623 P.2d 404 (Colo. 1981)); People v. Lam Lek
Chong, 379 N.£.2d 200, 206 (N.¥. 1978) (stating that “(t]he
determination as to whether the defendant was [an agent of the
buyer] is generally a factual question for the jury to resolve on
the circumstances of the particular case”); People v, Foskit, S64
N.¥.8.2d 912, 913 (N.Y. App. Div. 1990) (concluding that
“[w)hether defendant was @ seller of narcotics or merely a
*(.. continues)
reiterated in subsequent cases. Moreover, that the stotenent
Sle” rested on the specific facts ef Belansa is undersesred by
ebservation thet “the evidence sdduced st trial proved only &
16
to “only @
‘chis court’
Ta ide
‘S*4FOR PUBLICATION IN WEST'S HAMAI'I REPORTS AND PACIFIC REPORTERS
purchaser assisting a friend presented a factual issue for the
jury to resolve under the circumstances of this case” (citing
People v. Scott, $20 N.Y.8.2d 856 (N.Y. App. Div. 1987)). But if
the court refuses the instruction as to the procuring agent
defense, the jury is precluded from determining such questions.
‘The evidence arguably conflicted as to whether
Petitioner was acting on behalf of Atud and himself as buyers
when he handed the drugs to Atud, or on behalf of Kahaunaele as
fan agent of the drug seller. At the least there was support in
the evidence no matter how weak, inconclusive or unsatisfactory
it may be thought to be, for the jury to find that “the
[Petitioner] did not act on the sellers behalf” but on behalf of
Atud and himself. See State v. Locaviao, 100 Hawai'i 195, 205,
58 P.3d 1243, 1252 (2002); State v, McMillen, 83 Hawai'i 264,
265, 925 P.12d 1088, 1089 (1996); State v. Maeleaa, 60 Hawai'i
172, 178-79, 907 P.24 758, 764-65 (1995); State v. Pinero, 70
Haw. 509, $25, 778 P.2d 704, 715 (1989); Q*Daniel, 62 Haw. at
527-28, 616 P.2d at 1390. For that reason it appears the
instructions were “prejudicially insufficient.” Valentine, 93
Hawai'i at 204, 998 P.2d at 484. Therefore, the court was wrong
in refusing the procuring agent instruction and the ICA gravely
erred in affirming the conviction.
xr.
Based on the foregoing, the ICA’s SDO is reversed, the
court’s April 4, 2005 judgment is vacated, and the case is
Vv
FOR PUBLICATION IN MEST’ S HAWAI'I REPORTS AND PACIFIC REFORTERS+®
remanded to the court for proceedings consistent with this
opinion,
Summer M.M. Kupau, Deputy Gi
Public Defender (Jon N. .
Tkenaga, Deputy Public Blan vce
Defender, on the
application), for Aesetes CV certae te=
pet itioner/defendant-
Prosecuting Attorney, City &
County of Honolulu, for Yowene, Duster +
respondent /plaintiff-
appellee.
18
|
7a298135-3d85-48ee-ac8a-a036bd9897de | Rees v. Carlisle. | 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"
KEENE H. REES, Plaintiff-Appellant,
vs.
PETER CARLISLE, City and County of Honolulu
Prosecuting Attorney, in his official and
individual capacities, Defendant-Appellee.
No. 26996
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV, No, 03-1-1075)
MARCH 12, 2007
MOON, C.J., LEVINSON, ACOBA, AND DUFFY, JJ., AND
CIRCUIT JUDGE CRANDALL, IN PLACE OF NAKAYAMA, J., RECUSED
OPINION OF THE COURT BY DUFFY, J.
Plaintif£-Appellant Robert Rees’ appeals from the
November 23, 2004 final judgment of the Circuit Court of the
First Circuit,? granting summary judgment in favor of Defendant~
Appellee Peter Carlisle, City and County of Honolulu prosecuting
attorney, and against Rees on all counts, in a suit over the
legality of Carlisle's use of public funds and other public
keene #. Rees, widow of Robert Bees,
following the death of Mr. Fi
While thie cose wee on opt
woe aubetituted ae Flaintiff-Appel
‘The Honorable Gary W.B. Chang presided over this matter,
“OR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
resources to advocate in a state-wide general election for
passage of an amendment to the Hawai'i Constitution.
(2) the
On appeal, Rees makes the following arguments:
circuit court erred in ruling that Carlisle's use of public funds
and resources to advocate for a particular election result is
authorized by state laws (2) the circuit court erred to the
extent it determined that Carlisie’s actions constituted
government speech; (3) the circuit erred in ruling that
carlisie’s actions did not viclate the First Anendnent to the
united states Constitution or article I, section 4 of the Hawai't
Constitution: (4) the circuit court erred in finding that
carlisie’s actions did net vielate the equal protection clauses
of the Fourteenth Anendnent to the United States Constitution and
article 2, section § of the Hawai'l Constitution; and (5) the
circuit court erred in ruling that it did not have jurisdiction
to consider whether Carlisle's conduct violated Revised
Ordinances of Honolulu (ROH) § 38.6.
Based on the following, we vacate the circuit court's
Noverber 23, 2004 final judgment, and remand to the circuit court
with instructions to grant Rees's motion for sunmary judgment on
his declaratory judgment claim that Carlisle acted without legal
authority when he used public funds and resources to advocate for
a proposed constituticnal amendment in a general election.
FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER
1. BACKGROUND
A. Factual B
peter Carlisle has been the elected prosecuting
attorney for the City and County of Honolulu since January 1997.
In 2001, Carlisle promoted a bill in the Hawai'i legislature that
proposed an amendment to the Hawai'i Constitution thet was
intended to “permit prosecutors and the attorney general to
initiate felony criminal charges by filing 2 written information
signed by the prosecutor or the attorney general setting forth
the charge in accordance uith procedures and conditions to be
provided by the state legislature.” §.B. No. 996, H.D. 1, C.D. 1
(Haw. 2002). Thie bill ds often referred to as the “direct
filing” bill.
Following legislative approval of the bill in 2002,
carlisle sought the opinion of the City and County of Honolulu
Ethics Commission a¢ to whether it would be appropriate under the
city and County ethics laws to use City and County resources,
including personnel, to work for approval of the proposed
anendnent. The Executive Director of the Commission, Charles W.
Toto, responded, in an e-mail correspondence dated June 7, 2002,
that “the short answer is yes, with sone restrictions.” The
e-mail continued:
You informed me th
Attorney] souls like to advocate en benalf of © m
(che Cepartment of the Prosecuting
sure thet
WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER,
** FOR PUBLICATI
wide election ballot this Novenber
The issue is uhether the state constitution should be
feended to permit the process of “cirect filing” as an
Eiternetive means to begin felony prosecutions. You
Envision using. [the Department’ s) rescurces, such as
fersennel, facilities ano equipment, to werk for the
Epproval of cirect filing on the pellet.
wil be on the stat
OH Sec. 3-0.6 sete forth certain restrictions on the
Conduct of elty officers and employees regarding “Campsign
Seeistance.” “Cespaign azcistance” includes any service
Seed to seciet the effert to place # question on an election
Ballet or to approve er relect such ¢ question. ROH Sec.
See.ib) (2), Ae 8 result there are restrictions on the
Géticere and employees who are involved in supporting the
Elzect filing propoes!.” These restrictions are statec in
fol sec, 3-8:€{c)- They focus on protecting city perscanel
Exon coercion, genial sf expleyment, cischerge or Gencticn,
haracenent for failing to render canpaign assistanci
Porther, the limitations ben pronction and other advantages
Sig sesuit cf or officer's of employee's rendering campaign
Seeietance, You nay want to familiarize yourself with the
specific restrictions:
‘The ethics laws co net prohibit [the Department of the
Fresecuting Attorney) fron ueing city resources to advocate
For passage of the direct filing amendnent. However,
appears that ROH Sec. 3-6.6(c) gives officers and employees
ERe"right to refuse to resder campaign assistance regercing
b questicn on an election Bellot withect eny cisadvantage to
thelr employment resuiting form [eic) such # refusal, It
Sise ensure® that personnel sho render assistance will not
Ee treates faversbly compares with those who do net
Therefore, 1 reconnens that you inform each officer or
Gepleyee that he cr she Ray Opt cut of the werk related te
fhe cirect filing amendment without concern for any
Eesulting reward of reprisal.
Thereafter, Carlisle canpaigned extensively to promote
the proposed anenduent, identified as Question 3 on the Novenber
2002 ballot, in various ways, including the expenditure of public
resources and utilization of enployees in his office in that
effort. Carlisle admits to the following: (1) that he
canpaigned for the passage of Question 3 in his cepacity as
prosecuting attorney and not as a private citizen; (2) that he
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND.
and other representatives of the Office of the Prosecuting
Attorney actively advocated for passage of Question 3 in speaking
engagements on sixty-six (66) separate dates between April 25 and
November 4, 2002 (3) that he and fifty-seven (57) other
representatives of his office sign-waved in support of
Question 3; (4) that his office used public resources, including
paper, copying equipment, telephones, and a website te promote
.ge of Question 3; (5) that the website of the Office of the
Pa
Prosecuting Attorney encouraged viewers to “Vote Yes” on
Question 3 (6) that in addition to the time that he and his
office employees spent advocating for passage of Question 3, his
office expended public resources of at least $2,404.27 in the
campaign for passage of Question 3; (7) that he sent an e-mail to
all employees in his office calling for their support in
advocating for passage of Question 3 in their interactions with
members of the public and asking for suggestions on “how to sell
this concept to the public”? and (6) that while all of his office
employees who participated in the campaign te promote the passage
of Question 3 were volunteers, some of the volunteers were asked
to work on proncting Question 3 on official work time.
The City and County wes not reimbursed for the time,
labor, and resources utilized by the Office of the Prosecuting
Attorney in advocating for the passage of Question 3.
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
Rees filed suit against Carlisle in his personal and
official capacity on May 21, 2002, stating the following legal
claims: (1) that Carliele's activity viclated Rees’ s
constitutional free speech rights under article I, section 4 of
the Hawai'i Constitution and the First Amendnent to the United
States Constitution and that such violation is actionable
pursuant to 42 U.S.C. § 1983; (2) that Carlisie’s activity
violated Rees’s constitutional right to a free and fair election
under the due process clauses of article I, section 5 of the
Hawai'i Constitution and the Fourteenth Amendment to the United
States Constitution, actionable pursuant to 42 U.S.C. § 1983; (3)
common law qui ten; and (4) that Rees is entitled to a
declaratory judgment under Hawai'i Revised Statutes (HRS) § 632-1
(1993) that Carlisie’s actions (a) exceeded any authority granted
to the prosecuting attorney by the City Charter and were not
authorized by HRS § 28-10.6, (b) were in violation of ROH
$ 3.8-6, and (c) violated Rees’s free speech and free and fair
election rights under the Hawai'i and United states
Constitutions, as previously alleged. In addition to requesting
2 declaratory judgment regarding Carlisle's activity, Rees also
requested: (1) an injunction ordering Carlisle to compensate the
city for (a) all taxpayer resources used to promote passage of
‘+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
the amendment and (b) the portion of the salaries paid to
employees of his office for time spent campaigning for passage of
the amendment; and (2) an injunction prohibiting Carlisle from
sistance of city employees, or
campaigning, requesting campaign a
using taxpayer funds to campaign on ballot questions in the
future.
on Novenber 4, 2003, Carlisle filed a motion to dismiss
or for summary judgment, in which Carlisle argued: (1) that Rees
(2) thet
lacked standing to challenge Carlisle's conduc’
Carlisle’s actions did not constitute a “forced speech” claim
actionable under 42 U.S.C. § 1983; (3) that Cerlisle’s actions
did not constitute infringement of fundamental voting rights
actionable under 42 U.S.C. § 1983; and (4) that Hawai'i law does
net recognize a connon lew qui tam claim.
on August 6, 2004, Rees filed a motion for summary
judgment and declaratory relief on the constitutional claims? and
for declaratory relief as described earlier herein.
Both dispositive motions were argued on August 24,
2004. Disclaiming the validity of the constitutional issue
raised by Rees, Carlisle's counsel esserted at the hearing that
the issue of Carlisie’s authority to use public funds to advocate
Rees’ s summary judgnent motion did not raise the qui tam claim that
was part cf the complaint) only the ehree counts reseed in the notion remained
In the action
+++ FOR PUBLICATION IN WEST"S HAWAI'I REPORTS AND PACIFIC REPORTER ***
for a ballot question was the only real issue: “[s]o you've
seized on the absolute issue when you ask about authority ‘cause
that’s really where it is... . [WJhat we have here is just 2
good old garden variety case of gee, did this public official
have the authority to spend this money for this purpose?”
Carlisie’s counsel clained that Carlisle's authority te so
advocate using public funds and resources came from the City
Charter, which empowered him te prosecute ali offenses under the
authority of the attorney genezal of the State: “The ordinance
dally the authority of the
[sic] confides to Mr. Carlisle essen
attorney general with regard to activities within the City and
county of Honcluls concerning crime.”
Following the hearing, the circuit court tock the
matter under advisement. On Septerber 24, 2004, after concluding
that Rees had standing to prosecute the action on the basis of
his statue as @ taxpayer, the circuit court granted Carlisle’s
notion for summary judgment and denied Rees’s motion, end
rendered the following oral ruling:
turning firet_to the question regarding whether the
cefendant viclated Secticn 3-£.6(c) of the Revises
Grdinances of Acneluls, that section prohibits certain
Behavior relating to the coercion or solicitation of public
exployeer in connection with campaign activities. The
sEeletion of Section S-€-6(c] ie 8 petty misdeneancr
Section 3-€-6(¢) ‘does not appear to create @ private right
of action in saver of a taxpayer's challenge to the
expenditure cf public funds, The adjudiertion of an slleced
ssoletion of Section 3-8.€(c) is properly addressed to 3
Eininel prosecution, not a civil action, Therefore,
+++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
plaintiff se not entitled to any relief pursuant to Section
Erevelc) of the Revises Ordinances of Honciula.
‘The gravemen of the xensining claims relate to the
alleged unconstitutional expenditure of public funds. The
Prosecutor 1s an elected efficial who is charged with the
Fesponsibility to prosecute alleged violations of she Hawaii
Fenei code, This responsibility is delegated to the
Prosecutor by the Attorney General. The duties of the
Prosecutor is {eici to lobby the Legieisture regarding bills
Ehot inpact upon the prosecution of criminal defendants
‘The Prosecstor is sige peraitted to utilize public resources
fo educste the public regerding issues that Felate to the
Eepie of eine in Honclvit and cther matters relating to the
Ecbiness of the Prosecutor's Office. Courts have recognized
that public funde and rescurces expended in furtherance of
these poredite are not unconstitutional.
The objection plaintsf# raises is that the Prosecutor
did not simply educate the public regarding question 3 on
fhe beitot, bur he went tec fer when he urged voters to vote
Yer on question 3. The lew not only tolerates public
BEACL Ie thpending putiie funce ond resources fo address
political issues that are germane to the business porposes
Ge the office, but it expects such conduct. Question >
Ghich related to the criminal sndictnent process i clearly
Qermane te the business cf the Prosecutor's Office. Public
Seiieisis often neke renarks cr public statenente or take
positions on matters that are germane to the business of
Ehtir offices whicn etatenents or positions are objected te
of disagreed with by taxpayers. This ie not unusual.
hen» public officisl fron en office such as the
Prosecutor's Office, which is charged with a specitic
Rlesien to prosecute criminal defendants, maker a public
Btatenent oh a Ballot question, there ie no doubt which way
the Prosecstor wants the public to vote. Se to draw
Bright line between constitutional and unconststutione
Of public sescurces based upon whether or not the Prosecutor
Geys vote yer would be an artificial and arbitrary
Gistineticn and flies in the face of the reality that every
Voter snows how the Prosecutor wants the public te vote ona
matter such as question 3. Therefore, if the law tolerat
the Prosecutor speaking on matters that are germane to the
presecuticn of criminal defendants, then the Constitution
ust allow the Prosecutor to urge Goth the passage of
Tegisiaticn pending before cur Legislature and the adoption
ef ballot questions. Therefore, for these and any other
Good cause shown in the record, the court will respectfully
Grant the defendant's moticn for susmary Judgnent and deny
the plaintsff'e motion fer sursary judment.
+++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
A final Judgment was entered on Novenber 24, 2004, and
Rees filed a timely appeal.
11. STANDARDS OF REVIEW
|. Motion for Summary Judanent
Me review the circuit court's grant or dental of sumary
“Gdgnent de nove. fiauall isicl Community federal Cress
pier v, Keke, 94 Havel 21%, 201, 11 Poa ty 3 12000),
The standera for granting e notion for summary judgnens is
settiea:
(S)urmery judgnent is appropriate if the pleadings,
depositions, snewere te interregstories, en
Baniseione cn fSle, together with the affidavits, if
Shy, how that there ie no genuine issue as to any
hatérie: fact ana that the moving percy is entitled to
Suagment ass matter of law. A fact if material if
preat of thet fect would have the effect of
‘ablishing or refuting che of the essentiai elenente
bf s ceute of action oF defense asserted by the
parties. The evidence must be viewed in the light
Rost favorable to the nonsneving party. Jn cther
rors, we must view al of the evicence and the
Inferéncee drawn therefrom in the Light sest favorable
to the party opposing the motion.
Id. (citations and internal quotation
cose Honoluly, 96 Hawal'l 233, 244-48, 47
Bolg Se, Suse) (ees) lesson alteration sn original!
Kau v. City and County of Honolulu, 104 Hawai'i 468, 474, 92 P.3d
477, 483 (2004).
B. Interpretation of Municipal Charter and Ordinances
Statutory interpretation is “a question of law
reviewable de nove.” State v, Levi, 102 Hawai'l 262, 265, 75
P.3d 1173, 1176 (2003) (quoting State v. Arcec, #4 Hawai'i 1, 10,
928 F.2d 843, 852 (1996)). This court’s statutory construction
is guided by established rules:
10
++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
Firat, the fundamental starting point for statutory
Interpretation se the language of the statute itself.
Second, where the statutory language is plain end
Grenbiguous, cur sole duty 18 to give effect te its plein
and obvious meaning. Thiré, implicit in the task of
statutory construction is oor foremost obligation te
ascertein and gave effect to the intention of the
Legislature, watch is to be obtained primarily from the
Language contained in the statute itself. fourth, when
there 1s coubt, doubleness of meaning, oF indistinctiveness
br uncertsinty of an expression used ine statute, an
anbsgusty exists.
Peterson v. Hawaii Elec, Light Co., Inc., 85 Hawai'i 322, 327-28,
944 P.2d 1265, 1276-72 (1997), superseded on cther arounds by HRS
§ 269-15.5 (Supp. 1999) (block quotation format, brackets,
citations, and quotation marks omitted) .
“When interpreting @ municipal ordinance, we apply the
same rules of construction that we apply to statutes.” Weinberg
city & County of Honolulu, 62 Hawai'i 317, 322, 922 P.2d 371,
376 (1996) (quoting Bishop Souare Assoc, v. City & County of
Honolulu, 76 Hewas's 232, 234, 673 P.2d 770, 772 (1994) (quoting
Waikiki Resort Hotel v. City & County of Honolulu, 63 Haw. 222,
239, 624 P.2d 1353, 1365 (1981)}). “The purpose of the ordinance
may be obtained primarily from the language of the ordinance
itself[.J" Id.
III, DISCUSSION
A. Bagic Claims and Defenses
Rees’s legal claims are three-fol
(2) that Carlisle
acted without legal authority when he used public funds and
resources to advocate for passage of the proposed constitutional
+** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
amendment Question 3;‘ (2) that Carlisle's conduct violated
Rees’s constitutional rights; and (3) that Carlisle's conduct was
in violation of Revised Ordinances of Honolulu (ROH) § 3-8.6.
Carlisle denies that he viclated Rees’s constitutional rights,
and claims thet Section 6-104 of the Revised Charter of Honolulu
and HRS § 26-10.6 give him the legal authority to use public
funds and resources to advocate for passage of the proposed
constitutional amendment Question 3. In addition, Carlisle
asserted a number of affirmative defenses, including: lack of
standing, mootness, and failure to state @ claim upon which
relief can be granted. The cizcuit court ruled that Rees had
standing to assert the claim, and Carlisle did not challenge this
finding on appeal.
Since the issue of legal authority for the conduct at
issue is fundamental to our analysis, we will begin with a review
of Carlisle’s claimed authority.
Authority to Use Public Funds to Advocate for an Election
The Revised Charter of Honolulu (RCH) sets out the
Prosecuting attorney's “powers, duties, and functions” in Section
+ In addition to challenging this claim on the nerits, Carlisle argues
that thie point should be disregarded because che circuit court never made the
“finding” in question ang therefore the point of error viciates RU
26h) (2) (c) of the Howai'i Rules of Appellate Frocedure (HRAF)- We disagree:
The circuit court implicitly feune ‘Conduct wae authorized by
statute, end Rees" = Opening ‘here in the record the sileged
error cccurres.” HRAP 28 (3) (4
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8-104 (Supp. 2003), in accordance with authorizing state law.
‘See HRS § 46-1.5(27) (1993) ("Each county shall have the power to
provide by charter for the prosecution of all offenses and to
prosecute for offenses against the laws of the State under the
authority of the attorney general of the state.”). RCH § 6-104
provides thet
‘the prosecuting attorney shall
a) Attend ail courte in the city and cenduct, on behalf of
‘the people, oil prosecutions therein fer offenses against the laws
cf the state and the ordinences and roles and regulations of the
ciey
(b) Frosecute offenses against the lave of the etate under
the authority of the attorney general cf the state.
c) Appear in every crininel case where there ie 2 change of
venue fron the courts in the city and prosecute the same in any
juriseiceion tc which the came if enanoes cr Fencved. The expense
Of auen preceeding shell be pasa by the city.
{id} Institute proceedings before the district judges for the
arrest of perscne charged with or resecnably suspectes of public
offenses, when the prosecuting attorney has information thet any
Such effenses have been comitted, anc for thet purpose, take
Charge of erininal cases before the district Judges esther in
person or by 2 deputy or by such other prosecuting officer or in
‘Such other Banner ex the prosecuting atterney shell dei hen
approval of the district court er in accorsance with 8 eran
alt indicteents and attend before and give advice to the grand
jury wnenever cases are presented to it for ite consideration; and
investigate ali matters which may properly cone before the
prosecuting attorney. Nothing herein conteines shell prevent the
Conduer of proceedings by private counsel befere ceurts of record
Unger the direction of the prosecuting attorney.
RCH § 8-104 (citations omitted).
Ae the most general statement of the prosecuting
attorney’s powers, RCH § 8-104 provides the proper starting point
for enalyzing the extent of Carlisle's authority. See, e.c.
mt ing, 11 Haw. 140, 76 P.2d 943 (1990) (analyzing
language of Honolulu Charter, section 8-104, to determine that
+++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER **
prosecuting attorney is empowered, in his discretion, to employ
private counsel te prosecute particular cases). RCH § 6-104,
which is focused on the prosecution of offenses, the institution
of arrest proceedings, and court appearances, clearly lacks any
express grant of power to use public funds te advocate for
changes in the law. See Marsland v. Fang, § Haw. App. 463, 472,
701 P.2d 175, 184 (1985) ("The prosecutor's powers and functions
are limited to those expressly accorded to his office by the
statute creating it.” (Citing 638 An. Jur. 2d Prosecuting
Attorneys § 20 (1984).) (Emphasis added.)). Conceding that
express authority is not provided by section @-104, Carlisle
“power to comment on non-partisan ballot measures
argues that th
x in which he can initiate prosecutions
that impact upon the man:
is fairly implied fron” his power and duty to prosecute crimes.
We agree with Carlisle that the power to publicly
comment on ballot measures that implicate the manner in which he
can initiate prosecutions is fairly implied from his power and
duty to prosecute crimes.’ The problem in this case is that
Carlisle’s conduct went far beyond providing information to the
public on how the criminal justice system can be improved; he
ading a battle campaign using public
became 2 partisan advocate
ele may “comment” on such iseues
by the First Anendwent not at
for & specific election cutcone
of couree, whether Car
feat prove
+4 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
funds and other resources to tell voters how to vote. As noted
earlier, Carlisle mobilized the Office of the Prosecuting
Attorney and together they collectively advocated for the passage
of Question 3 in speaking engagements on sixty-six (66) separate
dates between April 25 and November 14, 2002, sign-waved on
twenty (20) separate dates, prepared campaign materials in the
office during business hours, urged voters to vote “Yes” on the
website of the Office of the Prosecuting Attorney, and utilized
public funds, labor, and resources in this overt advocacy
campaign.
‘The distinction between providing information and
blatant advocacy was made by the New Jersey Supreme Court in
Citizens to Protect Pub, funds v. Bd. of Educ., 98 A.2d 673 (N.J.
1953), a case that concerned the legality of @ school board’s
expenditure of public funds on a booklet promoting a school
building program, which was to be funded by a bond measure if
approved by the voters in a local referendum election. In an
opinion written by then New Jersey Supreme Court Justice and
future United States Suprene Court Justice William Brennan, the
court ruled that while express advocacy was not permitted, the
school board had implied power under its budgeting powers ~~
which included @ provision regarding school building -- that
“plainly embraces the making of reasonable expenditures for the
a
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purpose of giving voters relevant facts to aid them in reaching
an informed judgment when voting upon the proposal.” Id. at 676.
But rather than a fair presentation of facts, the court stated,
“the board made use of public funds to advocate one side only of
the controversial question without affording the dissenters the
nt their
opportunity by means of that financed medium to pre
side, and thus imperilled the propriety of the entire
expenditure.” Id. at 677. This was improper, Justice Brennan
explained, because
(che public ed to the belong equally te
the proponents ong opponents of the proposition, and the use
of the funds to finance not the presentation of fects aerely
st gorente to perevade the votere chat only one #ide
has merit, gives the dissenters Just cause fer complsint,
The expenciture se then net within the implied power and de
ot lawfui in the absence of express authority fron the
Ia
‘The New Jersey Supreme Court analysis is consistent
of
with that of other jurisdictions that have considered the u
public funds to advocate in elections. In Stenson v. Mott, the
caligornia Suprene Court ruled that while the Celifornia
Department of Parks and Recreation may have disseminated neutral
information relating to the bond election without running efoul
of the law, it was not authorized to “expend public funds to
promote @ partisan position in @ general election." 17 Cal. 3¢
551 7.26 1, 3 (1976). The
206, 208-10, 130 Cel. ptr. €97, 69
California Supreme Court stated:
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FOR PUBLICA’
Indeec, every court which has addressed the Sesue to
date has fsund the use of public funds for partisan compas
Purposes isproper, either on the grouné that such use wea
Rot exeiicitiy authorizes or on the brosder ground thet such
Capencitures tre never appropriates =
‘Underlying thie snisorm sedicial ‘reluctance to
sanction the se of public funds fer electicn cempaigne
EIECS Sh Sgaiele Setcgnstson enae sven expenditures raise
potentiolly serious constiturienal questions.
17 Gal, 3d at 217, 130 Cal. Aptr. at 704-05, S51 F.2d at 8-9,
Having concluded that the Revised Charter of Honolulu
provides neither express nor implied authority to use public
funds to advocate for a proposed constitutional amendment in a
general election, we now consider Carlisle's argument that such
authority is provided by HRS § 26-10.6.
c. HRS § 28-10.6 0. r isle's
ix Does Net Apply to the Prosecuting Attorney.
Chapter 28 of the Hawai'i Revised Statutes is entitled
wattorney General.” HRS § 28-10.6 provides es follows:
Ceine research, prevention, and education:
adainistrator and staff. (2) The cepartrent of the attorney
general shall initiate, develop, and perform cr coordinate
Prograns, projects, and activities, as determined by the
von the subject of crise, snciuding But net
arch, prevention, end education. The
y
‘arch, evaluate, and make reconnendetions
criminal justice system to the governor, the
Tegisleure, the judiciary, criminal justice
apencies, of the general public, 2= pprepriate:
(2) Develop and implement er coordinate statewide
Grine preventien progrene end ectavities,
Snetuetng:
(Bh) Providing erine prevention training
prograns for law enforcenent agencies,
Eltizens, Businesses, anc civic sroupe:
one
(B) Resisting in the organizetion of crine
Breventign teams in communities ts
+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER,
encourage the development of comunity
chine prevention provrersy
(3) Develop public education programs through
various broadcast or print media to provide to
the general public information that will assist
citizens in Seveloping the knowlesge and
Confidence te prevent crine and to avoid
. Becoming victine of ezine:
(4) " Establish, ae dened by the attorney general to
be necessary or eppropriate, citizen and
Sovernment agency representative seudy teams to
Beudy epecific etine eubject® or erimnal
Justice eyster problens, in order to obtain
input or advice from e more specializes sesnent
of the erinins! Sustice or public community on
those specific matters; and
3
(b) The attorney
chapter 76, and 8: the
feral nay enpioy, without regard to
‘Stney generel's plessure disniee,
Sn astinsetravor and ‘Suppers staff necessary for the
Performance er cocrdination ef the prograns, projects, and
Eetivities on the subject of crine
HRS § 28-10.6 (1993 and Supp. 2002).
Carlisle argues that because section 8-104(b) of the
Revised Charter of Honolulu gives him authority to “prosecute
offenses against the law of the state under the authority of the
att "RCH § 8-104 (b) (emphasis added),
he enjoys the same authority given to the attorney general by the
legislature in HRS § 2€-10.€, at least with respect to
subsections (1)- (3
«tn nie snended anewer ang mencrensun in opposition to Rees’® summary
judgnent motion in the circuit court, Carlisle stared that “[ulnder the
authority of the attorney general, af it concerne the subject of crine, the
Prosecuting ties aise may include Grime research,
prevention, and education, snciudins ivities discueseo in HAS © 26-
Fores" wndee enumeration wae quoted cirectly from HRS § 26-106
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The statutory language in question does not support
Carlisle's argunent. HRS chapter 26 is entitled “Attorney
General.” HRS § 28-1 provides, among other things, that the
attorney general shall appear for the State personally or by
Geputy, in all cases criminal in which the State may be a party
or be interested. HRS § 26-2 is entitled “Prosecutes offenders,
enforces bonds” and provides, among other things, that the
attorney general shall prosecute offenders against the laws of
the State. HRS § 28-10.6 is entitled “Crime research,
prevention, and education: adninistrator and staff.” A review of
this statutory language shows that the language is indeed
specifically directed to the departnent of the attorney general,
and its duties with respect to crime research, prevention, and
education. There is no mention of the prosecuting attorney in
the statute indeed the language refers only to the attorney
general's powers. Subsections (1), (2), and (3) cited by
Carlisle are prefaced with “The attorney general may:” and
subsection (2) refers expressly to “statewide crime prevention
programs and activities,” HRS § 28-10.6, although the prosecuting
attorney is not a statewide officer.”
Although we need not cor
neening ie plain, Petersen, 85 Mawes's at 327-28, 944 F.2d at 127
Tegielative hietory of BRE § 26-10.¢ etrengthens the conclusion
only applies te the attorney generai. The original bill that ©
$'26-10.6 was entitied "A fill for an Act Relating to the Department of the
eont inveds -)
18
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ye, it cannot be
With this clear statutory leng
seriously contended that the legislature intended to vest the
office of the Frosecuting Attorney of the City and County of
Honolulu with the same powers as were granted to the state
attorney genersl in HRS § 28-10.6.' The Revised Charter of
Honolulu section 8-104(b) language granting the prosecuting
attorney the power to prosecute offenses under the authority of
the attorney general refers to the prosecutor's authority to
prosecute offenses, and not the attorney general's powers given
by the legislature with respect to crime research, prevention,
and education. The enabling HRS provision also supports this
conclusion. See HRS $ 46-1.5(17) ("Each county shall have the
power to provide by charter for the prosecution of all offenses
and to prosecute for offenses against the laws of the State under
the authority of the attorney general of the Stete.”); see also
(..continued)
astorney General.” 8.B, No. 2800, 18th. leg, Reg. Sese. (1989). In addition
tothe grovisions regarding crime research, prevention, and education, the
Bit"Sibe adged theo sections to HRS chapter 26, eetabliching the Hawais
Exininal justice commiseien within the departeent of the attorney general and
Eloviing rolesneking authority for thet Sepertment. Furtnerrore, a6 2 report
EF the Senate Juciciary Comnsttee atated in part, "the purpose of thie bili
Sas to incluge the progress, provecte, and activities on the subject of crime
Tesearch, prevention, and education, .
Ee Eneral” Sen. Stang. Conn. Hep. No. 28, in 196s Senate Journel, at
HGStiSisasis sddea). This legisiecive history makes clear that the
Tegisistore enly had’ in mind the department of the atterney generé
posed the Jew giving rise to HRS § 2620.6.
when se
1 has pursuant te
mas § 21
20
pmemiva v. Sapienze, 63 Haw. 424, 427, 629 P.24 1126, 1129 (1961)
(stating that the prosecuting attorney shell “prosecute offenses
against the laws of the State under the authority of the attorney
general of the State.”) (citing predecessor of RCH § 8-104).
Stated simply, the powers granted to the attorney
general by the legislature in HRS § 28-10.6 do not apply te the
prosecuting attorney.”
Having held that neither the Revised Charter of
Honolulu nor HRS § 28-10.6 authorize the prosecuting attorney to
use public funds to advocate for a proposed constitutional
election, we need not address the constitutional issues raised by
Rees. “A fundamental and longstanding principle of judicial
restraint requires that courts avoid reaching constitutional
questions in advance of the necessity of deciding them.” City
and County of Honolulu v, Sherman, 110 Hawai'i 39, 7 n.7, 129
P.3d $42, 589 n.7 (2006) (quoting Lyna v, NW indian Cemetery
Protective Ass'n, 485 U.S. 439, 445 (1968)).
+ te is noteworthy that the Hewes" Attorney General, in an opinion
letter dated October 24) 2002 and directed to the Office of the Public
Pelender, she counterpart to the prosecuting attorney, concluded that the
Public Oefencer’s office did not have express statutory autherity te make
reelasendations tc the criminal justice aysten and thus stated "you er your
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D. s Claim Is Within the
Doctrine.
Carlisle asserts thet Rees’s claim for declaratory
" relief is moot under Hawai'i law as “the conduct complained of
has already occurred and there is no concrete dispute between the
parties.” However, there is an exception to the moctness
doctrine “in cases involving questions that affect the public
interest and are ‘capable of repetition yet evading review.‘
Okada Trucking v. Bd. of Water Supply, 99 Hawai'i 191, 196, 52
P.3d 799, 604 (2002). Rees’s claim falle squarely within the
exception as it affects the public interest and is capable of
epetition yet evading review.
Ee. the a ees Does Not Hav
Right of Action Under Aevised Orcinances of Honolulu Section
‘SCE. € Was Not Erroneous
While we have held herein that Carlisle's conduct was
without authority, which is dispositive of this case, we also
pass on Rees’s contention that the circuit court erred in finding
that it did not have jurisdiction to consider whether Carlisle's
conduct violated ROH § 3-8.6 (2002), a violation of which
W that section, entitled “Additional standards of conduct concerning
cempaign contributions ang canpaign assistance,” provides in relevant part:
le) An exempt officer or employee shall not:
(2) "coerce, denanc, oF ctherwise reqcire 2 cenpaign contribvtion
Gr campaign astistonce from another officer oF employ
(2) Deny enploynent toa person who will not agree, a6 @
condition ef the enployrent, te
RI Make 2 caspaign contribution cr request @ cenpaign
centinsed.
2
+4 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
»
a
continued)
a
we
a
@
contribution from snother person? or
(B) Render campaign assistance or requ
to render campaign assistance:
Discharge, demote, secrease the cenpensation of, haress, or
Otherwise ponseh anther officer cr enployee because chat
officer or employee:
(A) Refused to make a campaign contribution or render
campaign assistance when requested cr cenanded by the
euenpt officer or enployee cr # third person:
(B) Sought or received an eavisory opinion fvom the ethics
Commission ons possible viclation of this subsections
(Cl Filed with a public agency cr officer » complaint
alleging @ velation of this subsection
Promise cr threaten te discharge, dencte, decrease the
Compensation of, harass, of ctherwise punish encther officer
or exployee unless thst officer cr encloyee!
Ta) ‘Makes » campaign contribution cr renders campaign
Beeistance so requested oF cemandes by the exense
officer cr employee or a thire person:
(B) Refraine from seeking en acviscry cpinion from the
ethice commission cn e possible viistion of this
subsection: oF
(c) Reseeine from filing with # public agency ox officer @
Conpleint alleging « vielation of this subsectsony
Fronote or increase the compensation of another officer or
employee because thet officer oF employee nace @ campaign
contribution or rendered campaign assistance when requested
or denanded by the exenpt officer or enployee or a third
persons
Eolicit or request a specified or minimum campaign
contribution ancunt. from another officer oF expieyee?
Request ancther officer or employee to provide @ specified
ef minim anount of canpaign assistance; or
Solicit er receive any campaign contribution from # person,
including ancther officer or enployee, in s building er
facility during ite use for official city functions,
te another person
kn exenpt officer or employee aise shall not request or direct
another exempt officer or eaployee to engage inan activity,
prohibited under this subsection.
The activities prohibited under subsection (c) shail not preclude
an exenpt officer or employee. from:
a
a
8)
w
i
Voting as the exespt officer or employee chooses:
Voluntarily expressing an opinion on any political
candidate, question, ex issuer
ily erving ase menber of ¢ politicel party,
yn conmsttee, or other politics: organization;
ily making a campaign contribstien or rendering
campaign assistance; or
Voluntarily seliciting or requesting = cenpaign contribution
oF canpaigh assistance from ancther persons se Long a= the
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would carry different penalties. In particular, Rees argues that
HRS § 632-1" vests the circuit court with jurisdiction to issue
|. continued)
Seligstation or request does not viclate subsection (cl.
(e) An exenpt ofticer of employee who violates any provisicn of
Subsection (c) shall be guilty of a petty misdenesncr.
The prosecution of a violation pursuant €o this subsection shall
Ee commenced within tuo yeare after commitment of the violation.
Ne vielation shail be prosecuted efter the expiration of the two
year pericd.
The prosecuting attorney shall be reepensible for prosecution of a
‘eletion. If the prosecuting attorney becomes disqualified, the
tate attcrney general shail have the respensibilicy for prosecution.
The penalty of thos subsection shall be in edaition to che penalty
provised onder Secticn 3-£.5{e). Both penelties may be inposed for
fhe sane vielaticn.
1H yng § 632-1, the first section of HRS Chapter 632, “Declarstory,
yudgnente,” is iteel¢ entities “Joriecieticn? controversies subject to,” end
provices,
In cases of actual controversy, courte of record, within the scope
of thelr fespective jurisdictions, shall have pouer to make binging
Sdjsdicaticns of right, whether of net consequential relict is, or at
the time could be, clained, and no ection or preceeding shell be cpen to
Shjecticn en the ground shat a jucgnent or crder merely declaratory of
fight ie preyes for) provided that declaratory relief may not be
Soteines in any distesee coure, or in any controversy witn respect te
Sixes, or in eny case where 2 Givorce or annuinent of marriage is
Sought, Controversies involving the intezpretation ef deeds, wills,
Sther instrunente of writing, statutes, municipal ordinances, and other
Governmental regslatione, nmoy be so determined, and this enueration
Sees nos exclude cther instances of actus! antagonistic assertion and
Senial of right
Relief by declaratory judgment may be granted in civil cases where
lan actusi controversy existe between contending parties, or where the
lore ie satisfied that antagonistic claims are present between the
farties invelvec which indicate imminent and ineviteble litigation, or
Ehere in any such cese the court ie aatiefied thet e party asserts a
Jegel relation, states, right, er priviiege in which the party has
Concrete interest and that there is challenge or denial of the
Sceertes relation, statue, right, or privilege by an adversary party who
aise hee or aseerte a concrete interest therein, and the court is
Eatisfied also that @ declaratory judgment will’ serve to terminate the
Gncerteinty ov controversy giving rise to the preceesing. Where,
However, # sratute provides # special form of renedy for a specific type
Gf ease, that svatutery renesy ensll be fellowee; ut the mere fact
fhot an actual cr threatenes controversy is susceptible of relief
Ehrcugh ¢ genere: coanen Jaw renedy, a remedy equitable in nature, or an
Gntracrdinary ea) renedy, shether such renedy is recognized or
Heguiates by statute or not, shel not ebar a party frem the privilege
Ieontinsee. ==)
2
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a declaratory judgment thet Carlisle’s conduct was illegal. Rees
is incorrect as a matter of law.
As the circuit court noted, a violation of ROH § 3-
8.6(c) is properly addressed in a criminal prosecution, as the
ordinance itself specifies. The court also stated that the
ordinance “does not appear to create a private right of action in
favor of a taxpayer's challenge to the expenditure of public
funds."
The declaratory judgnent statute, HRS § 632-1, grants
courts of record the power to make “binding adjudications of
right” in justiciable cases, in three types of civil cases:
[2] where an actual controversy existe between contending parties,
G2) Fi "inere the court is setisfied that antagonistic cleins ere
Present between the parties savelved uhich incicate imminent end
Thevitable iitigstion, or (3) where sn any such case the court ie
setistied that a party ssserts a lege: relation, status, right, ci
Privilege in which the porty hae 2 concrete interest and that
Flere ig a challenge or ceniel of the asserted relation, status,
Hight, or privilege by en adversary party whe also has or asserts
2 Eoncrete interest therein,
HRS § 632-1. In each case, the court must be “satisfied also
that a declaratory judgment will serve to terminate the
uncertainty or controversy giving rise to the proceeding.” Ids
As the declaratory judgment statute thus makes clear,
there must be some “right” at issue in order for the court to
issue relief. In Reliable Collection Agency v. Cole, 59 Haw.
(-sscontinued)
cf detaining # declaratory judgment in any case where the other
Slsentiais to euch relle! are present
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503, $84 P.2d 107 (1978), this court incorporated the United
States Supreme Court's approach from Cort v, Ash, 422 U.S. 66
(1975), to determine whether “s private remedy is implicit ina
statute not expressly providing one” -~ an analysis that also
involves the determination of whether a statute creates a right
upon which a plaintiff may seek relief. Reliable, 58 Haw. at
507, 584 P.2d at 109 (quoting Cort, 422 U.S. at 78). The
Reliable Court discussed three relevant factors used in Cort to
make this determination:
Firet, de the plaintiff ‘one of the
Benefit the statute was enacted(?) «+
te on eke in few o econe,
fe there eny sndicotion of Legislative intent, expiicie oF
implicit, either to create such @ renecy.
Thins, if St conesstent with the underlying purposes of the
Legislative echene to imply such & renedy for the plaintifr?
r whose especie)
that is,
Id. at $07, $84, P.2d at 109 (first emphasis in original)
78). Subsequent to Cort, decisions of
(quoting Cort, 422 0.8.
the United States Supreme Court have emphasized that “the key
inquiry is whether Congress intended to provide the plaintiff
with a private right of action.” Whitey's Boat Cruises, Inc. v.
Napali-Kauai Boat Charters, Inc., 110 Hawai'i 302, 313 n.20, 132
P.3d 1213, 1224 n.20 (2006) (quoting First Pac. Bancorp, Inc. v,
Helfer, 224 F.3d 1117, 1121-22 (Sth Cir. 2000)). Therefore, es
we recognized in Whitev's Boat Cruises, “we apply Cort’s first
three factors in determining whether @ statute provides a private
right of action though understanding that legislative intent
26
+++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
appears to be the determinative factor.” id. See alse Gonzaga
Univ. v. Doe, 536 U.S. 273, 264 (2002) ("For a statute to create
private rights, its text must be phrased in terms of the persons
benefited.”
Alexander v. Sandoval, $32 U.S. 275, 286 (2001)
(The judicial task is to interpret the statute Congress has
passed to determine whether it displays an intent to create not
just 2 private right but also a private renedy.”)-
Nothing in the text of ROH § 3-8.6 appears to create a
right protecting menbers of the public from the activities it
prohibits. Rather, it is in the nature of “standards of conduct”
for public officers. Although the public clearly benefits from
the existence of such stendards, it does not eppear that the
ordinance was passed for the special benefit of taxpayers as @
group. See Reliable, 59 Haw. at 507, $84 P.26 at 109 ("First, is
the plaintiff ‘one of the clase for whose especial benefit the
statute was enacted{?"” (Quoting Cort, 422 U.S. at 78.)). More
importantly, the ordinance clearly states that: “[t]he
prosecuting attorney shall be responsible for prosecution of a
violation. If the prosecuting attorney becomes disqualified, the
state attorney general shall have the responsibility for
prosecution.” ROH § 3-€.6(e). The ordinance also states that
vieyne penalty of this subsection shall be in addition to the
penalty provided under Section 3-8.5(a),” which provides for
+##* FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER ***
impeachment and lesser discipline by the appointing authority,
upon recommendation of the ethics commission, if the standards of
conduct of Article XI of the ROH are violated. ROH § 3-8.5(a).
Private enforcement of ROH § 3-8.6 by way of declaratory judgment
would not be consistent with the legislative scheme inherent in
the ordinance. See Reliable, $9 Hew. at 507, S84 P.2d at 109
(othire, is it congistent with the underlying purposes of the
legislative scheme to imply such a remedy for the plaintif£?”
(Quoting Cort, 422 U.S. at 78.)).
‘These considerations make clear that ROH § 3-8.6 does
not create @ right for taxpayers, like Rees, to enforce; rather,
enforcenent is mandated through the prosecutor, attorney general,
ethics comission, and appointing authority. Therefore, a
declaratory judgment that the ordinance was violated is
inappropriate, and dismissal of this claim was not erroneous.
Iv. coNeuusron
Based on the foregoing, we vacate the circuit court's
Novenber 23, 2004 final judgment, and remand this matter with
Instructions to: (1) grant Rees’s motion for summary judgment in
favor of Rees and against Carlisle, in his official capacity
only, on Rees’s declaratory judgment claim that Carlisle lacked
legal authority fer his conduct; and (2) deny Carlisle's motion
to dismiss and for summary judgment. However, because this is a
2
‘s+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
case of first impression in this jurisdiction, and Carlisle
ostensibly relied upon an opinion of the City and County of
Honolulu Ethics Commission, ve believe as 2 matter of equity that
the renedial injunctive relief requested by Rees should not issue
under the circumstances of this case. Further, the prospective
injunctive relief requested by Rees would not appear to be
necessary in view of our explication of applicable law herein.
We therefore instruct the court to enter an order accordingly.
on the briefs:
Lois K. Perrin
(of American Civil Liberties
Union of Hawaii Foundation)
and Earle A. Partington .
(of Law Office of Earle A. Bl ifoZaemee—
farcington!. for plaintit?
sppellane Robert Rees ow
Jonn F. Perkin and
Brandes ek Faria
(of Perkin & Faria, LLLC) Games €, Bua Orv
{58 defencant~eppeliee .
Peter Carlisle, city and & Qandill
County of Honoiute Yregenen fea
Prosecuting Attorney,
in his official and
individual capacities
|
5899ef71-eb77-4eb4-8128-3254c5b57eb7 | Estate of Moore | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 26474
THE SUPREME COURT OF THE STATE OF HAWAI'I
The Bet:
ARABELLA AE ILTHTA ROBERTS MOORE,
Deceased,
avait so aim
aaus
62:2 Hd 61 BYW LOZ
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(P. No, 03-1-0253)
court")
Petitioner-appellant William Moore’s application for
weit of certiorari, filed February 26, 2007, is hereby rejected.
DATED: Honolulu, Hawai'i, March 19, 2007.
Philip L. carey, FOR THE COURT:
for petitioner-
appellant William Moore,
on the application
© consiat
fed by: Woon, C.J., Levingon, Nakayama, Acobs, and buffy, ov
|
20853d45-20c1-476a-b33d-0170a7c58c46 | Brooks v. Dana Nance & Co. | hawaii | Hawaii Supreme Court | LAW LIBRARY
see Nor FOR PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REPORTER +++
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
00 ===
_
CHARLES BROOKS and DONNA BROOKS, Plaintiffs-Appellees,
DANA NANCE & CO. and FIDELITY NATIONAL FIELD SERVICES, INC.,
‘successor to CHICAGO TITLE CO., INC., Defendants-
Appellant s/Cross-Claimants-Appellants/Cross-Claim Defendants,
and
SEASONS MORTGAGE, INC., Defendant~Appellee/Cross-Claim Defendant~
Rppellee/Cross-Clainant,
and
fka COMPUTER DATA SYSTEMS, INC. aka
ACS GOVERNMENT SERVICES, INC.
cpst, Defendant.
ee
No. 26736
APPEAL FROW THE secon crecur? court 4g}
(eiv. Wo. 01-1-0660) gk og
gs Ss 2
JANUARY 31, 2007 See 2 =
worton FoR reconsrorrationn «= ESO
ae
oS
3
MOON, C.J.) LEVINSON, NAKAYAMA, AND DUFFY,
AND ACOBA, J. DISSENTING
upon consideration of the motion for reconsideration
filed by the defendant-appellee/cross-claim defendant
appellee/cross-claimant Seasons Mortgage, Inc. on January 22,
2007, requesting that this court review its published opinion
[NOP FOR PUBLICATION IN WEST’ S HAMAI'T REPORTS AND PACIFIC REPORTER
filed on January 12, 2007,
IT IS HEREBY ORDERED that the motion is denied.
Gopi
ler hlaccner~
Ruta Chnerenjose
on «Ouch
DIssENr
(By: Acoba, J.)
I would grant the motion for reconsideration, but on
the grounds set forth in my dissent herein.
AN
on the motion:
E. Mason Martin III of
Kessner Duca Unebayashi Bain
and Matsunaga for the
defendant-appellee/cross-clain
defendant-appellee/cross-clainant
Seasons Mortgage, Inc.
|
07798bba-1eed-47e7-ae2a-5fe7379199f2 | In re di Domenico | hawaii | Hawaii Supreme Court | No. 28361
IN THE SUPREME COURT OF THE STATE OF HAWAT‘S| 3
“IN RE PHILIP DI DOMENICO, Petitioner. =|
ORIGINAL PROCEEDING
ON 70 RESIGN AND SURRENDER L!
Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
upon consideration of Petitioner Philip di Domenico’ 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 IS HEREBY ORDERED that the petition is granted.
IT IS FURTHER ORDERED that Petitioner di Domenico shail
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 di Domenico shall comply with
the notice, affidavit, and record requirements of subsections
(a), (b), (a), and (g) of RSCH 2.16.
IT 1S FINALLY ORDERED that the Clerk shall remove the
name of Philip di Domenico, attorney number 5455, from the roll
of attorneys of the State of Hawai'i, effective with the filing
of this order.
DATED: Honolulu, Hawai'i, January 31, 2007.
Ter
Ahern PhEormion
Pesce Or otey GOH
Kone, ously,
oaws
|
4dd5991a-98ec-4c40-a57d-6d4fae073ef1 | Leslie v. Estate of Tavares | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 28273
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
—
HOWARD K. LESLIE, JR., Petitioner-Plaintiff-appellant,
and
LBIMOMI LESLIE PRESCH, individually, and as next friend for
and HOWARD K. LESLIE, §R.,
HOWARD E, LESLIE, JR.
Respondents-Piaintiffs-appeilees, E}
ve. dz og
SIE 2
‘THE ESTATE OF JAMIE K. TAVARES, Deceased;"/¢ OF =
Respondent Defendant Appellee, FS om
fF OG
and m8
3
oh
JOHN DOES 1-10, JANE DOES 1-10, DOE PARTNERSHIPS {10;
CORPORATIONS 1-10; and DOE ENTITIES 1-10, Defendants
STATE OF HAWAI'I, DEPARTMENT OF HUMAN SERVICES,
Respondent-Lien Holder-Appellee,
and
JOSEPH L. WILDMAN and SIBILLA & WILDMAN, Intervenors-Appellees.
SSS
CIV, NO. 98-5468
MEGAN LESLIE and MALYSSA LESLIE, minor:
HOWARD K. LESLIE, JR.,
through their Guardian Ad Litem MARLENE L. ANDUHA, Plaintiffs,
JEFFREY K. KANUI, personal representative of THE ESTATE OF
JAMIE K. TAVARES, Defendant,
and
JOHN DOES 1-10, JANE DOES 1-10, DOE PARTNERSHIPS 1-10; DOE
CORPORATIONS 1-10; and DOE ENTITIES 1-10, Defendants.
SS
UBFFERY K. KANUI, personal representative of THE ESTATE OF
JAMIE K. TAVARES, Third-Party Plaintiff,
UBIMOMI L. PRESCH and HOWARD K. LESLIE, SR.,
‘Third-Party Defendants.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. NOS. 97-0448 and 98-5468)
ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI,
VACATING ORDER DISMISSING APPEAL AND
REMANDING APPEAL TO THE INTERMEDIATE COURT OF APPEALS
(gy: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Petitioner-plaintiff-appellant Howard Leslie, Jr.
applies for a writ of certiorari to review the Intermediate Court
of Appeals’ Pebruazy 12, 2007 order dismissing his appeal for
lack of appellate jurisdiction and the March 2, 2007 order
denying reconsideration thereof. The Intermediate Court of
Appeals determined that the August 22, 2001 order affirming the
apportionment of the settlement proceeds in Civ. No. 97-0448,
certified as final pursuant to Hawai'i Rules of Civil Procedure
(HRP) Rule 54(b) on October 11, 2006, is not appealable because
the order was not reduced to a separate certified judgment
pursvant to HRCP Rule 58. However, the suprene court determined
in Leslie v, Estate of Tavares, 109 Hawai'i 8, 12, 122 P.34 803,
807 (2005), that the August 22, 2001 order would be a “final
order” appealable pursuant to Hawai'i Revised Statues (HRS)
§ 643-1(a) (Supp. 2006) upon the circuit court‘s designation of
the order as final pursuant to HRCP Rule Sé(b). The supreme
court's determination is the law of the case. See Thompson v
AIG Hawaii Ins. Co., Inc., 111 Hawai'i 413, 423 n.14, 142 P.3d
277, 287 n.14 (2006) (*[A] determination of a question of law
made by an appellate court in the course of an action becomes the
lew of the case and may not be disputed by a reopening of the
question at a later stage of the litigation." (citation
comitted.)). The August 22, 2001 order, certified as final
pursuant to HRCP Rule $4(b) on October 11, 2006, is an appealable
final order, and the Intermediate Court of Appeals has
jurisdiction to review the order. See HRS § 641-1(a).
Therefore,
I? 18 HEREBY ORDERED that the application for a writ of
ertiorari is accepted.
YT 18 FURTHER ORDERED that: (1) the February 12, 2007
order of the Intermediate Court of Appeals dismissing No. 26273
for lack of appellate jurisdiction and the March 2, 2007 order
denying reconsideration thereof are vacated; and (2) No. 26273 is
remanded to the Intermediate Court of Appeals for disposition on
the merits.
DATED: Honolulu, Hawai'i, June 25, 2007.
power
Wont Dat ty
|
f5e3e410-7162-4452-b6ab-67927551d58a | Kearney v. Administrative Director of the Courts | hawaii | Hawaii Supreme Court | LAWUBhARY
‘s+6 NOP FOR PUBLICATION IN WEST'S HAWAI'I REFORTS AND PACIFIC REPORTER ++*
wo, 26919 ae
IN THE SUPREME COURT OF THE STATE OF HAWAT'TD =D
Soa OF
Zz = a
PAUL J. KEARNEY, Petitioner-Appellant, =| = c
ADMINISTRATIVE DIRECTOR OF THE COURTS, STATE OF HAWAI'I,
Respondent-Appellee.
—_——
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(Jud, Rev. No. 04-0022; ADLRO Case No. 04-02281)
(HPD Rep. No. 04-246276)
ors ono
(By: Moon, C.J., Levinson, Nakayama, and Duffy, 99.7
and Acoba, J, dissenting)
‘The petitioner-appellant Paul J. Kearney appeals from
the October 4, 2004 order of the district court of the first
circuit, the Honorable Willian A. Cardvell presiding, affirming
the Administrative Driver's License Revocation Office (ADLRO)'s
Lifetime revocation of his driver's license.
on appeal, Kearney contends that the district court
erred in affirming the revocation inasmuch as (1) Kearney was
denied his right to a hearing on the constitutionality of the
ADLRO security procedures requiring signature and identification
{hereinafter, “the I.D. procedure”], pursuant to Freitas v
Admin. Dir, of the Courts, 104 Hawai" 483, 92 P.3d 993 (2004)
[NOT FOR PUBLICATION IN MEST’S HAMAI'T REPORTS AND PACIFIC REFORTER ©
(Exeitas I), and (2) the 1.0. procedure denies Kearney his right
to a public hearing.!
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 affirm the
judgment of the district court for the following reasons:
In Exeitas I, this court stated that “the ADLRO denied
[the petitioner] @ hearing on his objections to the
identification and sign-in procedures. Because he has a right to
a public hearing, . . . he is entitled to show that the procedure
Limiting public access was not warranted.” Id, at 489, 92 P.3d
at 999. This court did not hold that a hearing on the I.D.
procedure was required regardless of whether the petitioner
requested it or not.
‘The record reflects that Kearney failed to request @
hearing on the I.D. procedure at the July 30, 2004 hearing.
‘Therefore, his argument on appeal to this court that he “was
denied his hearing” (emphasis in original) which, he maintains,
is required by Freitas I and State v, Coffee, 104 Hawai'i 193,
199, 86 P.3d 1002, 1008 (App. 2004), is unsupported by the
record: he made no such request, and no denial was issued.
Moreover, in contrast to Coffee, this court fails to apprehend
any error in the reasoning of the district court in its ruling.
Kearney also argues that, by denying him a public hearing, the
ADLRO hearing officer also denied him Ris right to assert “the public's rights
Under the (fliest, [£]sfeh, and. [flourteenth (almendnents to the United States
Constitution and Article I, §§ « ana S{] of the Hawaii Constitution.”
Inasmuch as (1). Kearney’ s argument presupposes @ violation of his right tos
public neering and (2) we concisde thet Kearney’ s right £0 a public hearing
wes not violated, gee infra, his argument lacks merit.
2
[NOT FOR PUBLICATION IM WEST’ HAWAI'T REPORTS AND PACIFIC REPORTER ***
‘The district court concluded that, pursuant to HRS
§ 2918-40 (Supp. 2000), the basis for its appellate jurisdiction,
it could not remand the matter to the ADLRO for @ hearing on the
1.0. procedure but, rather, could only affirm or reverse the
ADLRO’'s revocation of Keazney’s license.’ Recognizing that the
final adjudication of the constitutionality of the ADLRO’s 1.0.
procedure was pending before this court at the time of its
decision, the district court stated:
it seams clear that ££ the Suprene Court
determined that reversal of the administrative
Tevocation for fatlure to provide =
fccurity procedures was the appropriate remedy, 1€
Could have done so in Exeitas (Il. Instead,
Sppareneiyts). the Court intends to answer the question
OP ihe validity of those procedures in that case.
there is nothing in the fecord that indicates
that there was any difference in the procedures used
In thie case and those used in
Therefore, this court concludes that it would be
Inconsistent with the intent of the Supreme Court as
Tn Exeleae {11 to reverse petitioner's
‘Gn based upon either the Hearing Officer’ s
fellare to hols a hearing ss to the validity of the
Brocedures of his conclusion that the procedures are
Meiid, under the specific circumstances of this case,
Kearney did not contest the district court's finding that the
ADLRO 1.0. procedure is identical to the procedures reviewed in
Freitas I. The question whether those procedures violate @
petitioner's right to 2 public hearing has since been settled by
this court in ve pir Courts, 108 Hawai'i
31, 37, 116 P.3d 673, 679 (2005) (Freitas 11).
2 Rs § 2926-4016) provides that “the court shall not remand the
matter back to the director for further proceeaings consistent with its
order.”
44% NOT FOR PUBLICATION IN WEST'S HAWAI'T REFORTS AND PACIFIC REFORTER +++
Accordingly, Kearney’s arguments that he was improperly
denied a hearing on the ADLRO 1.0. procedure and that the ADLRO
1.0. procedure violates his right to a public hearing lack merit.
Therefore,
IT IS HEREBY ORDERED that the judgment from which the
appeal is taken is affirmed.
DATED:
Honolulu, Hawai‘, February 6, 2007.
On the briefs:
R. Patrick McPherson
(law Offices of Paul
Cunney), for the
petitioner-appellant
Paul J. Kearney
Girard D. Lau,
Deputy Attorney General,
for the responcent-appellee
Adninistrative Director of Nectee ON etiuey ~
the courts
Yon c. Duty »
|
b9032273-97ca-47ae-b992-d6ea8fd6a00d | State v. Lopez | hawaii | Hawaii Supreme Court | ANE toag
wo. 25767
IN THE SUPREME COURT OF THE STATE OF HAWAI'I. =!
Se
: F
STATE OF HAWAT'T, Respondent/Plaintiff-appellee: =
PB OE
MICHAEL LOPEZ, Petitioner/Defendant-Appellant
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 02-1-0171)
8 u OR WR. sTIORART
(By: Duffy, J., for the court’)
Petitioner/Defendant-Appellant Michael Lopez’ s
application for a writ of certiorari, filed on January 4, 2007,
is hereby rejected,
January 30, 2007.
DATED:
Honolulu, Hawai'i,
FOR THE COURT:
Gene cnc +
Associate Justice
Earle A. Partington
for petitioner/defendant~
appellant on the application
and buffy, 39.
Moon, C.J, Levinson, Nakayama, Reobs,
|
fb56afcb-7ee1-4ff0-88c3-ff96079d8d9c | Tortorello v. Tortorello. ICA Opinion, filed 06/30/2006 [pdf], 112 Haw. 219. Dissenting Opinion by J. Fujise [pdf]. ICA Order Denying Motion for Reconsideration, filed 08/07/0006 [pdf], 111 Haw. 325. S.Ct. Order Accepting Application for Writ of Certiorari, filed 02/16/2007 [pdf]. | hawaii | Hawaii Supreme Court | LAWLIBRARY
*** FOR PUBLICATION ***
West’s Hawai'i Reports and the Pacific Reporter
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
000 ---
RENEE A. TORTORELLO, Petitioner/Petitioner-Appellee,
WILSON TORTORELLO, JR., Respondent /Respondent -Appellant
No. 27459
CERTIORARI TO THE INTERMEDIATE COURT OF APP!
(FC-DA NO. 05-1-1453)
g
oats
:
e
MARCH 7, 2007
Lvs
sun dS
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY MOON, C.J.
on February 16, 2007, this court accepted
petitioner/petitioner-appellee Renee A. Tortorello’s (wife)
timely application for writ of certiorari, filed January 16,
2007, requesting this court to review the Intermediate Court of
(Ica) opinion in Tortorello v. Tortorelle, 112 Hawai'i
Appeals’
filed June 30, 2006, and the ICA's
219, 145 P.3d 762 (App. 2006),
order granting respondent /respondent-appellant Wilson Tortorello,
Gx.’ (iusband) request for coste in the amount of $628.41, filed
eptenber 13, 2006. In its published opinion, the ICA reversed
the Family Court of the First Circuit’s August 1, 2005 order for
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
SS
protection’ in favor of Wife and against respondent /respondent-
appellant Wilson Tortorello, Jr. (Husband) .*
In her application, Wife contends, inter alia, that the
ICA erred in applying the doctrine of reg judicata to the instant
jexts that the ICA‘s decision should be
case. Wife also
applied prospectively. Lastly, Wife maintaine that the ICA erred
in awarding costs incurred on appeal in favor of Husband.
For the reasons discussed below, we affirm the ICA's
October 18, 2006 judgment on appeal with respect to the merits of
Husband's appeal. We vacate, however, the ICA’s award of costs
to Husband and, instead, award costs in the amount of $280.80 in
favor of Husband as against Wife.
1. BACKGROUND
AL Petition
At all times relevant herein, Husband and Wife were
married and have two minor children. On June 28, 2005, wife
filed an “Ex Parte Petition for a Temporary Restraining Order for
Protection and Statement’ in the family court, pursuant to
Hawai'i Revieed Statutes (ERS) chapter 586 (relating to domestic
ble Darryl ¥.C. choy presided over the underlying
Cthervise indicated.
The ICA's judgeent on appeal was entered on October 18, 2006. we
note that the judgnent on appea: does not include any reference to the Jex'e
avard of coste in favor of Husband and as against Wife
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
abuse protective orders)’ [hereinafter, Petition I].‘ The ICA
eunmarized Wife's allegations in Petition I as follows
(Husbana) chr
he, finel,] Ti
ened that (,] "if
1. on gune 24, 2
make it twice
you take a hard 1ine wi
ip hard on you."
2. Uhusbend) subjected her to vextrene
xyehological
abuse by: sereaming at {her,] calling (her) @ ‘fuckin
Bien’ repeat r) enilat. s .
{fusband) attacked [her] sister(] . «in front of (wife's
five year] old (child) -- pushed & nit her (sister! .
(Husband) hse displayed extreme irrationality & violence.
The last date (Musband) wiureAia was on June 14, 2005
3. “She ie in immediate danger of (Husband) abusing
hher “because of hie extrene irrational & violent behavicr”
and the fact that "(hje is very insecure and tries to
Soninate & invalidate (Wife) .”
‘. “She Believes that [Husband] would very soon
physically harm, injure, of assault her, burt her family,
Bnd take Her children to Brazii without her permission. (*]
Tortorello v, Tortorello, 112 Hawai'i 219, 220, 145 P.3d 762, 763
(2006) (some brackets and ellipses in original) (bold emphai
added). on the same day (June 28, 2005), the family court, the
Honorable Paul T. Murakami presiding, granted a temporary
restraining order (TRO) to Wife, with an expiration date of
September 26, 2005.
> RS § 586-4 (2006) provides in relevant part:
(a) Upon petition 22 2 family court Judge, an ex parte
temporary restrsining order nay be granted without notice to
‘either or both parties from contacting,
(tening, oF physically abueing each other,
notwithstanding that a complaint for annulment, diverc
Separation has not been filed.
ici ie family court judge may issue the ex parte
temporary restraining order orally, if the person being
festrained is present in court. The order shall state that
there 1e probable cause to Believe that a past act or acte
Sf abuse have occurred, or that threate of sbuse make ie
probable that acte of abuse may be imminent
that Wige completed the form utilized as Petition 1
+ according to Wife, Husband “hse dual citizeaship in Brazil.-
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
on duly 12, 2005, a show cause hearing as to why the
TRO should not continue was held by the family court.‘ At the
hearing, the following colloquy ensued when Wife commenced her
eimony
[By Mife’s counse2) [Wife], how long have you
been sarried to "[xuebend]?
Ar [By Wife) Eight yeare.
Q: okay. And during that time, has there been any
physical abuse in your relationship?
And what has been the frequency of the abuse and
‘Ai About three tines a year when an issue vould
cove up and I wanted to discuss it, 1t would
{counsel for susband) + I’m Going to object to this
line of questioning. The restraining order ~~ we're talking
about three years. ago
‘THE COURT: a
cions in -here reaarai 2
fon [ii.-Becsuas
‘0: (By Wife's counsel) “i'd Tike eo turn your
attention to .”.'. Petition [1].
HE COURT: “so anyways =~ pardon me -- the objection
sustained!
‘Q: iy Wife's counsel! I'd like to turn your
attention to the reason behind the filing of .- . Petition
[1]. could you explain to the judge the purpose of the
tiling of . <. Petition {1], why you felt you needed to
He.
Ay Iny Mitel
June 14th on the evening,
4
‘An altercation took place on
jpproximately 11:25 p.m
(Bmphases added.) At the conclusion of the hearing, the family
court ruled that Wife had “not met her burden of proving that an
order for protection is necessary to prevent a donestic abuse or
a recurrence of donestic abuse. And that [Husband] has shown
cause as to why the [TRO] should not continse.* Consequently,
the family court dissolved the TRO.
‘The Honorable Matthew J. Viola presided over the instant hearing.
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
B. Petition Ir
on July 19, 2005, Wife filed a second “Ex Parte
Petition for a Temporary Restraining Order for Protection and
Statement in the family court (hereinafter, Petition II]. In
Petition 11, Wife essentially alleged the same “facts, fears, and
beliefs” that ehe alleged in Petition 1. Id, at 221, 145 P.3d at
764. Wife, however, included additional allegations in Petition
II that were not made in the earlier Petition I, The ICA
summarized Wife's further allegations in Petition II as follow:
5. Many times in the Last six years
(husband) hurt
and shoved her.
{Susband) maliciously damaged her property by
changing all three locke on ehe doors to her hone and the
howe was a nese. The last date this occurred was July
2008.
Id. (bold emphases added).” On the same day, the family court
entered a TRO against Husband, with an expiration date of October
17, 2008.
on duly 27, 2005, Husband filed a menorandum in
opposition to Petition 1. Husband contended that:
Petition [11] is [W)sfe’e attempt to revisit and
gelitigate the unfoundea allegations alzesdy heard and
Fejected by the family court. All satter [sic] previously
Iitigated cn 7/12/05 should be excluded from evidence at the
[upcoming] Bearing on [Petition 11). Further, as the
‘ifegatione contained in. Petition (11) have had a full
Rearing and have been found wanting, this matter is ree
dudicata(.1
+ Me note that the ICA numbered the additional allegations contained in
petition Tr ae ws" and "6" to continue from the initial four allegations made
Tn Petition 2. We Believe the ICA numbered the allegations ae such in order
£0 refer to the allegations by nunber in its opinion.
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Wife} alleges no new contact in her written filings
which would provide the basis for a new Order for
Protection. [Wife] hes had ample opportunity to litigate
the cizcunstances prior to the 7/22/0s hearing, and her
request for an() Crder of Protection was found wanting. she
how files a second request for lan) Order of Protection yet
alleges no new contact with [susband) vhick provide the
basis for the Order, she simply wante a second bite at the
‘apple.
on August 1, 2005, a show cause hearing as to why the
TRO should not continue was held by the family court. At the
hearing, the family court initially ruled that “[tloday’s
proceeding will not involve the allegations of June 241, 2005,
ise., allegation No. 2]." As such, there was no evidence
admitted with regard to allegation No. 1 at the hearing. The
parties presented evidence with respect to allegation No. 5,
specifically focusing on one incident occurring in May 2005. Id.
(stating that, “[w]ith regard to allegation [Nlo. 5, . . . there
was evidence of only one incident, and it happened in May 2005").
At the conclusion of the hearing, the family court entered an
order for protection, set to expire on August 1, 2015. On August
23, 2005, Husband filed a timely notice of appeal.
C. IGA Appeal and Disposition
On appeal before the ICA, Husband maintained that the
family court “erred in allowing [Wife] to proceed with [Petition
32] because such re-1itigation was barred by rea judicata
Husband asserted that the fanily court reviewed Petition I and
Petition IT and decided that whatever allegations were not made
in the text of [Petition I] were permissible as claims to be
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eee
decided in the hearing on [Petition 11]. The [family clourt did
not take into consideration whether any of the claims made in
[Petition 11] could have been asserted in [Petition 1].* Husband
argued that:
ples judicata requires that # (pletitioner is required to
aetert all elaine that "might have been properly ssserted in
the fixet action," or risk the bar of zen judicata in any
Subsequent action involving the same parties. The idea
Behing the rule ie to avoid multiple suite and to enc
Parties to resolve all of thei disputes in as few ci
Rossibie, so ae to encourage proper use of judicial
‘Permitting multiple petitions will wreak havoc on our
judicial system, ‘Claimants can, and will, after losing «|
{pletition, re-tile it, ae (wife) did bere (within three
weeks), adding a few new facts or allegations, and clain
That’ they had forgotten co make ouch allegations and claims,
and be allowed, ae the
(fectiy clourt aid in this case,
ited result.
put into [Petition 12)
could have Been asserted in (Petition 1]. The ‘new claim
for the most part, occurred in May() 2005. [Petition I]
fied on Sune 26,2005. Thus, as of the filing date of
[Petition i, ali of the new and unasverted clei
[petition 1}, were known to [hife]
[Petition #1 and failed to make the appropriate
allegations.
‘As such, iG judicata precludes relitigation of an
application for [a] restraining order, based upon allegedly
wTingfol conduct that wae supposed to have taken place pricr
YOrthe date of execution of (Petition 1] on June 28, 2005
All of the ‘nev claims" pre-dated June 28, 2005. Hence, all
Claims in [petition I1] should have been barred.
Husband also contended that the family court erred “in allowing
[Wife] to proceed with [Petition IT] because such re-litigation
was barred by collateral estoppel.” Finally, Husband contended
that the family court erred in “restricting the trial time of
each party because to do so unduly restricted (Husband's) ability
to present evidence and make appropriate and cogent argument, and
thereby properly present a defense.”
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on June 30, 2006, the ICA issued ite published opinion,
reversing the family court’s August 1, 2008 order for protection.
‘The majority held that the doctrine of ree judicata ‘applies to
successive HRS [cJhapter 586 . . . protective order cases filed
by the same petitioner against the same respondent where the
second case is based on events that occurred, and that the
petitioner knew about, prior to the filing of the first
petition|.J* Id, at 222, 145 P.ad at 765. Specifically, the ICA
stated:
In the June 28, 2005 petition {, Petition 1], (wite]
alleged that ah ineident on Jute 14, 2005, and other actions
by [Musband] made a protective order necessary to prevent
Gonestic abuse or 4 recurrence of abuse. At the hearing on
uly 32, 2008, (iveband) showed cause why the order should
hot be continued and that a protective order was not
Fy to prevent domestic abuse oF a recurrence of
In the July 19, 2005 petition{, i.e., Petition IJ),
[Wife] re-alleged the allegations stated in {petition 1) and
added allegations of events happening pre-June 26, 2005, and
post-June 28, 2005. The post-cune 28, 2005 events are
Tasugeieient to support a protective order. With respect to
the evente happening pre-dune 28, 2008, ali of the reasons
for the rag judicata doctrine are applicable. (Petition T)
presented [Wife] with ber one opportunity to request an
folder for [plrotection for acts and threats of abuse
occurring, and that [wife] knew about, prior te the filing
of [Petition 1], and subjected (Musband| to his one duty to
defend againat that request. {Petition 1] could
(Wife's) allegations
8 of abuse that made a
Protective order necessary to prevent domestic sbuse oF @
Fecurrence of abuse.
Id, Lastly, the majority stated that the family court form
utilized by Wife to file Petitions I and IT supports its position
of applying xes iudicata to the instant case and replicated the
on of the form in ite opinion. Id.
relevant po:
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ynting opinion,
ICA Associate Judge Fujise issued a dij
stating that she would affirm the August 1, 2005 order for
protection (the dissent). According to the dissent,
‘this appeal turns, not on whether the May 2008 incident
should have-been itigated in (Petition I), but whether,
having effectively prevented her fron presenting evidence of
any incidenta not included in [Petition 1), (Husband)
Gifectively waived reliance on the defense of reg iudicata
fo prevent the consideration of (Petition II) which relied
primarily on the May 2005 incident of physical abuse.
Id, at 222-23, 145 P.3d at 765-66 (Fujise, J., dissenting). The
dissent maintained that:
ke appears that [susband) waived his res iudicats
Getense insofar as he now argues It ie « complete bar to
[petition Ii], for two reasons: (1) the record does not
Feveal that he argued for a complete bar below(;] and (2) a
party who actively prevents the litigation of certain claims
Tn the firet action should not be heard to complain when a
second action is brought to litigate those clains.
Id. at 223, 145 P.3d at 766 (Fujise, J., dissenting) (footnote
omitted) -
on July 32, 2006, Wife moved for reconsideration of the
ICA's published opinion. The ICA entered an order denying wife's
motion for reconsideration on August 7, 2006. On August 25,
2006, Husband moved for an award of costs incurred on appeal in
the amount of $626.41. On September 12, 2006, Wife filed her
objections to Husband's request for costs, contending that
Husband’s request was untinely filed and that Husband failed to
‘provide any statenents of authority for the requested items for
cost and. . . failfed) to provide copies of invoices, bills,
vouchers{,] or receipts.” On September 13, 2006, the ICA entered
an order granting Husband’s request for costs in its entirety,
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1.0, $628.41. The ICA’s order expressly indicated that it
objections to Husband’s request
considered wife
On October 38, 2006, the ICA entered its judgment on
appeal. See also supra note 2, Wife timely filed her
application for writ of certiorari on January 16, 2007. Husband
did not £1le a reeponse
IT. STANDARD OF REVIEW
‘The acceptance or rejection of an application for writ
of certiorari is discretionary. HRS § 602-59(a) (Supp. 2006).
In deciding whether to accept an application, thie court reviews
the decision of the ICA for (1) grave errors of law or of fact or
(2) obvious inconsistencies in the decision of the ICA with that
of the supreme court, federal decisions, or ite own decision and
whether the magnitude of such errors or inconsistencies dictate
the need for further appeal. HRS § 602-59(b) .
IIT. DISCUSSION
As previously mentioned, Wife contends that the ICA
erred in applying the doctrine of xes judicata to the instant
case. Wife also argues that “the form promulgated by the
Judiciary under BRS [c]hapter 586 failed to explicit [sic] warm
[Wife] that she had only ‘one opportunity’ to petition for a
protective order.” Moreover, Wife asserts that the ICA’s
decision should be applied prospectively. Finally, Wife alleges
fusband. Each
that the ICA erred in awarding costs in favor of
of Wife's contentions will be addressed in turn.
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A. Res dudicata
preliminarily, Wife asserts that Husband waived the
defense of reg judicata. Wife also argues that “the ICA erred in
failing to apply the proper res judicata analysis as set forth by
the Hawai" Supreme Court." And, Wife argues that “(t]he
application of rea judicata has been soundly rejected in other
jurisdictions in domestic abuse protection order proceedings.”
a. Waiver
Wife maintains that thie court’s decision in Solarana
v. Industrial Electronics, Inc., 50 Haw. 22, 428 P.2d 412 (2967),
“compels a conclusion that [Husband] had waived the ree judicata
defense.* In Solarang, this court held tha
me defense of ree judicata will be deened to have been
Waived when based ch a judgment of disnissal ina prior suit
Yn which, on defendant's insistence, the subject matter of
the second sult was excluded from consideration as being
utedde the scope of the pleadings and laintitt wae
‘snendin the implication being
Ent another suit would lie
Id. at 22, 428 P.2d at 412 (emphasis added).
At the July 12, 2005 show cause hearing on Petition I
in this case, Husband objected to Wife’s attempt to introduce
of physical abuse -- the subject matter of
evidence of instance
Petition II -- on the basis of relevance. The family court
sustained the objection, stating that, I read. . . Petition
(2), there are no allegations in here regarding physical abuse so
i'm constrained to limit the hearing to the matters that are
identified in. . . Petition [I]. Because, otherwise, [Husband]
eine
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didn’t have notice of those allegations.” As such, the family
court excluded from consideration the instances of physical abuse
ae being outaide the scope of the pleadings, i.e, Petition I.
Wife, however, was not precluded from amending Petition I to
include the instances of physical abuse. tn fact, Wife does not
point to anywhere in the record to indicate that she sought leave
from the family court to amend Petition I in order to include the
instances of physical abuse. See Hawai'i Family Court Rul
(HPCR) Rule 15 (2007)." Consequently, under the circumstances of
this case, the doctrine of reg judicata has not been waived by
Husband.
2. Applicability of Res Judicata
Wife next contends that “the May and June abuse
incidents were not the sane transaction or series of
transactions, as the term ‘transaction’ is used and defined in
applying the doctrine of res judicata." (Emphasis in original
omitted.) Although not entirely clear, it appears that Wife is
arguing that, because the instances of physical abuse that
* MERC Rule 25 provides in relevant part:
(a) amendmente. A party may amend the party's pleading
once as a matter of course at any time before a responsive
pleading is served or, if the pleading is one to which no,
Fesponsive pleading i¢ permitted and the action har not been
placed upon the trial celendar, the party say so amend it at
any tine within 20 days after it is served. Otherwise &
party say anend the party's pleading only by leave of court,
Or by written consent of the adverse party; and leave shall
Be freely given when justice so requires:
(Bephasie in original.)
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allegedly occurred in May 2005 did not arise from the “same
ction or series of transactions” as the instances of
trai
psychological abuse of Wife and physical abuse of Wife’s sister
that allegedly occurred in June 2005, rea judicata is
inapplicable to this case.
Res judicata, or claim preclusion, ie a doctrine “that
Limits] a litigant to one opportunity to litigate aspects of the
case to prevent inconsistent results and miltiplicity of suits
and to promote finality and judicial economy." Bremer v. Weeks,
104 Hawai's 43, 53, 85 P.34 150, 160 (2004) (citation and
footnote omitted). Res judicata “prohibits a party from
relitigating a previously adjudicated cause of action." Id.
(internal quotation marks and citation omitted). In addition,
che judgnent of a court of competent jurisdiction is a bar
Seele"StiS fee Contetelog the sane sublece master, and
precludse the selitigation, not only of the issues wnich
Sere actually litigated inthe firee action, but also of all
Grounds of clais and defense which aight have
‘but vere sot litsgates oF
Geeidea-
Id. at 53-54, 85 P.3d at 160-61 (citation, brackets, and some
emphases omitted) (some emphases added). Finally,
[edhe party asserting claim preclusion has the burden of
Getabliching that. (1) there was a final judgment on the
Serite, (2) both parties are the sane or in privity with the
Parties in the original suit, and (3) the claim decided in
Id, at 54, 85 P.3d at 161 (emphasis added).
In her application, Wife does not dispute that the
first and second prongs of res judicata are met in the present
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case. Instead, Wife appears to believe that the claim decided in
the “original suit,” i.e., Petition I, is not identical with the
one presented in “the action in question,” ive., Petition 12,
However, as Husband-aptly pointed out in his reply brief on
appeal, “[t]he claim in both Petitions is based upon entitlement
to a restraining order/{o]rder of [p]rotection.* Inasmuch as
both Petitions sought an order of protection against Husband, the
claim decided in Petition I is identical with the one presented
in Petition IZ. Accordingly, we do not believe the ICA committed
“grave errors of law or fact" or that the ICA’s decision contains
any “obvious inconsistencies” dictating the need for further
appeal with regard to this issue.
3. Domestic Abuse Protection Order Proceedings in other
Jurisdictions
Wife also contends that “other jurisdictions have
soundly rejected the application of zea dudicata when the
enforcement would reault in defeating the primary purpose of
to prevent harm.* In
support, Wife relies on four cases: (1) Liu, striuli, 36 P.
pplying Rhede Island law); (2) Hott
domestic abuse protection orders
Supp. 24 452 (D.R.T. 1999)
Brown, No. 2000CA00325, slip op. (Ohio Ct. App. 2002)
(unpublished); (3) Skiles v. Dearth, Nos. 2000-CA-30, 00-DR-0252,
slip op. (Ohio Ct. App. 2000) (unpublished); and (4) Muna v.
Muma, 60 P.3d 592 (Wash. Ct. App. 2002)
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In her answering brief on appeal, Wife relied on the
aforementioned four cases in support of the same proposition she
advocates in her application, i.e., that res judicata should not
be applied when it ‘would result in defeating the primary purpose
of domestic abuse protection ordera -- to prevent harm.”
Clearly, the ICA either (1) considered the four cases but
rejected their application to the instant case or (2) did not
consider the four cases in rendering its decision. As previously
mentioned, in deciding whether to accept an application for writ
of certiorari, we review the decision of the ICA for, inter alia,
obvious inconsistencies in the decision of the ICA with that of
the suprene court, federal decisions, or its own decision and
whether the magnitude of such errors or inconsistencies dictate
the need for further appeal. Three of the four cases cited by
Wife were rendered by the Ohio and Washington Courts of Appeals
and, thus, are not binding on the ICA. Although Liu is a federal
decision, the United states District Court for the District of
Rhode Island applied Rhode Ieland law in its analysis of res
judicata to the facte of that case. Consequently, the ICA was
not obligated to follow any of these four cases because none of
them are considered controlling authority. Accordingly, it
cannot be said that the ICA’s decision contains any “obvious
inconsistencies” with that of the suprene court, federal
decisions, or ite own decision that dictate the need for further
appeal with regard to this issue
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B. The Family Court Form Utilized as Petitions 1 and it
As previously indicated, Wife asserts that “the form
promulgated by the Judiciary under HRS [eJhapter 586 failed to
explicit [sic] warn [Wife] that she had only ‘one opportunity’ to
petition for a protective order." Specifically, Wife argues that
the ICA’s decision establishes “a bright line rule that petitions
for orders of protection filed under [HRS cJhapter 586 must
include a11 acts or threats of abuse committed prior to the
filing of the petition and that any failure to do go will result
in an absolute bar from raising them in a subsequent petition to
support the issuance of an order for protection." (Emphases in
original omitted). Wife asserts that such “an absolute bar" was
vnever made clear in either on the Judiciary form itself or by
Judiciary personnel." (Bnphasis in original omitted). wife
argue:
In HRS [elhapter 586, the Legislature promulgated «
statutory requirement that ‘petitioners for order(s] of
protection are required to use forns provided by the
Susiciary. “Im eftect, thie statutory requirenett charged
the Judiciary with the task of creating forms upon which
petitioners must use to petition the court for orders of
Protection. “Additionally, che Legislature charged the
Sudiciary to provide assistance to petitioners in completing
these forms. "HRS § 586-3 [(2006)] (epetition for relie!
shall be in writing upes forms provided by the court” and
the “family court shail designate an enployee or appropriate
honjudieial agency to ‘he person in completing the
petition.” (Buphasis added.)) Consequently, ‘the forms or
ust properly and adequately advise &
petitioner, especially 2 pro se petitioner, of her one
Spportunity. In this context, [wife] submits that (.) in
effect (,) the Legislature has charged the Judiciary to
Perforn'a function that is analogous to an agency function,
(Emphases in original omitted). Accordingly, Wife maintains
that, “[iln the context of agency actions, the Hawai'i Supreme
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court has ruled that{,] ‘{blefore a right to relief is barred
1, the agency process ought to be of such a nature as to
impress fully on the litigant the opportunity for recourse it
supplies and the consequence of failure to seek such recourse.'*
(citing Hawai'i Blind Vendors Ass‘n v. Dep't of Hunan Serve., 72
Haw. 367, 374, 791 P.2d 1261, 1265 (1990) [hereinafter, Hawai't
Blind Vendors], overruled on other grounds by Tamashixo v. Dep't
of Human Serve,, 112 Hawai'i 388, 146 P.3d 103 (2006) .)
As previously stated, the majority opinion concluded
that Petition I “could have and should have included all of
Wite’s} allegations about all past acts of abuse and threats of
abuse that made a protective order necessary to prevent domestic
abuse or a recurrence of abuse.” Tortorello, 112 Hawai'i at 222,
145 P.3d at 765. The majority opinion also stated that the
family court form utilized by Wife to file Petitions t and If
‘eupports [ite] position{.]* Id. Indeed, a review of Petition t
indicates that Wife left that portion of the form requesting
information on “incident (s) of domestic abuse [that] has/have
happened" blank. 11 Petition II, however, Wife completed that
portion of the form to indicate that she was physically abused in
that i
May 2005. To conclude as Wife desires in this ca to
allow the filing of successive petitions based on alleged p:
acts of abuse that could have been indicated in the earlier
petition, would result in clogging the family courts with
excessive hearings and straining the resources of not only the
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parties, but of the family and appellate courts of this state.
such potential problems are recognized in the policies behind res
Gudicata, which, as previously mentioned, is a doctrine “that
Limit [s] a litigant to one opportunity to litigate aspects of the
case to prevent inconsietent resulte and multiplicity of suite
and to promote finality and judicial economy.” Bremer, 104
Hawai'i at 53, 85 P.3d at 160 (citation and footnote omitted)
(emphasis added) .
Moreover, we cannot agree with Wife's implicit
assertion that domestic abuse protection order proceedings are
somehow transformed into agency actions because “the Legislature
has charged the Judiciary [with] performling] a function that is
analogous to an agency function." Wife does not present any
argument as to how the legislature’s directive in HRS § 586-3
that the family court designate an employee or appropriate non-
judicial agency to provide court users with what seemingly
amounts to clerical assistance with court forms “is analogous to
an agency function.* Moreover, domestic abuse protection order
proceedings, like the present case, are governed by ERS chapter
586. Nore specifically, under HRS § 586-2 (2006), entitled
“Court jurisdiction,” “[aln application for relief under this
chapter may be filed in any family court in the circuit court in
which the petitioner resides. Actions under this chapter shall
be given docket priorities by the court.” (Emphases added.)
Thus, the present domestic abuse protection order proceeding is
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clearly an adjudication by a court of law, not by an agency.
Consequently, Hawai'i Blind Vendors is not applicable to this
case. Accordingly, the ICA did not gravely err with respect to
this issue.
Cc. Prospective Application
Wife next contends that the ICA's “tone opportunity’ to
petition for a protective order” rule should be applied
prospectively. This court has previously stated that, “where
substantial prejudice results from the retrospective application
of new legal principles to a given set of facts, the inequity may
be avoided by giving the guiding principles prospective
application only." State v. Ikezawa, 75 Haw. 210, 220-22, 857
P.2d 593, 598 (1983) (footnote omitted). In Ikezawa, this court
considered whether: (1) “the decision establishes a new
principle of law’; (2) “retroactivity furthers or retards the
purpose and effect of the rule in question"; and (3) “retroactive
application produces substantially inequitable results.” Id. at
221 n.i1, 857 P.2d at 598 n.11 (citation omitted).
decision in this
Here, it cannot be said that the Ica
case “establishe (a) a new principle of law." id, Tortorelle aid
not overrule any clear precedent as set forth in any decision
made by this court or the ICA. Cf. Lindinha v. Hiilo Const
Processing Co., 104 Hawai's 164, 170, 86 P.34 973, 979 (2004)
(applying its deciaion prospectively *[blecause the law at the
time appeared to mandate” a different course of action); Ikezawa,
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75 Haw. at 221, 857 P.3d at 598 (stating that a decision
“establishe[d] a new principle of law because it overrule [4]
[this court's] clear precedent as set forth in [a prior
decision]*). Rather, Tortorello essentially confirms the notion
that a petition ‘could have and should have included all of [the
petitioner's) allegations about ali past acts of abuse and
threats of abuse that made a protective order necessary to
prevent domestic abuse or a recurrence of abuse." Id, at 222,
145 P.3d at 765. Indeed, common sense dictates that, the more
instances of abuse that are included in the petition, the greater
Likelihood of success that 2 TRO and/or order of protection would
be issued. Thus, the ICA did not gravely err by not applying its
decision prospectively.
In sum, based on the foregoing, Wife fails to establish
grave error on the part of the ICA with respect to the merits of
the case. We next address the ICA's award of costs incurred on
appeal in favor of Husband.
D. Award of Costs
Finally, Wife contends that the ICA erred in awarding
costs in favor of Husband. As previously mentioned, the ICA
awarded Husband's request for costs in its entirety, iie.,
$628.41. Specifically, Husband had sought reimbursement of:
(2) $298.42 for photocopies and postage; (2) $255.00 for filing
fees; and (3) $75.00 for transcript fees. As more fully
discussed below, Wife asserts that: (1) Husband’s request for
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costs wi and (2) the request failed “to provide
untimely filed,
copies of invoices, bille, vouchers or receipts” and the costs
requested are “either unauthorized or are excessive." We discui
each assertion in turn.
2. Timeliness
Wife asserts that Husband untimely filed his request
for costs on August 25, 2006, four days after the deadline for
submission. Hawai'i Rules of Appellate Procedure (HRAP) Rule
39(@) (2) (2007) provides in relevant part that
a} request for fees and costs or necessary expenses must be
Hied with the appellate clerk, with proof of service, 0
[ater than i4 daye after the tine for filing a motion’ for
jaration hae expired or che motion for
been decided.
(Emphases added.) Here, the ICA decided Wife’s motion for
reconsideration on August 7, 2006. As such, Husband’s request
for costs should have been filed no later than fourteen days
after August 7, 2006, that ie, August 22, 2006. However, Husband
did not file hie request for costs until August 25, 2006, four
days after the deadline for submission. Nevertheless, HRAP Rule
39(d) (2) expressly indicates that an untimely request for costs
“nay be denied." (Emphasis added.) Thus, the ICA was not
required to deny Husband’s request for costs due to
+ although the appellate courte are not required to deny « request due
to untinelinens, the appellate courte have exerciged that discretion in
Genying outright an untimely request for fees and/or costs. Thus, ve take
this opportunity to caution counsel co comply with RAP Rule 39(a) (2)'s
(continued...)
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Wife's Remaining Objections to the Award of Costs
Wife argues that
usband’s request] should be summarily denied for ite
failure to provide copies of invoices, bills, vouchers or
receipts, as required by (HRAP] Rule 39(4) (2) {(2007)]
Further, ‘the costs listed in his schedule are either
unauthorized or are excessive. — [MRAP] Rule 39(c) {(2007) .)
The rule only authorizes rel 3 forthe cost of
‘copying briefs, nothing else. Coste for copying of briefs
Should be reduced to $24.64, if they were not stricken aa
not having been properly supported and verstied.[l The
Sther fees should pe complet a2 they are either
ndacimented or are not authorized by Rule. Osher than
her rule
‘and argunent are act forth in
‘The basis, authoriei
aetaii in [isfe's] [olojections to (Husband's) Bill of Cot
tnd Request. for Payment filed on Septenber 12, 2006 and are
Incorporated by reference.
‘Consequently, [Wife] gubmite that the $628.42 approved
by the Tek fe in contravention of (MRAP) Rule 39(-]
(emphases added.)
*(. continued)
mandate that such requests for fees and/or costs be filed no later than
fourteen days after the tine for filing a notion fer reconsideration has
expired or the notion for reconsideration has been decided
% tn her opposition to msband’s request for costa at the ICA level,
ige explained more fully why coste for copying of Briefs should be reduced to
$24.64, asserting that:
[the Opening Brief ie 30 pages. 7 sets of 30 paces at &
cents per page would anount to $16.80" the Reply Brief
Eotales 14 pages. So that should anount to $7.64
Accordingly, the permissible (HRAP) Rule 39(e) copying
Charges should only anount £0 $24.64, if they were not
Stricken ae not having been properly supported and verified.
Wite apparently chose eight cents per page as the rate because, according to
the "declaration of counsel” affixed to ner opposition, counsel deciarea that
(2) "Kinko's Office an Print Center located at 590 Queen St., Honolulu,
Havai't, charges §.068 to §.08 per copy, depending oa volume” and (2) Newtech
Inaging locates ae 333 Queen St-, Honolulu, Hawaii, charges §-07 per copy.”
Although not entirely clear, it appeare chat Musbard chose thirey vente per
page ae the rate. However, as stated infra, HRAP Rule 39(c) expressly states
Phat “copying costs shail tot exceed 20 cence per page(.]" (Brackere in
original onieeed.)
-2a-
+** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
HRAP Rule 39 provides in relevant part:
(e) Conte defined. costs in the appellate courts are
defined as: (1) the cost of the original and one copy of
Sen he-appealy (2) the premiums paid tor
jopersedeae bonds cr_other bonds to preserve rights pending
appeal; (3) the fee for filing the appeal; (4) the cost of
ints roduc ary copies of brie:
0 [eente| per pase, (5) necedsary poatase, cost of
faceinsie, interstate travel, ong distance telephone
charges; and (e) any other costs authorized by statute or
rule
(@) Request tor Fees and conte: objections.
(3) A party who cesives an avard of - .- costs shall.
reguest then by submitting an itemized and verifies bill of
coats, together with 2 statement of authority for each
Gaiegory of itens and, where appropriate, copies of
{hvolees, Bille, vouchers, and receipts. .-
(Some emphases in original and some added.) (Brackets in
original.) As previously mentioned, Husband had sought
reimbursement of: (1) $298.41 for photocopies and postage;
(2) $255.00 for filing fees; and (3) $75.00 for transcript fe
a. photecony costs
In his request for costs, Husband sought $254.70 for
photocopying numerous documents, including his opening and reply
briefs, pursuant to HRAP Rule 39." As previously stated, HRAP
Rule 39(c) defines costs in the appellate courts as, inter alia,
“the cost of printing or otherwise producing necessary copies of
briefs and appendices[.]” This court has stated that,
“[alssigning a duly broad scope to ‘briefs and appendices’ as
© Ag stated intra, musbend’s postage costs totaled $9.71. As such,
usband’s total costs for photocopies and postage should be $264.42 (5254.70 +
29.71). Nowever, as stated gpra, Musband had sought reinbureenent of
for photocopies and postage. Thus, it appears that Husband overstated hie
Feguest for veinbureenent of photocepien and postage by 434.00 (9380.43 =
5264.42)
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in West's Hawai'i Reports and the Pacific Reporter
used in HRAP Rule 39(c) (4) . . . [this court) need not reimburse
@ prevailing party for filings other than those briefs
Jed by HRAP Rule 28, including the number of copies
encomp:
quired by HRAP Appendix A.* Kamalu v, ParEn, Inc., 110 Hawai'i
269, 279, 132 P.3d 378, 388 (2006). HRAP Rule 28(a) (2005)
provides that *[a]11 briefs shall conform with Rule 32 and be
accompanied by proof of service of two copies on each party to
the appeal.” (Emphasis added.) HRAP Rule 32.1 (2005) further
states in relevant part that:
‘the original of all docusents shall be filed with the
appellate clerk and copies shall be subsitted as follows:
(a) Opening, ansvering, and reply briefs. two copie
are required when filing. After Briefing ie completed, th
appeliste clerk will notify the parties of any additional
copies required.
ic) there directed by the appellate clerk. In all
‘the appellate clerk may direct that a epecific number
tional copies be furnished on oF before a specified
(underscored emphases in original and bold emphasis added.)"
See, 2.¢., Mikelson v. United Serve. Auto. Ass'n, 108 Hawai'i
358, 120 P.3d 257 (2005) (determining that “the HRAP states that
two copies of the answering brief must be submitted to the
appellate clerk at the time of filing, two copies must be served
on each party to the appeal . . ., and an additional nunber of
® ks previously stated, Husband's appeal was filed on August 23, 2005
Inasmuch #8 Husband's flied before the new MRAP Rules took effect
on July 1, 2008, we re 2008 version of the MRAP Rules for the
Gerermnation ag to the number of briefs necessary for the appeal
© MRAP Appendix A merely confirna that two copies are required in
addition to the Griginal decunent submitted co the appellate clark for filing
o28-
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
copies . . . may be directed by the appellate clerk") (footnotes
omitted) .
In this case, Husband's opening brief contained a total
of thirty (30) pages and Husband's reply brief contained a total
of fourteen (14) pages, for a total of forty-four (44) pages. on
April 27, 2006, the appellate clerk notified the parties of the
sorder of Assignment," which indicated that three additional
copies of the briefs previously submitted to the appellate clerk
for filing were required. Consequently, as Wife aptiy
calculated, see supra note 10, Husband was entitled to
reimbursenent of seven copies of the opening and reply briefs
(five copies for the ICA and two copies for Wife). Contrary to
both parties, however, Husband is entitled to ‘copying costs
. not exceed[ing] 20 cents per pagel.]* HRAP Rule 39(c) (4)
(brackets in original omitted); see supra note 10. Thus, Husband
could have sought $61.60 (44 pages x 7 copies x §.20) in
photocopying costs for his opening and reply briefs. However, a
review of Husband's request indicates that he only sought $55.80
in photocopying costs for his opening and reply briefs.
Noreover, with respect to the other copying charges,
Husband did not cite to any “statute or . . . rule which
authorizes reimbursement for costs for which he seeks,” as Wife
pointed out to the ICA, Thus, Husband's copying costs should be
Limited to the requested $55.80 for photocopying the necessary
briefs, Accordingly, the ICA gravely erred in reinbursing
-25-
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in West's Hawai'i Reports and the Pacific Reporter
Husband (1) $198.90 (the requested $254.70 minus the allowable
$55.80) for his photocopying costs and (2) the additional $34.00
for no apparent reason. See supra note 11.
b. costs for postage
‘Ae previously etated, Husband sought $9.71 for postage.
Husband’ s request indicated seven entries for posta:
(08/23/05 | Postage file marked Nee of 2 | 6a.66
Appeal; Bx i CoS to Renee &
Elen
08/23/06 | Postage mail titc of Appeal to | 2 [6 -60
Ellen Politano, Beq. Ret
32/01/08 | Postage ier to Supreme cout | 2 [8 .74
Re 30 day ext, for Opening
Brief |
07/17/06 | Postage ti to Renee A. a [snes
Torsorello re: Respondent
appellant's Opening Brief;
Statement of Respondent & COS
(03/02/06 | Postage ti to Theodore Chinn, | 2 [6 .27
Eng. fe: 1 file marked
Petitioner-Appeliee’s Response
fo Supplemental Meno of Law in
Reply to Respondent Appellant's
Meno in Opp £0 Petitioner
Appellee'a Men fo Dismiss for
Failure to File Opening Brief
and for Lack of Juriediceion
ana cos
(02/08/06 | Postage to Theodore chinn, 2 | s2.30
Filed copies of pleedings
transmittal dated 2/8/06
04/12/06 | Postage ti to Theodore chinn, | 2 | 61.1
Fe: 1 file marked Respondent
Appellant's Reply Brief 6 COS
RAP Rule 39(c) (5) defines costs in the appellate courts as,
inter alia, “necessary postage(.]” Here, no receipt or proof of
the amount being charged was attached to the request. Nor did
-26-
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in West's Hawai'i Reports and the Pacific Reporter
ee
Husband file a response to Wife's application in order to provide
any documentation for this court to conclude that the requested
jnably and necessarily incurred in
amounts in postage were r
the appeal to the ICA. Consequently, Husband did not reasonably
denonstrate hie expenses for postage. Accordingly, the ICA
gravely erred in reimbureing Husband $9.71 in costs incurred for
postage.
filing fees
As previously mentioned, Husband sought $255.00 for
reimbursement for filing fees. Specifically, Husband’s request
indicated:
0/23/05 _| Piling Fee $225.00 $225.00
03/26/06 | Filing Fee $30.00 (client paid by | 30.00
Check 3/1/08) Ze: Men to Suppineent
Record; Dec of NSK) Bx 11 COS
HRAP Rule 39(c) (3) defines costs in the appellate courts as,
inter alia, “the fee for filing the appeal." This court has
Inesmuch as appeals by non-indigent parties generally
require prepaynent of fees, the "why," “when,” and *to whom”
are selfvevident as to. $225.00[.] See HRAP Rule 45(e) (5)
Ti200s)] (supreme Court filing fee of $100.00); HRS $8 607-
Stel (23) (supp. 2004) (eireule court fee of $100.00 upon
filing of novice of appeal), 607-5.7 (Supp. 2002) (525.00
Surcharge for indigent legal services); MRAP Rule 3(a), (f)
(consequences of failure to pay, including disnissel of
appeal)
Kamau, 110 Hawai'i at 279, 132 P.3d at 388. Consequently, the
9225.00 requested by Husband is reimbursable, pursuant to HRAP
Rule 39(c) (3). However, inaemich as Husband did not cite to any
227+
* FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
authority which permits reimbursement for the $30.00 filing fee
allegedly incurred on January 26, 2006 for filing a motion to
supplement the record, Husband's request for reinbursement of
filing fees should be limited to $225.00, Accordingly, the ICA
gravely erred in reimbursing Husband $255.00 in costs incurred
for filing £
4. transcript fees
Finally, Husband requested $75.00 for transcript f
HRAP Rule 39(c) (1) defines coste in the appellate courte a
Anter alia, "the cost of the original and one copy of the
reporter's transcripts if necessary for the determination of the
appeal.” In Kamau, this court concluded that the prevailing
wonably demonstrated” ite tranecript fees over the
party had *
losing party's objection of inadequate documentation, noting
that:
(the prevailing party] Liste two charges apparently
‘to transcript production, to wit, $112.60 for
Ekristine Jordan," and $210.94 for
jukayana." [The prevailing
party] also ai ‘co be a photocopy of ite
Gua leager, recording che outlays to Jordan (December 6,
2001) and Teuksyana (Decenber 24, 2001). consequently, (the
prevailing party] has reasonably demonstrated expenses of
$210.84, which equals $323.54
Id, at 279 n.13, 132 P.3d at 386 n.13. In this case, however,
Husband’s request merely listed the following:
[Tone
03/03/08 | Tranecript Fee £75.00 $75.00
(eltene pass by check #345)
-28
* FOR PUBLICATION *
in West’s Hawai'i Reports and the Pacific Reporter
Husband did not attach any documentation in his request nor did
Husband file a response to Wife’s application in order to provide
any documentation for this court to conclude that the requested
was reasonably and nece
transcript f ry incurred in the
appeal to the ICA. Consequently, Husband did not jonably
for transcript fees. Accordingly,
demonstrate []* his expen
the ICA gravely erred in reimbureing Husband $75.00 in costs
incurred for transcript fees.
IV. CONCLUSTON
Based on the foregoing, we affirm the ICA's October 18,
2006 judgment on appeal with respect to the merits of Husband's
appeal. We vacate, however, the ICA’s award of costs to Husband
and, instead, award costs in the amount of $280.80 in favor of
Grr
Theodore ¥. Hl. Chinn and BBL ntore
Edie A. Feldman, for
titioner/petitioner-
a ‘ are
Husband as against wife.
on the brief
appellee
Mark 8. Kawata and Qa ort—m
Craig T. Dela Cruz, we
for respondent /respondent- Une
appellant Dates
-29-
|
a3d8208f-7e1e-4788-a194-5d7be4447604 | In re King | hawaii | Hawaii Supreme Court | No. 28360
IN THE SUPREME COURT OF THE stare or wawaré| = &
IN RE ANGIE KING, Petitioner. 3 =
ORIGINAL PROCEEDING
oN TO RE:
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of Petitioner Angie King'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 IS HEREBY ORDERED that the petition is granted.
IT 1S FURTHER ORDERED that Petitioner King shall return
her original license to practice lav to the Clerk of this court
forthwith, The Clerk shall retain the original license as part
of this record. Petitioner King shall comply with the notice,
affidavit, and record requirements of subsections (a), (6), (a),
and (g) of RSCH 2.16.
IT 1S FINALLY ORDERED that the Clerk shall remove the
name of Angie King, attorney number 1929, from the roll of
attorneys of the State of Hawai'i, effective with the filing of
this order.
DATED: Honolulu, Hawai'i, January 31, 2007.
er...
Shea se
Bsus bi Nance ere
Came ouseys rs
|
e2e633d1-1598-4915-9207-02a05acc6394 | State v. Ramano. Dissenting Opinion by J. Levinson [pdf]. S.Ct. Order of Amendment, filed 03/08/2007 [pdf]. S.Ct. Order of Amendment, filed 03/30/2007 [pdf]. | hawaii | Hawaii Supreme Court | ‘s+4fOR PUBLICATION ON WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*#*
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
00" I
L234 woe
STATE OF HAWAI'I, Plaintiff-Appellee —_ 5
suai
PAME ANN MARY LEILANI ROMANO, Defendant-Appellant
No. 26110
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CASE NO. 1P103-00755 OF 8/26/03; HPD CR. NO 03024777)
FEBRUARY 27, 2007
MOON, C.J., NAKAYAMA, ACOBA, AND DUFFY, JJ.+
AND LEVINSON, J., DISSENTING
OPINION OF THE COURT BY ACOBA, J.
We hold that Defendant-Appellant Pane Ann Mary Leilani
Romano (Defendant) has not established, as she argues on appeal,
that (1) “[Plaintiff-Appellee State of Hawai'i (the prosecution) }
failed to support a prima face [sic] case of prostitution because
the [prosecution] failed to prove . . . that Defendant was not a
law enforcement officer,” (2) the [prosecution] failed to present
sufficient evidence to support a prima face [sic] case of
prostitution,” (3) “there was insufficient evidence adduced to
support a finding of guilt,” and (4) “Laurence v. Texas[, 539
U.S. 558 (2003),)] renders Hawai'i Revised Statutes [(HRS)] § 712-
aa
“S*4FOR PUBLICATION ON WEST'S HAMAI'T REPORTS AND PACIFIC REFORTERS*#
1200 et. seq. unconstitutional as applied in this case.”
(Capitalization omitted.) ‘Therefore, Defendant’s August 26, 2003
judgment of conviction and sentence by the district court of the
first circuit (the court)! for the offense of prostitution, HRS §
712-1200(1) (Supp. 2006),* is affirmed.
A
Trial began on August 13, 2003, and the evidence
following was adduced. On January 18, 2003, Officer Jeffrey
‘Tallion was on duty with the Narcotics/Vice Division of the
Honolulu Police Department Morals Detail. He testified he was on
assignment investigating prostitution in the Waikiki area.
Tallion related that the investigations involved “checking into
hotel rooms and then . . . either go[ing] on to the street or
- set[ting] up appointments either in the telephone book or
‘Pennysaver,’ ‘Midweek,’ or internet cases.”
In preparation for his undercover operation, Tallion
obtained a hotel room at the Aston Waikiki Beach Hotel and
+ the Honorable Faye Koyanagi presided
“cion HBSS 72222000) stares that Ia) parson commita the offense of
prostitution Lf the person en or agrees or attere to engage in, sensed
Sencuct ith angther’ person Zor's fee. ike 112-2800(2) Sefines Seenaal conduct,”
Snker ala, es “senvel contact.» AAS § 701-700 (2993) defined sexual contact as
intimate parte of a person
yroal or other sntumate parte
rectly of through the
Inlay touching of the sexsi or othe
not matried to the actor, cf of the
(Of the actor sy the person, whether
Glgihlog of other material" sntended fo cover the
ual contact An HRE § 707-700 was amended in 2004, 88 Haw. S43
lding the phrase “other than acts of ‘sersal peneeration =
‘The anenanent dows not aftect oor
Eovaet 61, $3 at 30%,
F tany touching” in the first sentenc
‘++FOR PUBLICATION ON WEST'S HAWAI'T REFORTS AND PACIFIC REFORTERS®
dressed in civilian clothes. He browsed through the “Pennysa’
newspaper and called the phone number on a massage advertisement.
When Defendant answered the phone call, Tallion asked if she did
“out calls.” At this time, there was no discussion of any
Alliest conduct or sexual acts.
‘Tallion set up an appointment with Defendant and they
met on the street in front of the Aston Waikiki Beach Hotel, but
then moved to Tallion’s hotel room. In court, Tallion positively
identified Defendant as the individual he met outside on
January 18, 2003.
Upon arriving in the room, Tallion confirmed that the
price of an out call was $100 and then asked Defendant whether
“she did anything else.” Defendant responded, “Like what?
Dance?” Tallion responded, “No,” so Defendant asked, “Well, what
do you have in mind?”
Tallion then answered, “Well, I was referring to a
blowjob.”? Defendant replied, “No, hands only.” Tallion
clarified, “So no blowjob, so handjob.” Defendant responded,
“Yeah, I can do that.” Tallion asked the cost and Defendant
responded, “Add 20." Tallion reconfirmed with, “Oh, $20 for a
handjob?" and Defendant replied, “Yes.” Tallion testified that a
handjob is street vernacular commonly used in prostitution for
“assisted masturbation.”
2 oe gal GSNEea Humcasnd, 66, tm. 935496657, 666 0.28 508, 5911989),
this court said the term “bioweb" ss “recognized by » large segnene of the adult
popuistion in Hawaii se (an expression] seseribing sersal conduct in slang” snd the
Ferm could be found in Under
Both Sblow Jeb" and *tellatier™
FOR PUBLICATION ON WEST'S HAWAI'I REPORTS AND PACIFIC REFORTERS*#
Following Defendant’s reply, Tallion “gave a pre
determined signal” and the arrest team entered the hotel room.
Tallion apprised Honolulu police officer William Lurbe of the
facts and Lurbe placed Defendant under arrest.
Tallion testified that he had been with the Morals
Detail for three years; he was involved in 400 prostitution cases
in 2002 as either the undercover or arresting officer: maybe five
of the prostitution cases were initiated from “Pennysaver” ads;
and after the talk about “handjob,” Defendant added $20.00 to her
quoted $100.00 charge for the out-call service. On cross
examination, Tallion recounted that he found Defendant’ s
advertisement in “Pennysaver! s” Nassage/Acupuncture Section and
not the Adult Section. He also related that “hands only” could
have meant what a masseuse actually does.
In his testimony, Lurbe testified that he arrested
Defendant for prostitution on January 18, 2003, after being
“informed by [Tallin] that he [had] obtained a prostitution
violation from [Defendant], which was assisted masturbation for
$20.” On cross-examination, Lurbe indicated that Tallion
notified him of the violation via cellular phone.
Following Lurbe’s testinony, the prosecution rested.
Defendant moved for a continuance “to subpoena, investigate and
talk to witnesses who were in the room adjoining this, this
room.” Over the prosecution's objection, the court continued the
case to August 26, 2003.
on August 21, 2003, Defendant filed a “Motion to
Dismiss.” In the memorandum attached to the motion, Defendant
asserted that Lawrence “invalidate(d] Hawaii's prostitution
statutes (and) thus{,] the [prosecution's] case [against
Defendant] must necessarily fail.”
At the start of the proceedings held on August 26,
2003, Defendant moved for a judgment of acquittal, arguing that
the prosecution had failed to prove (1) that there was an offer
and agreement to engage in sexual conduct for @ fees and (2) that
Defendant was “not a police officer, @ sheriff, works for the
sheriff's department or law enforcenent acting in the course or
scope of her duties.” After hearing fron the prosecution, the
court denied Defendant's motion.
Defendant's “Motion to Dismiss” was then heard. The
court denied the motion, stating that it “[did) not agree with
the applicability of (Lawrence) to the instant situation.”
Defendant took the witness stand in her own defense and
testified that she was a self-employed license massage therapist,
she had been a licensed massage therapist for “19 years, going on
20” and her license was current and up-to-date on January 16,
2003, She testified that she placed her ad under the “Body, Mind
and Spirit,” “Massage,” or “Health and Fitness” sections and not
under the “Personal” or “Adult” sections.
Defendant also recounted that on January 18, 2003,
‘Tallion inmediately asked for a blow job when she entered the
‘**4FOR PUBLICATION ON MEST’S HAWAI'I REPORTS AND FACIFIC REPORTERS**
hotel room. She explained that she was “caught off guard”
because she was “not the typical person that men want this fron,”
as she was “overweight” and “old.”
She reported that after Tallion asked for the “blow
job," she put her hands up and stated, “Hey, I only do hands
only.” she also declared that she was shaking her head “no” at
the same time. Defendant then indicated that Tallion repeated
his question again and also asked how much it would cost.
Defendant again said, “No, hands only.” Defendant also
maintained that Tallion was “loud,” “demanding,” and
“boisterous.”
After Defendant repeated “hands only” again, Tallion
asked about handjobs. Defendant claims that she had no intent to
conmit any kind of sexual contact with Tallion. She explained
that she only gave Tallion a figure of $20 because she felt
threatened and because of Tallion’s loud demands. She then
testified about 2 1983 incident where “[she] got beat up real bad
by this person who [she] had gone to for a job for telephone
soliciting.”
On cross~exanination, Defendant admitted that she
n Tallion and herself)
“couldn't remember [the conversation betwi
word for word." She also stated that Tallion did not block her
way to the door leading to the hallway, Tallion did not tell her
she could not leave the room, and she did not attempt to use the
telephone or walk out of the room. Furthermore, Defendant
indicated that she said “yes” when Tallion asked for @ handjob,
FOR PUBLICATION ON MEST’ S HAWAI'T REPORTS AND PACIFIC REFORTER**#
she knew that handjob could mean assisted masturbation, she told
Tallion that the handjob would cost $20.00 extra, and she said
yes” when Tallion reiterated $20.00 for a handjob. On redirect
examination, Defendant claimed that she felt trapped because it
was not her room, the room “didn’t have much room in it,” and
“she was within arm's reach of [Tallion]
Following Defendant's testimony, the defense rested.
‘The court found Defendant guilty of the charged offense.
Defendant was sentenced to six months’ probation and fined
$500.00. Judgment was entered on August 26, 2003. Imposition of
sentence was continued for thirty days for perfection of appeal.
The court instructed the prosecution to prepare written
findings of facts and conclusions of law. The “Findings of Fact,
Conclusions of Law, and Order Finding Defendant Guilty After
Jury-Waived Trial” were filed on September 26, 2003. Notice of
appeal was filed on September 19, 2003.
um.
As noted previously, Defendant raised four issues on
appeal.* In regard to issue (1), an exception to the offense of
+ the prosecution answered (1) the prosecution did not have to prove
chat Defendant wae a law enforcement officer acting in the course and scope of
her duties, (2) there was sufficient evidence adduced at txial to support
Defendant's prostitution conviction, (3) Defendant failed to prove by a
preponderance of the evidence that she acted under “duress” when she agreed to
Ehgoge in sexual conduct with Tellicn fers fee, and (4) Hawaii's prostieation
Statute se not rendered unconstitutional by
Defendant reitersted in her reply brief that the application of
RS § 712-1200 to this case was unconstituticnal.. We must note that it
appesrs ¢ substantial part of the reply brief corresponds verbatim to the
Boblished opinicn of the New York City Family Court sn Bey 400 N.Y.8.24
E55, 462-68, 467-69 (Fam. Ct. 1977), zev'd, 418 N.Y.S.26 597, 605 (App. Div.
1878).
‘**4FOR PUBLICATION ON WEST’ § HAWAI'I REPORTS AND PACIFIC REPORTER
prostitution applies under HRS § 712-1200(5) for “any menber of a
police department, sheriff or other law enforcement officer
acting in the course of and scope of duties.” State v, Nobriaa,
10 Haw. App. 353, 357-58, 873 P.2d 110, 112-13 (1994), overruled
nother arounds by State v. Macleaa, 80 Hawai'i 172, 178-79, 907
P.2d 758, 764-65 (1995), is instructive. According to that case,
“[t]he general and well-settled conmon law rule is that where an
exception is embodied in the language of the enacting clause of a
criminal statute, and therefore appears to be an integral part of
the verbal description of the offense, the burden is on the
prosecution to negative that exception, prima facie, as part of
its main case.” Ig, at 357, 873 P.2d at 112-13 (footnote and
citation omitted). The Intermediate Court of Appeals (the ICA)
further noted that “when the exception appears somewhere other
than in the enacting clause, and is thus a distinct substantive
exception or proviso, the burden is on the defendant to bring
forward evidence of exceptive facts that constitute a defense”
and, in such an instance, “[t}he prosecutor is not required to
negative, by proof in advance, exceptions not found in the
enacting clause.” id, at 358, 873 P.2d at 113 (citations
omitted) .*
Further, the ICk noted that the general rule does not apply “when
the facts hypothesized in the exceptive provision ere peculiarly within ene
knowledge of the defendant, or the evidence concerning them is within the
Gefendant’s private control.” Nabriga, 10 Kaw. App. at 356, 673 Pr2d at 113
(internal quotation marks, brackets, and citation omitted) «
_
‘*++FOR PUBLICATION ON MESI’S HAWAI'I REPORTS AND PACIFIC REPORTERS#®
In Nobriga, the defendant was cited under Revised
Ordinances of Honolulu (ROH) § 7-2.3 (1990),* “animal nuisance,”
for keeping numerous roosters at his home, resulting in
complaints from neighbors. Id, at 385, 873 P.2d at 112, At
trial, the defendant moved for judgment of acquittal on the
premise that the State had failed to prove defendant's conduct
did not fall within the exceptions to the animal nuisance law set
forth in ROH § 7-2.4(a).7 Id, at 356, 873 P.2d at 112. The
district court denied the motion. The ICA affirmed the denial,
stating that the general prohibition against animal nuisance as
set forth in ROH $§ 7-2.2 and 7-2.3 govern the elements of the
case and “does not incorporate ROH § 7-2.4" as “the exceptions
are located in a separate and distinct section of the ordinance.”
Ad. at 389, 873 P.2d at 113.
‘The ICA also indicated “the burden of proving
exceptions to a criminal statute appear to be codified in the
‘RoW § 7-2.3 provides, in pertinent part, that “[iJt is unlawful to
be the owner of an animal, farm aninal or poultry engaged in aninal nissance
a2 defined in Section 7-2.2." ROM § 7-2.2 (1990) defines “Aninal nuisance,”
partly, as follows
“animal nuisance,” for the purposes of this section,
shall ineluse but not be limited to any snimal, farm animal
or poultry which:
(2) "Makes noise continuously and/or incessantly for
S perios of 10 minutes or intermittently for
Snechalf hour of sore to the disturbance of any
person at any tine of day or night and
Fegardiess of whether the animal, farm animal or
poultry is physically situated in or upon
Private property]
+ ROH § 7-2.44a) (1990) provides that “InJothing in this article
applies to animals, farm aninals or poultry raised, bred or kept asa
Consercial enterprise or for food purposes where connercial kennels or the
Keeping of livestock is a permitted use.”
‘+*470R PUBLICATION OM WEST’ § HAWAI'I REPORTS AND FACIFIC REPORTER:
Hawai'i Penal Code” pursuant to HRS §§ 701-114(1) (a) (1985) and
702-205 (1985). Id, at 358, 873 P.2d at 113, The ICA declared
that HRS § 701-114(1) (a) requires that “the State’s burden is to
prove, beyond @ reasonable doubt, each element of the offense,”
Adi at 358, 873 P.2d at 113; “the elements of an offense” include
vaRs § 702-115(1)
that which “[njegative(s) a defense,” idu;
(2985) defines a ‘defense’ as ‘a fact or set of facts which
negatives penal liability,’" ids but “*{nJo defense may be
considered by the trier of fact unless evidence of the specified
fact or facts has been presented,’ ids (quoting HRS § 701-
115 (2) (1988)),
In regard to the penal code requirenents, the ICA
reiterated that the prosecution “has the initial burden of
negativing statutory exceptions to an offense only if the
exceptions are incorporated into the definition of the offense.”
Id. at 359, 873 P.2d at 113. However, as the ICA explained,
“Li]f @ statutory exception to an offense constitutes a separate
and distinct defense, . . . the State's burden to disprove the
defense beyond 2 reasonable doubt arises only after evidence of
the defense is first raised by the defendant.” Id.
im.
Applying the foregoing formulation, the enacting clause
for the offense of prostitution is HRS § 712-1200(1), because
this clause “contains the general or preliminary description of
the acts prohibited; i.e., proscribes the offensive deed.” state
wales, 90 Hawai'i 130, 138 -n.7, 976 P.26 444, 452 n.7 (1999)
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(citations omitted) (defining the term “enacting clause”). HRS
$ 712-1200(5) does not prescribe the offense, but states an
exception to the offense for law enforcement officers acting “in
the course and scope of duties.” Similar to Nobriga, then, the
exception here, HRS § 712-1200(5), is not located in the same
section, HRS § 712-1200(1), as the definition of the offense."
As the exception in HRS § 712-1200(5) would negative
the prostitution offense, it constitutes a defense. See Nobriaa,
10 Haw. App. at 359, 873 P.2d at 113. In order to claim the
benefit of this defense, then, evidence that Defendant fell
within the exception must have been adduced. See id, However,
Defendant did not adduce any such evidence at trial. Under
Nobriga, the prosecution is not required to disprove the defense
until there is evidence that the defendant falls within HRS
§ 712-1200(5). Id, Thus, the prosecution was not required to
negate the defense. See HRS § 701-115(2) (1993) ("No defense may
be considered by the trier of fact unless evidence of the
specified fact or facts has been presented|.]”). There was,
then, no defect in the proof of a prima facie case.
wv.
As to issue (2), the prosecution must prove every
element of a crime charged and the burden never shifts to the
defendant. Territory v. Adiarte, 37 Haw. 463, 470-72 (1947).
1 in reviewing the
We recently stated that “*[t]he test on app
+ woreover, S¢ may Be noted that Sf Defendant was a law enfo:
officer, this fact would be peculiarly within Defendant” knowledge oF the
Sten titnin Defendant's privete control
ae
FOR PUBLICATION ON WEST'S HANAI'T REZORTS AND PACIFIC REPORTERS
legal sufficiency of the evidence is whether, when viewing the
evidence in the light most favorable to the prosecution,
substantial evidence exists to support the conclusion of the
trier of fact.’" State v. Agard, No. 27219, 2007 WL 198725, at
*3 (Haw. Jan. 23, 2007) (quoting State vs Bui, 104 Hawas'l 462,
467, 92 P.34 472, 476 (2004)) (other citation omitted).
“Substantial evidence” is defined as “‘credible evidence which is
of sufficient quality and probative value to enable a person of
reasonable caution to reach a conclusion.’* Id. (ellipses
points, brackets, and citations omitted)).
As indicated previously, HRS § 712-1200(1) provides in
relevant part that prostitution is committed “if the person...
agrees . . . to engage in. . . sexual conduct with another
person for a fee.” Under HS § 712-1200(2), “sexual conduct”
includes “sexual contact,” as that term is “defined in section
707-700." In pertinent part, “*sexual contact’ meant any
touching of the sexual or other intimate parte of a person not
married to the actor{.]" HRS § 707-700.
‘The evidence demonstrated that Defendant agreed to give
Tallion 2 “handjob” for a fee of $20.00. Tallion confirmed with
Defendant that the charge for the “out-call” was $100.00. when
Tallion said, “So no blowjob, so handjob,” Defendant responded,
wYah, T can do that.” Tallion then asked whether “that cost
extra,” and according to Tallion, Defendant answered, “Add 20.”
Tallion testified he confirmed, “Oh, $20 for handjob,” and
a2
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Defendant replied, “Yes.” This testimony indicates that the $20
added fee was’ for the handjob.
Defendant argues that agreement for a handjob does not
necessarily involve sexual conduct. She contends that Tallion
never defined “assisted masturbation” and that although Tallion
equated @ “handjob” with sexual contact, he did admit that
another Licensed masseuse had given him a hand massage and, thus,
the meaning of “handjob” is not always sexual in nature. The
phrase “assisted masturbation” would appear susceptible to conmon
understanding. “Masturbation” is defined, inter alia, as “the
stimulation, other than by coitus, of another's genitals
resulting in orgasm.” Random House Dictionary of the English
Languace 883 (Unabr. ed. 1973). Genitals describe “the
reproductive organs, especially the external sex organs.” The
American Heritace Dictionary of the English Language (4th ed.
2000), available at http: //www.bartleby.com/61/.
Tallion testified that “*{hJandjob’ is street
vernacular conmonly used in prostitution for assisted
masturbation.” Defendant also testified that she knew that the
term “handjob” could mean assisted masturbation." As noted, the
meaning of “sexual contact” in HRS § 712-1200(1) included “any
+ aulson also testified he had never been marcied to Defendant and
the had never “lived together at man and wife with (Defendant].” See supra’
note 2 defining sexual contact.
on cross-exanination, the prosecution asked Defendant, “Did you
know that ‘handjob’ could nean sgsicted masturbation?” and she replied in the
aftizmetive
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touching of the sexual . . . parts of a person{.]” HRS § 707-
700, Plainly, the reference to “hand” in the term “handjob
connotes physical contact with genitals. Hence, considered in
the strongest light for the prosecution, substantial evidence was
adduced that would enable a person of reasonable caution to
conclude, ste Acard, 2007 WL 156725, at +3, that Defendant agreed
to engage in sexual contact with Tallion for a fee.
v
As to issue (3), HRS § 702-231 (1993) provides in
relevant part:
Duress. (1) It iz a defense toe penal chara thet the
‘Sr caused the result
aiieges Bs
Sessat couse, “onlanful force gainst his person or the
oh of another
Bi‘ siverion wauid'hase been unable to restate
(si in’ prosecutions tor any offense descrsbed in this
Gade, the Sefense asserted under this section shall
‘Soutiiute ap atfiimative defense, “The defendant shall have
fhe burden of soins torwarg with the evidence te prove The
facts constituting such defence, oniese such facts are
supplied by the testinony of the prosecuting witness or
circumstance in such testinony,
and_of proving such facts by
a-rependerance of the svigense pursuant fo section Tite,
added.)
“the preponderance standard directs the factfinder to
decide whether ‘the existence of the contested fact is more
Probable than its nonexistence." Kekona v. Abastillas, No.
24051, 2006 WL 3020312, at *6 (Haw. Sept. 26, 2006) (quoting E.
Cleary, McCormick on Evidence § 339, at 957 (3d ed. 1984)) (other
citation omitted). Accordingly, “[t]o prevail, (the defendant]
need only offer evidence sufficient to tip the scale slightly in
his or her favor, and [the prosecution] can succeed by merely
nee
‘s++FOR PUBLICATION ON MEST’S HAWAI'I REPORTS AND PACIFIC REPORTER:
keeping the scale evenly balanced.” Id. (internal quotation
marks and citations omitted).
Defendant contends her claims “meet the elements of the
affirmative defense of duress by a preponderance of evidence.”
She argues that because the duress claim was “unchallenged by the
(prosecution) ox the (cJourt[,] preponderance of the evidence is
indeed established.” However, the court considered Defendant's
affirmative defense of duress and concluded that Defendant did
not meet her burden.
specifically, in its oral finding, the court stated,
“[ale far as the duress defense, the burden--it becomes an
affirmative defense and the burden then shifts to the [Dlefendant
to prove that the duress did in fact occur by preponderance of
the evidence, which the [cJourt does not feel the [DJefendant has
met that burden.” In its written findings, the court found
“Defendant failed to present an adequate defense to the charge.”
“‘A trial court’s findings of fact are reviewed under the clearly
erroneous standard.’ State v. Keliiheleua, 105 Hawai'i 174,
178, 95 P.3d 605, 609 (2004) (internal quotation marks and
brackets omitted) (quoting Dan vs State, 76 Hawai'i 423, 428, 879
P.2d $28, 533 (1994)).
“YA finding of fact is clearly erroneous when (1) the
record lacks substantial evidence to support the finding, or
(2) despite substantial evidence in support of the finding, the
appellate court is nonetheless left with a definite and firm
conviction that a mistake has been made.” foo v, State, 106
nase
‘#4F0R PUBLICATION OM WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER'#+
Hawas's 102, 112, 102 P.34 346, 356 (2004) (quoting State vs
Okumura, 78 Howai'i 383, 392, 894 P.2d 0, 89 (1995)). The
record indicates that there was substantial evidence to support
the finding and that it is not clear that 2 mistake has been
made. See id. at 46, 137 P.3d at 360.
Defendant related that Tallion was “loud” and
“demanding” and she only agreed to Tallion’s request for a
“handjob” because she felt threatened. However, upon cross-
examination, Defendant conceded that (1) Tallion had not blocked
her egress from the hotel room; (2) Tallion was not holding a
weapon when he asked about the “blowjob”? (3) Tallion never told
her that she could not leave the room; and (4) she never
attempted to use the phone or walk out of the room.
Matters of credibility and the weight of the evidence
and the inferences to be drawn are for the fact finder. see
Acard, 2007 WL 158725, at *3 (stating that “*appellate courts
Will give due deference to the right of the trier of fact to
determine credibility, weigh the evidence, and draw reasonable
inferences from the evidence adduced’ (quoting In re Doe, 107
Hawai'i 12, 19, 108 P.3d 966, 973 (2005) (other citation
omitted)) (internal quotation marks omitted). Defendant did not
testify to any “use of, oF a threat of use, with unlawful force
against (her) person[.]” HRS § 702-231(1). Defendant
acknowledged Tallion did not block her exit and she did not
attempt to leave. Under these circumstances and giving due
deference to the court as fact finder, it cannot be said the
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court's finding that Defendant failed to establish duress by a
preponderance of the evidence was clearly erroneous, See Fisher,
111 Hawas's at 46, 137 P.36 at 360.
vr.
As to Defendant's last issue, the dissent agrees with
Defendant and argues that (1) “at the time of this court's
holding in (State v. Mueller, 66 Haw. 616, 671 P.24 1351 (1983)],
there was no federal precedent addressing whether the
criminalization of an utterly private sexual activity (and its
associated monetary component) abridged an individual's right to
privacy[ but] Laurence created just such a precedent, confirming
that individual decisions by married and unmarried persons
‘concerning the intimacies of their physical relationship . . «
are a form of “Liberty” protected by the Due Process Clause of
the Fourteenth Anendnent{,]’” dissenting opinion at 8, and
(2) “article 1, section 6 does not abide the criminalization of
wholly private, consensual sexual activity between adults without
the state’s having demonstrated a compelling interest by way of
Minjury to a person or abuse of an institution the law protects,’
539 U.S. at S6B[,]” dissenting opinion at 10. We must
respectfully disagree with these propositions and discuss then
herein
vin.
The dissent’s first position is not tenable because it
runs into the specific qualification in Lawrence that excludes
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prostitution as part of protected “liberty” under the federal due
process clause.
not involve minors. It does not
injured oF coerced oF who ar
aiay be
‘The present case dot
Persons who might be
din relationships where consent might not.
Avo
refused. It does not involve public conduct or
Erogtinueian. Tt does fot invelve whether the government
must give formal recognition to any relationship that
homosexual persons seek to enter.
Tifestvie. the petitioners ore entitied to respect for
Their private lives. The State cannot demean chest
existence of control their destiny by making their private
Sexual conduct a crime. Their right to liberty under the
Due Process Clause giver then the full right to engage in
their conduct without intervention of the government:
539 U.S. at 578 (emphases added).
Additionally, despite this clear exclusion, the dissent
argues that a logical extension of Laurence precludes the states
from exercising their police power to curb prostitution.
(Where two consenting adults susp money for sex in
transaction undertaken entirely in seclusion, the analysis
of the Laurence majority,
auoid the action, leads inexorably to the conclusion that
She state nay not exercise its colice power to criminalize a
Eiiuate decision between two consenting adults to engage in
semual activity, whether for remuneration os not.
Dissenting opinion at 9-10 (emphasis added). But, the dissent’s
position is not supportable on this premise. The Court has in
the past drawn legal boundaries around its decisions, despite the
fact that arguably logic would “lead{] inexorably” beyond such
strictures, ‘Thus, in State v. Kam, 69 Haw. 483, 748 P.2d 372
(1988), this court recognized that although the Court had held a
state “would not be able to prohibit an individual from
possessing and viewing . . . pornographic materials in the
at 489, 748 P.2d at 376
privacy of his or her own home(,]” id.
(citing Stanley v. Georaia, 394 U.S. 557 (1969), “(t)he -
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court hald) effectively ruled that the protected right to possess
obscene material in the privacy of one’s home does not give ri
to a correlative right to have someone sell or give it to
others{,]” Kam, 69 Haw. at 490, 748 P.2d at 376 (internal
quotation marke and citation omitted), leading to the paradoxical
conflict of a “citizenry(’s] . . . right to read and possess
material which it may not legally obtain[,]” id. at 491, 748 P.2d
at 377. Hence, although the Court's language may seemingly point
to broader application, that does not portend an extension of a
given proposition especially when, as here, the Court expressly
limits the scope of the liberty interest protected.”
Furthermore, the dissent misreads Lawrence. As
mentioned above, prostitution, i.e., “swap[ping] money for sex,"
dissenting opinion at 9, is expressly rejected as a protected
Liberty interest under Lawrence. Laurence did not involve an
exchange of money for sexual relations but focused on the
specific sexual conduct, i.e., sodomy, as being outside the scope
of legitimate government concern. It is important to remember
that “[t]he question before the Court [was] the validity of a
Texas statute making it a crime for two persons of the same sex
to engage in certain intimate sexval conduct [,]” 539 U.S. at 562,
described as “(A) any contact between any part of the genitals of
fone person and the mouth or anus of another person; or (B) the
nts atatenent, see dissenting opinion at 9
Svate solicited
ming, arquenda, public
contrary to the at
10, the Court gid not draw the Gistinction between
prostitutions ond public solicited prostitutions,
Eelicitstion ig sbeent in this case’
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penetration of the genitals or the anus of another person with an
object (,]” ids (quoting Texas Penal Code Ann. § 21.01(1) (2003)).
Lawrence thus contains a lengthy dissertation on homosexual
conduct and sodomy dating back to 1533. Id. at 568-77. As the
Court stated, the case involved “two adults who . . . engaged in
sexual practices common to a homosexual lifestyle.” Id. at 578
(emphasis added) .
Assuming, arauendo, that “Lawrence presupposed private
sexual activity between two adults fully capable of giving valid
consent [,]" dissenting opinion at 22, that does not mean Lawrence
sanctioned prostitution in the “(nJarrow[er]," dissenting opinion
at 21, form advocated by the dissent. Lawrence simply placed no
qualification on excluding prostitution from its holding.
vinr.
In Lawrence, the Court reconsidered its earlier holding
in Bowers v. Hardwick, 478 U.S. 186 (1986), where “Hardwick, in
his own bedroom, [was observed] engaging in [sodomy] with another
adult male.” Lawrence, $39 U.S. at 566. In doing so the
majority adopted the dissent of Justice Stevens in Bowers, where
a sodomy statute similar to that in Texas was upheld by the
Rowers majority. In his dissent, Justice Stevens rested on two
% the Georgis statute criminalizing sodomy at issue in Bowers,
Georgia Code Ann. § 16-6-2 (1964), provides in pertinent part
(2) A person comits the offense of sodony when he performs
or submite to any sexual act involving the sex organs of one
person and the nouth or anus of another»
(b) A person convicted of the offense of sodomy shall be
punished by inprisonnent for not less than one ner more then
20 years{.]
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contentions.
First, the fact that the governing majority in 9 state has
treditionally vieued @ cayticular gractica as immoral is not
# sufficient reason for upholding = 1aw prohibiting the
Practice; neither history nor tradition could save « lav
Prohibseing miscegenation from constitutional attack
Second, individual decisions by married persons, concerning
fhe Intinacies of thelr phvsies) relaticnshio, even when not
Protected by the Due Process Clause of the Fourteenth
Amendment. Moreover, ten
Bowers, 478 U.S. at 216 (Stevens, J., dissenting) (footnote and
citations omitted) (emphases added). ‘The majority in Lavrence
decided that “Justice Stevens’ analysis . . . should have been
controlling in Bowers and should control here.” $39 U.S. at 578.
‘Thus, Lawrence invalidated a criminal statute
prohibiting the “particular practice” of sodomy because it
involved the “intimacies of . . . physical relationship” and such
“intimate choices” should be left to unmarried as well as married
persons. Id, at 577-78 (emphasis added). Lawrence, then, was
concerned with specific conduct seemingly aimed at persons
engaged in homosexual relationships. Consequently, Lawrence
precludes government interference or regulation of intimate
sexual practices or conduct with respect to homosexual as well as
heterosexual adults. Such intimate practices or conduct are not
at issue in the instant case or prohibited by HRS $ 712-1200, the
prostitution statute. Laurence, then, is not federal precedent
for the proposition that “private sexual activity” “associated
470 v8 ae TREE bad,
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[with a] monetary component," “abridged” the “right to privacy”
‘as the dissent argues. Dissenting opinion at
Ix.
As to the dissent’s second position, in our view
Lawrence ae construed above does not vitiate the holding in
Mueller. In Mueller, the defendant wi
in, or agree[ing] to engage in, sexual conduct with anoth
charged with “engag[ing]
person, in return for a fee, in violation of [HRS §) 712-1200(,1"
66 Haw. at 618, 671 P.2d at 1354, as Defendant was so charged in
the instant case. Somewhat similarly the question posed there
was “whether the proscriptions of (HRS) § 712-1200 may be applied
to an act of sex for a fee that took place in a private
apartment.” Id. at 619-20, 671 P.2d at 1354. In affirming the
conviction, this court said that “we are not convinced a decision
to engage in sex for hire is a fundamental right in our schene of
ordered liberty, . . . [therefore] ve affirm [the defendant’ s]
conviction.” Id. at 618, 671 P.2d at 1353-54.
Unlike in the instant case, in Mueller “the activity in
question took place in [defendant's] apartment, the participants
were willing adults, and there were ‘no sians o ‘*
66 Haw. at 618-19, 671 P.2d at 1354 (emphasis added). Despite
the dissent’s assertion “that the charged transaction,” dissent
at 22, was “wholly private,” ida, it is arguable in this case
that “public solicitation” was implicated, inasmuch as contact
with Defendant was made by way of a newspaper ad soliciting
members of the public and the assignation took place in a hotel
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as opposed to “the privacy of her own hone.” Mueller, 66 Haw. at
618, 671 P.2d at 1354,
x.
As to the right of privacy in article I, section 6 of
the Hawai"l Constitution, the Mueller majority noted that (1) “a
party challenging the statute has the burden of showing
unconstitutionality beyond a reasonable doubt (,]" ida at 627, 671
P.2d at 1958 (internal quotation marks and citations omitted),
(2) “only personal rights that can be dened fundanental or
implicit in the concept of ordered liberty are included in this
guarantee of personal privacyl,]” id, at 628, 671 P.2d at 1359
(internal quotation marks and citations omitted), and (3) {t]he
defendant has directed us to nothing suggesting @ decision to
engage in sex for hire at hone should be considered basic to
ordered Liberty[,]" ida
Mueller is precedent. “Precedent is an adjudged case
or decision of # court, considered as furnishing an example of
authority for en identical or similar case afterwards arising or
a similar question of law{] . . . and operates as @ principle of
self-restraint . . , with respect to the overruling of prior
decisions.” State v, Garcia, 96 Hawai'i 200, 205, 29 P.3d 919,
924 (2001) (brackets, internal quotation marks, and citations
omitted) (ellipses points in original). In this regard, “(t)he
policy of courts to stand by precedent and not to disturb settled
points is referred to as the doctrine of stare deciais(.J" Id.
(brackets, internal quotation marks, and citation omitted) .
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While not having ike “force . . . in the context of
constitutional interpretation,” 4d. at 206, 29 P.3d at 925,
“(t]he benefit of stare decisis is that it furnishes a clear
guide for the conduct of individuals, to enable them to plan
their affairs with assurance against untoward surprise;
eliminates the need to relitigate every relevant proposition in
every case; and maintains public faith in the judiciary 2s a
at 205-06, 29
source of impersonal and reasoned judgments[,]” id.
P.3d at 924-25 (brackets, internal quotation marks, citations,
and ellipses points omitted) .
Consequently, “a court should not depart from the
doctrine of stare decisis without some compelling justification.”
Id, at 206, 29 P.3d at 925 (internal quotation marks, citations
and emphasis omitted). “[WJhen the court reexamines a prior
holding, [then,] its judgment is customarily informed by a series
of prudential and pragmatic considerations designed to test the
consistency of overruling a prior decision with the ideal of the
rule of law, and to gauge the respective costs of reaffirming and
overruling @ prior case.” Id, (internal quotation marks,
citation, and brackets omitted).
There is no denying that “*[wjhile the outer limits of
this aspect of privacy have not been marked by the Court [or this
court), it is clear that among the decisions that an individual
may make without unjustified government interference are personal
jecisions relating to marriage . . . , procreation. .
contraception . . . , family relationships . . . , and child
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rearing and education(,]'" Mueller, 66 Haw. at 627, 671 P.2d at
1359 (quoting Carev v, Population Servs, Int'l, 431 U.S. 678,
684-85 (1977) (other citations omitted) (some internal quotation
marks omitted), and now qualified intimate sexual conduct between
or among consenting adult.
The right to privacy has been expanded by the Court in
discrete situations. See, e.a., Kyllo v. United States, $33 U.S.
27, 34, 40 (2001) (concluding that the government’s use of a
thermal imaging device from a public street to detect relative
amounts of heat within a private home, which would have been
previously unknowable without physical intrusion, constitutes “a
search” within the meaning of the Fourth Amendment, and is
presumptively unreasonable without a warrant, in order to
“assure(] preservation of that degree of privacy against
government that existed when the Fourth Amendment was adopted”);
Rog _v. Wade, 410 U.S. 113, 154 (1973) (concluding that “the right
of personal privacy includes the abortion decision, but that this
right is not unqualified and must be considered against important
state interests in regulation”); Stanley, 394 U.S. at 568
(holding that “the First and Fourteenth Amendments prohibit
making mere private possession of obscene material a crime”
because although “the States retain broad power to regulate
obscenity; that power simply does not extend to mere possession
by the individual in the privacy of his [or her] own home");
Griswold v, Connecticut, 381 U.S. 479, 485-86 (1965) (holding
that a law which forbade the use of contraceptives
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unconstitutionelly interfered with the “notions of privacy
surrounding the marriage relationship").
This court has also extended privacy rights under our
own constitution. See, e.g. State v, Cuntapay, 104 Hawai'i 109,
120, 85 F.3d 634, 635 (2004) (holding that “under Article 1,
section 7 of the Hawas't Constitution, a guest of a honedveller
is entitled to a right of privacy while in his or her host's
home” (footnote omitted) ); State v. Detrov, 102 Hawai'{ 13, 20-
22, 72 P.3d 485, 492-94 (2003) (holding that Kvllo, $33 U.S. 27,
was dispositive of the defendant's federal constitutional claim
and, additionally, that the use of a thermal imager to measure
heat emanating from the interior of the defendant's apartment
violated article I, section 7 of the Hawai'i Constitution because
“[4]t nas long been recognized in Hawai'i that generally, a
person ‘has an actual, subjective, expectation of privacy in his
or her hone’ (quoting State v. Lopez, 78 Hawai'i 433, 442, 096
P.2d 897, 898 (1995); State v. Bonnell, 75 Haw. 124, 146, 856
P.2d 1265, 1277 (1993) (holding that “the defendants had an
objectively ‘reasonable privacy expectation that [they] would not
be videotaped by government agents’ in the employee break room”
(quoting United States v. Taketa, 923 F.2d 665, 677 (Sth Cir.
1991))+ Kam, 69 Haw. at 496, 748 P.2d at 380 (declaring » statute
that prohibited the promotion of pornographic adult magazines
unconstitutional under article I, section 6 of the Hawai'i
Constitution “as applied to the sale of pornographic materials to
26
‘++FOR PUBLICATION ON WEST'S HANAI'T REPORTS AND PACIFIC REPORTERS **
a person intending to use those items in the privacy of his or
her hone”).
‘Thus conduct once denominated criminal has later been
afforded constitutional protection under the privacy umbrella.
See, e.g., Kvllo, $33 U.S. at 34, 40; Roe, 410 U.S. at 1547
‘Cuntapay,
Stanley, 394 U.S. at $68; Griswold, 381 U.S. at 485-8
104 Hawai'i at 110, 85 P.3d at 635; Detrov, 102 Hawai'i at 20-22,
72 B.3d at 492-94; Bonnell, 75 Haw. at 146, 856 P.2d at 12777
Kam, 69 Haw. at 496, 748 P.2d at 380. And while such expansion
may not be without controversy, prostitution seems almost
singularly unique in historical and social condemnation.
XL.
Mueller acknowledged the resiliency of prostitution
laws as noted by the drafters of the penal code.'? This court
outer referred to
(tlhe commentary on HRE § 72-1200. . . in pertinent par
Our study of public attitude in this area revealed the
Widespread belief anong these interviewed that
prostitution should be suppressed entirely or that it
Ehould be so restricted as not to offend those menbers
of society who do not wish to consort with prostitutes
of to be atfronted by then. Making prostitution 8
Grimins! offense sz one method of controlling the
Scope of prostitution and thereby protecting those
Segments of society which are offended by its open
Sristence. this “abolitionist” approach ie not
without ite vociferous detractors. There are those
that contend chat the only honest ond workable
approach to the problen 12 to legalize prostitution
Ghd confine it to certain localities within a ives
Community. While such a proposal say exhibit
foresight end practicality, the fact renains that 2
Srae-seqment of society is not presenely wiiuing to
Recoonising this fa
‘andthe need for public order, the Code makes
Eroatitution and ite associate enterprises criminal
pitenses,.
(continves.
-27-
‘*#FOR PUBLICATION ON WEST’ S HAWAI'I REFORTS AND PACIFIC REPORTER*#*
declared that “[t]he drafters of the Hawai‘ Penal Code justitied
the enactment of HRS § 712-1200 on ‘the need for public order.’
[Thus this court) would not dispute that it was reasonable for
the legislature to act on that basis.” 66 Haw. at 628-29, 671
P.2d at 1359-60 (footnote omitted). It was recognized that “[a]
large segment of society undoubtedly regards prostitution as
Smmoral and degrading, and the self-destructive or debilitating
nature of the practice, at least for the prostitute, is often
given as 2 reason for outlawing it. [Accordingly, wle could not
deem these views irrational." Id, at 629, 671 P.2d at 1360.
4, oneinues)
66 Haw. Gt 629 n.8, 671 P.2d at 1360 n.8 (emphasis added).
“ Relatedly, there is a general consensus in the international
community that prostitution has negative consequences, The Convention for the
Suppression of the Traffic in fersen and the Exploitation of the Prestitseion
of Others states that “prostitution and the accompanying evil of the traffic
in person for the purpose of prostitution are incompatible with the dignity,
and Worth of the hunah person and endanger the welfere of the individvel, the
family and the community." Dec. 2, 1949, 96 U.N-T.8- 271. [herednatter th
Convention)
The partice to the Convention agrs
prostitution of ancther person, even with the consent
take or to encourage, through their poblic and prival
social, economic and other related
to punish any person who *(e)xploite the
that person” and “to
‘education, health,
‘The United States has agreed to “take 11 appropriate messures,
including legislation, to suppress sll forms of traffic in women and
exploitation of prostitution of wonen.” Convention on the Elimination of ALL
Forms of Discrimination against Women, Dec. 18, 1979, 1269 U.NeTeS._13, 19,
I-L.M. 39 (1960) {hereinafter the Convention on Discrimination], The
Convention on Discrimination was adopted in 1979 by the ON General Assenbly
ang as of Nov. 2006, 165 ccuntries (over 90% of the menbers of the OM) are
Parties to the Convention. several of the countries thet have ratified che
treaty are Afghanistan, Australia, Austria, Cubs, China, Germany, Issel,
Italy, Mexico, Netherlends, and the United States. gag United Netions,
Division on the Advancenent of Women,
hetp://me.un.org/wonermatch/daw/cedsu/states.htn (last visited Feb. 21,
2009) «
‘This court has cited international authority in resclving appeals.
Seg Almeida vs Correa, 51 Haw. 594, 602 0.9, 603, 465 Pr2d Sel, 510 e.9e 21)
(S70) tholaing “thst the exnibieion of 2 child to the finder of fect in 2
Paternity case is not to be permitted,” but that “expert testimony concerning
(continued.
-26-
‘s++ROR PUBLICATION ON WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER**#
XII.
It may be that non-injurious sexual conduct by
consenting adults in a private place for a fee preceded by
(veiled) public advertising may one day be drawn into the
protective shelter of Haweii’s privacy provision, as has other
conduct once thought of as illegal. But “(t]he sum of
experience,” id., as elucidated in the penal code presently,
seems to the contrary. See supra note 13; cf. Janra Enters...
ne. v. Ci ) 107 Hawai'i 314, 322, 113 P.3d
190, 198 (2005) (holding that “viewing adult material in an
enclosed pancran booth on commercial premises is not protected by
the fundamental right of privacy enshrined in article I, section
6 of the Hawai'i Constitution”). Hence, “prudential and
pragmatic considerations” do not compel a departure from the
doctrine of stare decisis, Garcia, 96 Hawai'i at 206, 29 P.3d at
928, so as to justify overruling Mueller, much less based on the
Court's present express holding in Lawrence.
Of course the legislature may alter the law to allow
non-injurious sexual contact by consenting adults in a private
(.--continued)
the resenblance of an child to the person alleged to be the father is
Admissible to prove or disprove the paternity ef the child” and relying on a
United Nations Edvestional, Scientifse snd Cultural Organization (UNESCO)
‘document for the proposition that "individuals belonging to different major
‘groups of mankind are distinguishable by virtue of their physical characters,
But individual wenbers, or small groups, belonging to different races within
the sane major group ave Usually fot so distinguishable’ (quoting Statement
fon the lature of Race snd Race Difference by Physicel Anthropologists and
Geneticists, Sept. 1982 (UNESCO) quoted in A. Montagu, Wan" s Host Dangerous
Muth the Pudacy of Race 368 (ath ea. 2964))).
-29-
'FOR PUBLICATION ON WEST’ S HAWAI'I REFORTS AND PACIFIC REPORTEI
place for a fee, conduct that is presently proscribed by HRS
$ 712-1200(1). For,
(als a general rule, the role of the court in supervising
the activity of the’ leatelsture is confined to seeing that
tthe actions of the legislature do not violate any
We will not interfere with the
Conduct of legislative affairs in absence of
Constitutions! mandate to do go, oF unless the procedure or
Fesult constitutes a deprivation of constitutionally
Guaranteed rights
Schwab v. Arivoshi, 58 Haw. 25, 37, 564 P.2d 135, 143 (197)
(citations omitted). We only decide that the considerations
before us do not compel the legal conclusion that, on
constitutional grounds, HRS § 712-1200 must be ruled invalid.
XIII.
Based on the foregoing, the court’s August 26, 2003
Gor—
WiLlfam A Harrison Rancta Orca aes
(Harrison & Matsuoka)
City « county of Honolulu, Gort, Desig br:
for plaintiff-appellee.
judgment is affirmed.
on the brief:
=30-
|
ce6c14b3-9764-4ed6-91c3-296c9fb2d417 | State v. Nishihara | hawaii | Hawaii Supreme Court | No. 27837
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
STATE OF HAWAI'I, Respondent-Appellee,
TODD NISHIHARA, Petitioner-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 05-1-0709)
(By: Nakayama, J., for the court
and Acoba, J., dissenting)
Petitioner-Appellant’s application for writ of
certiorari filed on January 2, 2007, is hereby rejected.
DATED:
Honolulu, Hawai'i, February 16, 2007.
FOR THE COURT:
Psacua COT ace Or
Associate Justice
Jonathan Burge for
petitioner-appeliant
on the application
aaw
jeez ng 94 eal
‘considered by
Moon, C.2.) levingon, Nakayama, Acobs, and Duffy, JJ.
|
57a5871e-0a70-4e4d-9759-eb2711ab4c6f | Kim v. Pacific Guardian Center | hawaii | Hawaii Supreme Court | LAW LIBRARY
Wo. 27430
o3ns
g
=
3
=
&
TOK CHA KIM, TOK CHA INVESTMENTS, INC. i
Petitioners/Plaintiffs-Appellents 3
PACIFIC GUARDIAN CENTER, MEIJISEIMEI REALTY (USA) INC.,
BISHOP STREET ASSOCIATES LUC., Respondents/Defendant s-Appellees
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. NO. 04-1-0052)
TING WRIT OF
(By: Duffy, J., for the court’)
Petitioners/Plaintiffs-Appellants Tok Cha
Kim and Tok Cha Investments, Inc.'s application for a writ of
certiorari, filed on December 20, 2006, is hereby rejected.
Honolulu, Hawai'i, January 29, 2007.
DATED:
FOR THE COURT:
Yarn €. Dabigithy
Associate Justice
R. Patrick Jaress and
Robert K. Matsumoto
for petitioners/plaintiffs~
appellants on the application
and Duffy, 2J., and Circuit
C.J. Levinson, Nakayens
court: Moon,
‘in place of Aeebay Ju, recused
Sadge Lee,
|
b894a67b-7f20-4313-810c-a2e419190bcf | Tierney v. District Court of the Fifth Circuit | hawaii | Hawaii Supreme Court |
gl
no. 28374 -
ix
10 THE SUPREME couRT oF THe stare oF wawaxE
Bie oN =
oF
ea
MICHAEL C. TIERNEY, Petitioner, 2 6
vs. 3
DISTRICT COURT OF THE FIFTH CIRCUIT, Respondent.
ORIGINAL, PROCEEDING
0504068K, COSO40E8K)
(CASE NOS. 00504068K, A0504068K,
JI, and
(By: Levinson, Nakayama, Acoba, and Duffy,
in place
Intermediate Court of Appeals Judge Watanabe,
of Intermediate Court of Appeals Judge Nakamura,
previously assigned in place of Moon, C.J., recused)
upon consideration of petitioner Michael Tierney’s
“petition for writ of habeas corpus,” which is deemed a petition
for writ of mandamus and the papers in support, it appears that
the district court correctly instructed petitioner to seek relief
through petitioner's counsel of record and petitioner makes no
assertion that his counsel of record has refused or ignored
Therefore, petitioner is not
See Kema_v. Gaddis, 91 Hawai'i
(A weit of mandamus is
petitioner’s request for relief.
entitled to a writ of mandamus.
200, 204-205, 982 P.2d 334, 338-339 (1999)
an extraordinary remedy that will not issue unless the petitioner
demonstrates a clear and indisputable right to relief and a lack
of alternative means to redress adequately the alleged wrong or
obtain the requested action.). Accordingly,
IT IS HEREBY ORDERED that the petition for a writ of
mandamus is denied. The denial is without prejudice to seeking
relief from the district court through counsel of record.
DATED: Honolulu, Hawai'i, February 20, 2007.
Michael C. Tierney, pro se
on the petition
|
8d4d4c92-dde6-40a1-a829-2aa1b1f0109d | Wailuku Agribusiness Co., Inc. v. Ah Sam. ICA Opinion, filed 08/01/2006 [pdf], 112 Haw. 241. S.Ct. Order Accepting Application for Writ of Certiorari, filed 01/16/2007 [pdf], 113 Haw. 153. S.Ct. Order of Amendment, filed 04/12/2007 [pdf]. S.Ct. Order Denying Motion for Reconsideration, filed 04/19/2007 [pdf], 114 Haw. 55. | hawaii | Hawaii Supreme Court | FOR PUBLICATION IN WEST’ § HAMAI'T REPORTS AND PACIFIC REPORTER*#*
IN THE SUPREME COURT OF THE STATE OF HAWAT'L
00"
cana
WAILUKU AGRIBUSINESS CO., INC.,
Respondent /Plaintiff-Appellee
HARVEY AH SAM, PATRICK AK SAM, FREDERICK K. BAILEY, JR.,
KENNETH D. KAHCOHANOKANO, RICHERT M. KAMAIOPILT, SUSAN K.
KOEHLER, MAEBELLE M. LIBRANOO, TRADAY U. BAILEY, PATRICK E.K,
BAILEY, PETER L. BAILEY, ROBERT ALLEN BELL, PATRICK K.T. CHU,
ROCHELLE J. GARDANTER, CHARLES KAULUWEHI MAXWELL, SR., JUDITH L.
NAGAMINE, JACQUELINE KUAHINE AMINA RAPOZA, JANICE L. REVELLS,
CLOVIS GYETVAI, ELIZABETH KEALA HAN, GLENN F. KAHOOHANOHANO,
HELENE R. SARONTTMAN, HANNAH E.H. SOUZA, LILLIE LANI BAILEY
MUNDON, CHARLES E. ST. GERMAIN and WAYNE CHUN,
Petitioners/Defendants-Appellants
and
KALAPUNA (k) and his wife, KEKUI (w), KAHOLOLIO (w),
also known as HOLOLIO HENNESSEE (w), HEIRS OR ASSIGNS,
CAROLINE K. GROWN, GAYLE J. SILVA, ELLEN P. PARKER,
AYIEESHYA BONNIE MAPUA MURPHY, JULY SIMEONA, ‘CAROL A.K.
GAYLORD, PEARL LEINOMI KAMAIOPILT, CHARLES PILA,
EDAARD K. AMINA, JOYCE L. ACIDERA, JADE V. MIYAMOTO,
HARMON AH SAM, JOAN L. POWELL, PAMELA ROE, BENEDETTA L.
DAVIDSON, FREDNA YIM COBE-ADANS, MABEL E.H. GRIFFIN,
HERBERT HALUAU SR., SHIRLEY MAILE ‘BELL, BONNIE A. MEYERS,
AND ALL WHOM IT MAY CONCERN, Defendants
No. 25930
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. NO, 02-1-0071(3))
MARCH 30, 2007
MOON, C.J., LEVINSON, NAKAYAMA, ACOBR, AND DUFFY, JJ.
FOR PUBLICATION IN WEST'S HAKAI'T REPORTS AND PACIFIC REPORTERS+#
OPINION OF THE COURT BY ACOBAL J.
Petiticners/Defendants-Appellants (Petitioners)* filed
an application for writ of certiorari* on December &, 2006,
requesting that this court review the published opinion of the
Intermediate Court of Appeals (the ICA),” affirming the March 7,
2003 and April 28, 2003 grants of summary judgment and the
June 2, 2003 final judgment by the second circuit court (the
court)‘ in favor of Respondent/Plaintiff-Appellee Wailuku
Agribusiness Co., Inc. (Wailuku or Respondent) on its quiet title
action. See Wailuku Agribusiness Co, v. Bh Sam, 112 Hawai'i 241,
260, 145 P.3d 784, 803 (App. 2006). Wailuku filed a memorandum
in opposition to the application.
+ Fetiticners are Harvey Ah Sam, Patrick Ah San, Frederick K.
Bailey, Je., Kenneth D. Kahcchanchanc, Richert #, Konalopiis, susan
Koehler, Macbelie N. Librando, Iraday U. Bailey, Patrick E-K. Bailey, Peter 1,
Bailey, ‘Robert Allen Gell, Fatrick K.T. Chu, Rochelle J. Gardanier, Charles
ulowehi Maxwell, sr., Jugith lL. Nagamine, Jacqueline Kuahine Aina Rapoza,
nice L. Revelle, Clovis Gyetvai, Elizabeth Keala Hen, Glenn F.
Kahcehanchano, Helene R, Saronitnen, Mannah En, Soura, Lillie
Minden, Charlee E. St. Germain, and’ Wayne Chun.
Pursuant to Hawas"t Reviced Statutes (HRS) § 602-59 (Supp. 2006) &
party may appesl the decision of the antermedsate appeliace court (tne Ich)
baly ey an application to this court fora writ of certiorari. See HRS 8 602~
59(a).. In detersining whether to accept or reject the application for writ of
Certicrari, this court reviews the ICh decision fer
(1) Grave errors of Jaw or of facts or
(2) Gheious Inconsistencies in the decision of the (ZCK)
with that of the suprene court, federal decisions, or
Tee" oun decteson,
and the nagnitode of such errore or inconsistencies
dictating the need for further appeal.
HRS § €02-59(b). The grant oF denial of a petition for certiorari ss
Giecretionary with thie court: Ser HRS § 602-59(8)
fon was authored by Fresiding Judge Corinne K.A. Watansbe
2 the op:
He Rakamure
and wae Joined by Associate Judgee Daniel R. Foley and Cr:
‘the Honcrable Joseph £. Cardoza presided.
‘+4F0R PUBLICATION IN MEST'S HAWAI'T REPORTS AND PACIFIC REPORTER®'
We hold that (1) the ICA gravely erred in its
determination that sunmary judgment was proper as to Apane 1 of
the subject property because, viewed in a light most favorable to
Petitioners, there are genuine issues of material fact as to
whether a cotenancy exists among Petitioners and Wailuku and, if
a cotenancy does exist, whether Wailuku acted in good faith
towards its cotenants, City & County of Honolulu v. Bennett, 57
Haw. 195, 852 P.2d 1360 (1976); (2) the ICA did not gravely err
in determining that no genuine issues of material fact exist as
to Mailuku's adverse possession of Apana 3; and (3) the ICA did
not gravely err in admitting and relying on the affidavits of
Chuck Cando (Dando), Clayton Suzuki (Suzuki), and Avery Chumbley
(Chumbley)
1
‘The following matters are taken from the submissions of
the parties, some verbatim, and from the record.
This ie a quiet title action filed by Wailuku
concerning two parcels of real property located in Waikepd, Maui,
Apana 1 and Apana 3 of Land Conmission Award (LCR) 8672, Royal
[collectively, subject property]. Wailuku
Patent (RP) 64
claims, among other matters, title to Apane 2 of the subject
property based, alternatively, upon paper title or adverse
possession, and title to Apana 3 of the subject property solely
through adverse possessiot
{FOR PUBLICATION IN WEST'S HAWAT'Z REPORTS AND PACIFIC REPORTER
Originally, pursuant to LCA 8672 dated Septenber 27,
3852, Kaluau (k)* (Kaluay) acquired three parcels of land in
Waikeps, Maui, Apana 1, Apana 2, and Apana 3. Apana 2 is not at
issue in this case. In 1855 or 1856, Kaluau died intestate.
There is no evidence in the record of any transactions,
conveyances, deeds, probates, or court orders transferring
cunership of Apsne 1 or Apana 3 price to Kaluau’s death. Thus,
it appears that when he died, Kaluau was still the owner of
Apanas 1, 2, and 3. Prior to his death, Kaluau did net apply for
a RP for the three parcels granted to him by the Land Conmissicn
852, Only Kalua or his legal heirs could have applied for a
RP.’ Kaluau’s survivors included his father, Kalapuna (k)
(Kalapuna), his mother, Kekiu (w) (Kekiu), his sister, Haleamau
(w), alse known as Kahaleamau (Haleamau), his sister Kahololio
(#), also known as Hololio Hennessee (Kahololic), and Kalvau-opio
(k) (Haluau-Opio), his deceased brother's son.
According to Wailuku, @ deed dated October 13, 1855
purportedly transferred Apana 1 to # John Richardson
(Richardson). The deed states that “Kalapuna, the own father of
Kaluau whe is deceased, and Piena [(k) (Piena)], his brother-in-
Herein, (i) indicates ® female nane ond stands for “wahine,” the
Hawaiian werd for woman, ané (k) indiestes 0 male name ond etands fer “ane,”
the Wowesien word for mo
joky maintains thet Kelvay
in thet he oie not aie unt)
+ tae year of oeath Se in dispute. ta:
Sieg intestate in 1855, while Petitioners mas
Tese.
Bt is unclear who applied for the, apparently poethuncusly-seeued,
RP. A copy of AP G43 de not Sneluded in the reserd cn appeel
4
{FOR PUBLICATION 10 WEST’ § RAMAI'T REPORTS AND PACIFIC REPORTERS*#
law, the heirs of Kaluau mentioned above, Puweuweu [(w)
(Puweuweu)), the wife of Plena mentioned above, sell and convey
absolutely this land descended to us from the deceased person
nentioned above.” This deed was executed by Kalapuna, Piena, and
Puweuweu.
The 1855 deed does not specifically identity the
property as Apana 1 or define the metes and bounds of the land
being conveyed. No mention is made of Apana 3, nor is the deed
executed by Kekiu, Kaluau’s nother.’ Petitioners’ translation
states that the property being conveyed was “all of that piece of
land situate at Kusiwa, Waikapy, Maui,” whereas, Wailuku’ s
rendition purports that it is conveying “the entire piece of land
situate at Kuaiwa, Waikapu, Maui.”* The deed was not recorded in
1855.18
According to the law at the tine of Kaluau's death:
If the intestate shall leave no seve, his estate shall
Geecend cre half te hie widex, and the other half te his
er ano mother ae tenanee in cenmons and if he leaves no
iden, nor esue, the whole ehall coseend to nie fether and
other, er to either of them if only ene be elive
1¢ the Gescent of Property both Real and Person, 1850 Penal
San Jelende, st 161. Thue, because Reluau died without
‘Sppeare to be the case, Nie nother ang fether would inherit his
yreguslly 22 tenants in common. See Hasluky Aorsbusiness Co., 112
148 Psd at 788 (brackets emitted)
Fetitionere quote fron 9 translation of the Richardson deed by
roneletion by Franess N. Frasier
except where noted above
bavid
(Frazier).
4s the ICA notes, the deed was not recorded until 1878.
tthe deed was signed by Kalepune, Piena, and Pouweumeu by x"
parks, witnessed by Aga Hope. (Hops) and Nelly Richardech
Telly), bot not recorded tmtsl June 10, 1878, after Nelly
personaly appeared before Hawai'i Suprene Court Justice &
fancies Dose nd acknowledges that! (2) cf Cotober 13,
identinved. .)
s*9FOR PUBLICATION IN WEST’ HAWAI'T REPORTS AND PACIFIC REFORTER*
It appears that Richardson died intestate." Fursuant
to an order filed in Probate No. 1210, the administrators of his
estate conveyed, by deed dated September 7, 1660, what Wailuku
alleges is Apana 1, to James Louzeda (Louzada)
From August through November 1873, Second Circuit Court
Probate No. 649, In Re Estate of Kaluau, wae pending.
Witnesses testified that at Keluau’s death, he was survived by
both his mother and father who were both since deceased. The
decree issued by the Second Circuit designated Kahololic,
Haleamau, and Kaluau-Opio, as Kaluau’s heirs.
On December 15, 1873, eighteen years after Kaluau's
death, RP 6463 was issued to Kaluau for LCA 8672 (Apana 1, 2, and
3). By deed dated January 7, 1875, recorded in the Bureau of
Conveyances, Haleanau, Kaluau’s sister, and Kaluau-Opio, Kaluau's
nephew, and their spouses, conveyed all of their title in LCA
8672 to Kshololio, Fetitioners are the descendants and heirs of
Kehololio, sister to Kaluau.
"(.. scont smues)
Tess, she wae léving with her brother, Richardeon, who was
ow deceased; (2) she saw Kalapuna, Plena, and Pooweuweu,
ow seceaced, place their "x" marks to the deed? and (3)
he and Hopu, she wor now deceased, signed their nanes to
the Seed af subscribing witneeces:
Heiluks korspusiness Cox, 122 Ha
The date of Richardson's desth is not clear but it apparently took
ine between 1855, when he received the deed, and 1860, ahen the
Jolt allegée ie apona 2.
SL at 245, 145 P.3e at 768
ftrators of his estate conveyed the property ii
‘The deed fron Richardson te Leuzeds se not contained in the record
on eppeel.
‘se4v0R PUBLICATION IN WEST'S HAMAT'T REPORTS AND PACIFIC REPORTER!
Petitioners argue that, as a result, as of 1875, all of
Kaluau's real property, including Apana 1 and Apana 3, belonged
to Kshololio or her heizs and assigns. Through mesne
conveyances, Wailuku acquired the property it alleges is Apana 1
fon Novenber 20, 1894
n.
a.
on February 7, 2002, Wailuku commenced its quiet title
action. Thereafter, Petitioners filed their answer. On
october 7, 2002, Wailuku filed a motion for sunmary judgment on
matters not pertinent to this petition.
on December 31, 2002, Petitioners filed a memorandum in
opposition te that sunmary judgment motion and attached 2
declaration (first declaration) from Patsy Moana Kamaleiiani,
also known as Patey M.K. Kai (Kai). Kai related that she had a
Master’ s Degree in Library Studies and a Certificate in Archives
from the University of Hawai'i at Manos. she also stated that she
“nals} conducted research into land, tax, court, genealogical,
historical, vital statistic records in order to put together a
report/history concerning [LCR] 8672, [RP} 6483, to [Kaluau),
situate at Waikepu, Maui, Hawai'l.” She recounted thet as 2
result of her investigation, she discovered that the Second
Circuit Court, Probate No. 649 declared “Kaluau’s heirs as
two sisters) and (Kaluau-Opio},
[kahololio] and [Haleamau) (
(hig nephew) since Kaluau’s parents are dead” and that “the
document refers to all three properties of LCA 8672.” She
‘s++¥0R PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTERS+#
further stated that “(iJ January 1678, (Haleamau) and (Kaluau-
opio] conveyed their interests in [Keluau’s] property to
(Kaholelio]." Finally, Kai stated that she “found no information
contained in Wailuku's records which clearly and specifically
articulates the manner in which Wailuku has acquired an interest
in Apenas 3 and 3, when such interest was acquired, from whom the
interest was acquired or other information which would support
its claim to both parcels” and claimed that additional time wes
neceseary to gain more information from Wailuku concerning its
elaine.
B.
On February 4, 2003, Wailuku filed its summary judgnent
Notion on Apana 1, In that motion, Wailuku argued that it was
vested with paper title or title by adverse possession to Apana
2, Wailuku claimed that the declarations of Katsumi Tadakuma
(Tadakuna), Kenao Nochizuki (Mochizuki), Dando, Suzuki, and
Chunbley evidence that (1) “{Wailuku) and ite predecessors
epenly, netoricusly, continuously, and exclusively used Apana 1
for sugar cane cultivation from as early as 1936 to the late
1980's, and for pineapple cultivation from the late 1980's to
1997"; and (2)"[Wailuku’s) lessee, Mavi Pineapple Company Ltd.,
has openly, notoriously, continucusly, and exclusively used Apana
1 for pineapple cultivation from 1997 te [the] present."
the articovste
ed at. (Wastuks)
£ Pando, Susubl,
or the prt 26
and Chuntley,
years and. neved a Apena 1.” He further
Geciared what he Knowledge” that "(Z]rom as early a 1974 to the
(eontinded. =)
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Petitioners thereafter filed their opposition to the
sunmary judgment motion on Apana 1. In their opposition,
Petitioners clined thet there were “genuine issues of material
fact concerning (Wailuku’s] clim to Apana 1” and that “ (Wailuku)
is not entitled to judgment as a matter of law.” Petitioners
aiso “rel(Jed) upen and incorporated) by reference . . . all
evidence and argunents previously raised and filed in opposing
ieiluku’s October 7, 2002 Summary Judgment Motion” and attached a
new declaration of Kai (second declaration) .*
In this opposition, Petitioners also included the
declaration of Taira, a Hawaiian language translator, certifying
Dp. continued)
ate 1966s Ikadlona) and ite predecessors openly, notoricusly, continuously,
snd exclusively used the land for sugar cone cultivation” and *(f]rom the late
isso" to 1987, (Wailuku) and ite predecessors openly notoriously,
iuouslyy, and exclusively eeed the lend for pineapple cultivatios
ys he stevec that “{f]¥om 1987 to [the] present, Maui Pineapple Company,
Lids, Lessee of [Mailake,| nee openly, notoriously, continuously, and
Chclusively used the land for pineapple coltsvation.” Chunbley, as president
Of Fallukuy made the zane assertions ae Cando as te the aqverse postession
Cleneate and clained “knowledge of the facts... based ch recoras end maps
Eegeraing land use.” Suzukiy who deciarea ne had’ “worked at (wailuke) for the
poet 24 years and (was) familiar with the Land seeignated as Apana 1,” also
20. Dano’ ¢ seatenent:
“tn ite decision, the ICA refers to one of Kai's declarations,
which appears to be the second declaration, and states:
The declaration ef [Kai], whe stated that che has a Master's
Degees in Library Studies and s Cersifscate in Archives from
the University of Hawaii at Nance end thet, Based on her
id other government records,
Raluso's mother’s came wae Kekiu, ‘not Mekt. Kai referred
fo number of exhibite attoened te her declaration which
fhe clained raises genuine iseues ef material fact regarding
the validity of the Deed to Richardson from which Malik
Elsined paper title te Apana 1. Koi claimed that these
Socumente Gencnstrated that the Oeed tc Richaraeon wae not
Signed by Kekiu, a2 required fer a valid paper title, and
the dead else did not describe the land being conveyed a=
pans 1 of {LCk] 6092, thut calling into questsen wnich
perce of land was actually conveyed to Richardson,
at 600,
tinese Con, 112 Hawal"l at 287, 148 P.
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to the truth and correctness of his Hawailan-to-English
translation of (a) the LCA 8672, RP 6483 grant of the subject
property to Kaluaus (b) the deed from Kalapuna and others to
Richardson, dated October 13, 1855; (c) the application by
Kehololio te the Circuit Judge of the “Second District,” seeking
to be appointed as administrator and heir to “all the estate of
[Kaluay], the deceased”; and (d) the deed from Haleanau and
Kaluau-Opio to Kahololio, granting Kahololio all of their “Joint
and individual interests in all the estate of (Kalueu) of
Waikapu, Maui,” dated January 7, 1878, recorded at the State of
Hawai'i Bureau of Conveyances at Liber 51, pages 305-306, all of
which were attached to his declaration.
on March 7, 2003, the court's order granting Wailuku's
motion for summary judgment and directing entry of final judgment
on Apana 1, was filed, In its order the court ruled that,
“{hjaving reviewed the menorands and other material submitted,
and having heard oral argument, the [clourt finds that there is
no genuine issue as to any material fact as to (Wailuku’s} title
to the land by adverse possession and concludes that (Wailuku) is
entitled to judgment as a matter of law.” (Emphasis added.)
c.
on March 19, 2003, Wailuku filed its Summary Judgment
Motion on Apana 3. Wailuku argued that it was the owner of Apana
3 by adverse possession because the testimony referred to supra
“evidences that [Wisiluku] and its predecessors openly,
notoriously, continuously, and exclusively used Apana 3 for sugar
10
FOR PUELICATION IN WEST! § HAKAZ'T REPORTS AXD PACIFIC REPORTERY+#
cane cultivation from as early as 1938 to the late 1980's, and
for pineapple cultivation from the late 1960's to 1997."*
Petitioners filed their opposition to the summary
judgment motion on Apana 3 and argued thet “(1) (Wailuku) failed
to meet its burden of proof in presenting evidence of notice to
all cotenante not in possession . . . [of its] intent to
adversely possess the subject property"; "(2) {Wailuku} has not
complied with Hawai'i law in establishing quiet title by adverse
possession, and (3) [Petitioners] have a strong interest in
controlling Apana 3.”
on April 28, 2003, the court's order granting
Respondent's sunnary judgment motion and directing entry of final
judgnent on Apana 3 was filed and stated that, “{hlaving reviewed
the memoranda and cther material submitted, and having heard oral
azgunent, the [clourt finds that there is no genuine issue as to
any material fact as to (Wailuku's) title to the land by adverse
possession and concludes (Wailuku) is entitled to judgment as a
matter of lew." (Emphasis added.) The orders granting summary
judonent regarding Apana 1 and Apana 3 were reduced to a final
Judgment on dune 2, 2003.
attached to the sunmary judgnent motion for Apsna 3 we
declarstions of Danse, Suauki, ond Chinbley. Ae with Apsna 2, Cando #imiJerly
testified that ne use equally’ familiar with Apena’2 ang thet *[f]rom a2 eefly
551994 [Wsisko) one $= predecessors cpenly, notoriously, continously, and
Geclusively usea the land for suger cane cultivation” and *[f]rom the lave
TSe0"s to 1997 (Waiiuko} and ite prececessors, openly, netericusiy,
Sontsnvouely, ane exclusively uses the land for pineapple cultivation.”
Susukd end Chuabley also affimmed Dando'e declarations as to Apans
‘*4FOR PUBLICATION IN WEST! § HAMAI'T REFORTS AND PACIFIC REPORTER*
on June 27, 2003, Defendants filed their notice of
appeal. Wailuku did net cross-appeal.
mt.
Before the ICA, Petitioners argued that (1) Wailuke
failed to establish all elements of its clain of adverse
ion as to Apana 1; (2) Wailuku failed to establish all
poss
elenents of its claim of adverse possession as to Apana 3 and
(3) Wailuku relied on inadmissible hearsay evidence in its claim
of adverse possessicn of Apana 1 and Apana 3. On August 1, 2006,
the ICA affirmed the court's grant of summary judgment as to both
Apana land Apana 3. Wailuku Agribusiness Co., 112 Hawai'i at
260, 145 P.3d at 603.
wv.
In their application Petitioners raise two questions:
1, Did the ICA er in concluding that summary
judgment was properly granted By [the court) to [Wasloks)
wath respect fo Apana J and Apana 3 of [LCA] €€72, (RP)
eeeze
2, Did the Ick incerzectiy opply the principles of
(Benneti gupeal, in concluding that’ {Watluka] was entities
toApana and Apana ® by adverse posseseion?
In its opposition motion, Wailuku does not directly respond to
the specific questions but argues that (1) “[t)he [ICA]
theroughly addressed the principles of [Bennett)"; (2) “this
appeal does not deal with any issue of first impression...
{but} deals with the elements of adverse possession, which have
been addressed cn numerous occasions by the Hawaii Supreme
Court”; and (3) “this case does not deal with any issue of public
interest.”
“s4B0R PUBLICATION TN WEST'S HAMAI'T REPORTS AND PACIFIC REPORTER'+#
Petitioners’ questions together raise the issue of
whether the court correctly granted summary judgment and the ICA
was right in affirming the court. The discussion following,
then, centers on the evidence pertaining first, to Apana 1 and
second, to Apana
v.
As to Apana 1, Petitioners contend in their application
that the ICA erred because “(1) [Wailuku failed) to establish by
clear and positive proof ali elements of its claim of adverse
possession to Apana 1” and "(2) genuine issues of material fact”
exist. They maintain (a) “[t]he initial conveyance of Apana 1
from Kalepuna, Piena and Puweuweu to [Richardson] was defective
since none of the grantore had proper right, title or interest te
convey to [Richardson,]” (b) “[a]seuming arguende that
(Richardson properly) acquired {the} iands(,) . . . (t]he (dJeed
conveying ‘all that piece of land situate in Kuaiwa, Waikapu,
Maui,’ arguably, conveyed Apane 2, and not Apana 1[,]” (c) “there
is 2 genuine issue of material fact on the issue of whether
{Wailuku} and/or [ite] predecessors in interest were aware and
knew, or in the exercise of reasonable care, should have been
aware and should have known of the presence of cotenants to Apana
2” and “[Wailuku) failed to provide credible, probative evidence
of any efforts made to notify al] cotenants net in possession of
ntent to exercise adverse possession|.]”
Emphasizing the last proposition, Petitioners, relying
on Morinove vy, Rov, 86 Hawai'i 76, 83, $47 P.2d S44, 951 (1987),
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Bennett, §7 Haw. at 209, 552 P.2d at 1390, and Petran v
Allencastre, $2 Hawai'i 545, 548, 985 P.24 1112, 1215 (app. 1999),
argue (1) “Haleamau’s and Ksluau-Opic's Deed dated January 7,
1875, recorded in the Bureau of Conveyances, State of Hawaii, at
Liber 51, pp. 305-306, which legally transferred all of their
Fight, title and interest in LCA 6672 to Kahelolie, effectively
served as notice to all of Kaholclic’s ownership interest”;
(2) “Kahololic’s heirs and descendants, as title owners of public
record to Apana 1 and 3, are and were cotenants who were entitled
to notice”; and (3) “{Wailuku] and/or its predecessors in
interest were aware and knew, or in the exercise of reasonable
care, should have been evare and should have known that Kahololio
was the owner of Apana 1 and 3."
According to Petitioners, “{Wailuku] argued that there
were no cotenants a a matter of law[,] . . . contendiing) that
‘{Waituku] and its predecessors had no reason to suspect that a
cotenancy existed.'" As Fetiticners note, Kailuku points “to the
1855 (a)eed purportedly conveying Apana i from Kalapuna, et al.,
to [Richardson] as proof because the conveyance of ‘that entire
piece of land at Kuaiwa, Waskepy, Maui’ would not have (led) it
to suspect s cotenancy."" Petitioners assert that, consequently,
“ino evidence supporting [Wailuku's} position was submitted{,
thus t)he ICA and the trial court erred{.]"
Petiticnere further maintain that, contraetingly,
“Kahclolic’s descendants, Jade Miyamoto and Wayne Chun, expressed
in declarations submitted to the [court] the absence of any
uu
FOR PUBLICATION IN WEST! HAWAI'T REPORTS AND PACIFIC REPORTER
knowledge or notice that [Wailuku] was intending to exercise
adverse possession over Apana 1” while “[Wailuku’s) claims that
pana 1 and 3 were used . . . ‘openly, notoriously, continuously,
and exclusively . . . for sugar cane cultivation’ [are based on}
statements (that) are conclusory and are not predicated upon
personal knowledge or specific factual knowledge.”
vn.
As to Apana 3, Petitioners maintain the unresolved
“(glenuine iseves of material fact . . . (are) (1) whether
Petitioners are cotenants of Apana 3; (2) whether [Wailuku] acted
in good faith by notifying Petitioners of its claim of adverse
} and (3) whether [Wailuku] met all
possession to Apana
requirements of proving title through adverse possession.”
According to Petitioners, (a) “{Wailuku's) claim to Apana 3
parently derives from its taking of land in close proximity to
other lands possessed by it without regard to ownership or
title(,]" (b) “la] simple title search of the Bureau of
Conveyances would have yielded information concerning the
ownership by the heirs of Kahololio[,]* (c}) “{Petitioners} have
previously contended that Apana 3 contains the burials of their
ancestors(,] - . . (but Wailuku's] alteration of Apana 3 after
the litigation commenced caused the removal and destruction of
identifying characteristics . . . in the determination of burial
sites{,)" and (6) “{Wailuku) relied upon declarations of
(Tadekuna], (Mechizuki], (Dando, Suzuki, and Chumbley] which
contain conclusory statements . . . [barred by Hawai'i Rules of
4s
{s*4F0R PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REPORTERS+*
Evidence (HRE)] Rule 602 . . . [and] exhibits . . . not
admissible because of the lack of proper foundation and
authentication and noncompliance with (Hawai'i Rules of Civil
Procedure (HRCP)] Rule S€(e)." (Capitalization omitted.)
vir
On appeal, the ICA was required to follow the rule that
“Iain award of sunnary judgment is reviewed de novo under the
sane standard applied by [the court).” french v. Pizza Hut
Ince, 105 Hawai'i 462, 466, 99 P.3d 1046, 1050 (2004) (citing
Amfac, Inc. v. Waikiki Beachcomber Inv, Co., 74 Haw. 85, 106, 839
P.2d 10, 22 (1992) (citations omitted)). “summary judgment is
appropriate if the pleadings, depositions, answers te
interrogatories, and adnissions on file, together with the
affidavits, if any, show that there is no genuine issue of
material fact and the moving party ie entitled tos judgment as a
matter of law.” sev st og indus.
16, 147 P.3d 785, 800 (2006) (quoting
Relations, 113 Hawai'i
Amfac, Inc., 74 Haw. at 104, 639 P.2d at 22 (internal quotation
marks and citation omitted)). "*A fact is material if proof of
that fact would have the effect of establishing or refuting one
of the essential elements of a cause of action or defense
asserted by the parties.'" Morinoue, 86 Hawai'i at 60, 947 P.2d
at 948 (quoting Hulemen v. Henmeter Dev, Corp., 65 Haw. 58, 61,
647 P.2d 723, 716 (1982)). In @ motion for eunmary judgment,
“fa}il evidence and inferences must be viewed in the light most
favorable to the non-moving party." Erench, 105 Hawai'i at 466,
16
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99 P.3d at 1050 (citing Maguire v, Hilton Hotels Comp, 79 Hawai'i
110, 112, 899 P.24 393, 395 (1995))
vant.
At the outset, Petitioners contend that the
declarations of Tadakuma, Mochizuki, Dando, Suzuki, and Chumbley,
relied on by the ICA to determine adverse possession of both
Apana 1 and Apana 3, were barred by HRE Rule 602" because they
were “unsupported by any specific information establishing their
personal knowledge of the statements made.” They further
maintain that the exhibits were inadmissible because they did not
comply with HRCP Rule S6(e). As to the declarations, the ICA
held that the declarations of “Tadakuma and Mochizuki . . . were
inadmissible under . . . HRCP Rule $6(e).” Wailuku Agribusiness
Cou, 112 Hawai"s at 255, 145 P.3d at 798.
Regarding the declarations of Dando and Suzuki, the ICA
indicated that “the declarations were made on perscnal knowledge,
[as] evidenced by the statements that Dando and Suzuki were
employees of [Wailuku] for twenty-eight and twenty-four years,
respectively, and were ‘familiar with the land designated as
‘" and “stated, based on their personal knowledge, that
Apana 1,
Apana 1 was used for sugar cane and pineapple cultivation . . .
g] the [relevant] periods[.)" Id. As to Chunbley
idur
Geclaration that he is “the President of [Wailuku], [and has)
knowledge of the facts stated [therein based on records and maps
Howai't Rule of Evidence (HRE) Rule #02 provides that “[hlesreay
is not acnissitle except ae provided by these roles, or by other rules
preteribed by the Hawel's tuprene court, or by stetute.”
7
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regarding land use,” the TCR, citing Stallard v, Consol. Maus
Inc., 103 Hawai'i 468, 476, 63 F.36 731, 739 (2004), stated that
“facts set forth in an affidavit . . . based on personal
knowledge may be reaconably inferred from the position and nature
of the affiant.” Wailviy Aeribusiness Co., 112 Hawai'i at 256,
1a5 P34 at 799.”
The ICA also indicated that the declaration of Colleen
H, Uahinet (Uahinui) did not satisfy HRCP Rule 56(e) because
“Uahinui did not attach sworn or certified copies of the
docunents she relied on to establish the facts set forth in her
declaration, . . . except{) [for] . . . Frazier’s
translation of the deed from Kalapuna, Piena, and Puuweuweu to
Richardson, which Frazier attested was translated ‘truly and
correctly... .1" Id. A review of the affidavits
ates the ICA’s conclusions. It dees not appear that for
substan
ely erred in
the reasons given in its opinion, the ICA g
affirming adniesion of these documents.
1.
In order to establish title to real property by adverse
possession, 2 claimant “‘mst bear the burden of proving by clear
and positive proof each elenent of actual, open, notorious,
hostile, continuous[,] and exclusive possession for the statutory
» _h copy ef all the exnibite consisting cf map of Apene 1, 2 lease
ef Jang, ang seria photor of D'ana'of an arrigation layout ef Agana 1y
sere attached to Caumbiey"® affiderit, and ey vireue ef hit knowledge oe
President of the company, the exhibite wovle eppesr te be properly
aothentseates.
18
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period." Petran, 91 Hawai'i at $$6-$7, 985 P.2d at 1123-24
(quoting Lad, 58 Haw. at 368-69, S69 P.2d at 387 (brackets
omitted)). Actual, open, and notorious possession is established
where @ claimant shows “‘use of the land to such an extent and in
such a manner as to put the world on notice’ by means ‘so
notoricus as to attract the attention of every adverse
claimant.’ Morinove, 86 Hawai'i at 62, 947 P.2d at 950 (quoting
Cheek v. Wainwright, 269 S.£.2d 443, 445 (Ga. 1980). “The
element of hostility is satisfied by showing possession for
oneself under a claim of right[,]” and “[s]uch possession must
import a denial of the owner’s title.” Petran, 91 Hawai'i at 557,
985 P.20 at 1124 (quoting Okuna v. Nakahuna, 60 Haw. 650, 656,
594 P.2d 128, 132 (1979)}. Continuity and exclusivity of
possession require that the “adverse possessor’s use of a
disputed area . . . rise to that level which would characterize
an average owner’s use of similar property.” Id. (quoting
Tenala, Lid. v. Fowler, $21 P.2d 1114, 1119 (Alaska 1996).
As the ICA noted, “(t]he declarations of Dando, Suzuki,
and Chunbley . . . set forth facts that establish the open,
ssion elements for establishing
notorious, and continuous po:
% Between 1698 and 1973, the statutory pericd for establishing titie
te real property by posceteion was ten yesre, Meringue, 66 Hawai'i at
Fi cg, BAT B24 ot S4o m6 felting Lai vs Kakahike, 56 Haws 362, 67 net, 565
P.2g shz, 386\n.4 (1977) (citing 1698 Haw Seee- 1. Act 18)). Although the
xtendes to twenty yeare in 1373, thie change cid net affect
Selonte that hag already matures” prior to that cate. 1d (citing HRS § 669"
1°1578)7 1973 How. Sees. L. Act. 26, 8 € a 32). Therefore, te have
2 prina facie cece ef adverse postessicn for pana 1, waliuka
required £0 show that the sienente cf sdverse persereion hed been sstisiied
fer elther a ten-year period between 2595 {when it alleged st began te use
pana 1 for sugar cane cultivation) and 1973, or for a twenty-year period on 2
Chess Brought sfter 1973, wasiues alleges more than $0 years of continuous
Gee of Apana 1, thue it appears to satisfy elther statutery period.
1s
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title by adverse possession.” Wailuku Agribusiness Co,, 112
Hawai'i at 256, 145 P.3d at 798, Specifically, Wailuku and its
predecessors openly, notoriously, continuously, and exclusively
used Apana 1 for sugar cane cultivation from as early as 1935 to
the late 1980's, and for pineapple cultivation from the late
1980's to 1997. Further, Wailuku's lessee, Maus Pinespple
Company Ltd., has openly, notoriously, continuously, and
exclusively used Apana 1 for pineapple cultivation from 1997 to
the present.
The declarations set forth above do not specifically
allege thet Wailuku's claim was hostile. However, as the ICA
noted, where all the other elenents of adverse possession have
been met, there is generally a presumption of hostility.
ier, and such possession Ts onexpiaitied,
Gitner by showing that it wes under a lease fren cr sther
Gontract with or otherwise by permission ef the true owner,
Ed. at 252, 145 P.3d at 795 (quoting Eioneer Mil] Co, utd. y,
Dow, 90 Hawai'i 289, 299, 978 P.2d 727, 737 (1999) (citation
omitted) (emphases added)). “Thus, if the presumption of
hostility remains unrebutted by the nonnovant, the presumption of
hostility would satisfy the movant’s burden of proving the
elenent of hostility.” Eioneer Mill Co., 90 Hawai"i at 299, 978
P.2d at 737 (citations omitted).
The ICK, applying the latter presumption, concluded
that because a prima facie case of the other elements of adverse
possession was shown, the elenent of hostility was met. Thus
20
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based on the declarations, the ICA concluded that adverse
possession was proven:
[Although the (1855) deed {to Richardson], on its face, did
enticn (Alpane 1 or define the metes and
of the ignd being conveyed, the declarations of
Dando, Surukt, and Chonbley that Wailoke or ite
predecessors, under color of the 1655 deed, had been using
Kesna 1 for agricultural purposes for the statutory period
peevide evidence ef hailutu's hostile and exclusive
possession of Apene 1
fiasluku Acribusiness Co., 112 Hawai'i at 286-57, 145 P.3d at 799-
800. However, as this court has noted, where a cotenancy exists
there is a “special burden in proving hostile possession” that
requires the cotenants making a claim of adverse possession “to
show that they had acted in good faith in relation to their
cotenants.” Morinoue, 86 Hawai'i at 82, 947 P.2d at 950 (citing
Bennett, 57 Haw. at 209, 552 F.2d at 1390).
Betran noted that in Bennett, this court concluded that
“a tenant in common shares a general fiduciary relationship with
his cotenants{.]” 91 Hawai" at $54, 985 P.2d at 1121 (quoting
Haw at 208, $52 P.2d at 1390) (emphasis in
Bennett,
original]). Because cf this fiduciary relaticnship, "a tenant in
commen claiming adverse possession must prove that he or she
acted in good faith towards the cotenants during the statutory
period.” Id. (brackets and citation omitted). The requirement
of good faith will, in most cases, “mandate that the tenant
adversely must .
heor she is claiming against them.” Id. (quoting Eennett, $7
Haw. at 208, 552 P,2d at 1390) (brackets and citation omitted)
(emphasis in original). But, in certain exceptional
2a
{S*4FOR PUBLICATION IN WEST’ S HAWAI'I REFORTS AND PACIFIC REPORTER:
circumstances the good faith requirement may be satisfied with
less than actual notice:
Bates a good faith reasonable effort to notify the cotenants
Dut is unable to locate then; or where the actual knowledge
that the tenants out of possession already have actual
knowledge that the tenant in possession 1s cla
adversely t0 their interests
Id, at 554-55, 985 P.2d at 1121-22 (citation omitted) (enphasi
in original). “In these Limited circumstances, the notice
requirement will be satisfied by constructive notice and ‘ope:
and notorious possession.’ Id. at $58, 985 P.2d at 1122
(citation omitted). Accordingly, if Petitioners are cotenants
with Wailuku in Apana 1, Wailuku was requized, in proving hostile
possession, “to show that (st) had acted in good faith in
relation to [its] cotenants." Morinoue, 86 Hawai'i at 63, 9¢
P.2d at 950 (citing Bennett, $7 Haw. at 209, 562 P.2d at 1390)
Additionally, according te Betzan, “(ujnder Bennett,
finding of bad faith’ may be inferred from evidence that the
‘cotenant in possession . . . ought to have known chat there
euisted a cotenancy.'’” Petran, 91 Hawai'i at 956, 985 P.2d at
1123 (quoting Bennett, 57 Haw. at 211, 552 F.2d at 1391)
(ellipses and enphasis in original). In that regard, “publicly
recorded conveyances evidencing the existence of cotenancy in
land may render a cotenant’s belief that he or she had no reason
to suspect the cotenancy’s existence not objectively reasoneble
under the rule set forth in (Bennett, supra].” Id, ot 548, 98
F.2d at 1125. Thus, the burden is on Wailuku “affirmatively to
‘adduce evidence that there was ‘no reason to suspect that a
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‘++¥0R PUBLICATION IN WEST'S HAWAI'E REPORTS AND PACIFIC REPORTER*+*
cotenancy exist{ed].‘” Morinove, 86 Hawai'i at 83, 947 P.2d at
951 (citation omitted).
x
aA
Based on the record, genuine issues of material fact
remain as to whether Wailuku acted in good faith towards its
purported cotenants in Apana 1. The court apparently rejected
Wailuku’s paper title argument and made its ruling based solely
on the adverse possession claim. Wailuku did not cross-appeal on
the paper title issue." However, in its motion for sunmary
judgment, Wailuku argued that it had both paper title and title
by adverse possession to Apana 1. Specifically, Wailuku argued
vapana 1 wae granted in 1852 to Kaluau, who died intestate
survived by his mother, [Kekiv] and father(, Kalapuna)." Tt
contended thet Kekiu predeceased Kalapuna and in 1855, Kalapuna
“conveyed ‘that entire piece of land at Kuaiwa, Waikapu, Maui’ to
[Richardson], after which title vested by mesne conveyances in
[Wailukw)." Wailuku assumed for purposes of summary judgment
“chat if Kaluau’s property descended to his mother, [Kekiu) and
father, [Kelapuna), equally, and if (Kekiul did not convey during
Ste dtecuesion of Apana 2, the ICA noted that the court's
aeeunption that paper title did not exist wae not attacked on appeal
the court) essumed that eiloky aid not have valid paper
Since thir assumption hae not been
, our examination focuses on whether
Hailulo eetablisned the matersal fects necessary to
eetablieh the essential elements of ite adverse possession
Glin to (Alpena 1 for which Kailuks sought sumeary Sudguent
fn ite favor
Waiivks Aeribusiness Cou, 152 Hawai's at
MMS Fad at 798.
{S#4F0R FUBLICATION IN WEST'S HAKAI'T REFORTS AND PACIFIC REPORTERS+®
Life, then title co her 1/2 interest descended equally to her
¢ from whom [Petitsoner:
m (Kal er husband’ e 1855 convevan:
Juhu! decessor w 2
interest.” (Emphasis added.) The foregoing indicates it is
Wailuku's contention that, even assuming Wailuku and/or its
predecessors were cotenants with the heirs of Kaluav’s mother,
summary judgment should nevertheless be granted. However,
assuming a cotenancy existed, it was incumbent upon Wailuku to
prove it acted in good faith towards cotenants upon claiming
adverse possession.
8
Moreover, the 1875 conveyance of Apana 1 by way of the
deed from Haleamau and Keluau-Cpic and their spouses to Kahololio
was filed in the Bureau of Conveyances. Thus, the interest of
Kahololio and her descendants in the subject property was
seeningly @ matter of public record when Wailuku and ite
predecessors clained adversely beginning from 1935 to the late
1980" through sugar cane cultivation, and from the late 1980's
to 1997 for pineapple production. That fact would weigh against
4 finding that Wailuku’e belief in the non-existence of a
cotenancy was objectively reasonable. See Bennett, $7 Haw. at
210, $52 P.26 at 138i (stating that “the standard of good faith
includes an objective requirement of reasonableness”). The
recording of deeds ensures that the public, including Wailuku,
would be afforded notice of the property interests detailed in
‘s++F0R PUBLICATION IN WEST’ § HAWAI'T REPORTS AND PACIFIC REPORTER*#*
the deeds and of potential claims to the property. Deeds serve
as notice “*to those who are bound to search the record.’”
Petran, $1 Hawai'i at $86, 985 P.2d at 1123 (quot
¢ In ze Nelson,
26 Haw. 608, €20 (1923)).
Even if the 1858 deed to Richardson by Kalapuna,
Kaluau's father, Piena, and Puweuweu, purports to convey Kaluau’s
ventire” piece of property at Waikapu, a question of fact exists
as to whether Wailuku's belief was objectively reasonable in
Light of the 1875 deed on record at the time Wailuku claimed
adverse possession began. See Bennett, 57 Haw. at 211, $52 P.2d
at 1381 (concluding that “[t}he existence or nonexistence of
color of title is one factor for the jury to consider in
evaluating whether a party in possession reasonably believed
himself to be sole owner”); see also Morinoue, 66 Hawai'i at 83,
947 P.2d at 961 (determining that where an adverse possessor
ebtained conveyances through quitclaim deeds and neither deed
expressly purported to transfer full title, genuine issues of
material fact existed as to whether the plaintiffs should have
known of the existence of cotenants)
Evidence from publicly filed documents, viewed in the
Light most favorable to Petitioners
the nonmoving parties,
Exench, 105 Hawai'i at 466, 99 P.3d at 1050, suggests @ cotenancy
may exist among Wailuku and Kahololic’s heirs. Under these
circunetances, there remain genvine issues of material fact as to
whether Wailuku and its predecessors had no reason to suspect the
FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER
existence of a cotenancy and, thus, were not required to serve
notice of a hostile claim to Apana 1.
‘That Wailuku and its “predecessors were totally
ignorant of the cotenancy” would not absolve them of the notice
requirement. Betran, 91 Hawai'i at $55, 985 P.2d at 1122 (quoting
Bennett, 57 Haw. at 210, £82 P.2d at 1381) (brackets omitted).
“Rather, the standard of good faith includes an objective
requirement of reasonableness, in addition to a subjective
requirenent that the claimant believes himself or herself to be
the sole owner.” Id, (citation and brackets omitted). In
Betran, the ICA determined that such questions are to be
determined by the trier of fact and stated:
Whether or not such cersons believed that ther:
hevcase,” (ganuete, $7 sow. st 201, S82 Fe20 at Last
nile tthe existence or nonexistence of color of title se
fone factor fer the jury to coneiger in evaluating whether ¢
party in possession reasonably believed hinself for herself]
-_Suidence that the cotenant in
Bossession tnew or oloht “te have known that thereaneted @
selenancy —_ualld go touards tustifvings finding of bad
Eotran, 91 Hawai'i at 555, 985 P.2d at 1122 (citation and brackets
omitted) (emphases added).
Wailuku would be required to prove that “that there had
been no reason for the tenants in possession ({Wailuku) or [its]
predecessors) to suspect the existence of a cotenancy.” Id.
(citation and brackets omitted) (emphasis in original). Thus,
whether or not Wailuku acted in good faith towards its cctenants
would be a genuine issue of material fact to be determined by the
26
//*POR FUBLICATION IN MEST!§ HAWAI'I REPORTS AND PACIFIC REPORTER*
trier of fact and, hence, summary judgment was improperly granted
as to Apana 1, and the CA gravely erred in affirming sunmary
judgment.
xi.
As to Apana 3, Wailuku only clained title to Apana 3
through adverse posession." Therefore it must be shown that
Wiailuks was entitled to summary judgment as a matter of law with
respect to Apana 3. In support of its summary judoment motion on
Apans 3, Wailuku submitted evidence similar to that submitted on
Apana 1 and included declarations from Tadakuma, Mochizuki,
Dando, Suzuki, and Chumbley. See supra note 15. As noted
earlier, the ICA determined the declarations from Tadakuna and
Mochizuki were inadnissable and relied on the declarations of
pando, Suzuki, and Chunbley as evidence that Wailuku had
established @ prima facie case of adverse possession of Apana 3.
The declarations of Oands, Suzuki, and Chunbley
attached to Wailuku’s motion for summary judgment indicate that
Wailuku and its predecessors openly, notoriously, continuously,
and exclusively used Apana 3 for sugar cane cultivation from as
early as 1935 to the late 1980's and for pineapple cultivation
In ite opening brief, Fetitionere contended that Wailuku did net
exercise good faith tonards its Cotenante se required by Bennett becasice
SIWolloke! and ite predecestore were aware and knew, oF in the exercise cf
rearonable core, should have seen euare and chould have known of the existence
Ef cetenonts to Apana. 3." Petitioners forther stated that "(Wasluke
Cengesed that it hae no paper title te Apana. 3."
However, Wailuku correctly responded that the “Bennett mandate
he tenant claiming adversely must actualy notary bie cotemante thst he
ng adversely against then’ Ie nct applicable if no record title ie
estes sn the adverse possession tatle cisimant.” Petitioners’ reply was that
“fal Luke) ‘acknowledges it possesses no record title to Apena 3 and “the
recers oh appeal 1s devoid ef any basis fer [Nailuku] te sesert color of title
te Apans 3."
2
FOR PUBLICATION IN WEST’S HAMAI'T REPORTS AND PACIFIC REPORTERY#
from the late 1960"s to 1997, Ae noted supra, there is a
presunption of hostility where all the other elenente of adverse
possession have been met. Here, because Wailuku has shown its
open, notorious, continuous, and exclusive possession of Apana 3
for the statutory period,” the presumption of hostility applies.
Petitioners have not rebutted the presumption of hostility, thus,
Wailuku has established @ prima facie case of adverse possession
of Apana 3
As to Petitioners’ argument that they are cotenants
with Wailuku on Apana 3, the ICA noted that “Petitioners set
forth no evidence that Wailuku had any record title to (Alpana 3
that conflicted with (Fetitioners’) inherited interest in Apana
3” and concluded that because there wae no “evidence of a
cotenancy between Wailuku and [Petitioners], the legal principles
governing cotenancy were inapplicable to [A]pana 3 as a matter of
Jaw." Wailuku Agribusiness Co. 112 Hawai'i at 258, 145 P.3d at
802. In holding thusly, the ICA did not gravely err in
determining Wailuku was entitled to judgment as a matter of law
fon Apana 3.
xIr.
For the reasons stated sbove, the ICA’s August 1, 2006
published opinion affirming the June 2, 2003 judgment of the
\ In order te establish s prime tacie case of adverse possession
for Apans 2, Wailuky woe required to thow that all elements had been eatisvied
for either a ten-year periea between 1935 (when ite alleged use ef Apena 2 for
sugar cone cultivation began) end 1973 or for a twenty-year persed ona claim
ser fee guura note 16 explaining the epplicable statutory
ching title through agverse son). Wailuke alieges
Bore then £0 years of continuous use of Apana 3, thus it appears to eatery
either statueary peri
28
‘44F0R PUBLICATION IN WEST'S WAWAZ'T REPORTS AND PACIFIC REPORTERY+®
court in favor of Wailuki Agribusiness on the grounds of adverse
possession ag to Apana 1 is reversed and that part of the case is
remanded to the court in accordance with this opinion; the ICA
opinion is affirmed as to Apana 3.
Kevin H.S. Yuen, on the
application for petitioners/
defendants-appellants.
Gary G. Grinmer and
Melissa #. Lambert (Carlemith
Ball LLP), in opposition for
respondent /plaintiff-appellee.
Gro
Dharma
Decesees CON teeing ee
|
89e05e20-22da-4179-9985-346ed3434637 | TMJ Hawaii, Inc. v. Nippon Trust Bank. | hawaii | Hawaii Supreme Court | LAW LIBRARY
10+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
---000~
‘TMJ HAWAII, INC., a Hawai'i corporation, Plaintiff-Appellant,
vs.
NIPEON TRUST BANK, aka Nihon Shintaku Bank, a Japanese
corporation, and KELLEY DRYE & WARREN, a New York general
partnership, and KELLEY DRYE § WARREN LLP, a New York limited
Liability partnership, Defendants-Appellees.
OO TTT 2
No. 25588 ofl
CERTIFIED QUESTION FROM THE UNITED STATES
DISTRICT COURT OF THE DISTRICT OF HAWAI'I
(CIV. NO. 97-01518 #6)
aad
JANUARY 31, 2007
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY NAKAYAMA, J.
The corpus of the question presently before this court
concerns the validity of a written instrument, executed on
Septenber 15, 1994, by which Ishimura Building Co., Ltd.
(“Ishisura Building”) purported to assign its claims against
Wippon Trust Bank (*NTB“) and Kelley Drye & Warren ("KDW") to THI
Hawaii, Inc. ("TMI").
According to the Septenber 15, 1994 assignment, TW
filed a complaint in the first circuit court on August 20, 1997.
on October 31, 1997, KDW removed the action to the United states
District Court for the District of Hawai'i (“district court”).
Based upon the following recitation of facts, TMJ claimed that
(1) NTB breached its contractual, professional, and fiduciary
"* FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
duties to Ishimura Building, and (2) KDW actively participated in
perpetrating a fraud against Ishimira Building, in connection
with the sale of two commercial real estate properties previously
owned by Ishimura Building.
The district court, concerned about the validity of the
Septenber 15, 1994 assignment, certified to this court the
question whether Hawai'i law recognizes the assignability of the
tort claims of professional malpractice, breach of fiduciary
duty, and fraud claims. For the following reasons, we now answer
the certified question in the affirmative.
‘BACKGROUND
Trial has not yet commenced, and no evidence has been
received. Accordingly, the following factual background relies
primarily upon the information certified to this court by the
district court, as well as the allegations contained within TMJ’ a
amended complaint.
Ishimura Building was the owner of the Coconut Plaza
Hotel in Honolulu, Hawai'i and the Kailua Professional Center in
Kailua, Hawai'i. In May 1991, Ishimura Building retained NIB as
its agent and advisor to aid in the sale of the two conmercial
properties. The agreement between Ishimura Building and NTB
required NTS to sell the properties at the highest price and
under the best terns possible. NTB subsequently retained the
services of KDW to advise NTB with respect to the sale of
Ishimura Building’ s properties.
A. The Coconut Plaza Hotel
KOW selected Windward Professional Realty (“WER”) to
2
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
broker the sale of the Coconut Plaza Hotel. The record indicates
that Ishimura Building authorized the execution of an agreenent
by which WER would serve as Ishimura Building's exclusive
representative and would receive $400,000 in compensation.
However, TMJ alleges that NIB falsely represented to Ishimura
Building that it was necessary to retain WR as its exclusive
sales representative because WPR had located a buyer for the
Coconut Plaza Hotel. TMJ further alleges that NTB and KDW failed
to disclose to Ishimura Building that the purpose for inducing
Ishimura Building to authorize the exclusive representation
agreement was that NTB and KDW were to receive $350,000 of the
$400,000 conmission from WPR. On August 1, 1991, the sale of the
Coconut Plaza Hotel closed, and WPR was paid the $400,000
conmission.
B. The Kailua Prof
With respect to the sale of the Kailua Professional
ional Center
Center, NTB and KOW negotiated with JVIH, Inc. (*JVIH") to
purchase the property for $9,350,000, TMJ alleges that,
following agreement of the aforesaid purchase price, NTB and KOW
restructured the deal such that JVIH would pay $8,500,000 to
Ishimura Building, and the remaining $850,000 would be dispersed
as follows: (1) $200,000 to NTB; (2) $150,000 to KDW; and (3)
$500,000 to Wise Board, Ltd., a Hong Kong corporation controlled
by NTB and/or KOM, TMJ claims that NTB falsely represented to
Ishimura Building that $8,500,000 was the highest price that
could be obtained for the Kailua Professional Center. TMJ also
claims that, had it not sold the Kailua Professional Center to
3
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
IVIH for $8,500,000, it could have sold the property for its
actual fair market value, or $10,500,000.
II. DIscussroN
A. The Parties’ Arguments
As previously mentioned, the question certified to this
court is whether Hawai'i law recognizes the assignability of the
tort claims for professional malpractice, breach of fiduciary
duty, and fraud.
1, TM's opening brief
TMJ first argues that Havai'i Revised Statutes (“HRS”)
§ 634-1 supports the assignability of claims, generally. HRS §
634-1 (1993) provides, in relevant part, that “(t]he assignee of
any non-negotiable chose in action, assigned in writing, may
maintain thereon in the assignee’s own name any action which, but
for the assignment, might be maintained by the assignor{.]" T™J
contends that HRS § 634-1 is an enabling statute, the intent of
which is to enable an assignee to pursue an asaignor’s claim,
For support, TMJ refers us to Hany v, Yamaguchi, 30 Haw. 959
(1929), which commented on HRS § 634-1 (then codified as Revis:
Laws of Hawai'i ("RLH”) § 2361 (1925)).
Ty also argues that the general rule is that claims
are assignable, and that a claim's ability to survive the death
of the claimant is the test for determining assignability. To
that end, TMJ refers us to Alameda v, Spenser, 34 Haw. 667
(1938), which states, in relevant part, the following:
YALL things in action which survive and pass to the personal
representatives of s decedent creditor as assets, or continue as
Lisbilities against the representatives of a deceased debtor, are,
4
‘OR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTEI
in general, thus assignable; all of which do not thus survive, but
whulh'die with the person of the creditor or of the debtor, are
hot assignable. he first of these classes, according to the
Goctrine prevailing throughout the United States, includes all
Gleins arising from contract express or implied, with certain
Well-defined exceptions; and those arising from torts to real or
personal property, and from frauds, deceits, and other wrongs,
Ghereby an estate, eal or personal, is injured, diminished, or
‘Samages Snbraces ali tores to the person or
cheracter, yand damage are confined to the body
Gna the feelings; end also those contracts, often implied, the
Breach of wnich produces only gixect injury and
ental, to the person, such as promises to marry, injuries done by
Che went ef skill of sedical practitioner, contrary to his
[npiied undertaking, and the Likes and ali
cha as they axe exgcutary, which stipulate solely for the special
Bersonal services, skill, cr knowledge of = contracting party.”
Id at 674 (emphases in original) (citation omitted). Applying
the survival test, TMJ avers that “if Ishimura Building was an
individual and died, Ishimura Building's fraud claims would
survive.”
‘qNJ farther pointe out that although the certified
question incorporates professional malpractice claims, the “First
Amended Complaint” did not “specifically use the words
professional malpractice” and it did not allege an attorney-
client relationship existed between Ishimura Building and KDW.
Nevertheless, TMJ argues that it could have pursued 2 legal
malpractice claim, had one been assigned. TMJ acknowledges that
sone jurisdictions do not permit the assignment of legal
malpractice claims where a highly personal and confidential
relationship existed between the attorney and the assigning
client. However, TMJ distinguishes those cases by asserting that
“there was no highly personal or confidential attorney-client
relationship between Ishimura Building and Defendants Kelley
+ FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTEI
prye.*
Based upon the foregoing arguments, TNS requests that
this court answer the certified question in the affirmative.
2. gq Y ref
NTB and KDW counter that the doctrines of chanperty and
maintenance mitigate against concluding that Tehimura Building’ s
clains were assignable. They cite several cases stating that
chanpertous agreements are contrary to public policy. NTB and
KDW thus appear to assert that permitting TMJ, “an assetless,
dissolved corporation which clains to be an assignee of Ishimura
Building,” to pursue Ishimura Building's clains is contrary to
public policy.
Addressing TMJ's assertion that the assignability issue
is resolved by HRS § 634-1, NTB and KDW argue that the statute's
effect is merely procedural. They contend that the purpose of
HRS § 634-1 was to supersede the common law rule requiring an
assignee to pursue an assigned cause of action in the name of the
assignor. NTB and KDW point out that Hany interprets HRS § 634-1
as merely amending @ common law procedural rule restricting the
name under which an assignable claim could be pursued, as opposed
£ muy mistakenly presunes thet the district court's reference to =
professional malpractice claim stens from a perceived sttorney/elient
Felationship between ishinura Building and KDW. TM fails to realize that the
professional malpractice portion of the certified question originates from
Yshimure Building's relationship with HTB. Indeed, when summarizing the
clains stated in Tuy" complaint, the district court expressly stated that
“Plaintiff alleges thet Defendant Nippon breached its contractual,
professional, and fiduciary duties to Tshinure Building and perpetrated a
fraud against it,” (Esphases added.) Thus, the question whether Legal
nalpractice claims are assignable has not been certified to this court, and we
heed not address it here.
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
to substantively altering the law to permit the assignment of an
othervise unassignable claim.
NTB and KOW next contend that Hawai'i law contemplates
Limits on the assignability of claims. On that score, they cite
Austin v. Michiels, 6 Haw. 595 (1885), in which this court held
that a tort action for damages caused to commercial credit and
business reputation was not “of an assignable nature.” Id, at
595-96, NTB and KoW also cite Cuson v, Maryland Cas. Co, 735 F.
Supp. 966 (D. Haw. 1990), which held that a claim for punitive
damages based upon an alleged breach of contract was assignable
insofar as “a punitive danages claim arising from a breach of
contract action sounds in both contract and tort and is not
purely personal in nature.” Id, at 970-71. In addition, NTB and
KDW refute TMJ’s reference to Alameda, asserting that (1) the
Alameda court was not faced with the question whether the claim
was assignable, and (2) although the Alameda court alluded to the
survival test, it did not purport to adopt that rule as this
jurisdiction's test for determining assignability.
Finally, NTB and KOW present this court with the
following three approaches utilized by other jurisdictions when
analyzing the assignability of claims: (1) the survival testy
(2) the characterization test; and (3) the facts and
circumstances test. They request that this court adopt the facts
and circumstances test insofar as it would place this court “in
the company of other courts which have held that valuable court
time and resources . . . should not be accorded to traffickers in
clains
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
B. BRS § 634-1
Our initial task is to determine whether HRS § 634-1
disposes of the present matter. HRS § 634-1 provides, in its
entirety, as follows:
[8634-1] Assignee; nonnegotiable chose. The assignee of
any non-negotiable chose in action, assigned in writing, ‘my
hRaintain thereon in the assignes's own nane any action which, but
for the assiganent, maght be maintained by the assignex) subject,
however, to ail equities and setoffs existing in favor of the
party liable against the assignor and unich existed at the tine of
the assignnent or at any time thereafter until notice thereof mas
given to the party liable, except 2a ctherwise provides
Reviewing the plain language of the statute, see In re
WaLtola 0 Moloka‘i, 103 Hawai'i 401, 422, 63 P.3d 664, 685 (2004)
("In construing statutes, we have recognized that our forenost
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.”) (Citations omitted.)
(Block quote formatting omitted.), the primary principle
extracted therefrom appears to be no more, and no less, than what
is expressly stated -- that an assignee of a chose in action may
pursue it in the assignee’s own name. The statute does not
purport to authorize the assignment of choses in action that vere
Previously unassignable, and there is no justification for such a
conclusion here. Indeed, that interpretation is confirmed by
Hann.
In Hany, Almos Hanu (“Hann”) assigned his chose in
action against Y. Yamaichi ("Yamaichi”) to A.F. Tavares
("Tavares") by written instrument dated July 20, 1926. Hany, 30
Haw, at 960. At trial, Tavares moved to amend his declaration by
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
(1) changing the title to read “A. F. Tavares, Trustee for Almos
Hanu, Plaintiff, vs. Y. Yamaichi, Defendant,” and (2) “adding
paragraph setting forth that ‘on the 20th day of July, 1926,
Rlmos Hanu appointed A. F. Tavares, trustee, to prosecute the
above entitled action and that the said proceedings be conducted
in his name.” Id. The circuit court denied Tavares’ motion,
stating that:
At would not be ‘right’ to the defendant to pernit s substitution
Of parties pleintifl at the stage to which the trial had then
it then being too late to examine the jurors as to
fs of prejudice toward the assignee or thereafter to
challenge then for cause or perenptorily.
‘Ide at 960-61. The cizcuit court then directed the jury to
return a verdict in favor of Yamaichi on the grounds that no
right of action survived that could be prosecuted by Tavares.
Id, at 961.
on appeal, this court was presented with the following
two points of error: (1) Did the trial court err in denying
plaintiff’s motion to amend? and (2) Did said court err in
granting the defendant’s motion for a directed verdict?” Id.
With respect to the first issue, this court held that
the denial of Tavares’ motion to amend was within the discretion
of the trial court and was not improperly denied. Id, at 962-63.
We noted that RLH § 2361? conferred upon an assignee of a chose
+ RLM § 2361 (1925) provides as follows:
Sec. 2361. Assignee; nonnegotiable chose. The assignee of
any nonnegetisbie chose in action, aesigned in writing, may
eintain thereon in his own name any action Which, but for the
Designaent, might be maintained by the agsignors subject, howeve:
fo'all equities ang set-offs existing in favor of the party 1i
(continued...)
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
in action the right to pursue that chose in action in the
assignee’s own name. Id. at 962. We further stated that an
assignee could also pursue the action in the name of the
assignor. Id. at 963. We thus concluded that the circuit court
did not err by denying Tavares’ motion to amend insofar as (1)
the action was maintainable in the name of either the assignee or
the assignor, and (2) the assignee was not a necessary party to
the case. Id.
Considering the second point of error, this court held
that the trial court erred by directing a verdict for Yamaichi
because Tavares, as assignee, could have maintained the action in
the name of the assignor, Hanu, as originally filed. Id, at 964.
Accordingly, this court remanded the matter for a new trial. Ide
Hanu’s analysis of RLM § 2361, standing alone, is not
conclusive insofar as it does not expressly address whether RLH §
2361 affects the assignability of claims. However, in Hanu, we
also commented that neither party contested the assignability of
the chose in action:
Tt was not urged that a right of action in trespass for assault
and battery is not assignable in Hawait. The question apparently.
as not considered in the circuit court, Both parties and the
Court assumed that the assignment accomplished a transfer of
Plainei#frs ineorest to Tavares. The question was not raised in
Enis court by the bill of exceptions of the original briefs and
appeared for the first tine upon questions propounded by the court
tercounsel. In the view we take ies decision is not necessary £o
2 determination of the case.
amend wai properly overruled. If the chose in action was
"1. scontinued
‘against the assignor and which existed at the time of the
Besignment or at any tine thereafter until notice thereat was
Given to the party liable.
10
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motion ne discretio:
Sort. not Ineroperiy averruled.
Id, at 961-62 (emphasis added). NTB and KOW argue that if RLH §
2361 had the effect of making assignable all previously
unassignable claims, there would have been no reason for this
court to raise the issue of the assignability of rights of action
in trespass for assault and battery. We agree. In light of the
afore-quoted language, Hanu indicates that RLH § 2361 was meant
to permit an assignee of a chose in action to maintain the action
in the assignee’s own name, only to the extent that the chose in
action is among those that ave of an assignable nature. That
conclusion comports with other decisions by this court holding
that certain choses in action are unassignable. See, e.g,
Austin, 6 Haw. at 596 (“[(T]he bankrupt’s conmercial credit is not
among his assets, and the assignees cannot bring action for an
injury to it. The complaint alleges a special damage for which
only the person injured can bring action.”); Sprague v.
fornia Pai 4 Ins. Ltd., 102 Hawai'i 189, 201, 74
P.3d 12, 24 (2003) (“In this case, similar to Austin, the damages
sought for injury to the commercial credit and reputation of Kona
Aviation were personal and unassignable. . . . Similarly, the
Gamages sought for loss of business opportunities were personal
and unassignable . . . .").
Therefore, HRS § 634-1 does not dispose of the present
matter, and the question remains whether professional malpractice
clains, breach of fiduciary duty claims, and fraud claims fall
within that class of claims that are assignable
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‘OR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
€. Champerty and Maintenance
We next consider NTB's and KDW’s argument that the
common law doctrines of champerty and maintenance preclude the
assignment of the claims presently asserted by THJ.
In Yan Gieson v. Magoon, 20 Haw. 146 (1910), Justice
Perry defined the terms “champerty” and “maintenance” as follows:
Chanperty and maintenance have been variously defined in the
books, ancient ae well as modern. Courts and text writers seen to
have found sone difficulty in stating precisely what they
consisted of in England. Perhaps the following definition cones
35 near as possible to stating the generally accepted view on the
Subject. chanperty (canpum partire, to divide the land) is "a
Bargain with 2 plaintiff or Gefendant ins suit for a portion of
the land of other natter sued for in case of a successful,
termination of the suit which the chempertor undertakes to carry
fon at hic own expense."--Bouvier. Maintenance is “a malicious or
at least officious interference in a suit in which the offender
hhas no interest, to assist one of the parties to it against the
other with money oF advice, to prosecute or defend the action
without any authority of Law."-rBouvier
Id, at 155 (Perry, J., concurring). Justice Perry explained
that, historically, contracts involving champerty and maintenance
were viewed as instigating unworthy litigation and contrary to
public policy:
In olden England such contracts were deemed to be contrary to
‘Sound public policy because it was believed that 4 they were
permitted the resuit wouls be co encourage and facilitate the
Stirring up of unworthy Litigation. Various considerations
Contributed to this view. Inthe first place, judges a9 6 rule
were more of less corrupt and the adninistrat ion of Justice was in
Gisrepute. It was believed that powerful lords could and aid
Control the Judges and influence judicial decisions in their. favor
Lrrespective of the merits of controversies. The position of
attorneys, too, wos materially different then from wnat it $2 now.
‘They were not supposed to receive any compensation as such for
their services but merely an honorarium or gift at the option of
the client. Attorneys could not demand oF expect to receive pay
asa matter of right. They Were not permitees £0 make any
Contract whatsoever with their clients. It was deemed to be for
the best Interests of the community that the peverful lords owning
large landed estates should continue in the ownership and
possession of such estates and thet others should not scquire
Eitle to any part of such property. The discouragenent of
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Litigation against the lords was for that as well as for other
Hessgns regarded at desirable, The assignment of choses in action
flso prohibited.
Id, at 156-57.
However, this court has repeatedly rejected blind
adherence to rules crafted to meet anachronistic societal demands
and has expressed skepticism about the continued potency of the
doctrines of champerty and maintenance. See Henrique v. Paris,
10 Haw. 408, 413 (1896) ("The old rule is a provision of the
feudal law, and grew out of a state of society which does not
exist in these Islends. There is not now and here the necessity
that there was in England in the Middle Ages for laws against
champerty and maintenance to prevent the stirring up of suits for
purposes of oppression[.}"); Yan Gieson, 20 Haw. at 149 (“The
conditions of society under which the law of maintenance and
champerty originated no longer exist.”).
Moreover, the modern trend now favors the assignability
of causes of action, See Osuna v, Albertson, 134 Cal. App. 3¢
71, 83, 184 Cal. Rptr. 338, 345 (Cal. Ct. App. 1982) ("It
suffices to point out that the tendency of modern jurisprudence
strongly favors the assignability and the survivability of things
in action.) (Citation omitted.) (Emphasis removed.) ; Brown vy.
Guar, Ins. Co., 155 Cal. App. 2d 679, 695, 319 P.2d 69, 79 (Cal.
Ct. App. 1958) (“The modern trend in favor of assignability
dispels any remaining doubts concerning the transferability of
the insured’s claim.”); McKenna v, Oliver, _ P.3d _, _, 2006
WL 2564636, *2 (Colo. Ct. App. Sept. 7, 2006) ("Generally,
Colorado law favors the assignability of claims.”); Conrad Bros.
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john Deere Ins, Co., 640 N.W.2d 231, 236 (Towa 2001) (*{7]he
law now generally favors the assignability of choses in
action(.]"); Lemley v. Pizzica, 36 Pa. D. & C.2d 327, 330 (Ba.
Ct. Com. Pl. 1964) ("The trend of judicial decisions as to the
assignability of certain causes of action is to enlarge, rather
than to restrict the causes that may be assigned.”) (Citations
omitted.); iisconsin Bankers Ass'n (Inc.) v, Mut, Sava, é Loan
Ass‘n of Wisconsin, 291 N.W.2d 869, 877 (Wis. 1980) (recognizing
‘2 “common law trend favoring the assignability of choses in
action”).
Accordingly, we conclude that the common law doctrines
of champerty and maintenance are not impediments to the
assignability of the claims at issue in this case.
D. Hawai'i Law Prohibits the Assignment of “Personal” Tort
Claims.
hen reviewing the assignability of claims, this court
has repeatedly adhered to the principle that “personal” claims
for relief are unassignable.
1. Austin v. Michiels
‘The earliest reported opinion in this jurisdiction
addressing the assignability of claims is this court's decision
in Austin. The plaintiff, an assignee in bankruptcy, filed an
action alleging that the defendant forcibly entered the
bankrupt's premises and removed property owned by the bankrupt
thereby causing loss and damage resulting in injury to the
bankrupt’s conmercial credit and reputation. 6 Haw. at $95. The
defendant demurred, arguing that the cause of action was not
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assignable. Id. This court first noted that the Bankruptcy Act
of 1684 authorized assignees in bankruptcy to “bring suit for the
goods, or the value, of the bankrupt, wrongfully taken.” Id.
However, we further explained that the Bankruptcy Act of 1884 did
not permit assignees in bankruptcy to take claims that were not
assignable. Id, We explained:
An action for assault or for seduction could not pass to executors
Of assigne, and we may say generally that go action of which the
Gist couiste of injury to the feelings ox in whieh InGury oF
Tei a paaravarion. “can be assigned, voluntarily or Py
operation of len
Ida (emphasis added). We thus concluded that a claim for injury
to commercial credit was unassignable:
‘The assets pass to the assignees, They may bring action for goods
token away or anjured. “Bot the bankrupt’ s comercial credit is
hot anong ha assets, and the sssignees cannot bring action for an
Tejury co ite “The eémplaint alleges = special danege for which
only the person injures can bring action.
Id, at 596.
2. vc fic naux:
In Sprague, Maydwell Millard and Doris Jean Millard
(“the Millarde”), doing business as Kona Aviation, rented @
Grumman aircraft to William and Grace Adams ("the Adamses”), who
departed from Kona International Aiport and never returned. 102
Hawai'i at 192, 74 P.3d at 15, The Millards were thereafter
Anformed that, despite having arranged and paid for an insurance
policy, their aircraft was uninsured when the loss occurred. Id.
at 193, 74 P.3d at 16. The Adamses’ children, Terri Sprague,
Brian Adams, and Dana Adans (“Respondent's”), subsequently filed a
wrongful death action against the Millards individually and as
owners of Kona Aviation. Id. A stipulated judgment and order
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was agreed upon by the Respondents and the Millards, stating
that: “(1) the Respondents be awarded $3 million dollars; (2)
the counterclaim be dismissed; (3) the Millards assign all of
their legal rights against any of the insurance entities and
r their own
agents to the Respondents; and (4) the parties b
attorneys’ fees and costs.” Id, The Respondents and the
Millards further agreed that:
(2) the Respondents shall not record, execute, or levy the $3
ilifon dollar Jusgment against the Millards; (2) the Respondents
ree to defend, hola harsless, and indemnify the Millards trom
Tclains that might be brought by the ineurance entities or
jents based on the assignment of rights) (3) the Millards
Cooperate in litigation against the insurance entities and agent:
Gnd’ (4) if the Respondents receive more than £100,000. in
Conjunction with litigation against the insurance entities or
Sgenta, they would pay the Millards $20,000 for the loss of the
aizerafe and attorneys’ fees and costs.
Respondents then filed a claim against Janes T.
Nottage, Sally Jo Nottage, Allen Tokunaga, Jim Nottage Insurance,
Inc., and Ingurance Resources, Inc. (collectively referred to as
petitioners”), as well as California Pacific Bankers & Insurance
Ltd., Ann Nottage, Ivan Kam, Louan Chandler, and Aviation
Insurance Associates, alleging negligence, fraud, and bad faith.
Id. at 194, 74 P.3d at 17. Following trial, the jury awarded
Respondents $13,000 in special damages and $15,300 in general
damages. Id. On appeal, the ICA, inter alia, affirmed that
portion of the circuit court’s judgment awarding general damages,
holding, in relevant part, that, “as general damages awarded for
a negligence claim were assignable, the circuit court did not err
in permitting this award[.)" Id, at 195, 74 P.3d at 18.
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‘This court, on weit of certiorari, reviewed, inter
alia, the petitioners’ claim that the ICA gravely erred by
upholding an assignment of general damages. Id. at 198, 74 P.3d
at 21. The petitioners did not challenge the assignability of
the underlying claim, id, at 198 n.10, 74 P.3d at 21 n.10, but
asserted that general damages were personal and thus
unassignable. Id, at 198, 74 P.3d at 21.
We agreed, holding that,
in determining assignability, the igsve is not only whether the
Glain'Ie'assignabies but also whether the damages arising from the
Claim are purely personal in nature. Tf so, they
Gpesasgnable, As applied to general damages, it
that mast items of general damages are not assignable due to their
personal nature. “General danages ; - - include such itens as
Physical pain and suffering, inconvenience, and 10s3 of enjoyment
Enlch cannot be messured definitively in monetary terms.” State
Harm Wits Auto. Ins. Co. v. Qacanay, 67 Hawai'i 136, 138 n. 3, 952
Prdd 693; €96 ny 3 (ipp-1998) (citation omitted). ‘Inasmuch as
General damages, for the most part, are personal ond unassignable,
the Ica erred by holding that "general damages awarded for 2
hegligence cause of action are assignable.”
Ids at 199-200, 14 F.3d at 22-23 (footnote omitted) (ellipses in
original).
ie enphasized, however, that “it is the personal nature
of the damages, not the label, that ultimately determines
assignability.” Id, at 199 n.11, 74 P.3d at 22 n.11 (emphasis
added). Applying the rule, we concluded that the general damages
were personal, and thus unassignable!
‘Although loss of business profite may not be the sane
Dusiness cpportunities, the economic nature of such da
similar. we do not think, however, that economic dana
Stherwise known as “out-of-pocket” danages, are automatically
Snsicative of non-personal damages. Depending on the
Clrcunstances of the case, economic damages may be purely personal
Snnacare, thus precluding sseignnent. Whether they are personal
in this case is dependent upon the evidence presented in support
of the award.
in'this case, similar to Austin, the damages sought for
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Anjury to the commercial cradit and reputation of Kona Avistion
vere personal and unassignable, inasmuch as the Respondents
Glained that the lack of adequate insurance led to the Judgment
entered against the Millards, and consequently, the inability of
the Millards to obtain credit and operate a financially vieble
business. Similarly, the danages sought for loss of business
Opportunities wore personal and unassignable, inasmuch ae there is
po inaieation that they were economically quantifiable
predicated upon the injury to credit and reputation pet
Suefered by the Miilards. Thus the circuit court erred by
instructing the jury that it could award, and the jury erred by
auarding, general damages based on injury tothe commercial creait
and reputetion of Kons Aviation, as well as loss of business
Opportunities. Accordingly, the $15,300 awarded in general
Gonages must be reversed.
Ida at 201, 74 P.3d at 24.
3. In Hawai'i, the personal/propert:
Survivability, governs whether a cause of action is
assignable.
The general rule gleaned from these cases is that tort
claims that are “personal” in nature are not assignable. As
mentioned, this court has described such “personal” tort claims
as actions “of which the gist consists of injury to the feelings
or in which injury or insult is an aggravation(.)” austin, 6
Haw. at 595. See also 4 J. Pomeroy, Equity Jurisprudence § 1275,
at 793 (5th ed. 1941) (describing as unassignable that class of
toxts “to the person or character, where the injury and danage
are confined to the body and the feelings{)") (footnote omitted) .
‘These “personal” tort claims are distinguished from “non-
personal” or “property” tort claims -- ie., those that arise out
of an injury to the claimant's property or estate. Sa Poneroy,
supra, at 792-93 (describing assignable causes of action as
“those arising from torts to real or personal property, and from
frauds, deceits, and other wrongs, whereby an estate, real or
personal, or injured, diminished, or damaged(]”) (footnote
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omitted); 6A C.5.S. § 39, at 646-47 (1975) ("Generally, a right
of action in tort, which does not apply to the person strictly,
but involves directly or indirectly a right of property or injury
to one’s property or estate, is assignable, especially when the
assignee has acquired title to the property. It has been said
that a distinction is observed betwi
n those causes of action for
wrongs which affect the person strictly and all others.”)
(Footnote onitted.).
Because this court has, on one occasion, endorsed the
common law rule that equated assignability with survivability, we
now take a moment to clarify that assignability and survivability
are no longer interchangeable in this jurisdiction.
In Alameda, this court vas confronted with the ‘ssue
whether Frank Alameda (“Alameda”), as administrator of the estate
of Awili Shaw ("Shaw"), could file a claim for arrears of @
police pension in the anount of $1,303.90 due and unpaid to Shaw
during her lifetine. Id, at 668. The defendants, the board of
trustees of the police pension fund of the County of Maui ("the
board"), refused to pay Alameda’s claim on the grounds that the
clain was not one that survived Shaw’s death and, thus, was not
payable to the administrator of her estate. Ida
on appeal, this court concluded ae follows:
fee, pot surtine orises there ia a statate speci ficnly proviaiog
a tratgthsia that thevenuse oF actions which it is
acnitted {Shan sd in her Lifetine, id not survive. The cause
6f action not having survived, her administrator cannot maintain
fan setion to recover it. A Judgment in favor of the board of
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trustees of said pension fund may be entered.
Id. at 674-75 (emphases added) .
In so concluding, this court relied on several
authoritative works, including 3 Pomeroy’s Eq. Jur. § 1275, which
stated as follows:
CALL things in action which survive and pass to the personal
representatives of 8 decedent creditor as assets, cr continue as
Liabilities against the representatives of a deceased debtor, are,
in general, thus assignable; all of which do not thus survive, But
nich die with the person of the creditor of of the debtor, ave
fot assignable. The first of these classes, according co the
doctrine prevailing throughout the United States, includes al]
laine arising from contract express of implied, with certain
eli“defined exceptions; and those arising fren torts to real oF
Personal property, ond from fraude, deceits, and ceher wrongs,
hereby eh estate, real or personal, 1s injured, diminished, ox
Genaged. The seccnd class embraces ell torts £0 the person oF
Character, where the injury and damage are confined to the body
and the féelings; and also those contracts, often smplied, the
breach of which produces only dixect injury and danage, bodily or
ental, tothe person, such as prosizes to marry, anjuries done by
the want of skill of medical practitioner, contrary £0 his
Implied undertaking, andthe like? and also those contracts, 22
Anna as they are execstory, which stipulate solely for the special
Dacional services, shill, or knowledge of @ contracting party.”
Alamsda, 34 Haw. at 674 (emphases in original) (citing 3
Pomeroy’s Eq. Jur. § 1275).
Subsequent to the Alaneda decision, the legislature
enacted HRS § 663-7, see 1955 Haw. Sess. L. Act 205, § 2, at 185,
which states as follows:
§ 663-7. Survival of cause of action. A cause of action
arising out of a wrongful act, neglect, or default, except a cause
Of action for defanation or malicious prosecution, ‘shall not be
extinguished by resson of the death of the injured person. The
cause of action shall survive in favor of the legal’ representative
of the person and any danages recovered shall form part of the
fe of the
HRS § 663-7 (1993).
By enacting the foregoing survival statute, the
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legislature has extended the class of causes of action that
survive beyond the class contemplated at common law and described
by this court in Alameda. There is no indication, however, that
the legislature intended a concomitant expansion of the class of
causes of action that are assignable. Indeed the legislature
expressly stated that the purpose of the enactment of a survival
statute was to remedy the “untold hardship and injustice” arising
out of the “archaic” common law doctrine terminating a tort right
of action upon the death of the injured party. Stand. Comm. Rep.
Wo. $81, in 1955 House Journal, at 773. The legislature focused
entirely on survivability and made no mention of assignability.
Thus, the survivability and assignability analyses appear to have
been legislatively uncoupled.
nile some jurisdictions have concluded that the
enactment of a broad survival statute governs assignability,?
others view such legislation as disconnecting the tests of
> See Davenport v, State Fare tut. Auto, Ing. Cox, 404 P.2d 10, 12
(ev. 1965) TPIIt 18 now golte generally accepted that the assignability of
the right to sue in tore for personal injuries is governed by the test of
Noivissrship-sivess i the right of action survives the death of the injured
person, that right is assignable. The Fight to sue in tort for persons
Peluries Goes survive in Nevada, NES #1-100(2}, and therefore is assignable.")
(internal citetions omitted.) (Footnote omitted.); Eexcer v; Guevara, 192
Siw.5a'38, 43. (Tex. Ct. App. 2005) ("On the premise that azsignability
Gepended oo survivability, che passage of the Texas Survival Statute meant
Ghat personal injury claine becane agsignable.”); ichola v, United states
Ha. f'Guars cons 125 Newe2d 204, 107 (Ws. 1967) (Since the accepted test of
SEGREMIGSG?' a cause’ ot action in wisconsin is whether it would survive
the seath of @ party, it is necessary to look to our survival statute(.J")
(Footnote onitted:]/ Peterson ¥, Broun, 457 N.W.2d 745, 748 (Minn. Ct. App.
1830) Uiinnescta’s role on aesignability conforms to the general practice
Aesignability is detersined by reference to Minn-stat. § 573.01 (1990) which
governs survival (-]") =
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survival and assignability.‘ The latter interpretation is
+ see Pension ¢ profit shor:
322 S.W-2a 865, 867 Trenn. 1996)
(Although a chose in action must survive to be assignable, not every action
that survives is assignable. For example, elaine for personal injuries
Survive, pursuant to Tenn.Code Ann, § 20-5-102 (1994), but generally aze not
Sssignobie. "In sodern tines, ‘the conaon law est of determining the issue of
ability solely by whether the clain survives the assignor’s death seen
Shtaated and’ aloplaced, “Sthes state courts have experienced cieticeley in
applying the survival test and have approached this issue By considering
factors such as public policy considerations, which vary depending upon the
ticular type of action under exanination.”)”(Pacagraph formatting
Salteed. 1) Bar iva Se Eos, 416 S.We2d 208,
227 (Mo. Ct. App. 1867) ("We Feject the Tule Urge by Harcware Desiers that
wether ® cause of action for personal injury 18 assignable depends solely
pon whether it survives and adopt the rule that such causes of action may not
be assigned prior to judgment for reasons of public policy. We ehink the cast
Law'as given to us by the suprene Court of this state dictater this course, @
course we would willingly follow even though there was no such case lax. We
Ehink the reasons for the applicability ef such @ public policy are as
Eundanental end es necessary today a5 in the days of the origin of this rule.
‘ie do not think economic of social changes since its origin make the reasons
for this humane rule anackronistic.”); Goldfarb v. Reicher, 171 A, 149, 180,
(W.g. 193¢) (rt is a firmly established rule thata right of action for
personal injuries cannot be made the subject of assignment before judgeent, in
the absence of statutory provision to the contrary. Except when otherwise
Provided by statute, nothing 1s assignable, either a law or in equity, chat
Goes not directly or indirectly involve 2 right to property. In other
Jurisdictions the rule is that survival is the test of assignability of rights
ef action ex delicto. Gut the rule is otherwise in this state. While the. .
S act relating to executors and the adainistration of intestates!
ests in the executor or administrater an action against the trespa
any trespass done to the person or property of his testator or intestate
Court of the last resort has declared, and Lt 19 now settied law, that this
Provision dia not abrogate the rule that such causes of action are not
Sssignable before judgment.")" (Internal citations omitted.)) Jags t.. .
Deiitcck, “336 w.w.2d 736, 736 uicn. Ce. App. 1983) (noting thar Miehigan’ =
Survival statute states that “[a]il actions and claims survive death, 1" but
Sdopting the rule that “survivabiiiey ia not the only test,” and concluding
that legal malpractice claims were unassignable based on public policy
Grounds) (sone brackets in originel and some. added); Not
sMC Jeep, Ines, 5€7 $0.24 1034, 1035 (Fla. ct. ABP. 1950) (*[Wle are noe
lunmindful that the assignability of a cause of action is the rule rather than
the exception, and that many causes of action based on tore survive the tort
victin’s death. The ascignability of » tort claim, however, is not controlled
by ite survivability. Florida's courts aghere to the common-lew prohibition
Darring the assignment of personal injury claina.”) " (Internal quotation marke
omitted.) (Internal citations omitted.); $f me
Wciahe Gis con, dSe s.s2a 69, 92 (ark. 1970) {We have no Restestcr ie
joining those courte which hold that s survival statute does not confer the
Poner of essignnent upon the holder of an unliquidated tort claim fer personal
‘eont ined.)
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more consistent with Hawai'i law. Jo wit, in Sprague, this court
expressly reaffirmed Austin’s holding that injury to commercial
credit is personal and unassignable. In so doing, this court did
not mention either survivability or HRS § 663-7, Pursuant to HRS
§ 663-7, the cause of action in Sprague, alleging injury to
commercial credit, would have survived the death of the claimant,
insofar as it (1) arose ovt of a wrongful act, and (2) did not
“Ls jscontinves)
injuries.) Standard Chartered PLC v. Price Waterhouse, 9¢5 P.2d 317, 327
(Ariz. Ct. App. 1996) ("[T]he Arizona Courts detached the rule of non”
sbsignablisty cf personal injury cleins from the survivability standard and
Sopparted ton shdependent policy grounds. In eile Hutus
Gov. Lea, 2 Arizapp. $38, S41, 410 P.2d 495, 498 (1966), we explained that
Efevnen-assignability rule prevents unscrupulous people’ from ‘traffic{king]
inlaw suite for pain and suffering.'") (Some brackets added and sone in
original.); Town £ Country Bank of dprinafield v, Country Mut, Ins. Cou, 459
Nibs2d 629, 640 [ITl. Ce. App. 1908) ("Illinois law has established that a
Cause of action for personel injuries may survive by virtue of the Survival
het, but it ig neverthelest not assignable, on public policy grounds. Two
Feasons were given for this principle: (1) A lstigious person could harass
tn annoy’otnere ig aliowed fo purehase elaine fer pein tnd suttering and
Pursue the claims in court ae ‘and (2) all assignsents are vod
Unless ine sasignor'has either actually of potentially the thing which he
attempts to assign.*], (Internel citations omitced.);
Hager 16e s-E-24 157, 161 tw, Va, 1969) (stating that “the Legislative
Ghactnent of the provisions of Code, 5S-7-5 and 6, 25 amended, which pertain
fo the survivability in various situations of a wrongful death action and the
fecovery cf hospitsl, nedical and funeral expenses therein, and Code 55-7-8
and 8a, as anendes, which provide for the survivel and revival of certain
actions whieh did fot survive at common law... relate only to the
Survivability and/or revivabilsty of certain specific claims and inno way
alter or amend the common law with respect to the assignability of such
Glaine(1"}7 Hagener v. MeDonala, 503 N-W.2é 186, 151 (linn. Ct- App. 1983)
(today, it seens anachronistic to reaclve the isaue of the assignebility of a
by deciding whether such a claim would survive the
the case with the cosmon law, the rule
hes outlived the reason for ite creation. “The custons, beliefs, of needs of
a primitive tine establish a rule or formula, In the course of the conturies
the custom, belief or necessity disappears, but the rule remains.’ Where such
Se the case, this Court has been Willing to ‘re-examine the basis of the
File.’ “Assignment should be permitted or prohibited based on the effect it
will Lixely have on modern society and the legel system in particular. Thos,
te consider issuer of public policy rather then the statutory survival test to
‘enine whether legal malpractice claims are assignable.")" (Sone block
‘and paragraph formatting omitted.) (Internal citation omitted.)
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assert a claim for defamation or malicious prosecution. Thus,
this court's reaffirmation of the validity of Austin’s conclusion
~ that 2 claim alleging an injury to comercial credit is
unassignable ~~ implies that survivability is a non-factor in the
assignability analyss.
Given the foregoing, we now explicitly abandon
reference to survivability when analyzing the assignability of a
claim for relief and adhere to the principle described by Austin
Lg., the personal/property dichotomy.
and Sprague
E. TM's Claims Are Not “Personal.”
Having concluded that the proper inquiry in this
jurisdiction is whether the cause of action alleges a personal
injury or an injury to property, our subsequent obligation is to
analyze the specific claims presented in the case at bar. To
that end, we have previously focused our attention on the injury
alleged. See Sprague, 102 Hawai'i at 200, 74 P.3d at 23
("(Dlealing with assignment of @ claim, this court focused on the
in that case, damages for injury to the
commercial credit and general reputation of a business that was
damages requested:
allegedly forced into bankruptcy.”) (Footnote omitted.)
(emphasis added.). That focus recognizes the truism that a
Clain’s title (i.e., “professional malpractice,” “breach of
Indeed, a
fiduciary duty,” “fraud,” ete.) is not dispositiv
“fraud” may harm either person or property. Clains for
“professional malpractice” and “breach of fiduciary duty” share
the same chaneleonic quality.
Here, the two-count complaint asserts non-personal
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injuries. The first count alleges that “Ishimura Building was
damaged by the payment of the $400,000 brokerage fee and suffered
additional damages to the extent the Coconut Plaza Hotel was sold
for less than its fair market value.” The second count alleges
that “Ishimura Building was induced to sell the Kailua
Professional Center for $2,000,000.00 less than its appraised and
fair market value and has been damaged by said amount.” These
allegations consist of direct and quantifiable economic injuries?
to the estate or property of Ishimura Building, as opposed to
physical, mental, or reputational harm. Given the non-personal
nature of the injuries alleged, we are compelled to conclude that
the professional malpractice, breach of fiduciary duty, and fraud
claims presented in the present case are assignable.
We are not unsympathetic to the view that public policy
may nevertheless preclude such assignments insofar as it would
arguably facilitate the merchandising of non-personal tort
claims. However, questions regarding the wisdom of permitting
such assignnents are more appropriately directed to the
legislature, which is better positioned to balance the policy
considerations and potential consequences that will flow from
such a decision.*
* However, sn allegation of economic harm is not always indicative
of non-personal injury. See Sprague, 102 Mawai'i at 201, 74 isd at 24 ("We
So not think, however, that economic danages, otherwise know as ‘out-of-
pocket’ danages, are automatically indicative of non-personal damages
Depending on the circumstances of the case, economic damages may be Purely
personal in nature, thus precluding assignment.)
+ te have, in the past, exhibited auch restraint when faced with
policy decisions of sinilar magnitudes. See State vy, Aiuohi, 109 Hawai'i 115,
(continved. .-)
25
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
IIT. coNcLUSION
Based upon the foregoing analysis, we (1) hold that
MJ's causes of action for professional malpractice, breach of
fiduciary duty, and fraud are of an assignable nature, and (2)
answer the certified question in the affirmative.
on the briefs:
Edward J. Bybee for
plaintiff-appellant
George T. Okamura of
George T. Okamura, AAL, ALC
and James N. Duca’ of Kessner
Duca Umebayashi Bain 6
Matsunaga for defendant-
appellee Nippon Trust Bank,
aka Nihon Shintaku Bank
Robert J. Snolenski of
Smolenski & Wooddell for
defendant-appellee Kelley
Drye & Warren LLP
*L cscontinued)
129, 125 F.3d 1210, 1224 (2005) (“Although we recognize that there may be
significant policy implication? and social ramifications surrounding the
Present issue, it is well established that the legislature is best sulted to
Sssess guch considerations."); Stat
Nawai's 142, 182, 60 P.3d 321, 332 (2003) (stating that
are expressly within the constitutional purview of the legislature”);
01 Hawai": 3, 10, 61 F.3d S14, 521 (2002) (observing that “[w]hile there nay
be sound policy reasons to allow a choice of evils justification defense for
the protection of unborn children, the adoption of such a public policy is
best! left to the state Legislature"): in Ke Water Use Permit Applications, 94
Hawai'i 97, 192, 9 P.3a 403, S04 (2000) (etating that vthe “how” or the public
Policy making function was properly reserved for the legislature”); ge vs
Sorrecedare, €3 Hawai: 18¢, 171, $25 P-34 324, 341 (1996) (stating that broad
Policy decisions are vbest left to the branch ‘of government vested with the
Buthoréty and fact finding ability to make such broad public policy decisions,
namely the Haxai't Legislature”)
26
|
86063be4-df87-413f-96b2-36b139e1cf8c | State v. Jess | hawaii | Hawaii Supreme Court | no. 26483
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWATE, Plaintitt-Ropettont gy
“ ma OF
BRIAN JESS, Defendant-Appellee = 2512
TTT
RESERVED QUESTION FROM THE crAcUIT couRT'gI® &
OF THE FIRST CIRCUIT, STATE OF Hawa? gf |
(CR. NO. 0071-0422)
ORDER ACCEPTING RESERVED QUESTION
(By: Duffy, J. for the court’)
upon consideration of the order issued by the circuit
court of the first circuit reserving for the consideration of the
supreme court, pursuant to HRS § 602-5(a) (2) (Supp. 2006) and
HRAP 15, a question of law arising before the circuit court in
Ce. No, 00-1-0422,
IT IS HEREBY ORDERED that the reserved question is
accepted.
IT IS FURTHER ORDERED the
1. Plaintiff State of Hawai'i shall be regarded ae the
appellant for the purpose of this proceeding.
2. Defendant Brian Jess shall be regarded as the
appellee.
3. Appellant shall file an opening brief within 40
days of the date of this order. The brief shall conform to the
briefing requirements of HRAP 26(b), except that points of error
and standards of review need not be provided.
'considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy,
a3
Ie
4. Appellee shail file an answering brief within the
time provided by HRAP 28(c). The brief shall conform to the
briefing requirements of HRAP 28(c), except that standards of
review need not be provided.
5. Appellant may file a reply brief in accordance with
HRAP 28(d) .
6. Extensions of tine for briefing will not be
granted.
DATED: Honolulu, Hawai'i, April 26, 2007. SEES.
SE Fay
For THE court: /& a)
SE,
Gor Dutigs r= ( AL y
Associate Justice Ve ag ys
|
ce94adef-6a84-4e69-a0a6-c40ad9ef27ed | State v. Lee | hawaii | Hawaii Supreme Court | LAW LIBRARY
NO. 27336
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAI'I, Respondent-Appellee, «|= ~
vs. a F
&
°
JERRY LEE, Petitioner-Appellant. =
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(HPD TRAFPIC NOS. 004424211 & 004424201)
(HPD CRIMINAL NO. 04424348)
o Ps
(By: Moon, C.J., for the court; Acoba, J., dissenting)
Petitioner-appellant Jerry Lee’s application for writ
of certiorari, filed January 2, 2007, is hereby rejected.
PATED: Honolulu, Hawai'i, February 16, 2007.
Deborah L. Kim,
Deputy Public Defender,
for petitioner-appellant
on the application
FOR THE COURT:
* considered by: Moon, ¢.J., Levinson, Nakayama, and Duffy, av
|
afe341ed-1980-4a46-8cae-e546cdd16c33 | Phipps v. The Warden | hawaii | Hawaii Supreme Court | no. 28366
IN THE SUPREME COURT OF THE STATE OF HAWAI'I s
EDWARD PHIPPS, fe 2
Petitioner, 2
¥ a
THE WARDEN, DEPUTY WARDEN, and HEAD OF SECURITY,
OAHU COMMUNITY CORRECTION CENTER, STATE OF HAWAI'I,
Respondents.
‘ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy JJ.)
By letter to the Chief Justice prisoner Edward Phipps
(Petitioner) complains the warden, deputy warden, and head of
curity offices at the Oahu Community Correctional Center are
a petition for writ of
holding his mail. We view the letter
mandamus. Phipps has not shown “a clear and indisputable right
to the relief requested and a lack of other means to redress
adequately the alleged wrong or to obtain the requested action.”
Straub Clinic & Hospital v. Kochi, 61 Hawai'i 410, 424, 917 P.24
1284, 1288 (1996). ‘Therefore,
XT IS HEREBY ORDERED that the Clerk shall file
Petitioner's letter as a petition for a writ of mandamus, without
payment of the filing fee.
IT IS FURTHER ORDERED, pursuant to Rule 21 of the
Hawai'i Rules of Appellate Procedure, that the Petition is
aa
denied. This denial is without prejudice to any other action by
which Petitioner might seek a remedy.
DATED: Honolulu, Hawai‘t, January 17, 2007.
|
7d865b06-8def-48cc-ac7d-29cc7103f5a6 | State v. Razo | hawaii | Hawaii Supreme Court | No, 26604
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
se
STATE OF HAWAI'I, Plaintiff-Appellee-Respondent
VINCE WILLIAM RAZO, Defendant-Appellant-Petitioner
ee
ERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(Crim. No. 03-1-0293(2))
7
(By: Levinson, J., for the court")
upon consideration of the application for a writ of
4 filed on December 28, 2006 by the defendant-appellant-
certiorari
petitioner Vince William Razo, the application is hereby
January 29, 2007.
rejected.
DATED: Honolulu, Hawai'i,
on the application:
Linda C.R. Jameson,
defendant -appellant-petitioner
Vince William Razo
for the
00O1Ky 62 Nur Long
cid.) Levinson, Nakayama, Acoba, ané Duffy, JV.
> considered by: Moon,
aang
|
ae05264a-7073-4772-85d0-cd1b7dc9d15f | Brantley v. State | hawaii | Hawaii Supreme Court | No. 26991
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
MARK BRANTLEY, Petitioner-Appellant
STATE OF HAWAT'T, Respondent-Appellee
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(8.P.P, NO, 031-0012 (2))
(By: Duffy, J., for the court’)
Petitioner-appellant Mark Brantley’s application for a
weit of certiorari, filed on Decenber 12, 2006, is hereby
rejected.
DATED: Honolulu, Hawas'S, January 9, 2007.
FOR THE couRT:
Goren 6. mtu fr
Associate Justice
Karen T. Nakasone,
Deputy Public Defender,
for petitioner-appellant
on the application
6 wir Lanz
81 :01n
"court: Moon, €.J., Levinson, Nakayama, Accba, and Duffy, od.
oad
|
0e0e0115-7172-413a-b241-c85abc00e6fb | State v. Deparini | hawaii | Hawaii Supreme Court | No. 27272
IN THE SUPREME COURT OF THE STATE OP HAWAT'T
STATE OF HAWAI'I, Respondent -Appellee,
ray
aan
ww
DANIEL DEPARINI, Petitioner-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CITATION NOS. 1858147MH & 1e5814@MH)
ING cnt R WRIT OF CERTIORART
(By: Moon, C.J., for the court)
Petitioner-appellant Daniel Deparini’s application for
writ of certiorari, filed December 11, 2006, is hereby rejected.
DATED: Honolulu, Hawai‘i, January 11, 2007.
Daniel Deparini,
petitioner-appellant,
Eppearing poo se,
onthe appt ication Lepr
lle Soon
FOR THE COURT:
Considered by: Moon, C.J., Lev:
mn, Wakayama, Acoba, and Dutfy, 3d.
|
4599d0d9-fdfb-4874-bd94-a4271286cf4b | State v. Agard. ICA s.d.o., filed 08/15/2006 [pdf], 111 Haw.204. S.Ct. Order Accepting Application for Writ of Certiorari, filed 01/08/2007 [pdf]. | hawaii | Hawaii Supreme Court | LAW LIBRARY
*#4FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER:
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
‘o00-==
STATE OF HAWAI'I, Petitioner/Plaintiff-Appell
No. 27219
oats
CERTIORARI 70 THE INTERMEDIATE COURT OF APPI
(HPD TRAFFIC NO. 5775863M0)
JANUARY 23, 2007
MOON, C.J, LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY ACOBA, J.
Petitioner/Plaintiff-Appellee State of Hawai'i
(Petitioner) filed an application for writ of certiorari® on
Decenber 12, 2006, requesting that this court review the
+ Pursuant to Hawai'i Revised statutes (HRS) § 602-59 (Supp. 2006),
@ party may appeal the decision of the intermediate appellate court ithe 1¢8)
‘Sas, HRS § 602-
only by an application to this court for a writ of certioreri:
59(a).” In determining whether to accept or reject the application’ for weit of
certiorari, this court reviews the ICh decision for
(2) Grave errors of law of of facts or
(2) Gbvicus inconsistencies in the decision of the [ICA]
with that of the supreme court, federal deckelons, or
ite own decision,
land the magnitude of such errors or inconsistencies
dictating tne need for further appeal.
The grant or denial of a petition for certiorarl se
‘Sag HRS §602-59(0)
HRS § 602-59()
Giscretlonary with this court
FOR PUBLICATION IM WEST’ HAMAI'I REPORTS AND PACIFIC REPORTER*#*
August 15, 2006 Summary Disposition Order (S00) of the
Intermediate Court of Appeals (the ICA),? reversing the
January 21, 2005 judgment of the district court of the first
circuit (the court)? adjudging Respondent /Defendant-Appellant
Louis Kruse Agard IV (Respondent) guilty of Reckless Driving,
Hawai'i Revised Statutes (HRS) § 291-2 (Supp. 2006).‘ Respondent
filed his response to Petitioner's application on December 27,
206.
We hold that (1) the reckless state of mind definition
under HRS § 702-206(3) (1993) applies to the reckless driving
statute, HRS § 281-2; (2) in determining whether an identified
risk is substantial and unjustifiable under HRS § 702-206(3), the
nature and degree of the risk disregarded by the actor, the
nature and purpose of his conduct, and the circumstances known to
him in acting must be weighed; (3) in this case a reckless state
of mind can be inferred from the cizcunstances to conclude that
there was conscious avareness of a substantial and unjustifiable
risk to the safety of others and property on the part of
‘Te Summary Disposition Order was issued by Chief Judge Janes S.
Burns, and Associate Judges Daniel R. Foley and Alexa W. Ful
» The Honorable Michael Marr presided.
animal, porltyf 22172 entitied, “Reckiens driving of vehicle or riding of
Whoever operates any vehicle or rides any eninal
‘or feckless riaing
ofan aninel, as appropriate, and shall be fined not more
Than €1, 000 or imprisoned not more than thirty days, oF
both,
(emphases added. )
‘S++FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTE!
Respondent; and (4) deference must be given to the trier of fact
with respect to questions of credibility and weight of the
evidence. Therefore, there was substantial evidence for the
court to find Respondent guilty of reckless driving in violation
of HRS § 291-2. Because the ICA reversed the court's judgment,
the ICA's August 15, 2006 SO is reversed, and the court’s
January 21, 2005 judgment is affirmed.
I
‘The relevant procedural history obtained from the
application is as follows.
‘on Decenber 21, 2004, [Respondent] was . . . charged
sey oporating a Vebicie Reckless Dissegerd of the safety
Of Fersons or Property in violation of [HRS] § 291-2... «
Following a bench trial, Respondent. was found
guilty(.] - . + "[Slentence was stayed pending ppeal
Respondent . .\. appealed)... on February 18,
2005. “On appeal, Respondent.» clain{ed) insufficiency
of the evidence {on the ground) ‘that the evidence .
failed to prove beyond « reasonable doubt that [Respondent]
acted with... "the requisite reckless state of mindi-]”
In its August 15, 2006 SD0, the ICA described the
circumstances giving rise to the charge as follows:
on uly 18, 2004, after midnight on the 8-3 Freeway,
[Respondent] drove eastbound through the tunnels toward
Kili Highway exit, he was “lasered” by 2 police
5 going 60 miles per hour {(mph)) in a 55 (mph)
Zone, changed lanes to pass other vehicles, turned on the
Likelixe Highway exit, swerved in front of the police
officer's vehicle, turned on the Kahekill Highway exit,
exited Kanekili Highway, van through @ stop sign, swerved
Into-an oncoming lene, and finally stopped at @ residence.
00 at 1.
At trial Respondent “denied driving . . . the morning
of July 18, 2004, and stated that the car was either in his yard
during the incident or in the possession of one of his family
(members) or friends, all of whom denied responsibility for the
‘**0FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER**#
incident.” According to the court, however, it found
“unbelievable [the] testimony of [Respondent] and defense
witness, Kenneth Friedman(,)" and that Petitioner “had proved its
case beyond a reasonable doubt and found [Respondent] guilty of
reckless driving."* Nevertheless, the ICA concluded that
(Petitioner) failed its burden of proving that, considering
the nature and purpose of his conduct and the clreunstances
known to him, (Respondent) ‘consciously disregarded a
substantial snd unjustifiable risk that one or more persons
would be injured and/or that property would be danaged.and
the disregara of this risk involved a gross deviation from
the standard of conduct that a law-abiding person would
observe in the sane situation.
S00 at 3. It therefore reversed Respondent's January 21, 2005
judgment of conviction.
nm.
In its application, Petitioner poses the following
question: “whether the ICA erred in concluding that the combined
actions of speeding at €0 [mph] in a 55 mph zone, multiple unsafe
lane changes, failure to stop for a pursuing police vehicle,
cutting off a motor vehicle by swerving directly in front of it
and disregarding a stop sign was insufficient evidence to support
a conviction for reckless driving?” (Capitalization omitted.)
Petitioner argues that the ICA erred in answering the question in
the affirmative.
In response, Respondent argues that “while the evidence
showed that [Respondent] committed various non-criminal traffic
+ petitioner points out that “Respondent's defense did not dispute
that (Petitioner's) evidence was sufficient to prove reckless driving, but
that he had not been the driver of the vehicle.”
4
‘s*4f0R PUBLICATION IN WEST’ HAWAI'I REPORTS AND PACIFIC REPORTER*#*
infractions, [Petitioner] failed to adduce facts establishing
that [Respondent] drove his vehicle with the requisite criminal
state of mind of ‘reckless./* Specifically, Respondent argues
that (1) “[t]he record shows that while [Respondent's] violation
of various traffic offenses may have posed some degree of risk of
harm to others, it cannot be concluded that there was a
substantial risk to the safety of others,” and (2) “[a]ssuming
that there was some evidence that [Respondent's] operation of his
vehicle presented a substantial risk to persons or property,
under the circumstances of this case, it cannot be concluded that
there was sufficient evidence that [Respondent] was subjectively
aware of such a risk, and thus, acted in conscious disregard of
the risk.”
qt.
In pertinent part, HRS § 291-2 states that “[wJhoever
operates any vehicle . . . recklessly in disregard of the safety
of persons or property is guilty of reckless driving... .”
“Recklessly” is not defined in the statute. In their Opening and
Answering Briefs respectively, Respondent and Petitioner resort
to HRS § 702-206(3) entitled, “Definitions of states of mind,
which states in relevant part:
(2), Auperson acts recklessly with respect to his
conduct uh sieves isi" ang
that the person's conduct is of =
specified natur
ii oat
considering the nature and purpose of the person's condict
and the circumstances. known £0. him,
the disreaard of the
Hise involves 2 gross deviation éroa the standard of conduct
Shat_a Jawcabicing cerson would observe in the sane
‘situation
‘*0f0R PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REFORTER*##
(Emphases added.) HRS § 701-102(3) (1993), entitled, “All
offenses defined by statute; applicability to offenses committed
after the effective date,” states, “The provisions of chapters
701 through 706 of the Code are applicable to offenses defined by
other statutes, unless the Code otherwise provides.” (Emphasis
added.) Because HRS § 702-206(3) is @ provision included within
HRS chapters 701 and 706, and the Code does not provide
otherwise, the state of mind definition in HRS § 702-206(3)
applies to HRS § 291-2. See State v. Kupihea, 98 Hawai'i 196,
201 n.8, 46 P.3d 498, 503 n.8 (2002) (concluding that, based on
HRS § 701-102(3), “the provisions of the [Code], such as HRS $$
702-202 and -204 [(1993)], are applicable to HRS § 329-43.5
[(1993)]," a statute not part of the Code).
Petitioner also cites to the Commentary on HRS § 702-
206 which states in relevant part:
Recklessness in subsection (3) deals not with the
conscious object of conduct or the relative certainty of
Conduct but Father with disregard of certain probabilities.
it
gees without saying thet the conscious disregard of every
Esk of harm to a protected social interest should not, in
every instance, be sufficient to impose penal liability for
an untoward eventuality. Precision in defining which risks
the penal law will not et a defendant Sgnore i2 impossible.
Following the leed of the Model Penal Code, the Code has
labeled the relevant risks as “aubstantial’ and
unjustifiable” end in subsection (3) (a) states the factors
which ought to be considered in determining whether the
Glsregard of the risk should be condenned.” The Reporter to
the Model Penal Code has stated the issue concisely:
‘The draft requires, however, that the risk thu:
consciously disregarded by the actor be “substantial”
and “unjustifiable”; even substantial risks may be
Greated without recklessness when the actor seeks to
Serve a proper purpose, as when a surgeon performs on
‘Operation which he knows is very Likely to be fatal
But Feasonebly thinks the patient has no other, safer
chance. Accordingly, to aid the ultimate
determination, the draft points expressly to the
‘seePOR PUBLICATION IN WEST’ HAMAI' REPORTS AND PACIFIC REPORTER*#*
factors to be weighed in judgment: the nature and
deares of the Pew diereaarded by the actor, the
DSRS tices been to hin thastings
(Quoting Model Penal Code, Tentative Draft No. 4, comments at 125
(1955) (emphases added) ).
Ww.
It should be noted initially that “[tJhe test on appeal
in reviewing the legal sufficiency of the evidence is whether,
when viewing the evidence in the light most favorable to the
prosecution, substantial evidence exists to support the
conclusion of the trier of fact.” State v. Bui, 104 Hawai'i 462,
467, 92 P.3d 471, 476 (2004) (citing State v. Pone, 78 Hawai'i
262, 265, 892 P.24 455, 458 (1995)). “Substantial evidence”
neans “‘credible evidence which is of sufficient quality and
probative value to enable person of reasonable caution to reach
a conclusion.’" Id, (quoting State v, Silva, 75 Haw. 419, 432,
864 P.2d 583, 590 (1993) (internal ellipses, brackets, and
citations omitted)).
Furthermore, “appellate courts will give due deference
to the right of the trier of fact ‘to determine credibility,
weigh the evidence, and draw reasonable inferences from the
evidence adduced.’” In re Doe, 107 Hawai'i 12, 19, 108 P.34 96,
973 (2005) (quoting State v, Lubong, 77 Hawai'i 429, 432, 686
P.2d 766, 769 (App. 1994) (citation omitted). As to a
defendant's state of mind, this court has said, “Given the
difficulty of proving the requisite state of mind by direct
‘*+00R PUBLICATION IN MEST’S HAWAI'I REPORTS AND PACIFIC REPORTER!
evidence in criminal cases, proof by circumstantial evidence and
reasonable inferences arising from circumstances surrounding the
defendant’s conduct is sufficient.” State v. Eastman, 81 Hawai't
131, 141, 913 P.2d 57, 67 (1996) (citation omitted).
Although Petitioner cites to other reported reckless
driving cases, such cases revolve around the specific facts in
those cases. Here, according to Petitioner,
[eJhere [was] . . . speeding (25 miles over the posted speed
Limit, multiple unsafe lane changes, swerving into an
enconing Lane of traffic, refusal to stop for s police
Sfticer, cutting in front of other venicles, passing on the
Fight, . «. (and) running a step sign.
Honolulu Police Officer Michael. R. Krekel (Officer Krekel)
testified that on July 18, 2004, while performing traffic
enforcement outside the H-3 eastbound tunnel, he used an
ultralight laser to detect Respondent traveling at 80 mph, twenty
five miles over the posted speed limit. Thereafter, Office:
Krekel stated that he followed Respondent and testified to the
following:
(OFFICER KREKEL]: (Inaudible) right here. Lasered
the vehicle here. I'm right bere in front (inaudible) gates
surround. I'g0t in my vehicle. I followed the vehicle, AE
this time the vehicle was halfway between the (inaudible)
tunnel and the (inaudible!
The vehicle, still in the lect
ais, nsraed ver inte the right lane and then crossed back
‘Suer Between two vehicles, And as it cot past the second
Sehicie here: it peraed back into the right Lane ust past
‘he inaudible tunnel.
Temas unable to pace the speed of the vehicle. Tt
just (inaudible) Ssually past these venicles, continued on
in the rignt lane. I didn't catch up to the venicle until
just prior to the Likelike off-ramp.” I was approximately
four far lengths behind the venicle. At this point Fight
here, you see, what I do is vhen I laser (inaudible) tunnel
Tistop veniclés in a sate location to ene shoulder here just
Prior to the (inaudible). Just prior to this (snaudibie)
Fight nere I turned on my lights and siren.
‘se+F0R PUELICATION IN WEST'S EAWAI'T REPORTS AND PACIFIC REPORTER*#+
of
irivizioner’s comset] @ And during the cours
this following the defendant did you at any tine see the
Sefendant turn on his blinker when he changed lanes to
(inaudible)?
{OFFICER KREKEL] A navdibie.)
go “ina what happened ater?
ond the vehicle ane
i ite appesred to
eck In his rear view sirror which it somewhat common on the
freeway because you're not going to hear a siren traveling
25°or ts ce a higher speed.” (Inaudible) a sires. Actually
ere (sic) the siren and (inaudible)
* -_. Laporoached the car on the richt side of
‘the vehicle, and’ ve finaudibiel the vebtele past [evel
Even though Thad sy lights, ny directional signal on, the
Care (inaudible) right lane, it's unsafe for any other
person standing on the other side, person on the Fight side.
Uf they're this side here of the retainer wall, (inaudible)
A” "1. , mis is where 1 put on my lights and
aizen,” And as'wo came onto this -* to Likelike Highway to
fhe left lane 1 again hit ay Lights and siren.” While {was
Apchis position the vehicle then came around this sshicle,
ist use the only vehicle It sadsed in front of us, cane
‘inte_the-tarciaht lane, and then actually cut off. suervad
‘lone inctrent of wes.
gq tye stated that you weren't successful in
Unauateie) ?
Re Yeah. wasnt w= T wasn't ~
toot pha wor efi, for 100k at YOUE spesdonater to see how
ast you were driving?
RS "Nos f wasn’t because I actually had the initial
violation. Normally what you do in a case Like this, un,
Since that's normally what T sudible) is to cbserve
Yiclations. but proBable cause was already met here and
heres here. but St this point right here my main concern 4s
(inaidible) step actually here that he was going to pull
over at this point. And then 2s he got into this lane right
here, it was 5 (mph). I didn't (inaudible) -
A” fie cut off nie vehicle here and then merasd inte
A” ” The vehicle just continued on here. 1 had to
catch up with the vehicle. Swing by (inaudible) here.
Was not able to {inaudible}.
©.” " Dig you have to speed up to catch up with the
Respondent]?
"Yes. As he turned around his vehicle to me,
it's (Inauetble}
Q How about during the course of the (inaudible)
tunnel and Likelike off-ramp? Did you find you had to speed
Up to catch up with the [Respondent]?
‘*9f0R PUBLICATION IN WEST’ S HAMAI'T REPORTS AND PACIFIC REPORTER*##
A _. Thad to speed up to get to this point
(inaudible), and then as he got into this lane right here,
it's 45 (mph) here, but 1 didn’t (inaudible).
(Q Wnat happenes?,
Ae got out of his vehicle here and then merged
into the Lefe-vurn lane on Kehekili off-ramp.
A” "Gh, the vehicie just continued on here. Then
again T wae undble to catch op to the vehicle «|
0" iat happened after the Kehekill off-ramp?
:
ST nee
‘don't remember the vehicle sitting there braking fora very
feng times That's when
Started runhing the plate of the vehicle.
A” mot that point { — vou bnew, J wae thinking,
well. gaxbe tnie-ian'e a drunk driver, May thie daa stolen
andibli “P
Fan the plates. I didh’t get a feedback from the police
Gispatch untii this point Up here Before he cane cut of this
private lane right ners
‘and the Feport came back, um ~~ the dispatcher said it
ues registered to an Agard, and She gave this street right
here Kahulukia. And when { came up here, I saw the numbers
Ga the side, the numbers on the aide of the house sight
here. S01’ knew that would be (inaudible) residenc
A da Lit ny blue Lights, again (inaudible. it.
wn right here te stop this venieie: Um the vehicle then
Kha iiob sah. swerved into the oncoming Jane here, and cane
‘Sut at a nlah rate of speed. Actually it turns then scraped
sx tuned to the lett (inaudible
O Dia you 8a use at the
amt
D And what happened after the turn?
x event jt wae
T Tost sight of
the vehicle as it pulied into this private lane. There's 2
house here. As I turned right here, I saw the brake 11
cone, and i saw the vehicle stop Fight in the carport a
essentially right here.
(Q You say you lost sight of the vehicle?
AR — T'lost signe of the vehicle fora few seconds.
© And when you caught up with the vehicle, was it
®_As T caught up with the vehicle, it was the sane
as this. there were several other vehicles’ that were
parked.” The bead iights were still on in the vehicle, and
the river was still seated in the driver's seat.
A” " Gn, right then and there 1 gave a -- T looked
I put on my fis0d lights, overhead lights.” And also there's
2 house right here, so 1 turned on my side lights right here
for safety. .
10
‘S+APOR PUBLICATION IN WEST’ S HAWAI'T REPORTS AND PACIFIC REPORTERS**
‘K.stood ciaht outside the open door {of py
sehicie) and) in! for auite-a fon sinutes I micht have been
inbetween (inaudible), As _(Reapondent) exited the vehicle.
SRGESER door he suited the vehicle: ie came around to"
sop-auite a few tines.
2" So was your Light on, your Lights on?
K Uh, "yess The Back ones are. What I do is
(inaudible) heavy metal Lights are flashing (inaudible)
Bnd I (inaudible) right here because 1 have flood Lights on.
a Did the food Lights provide you with sufficient
Lights to see =
2.” ” iipen the (Respondent) was in his car did you get
a look at him?
B Yes, T aid.
@ __And'when the (Respondent) exited his car did you
get a look at nim then?
x" Nes, 1 did.
2nd’ approxinately how far avay were you from the
Respondent}?
A Uh, approximately 25 fect
Q When you called Gut to che [Respondent], what
dig [Respondent] do?
“Nothing. He just closed his door. He walked
straight over here kind of like a carport area, covered
Fight here. He walked up to the front door. there were
Lignte in the house. We then opened the door. T called out
Police. Stop. Police. Stop. Police
© Were you walking towards him when you sald thet
‘A I wag walking, yee. T was right here. 0h, the
individual entered the house, closed the door. Officer Moy
pulled up. “I saw his headlights and his cruise lights.
Eng, why i ran up to the door, knocked on the door, and 1
was there for approximately five minutes tapping on the
indow and the door. And the lights were still out.
o'” “All right. So vou were calling out to tne
defendant and sold nin to ston?
a Yes
Q All right. Did he took at you?
° ‘didn't respond 2
A Me
Q — Were you able to see his face?
@ Dia’ you nave a
R Yes, T did. He was staring at the house, fis
body was very rigid, and his eyes appeared very glassy. And
he was, like, staring st the house, walked straight from his
Cars ie Just walked ina straight Line (inaudible) -
Q 'Ang then what happened when the (Respondent)
‘entered nie home?
A” T knocked on the door. No one came out. My
sergeont, my supervisor, cane to the scene.
n
‘S447OR PUBLICATION IN WEST'S HAMAI'T REFORTS AND PACIFIC REPORTER**#
A" 2. . 1 was instructed by ay supervisor Sergeant
Dowkin to cite for reckless =~ after I advised him, to cite
for reckless driving and so insurance.
(Bmphases added.) Petitioner asserts that Respondent “exhibited
consciousness of his guilt by his refusal to stop, when (the
o}fficer . . . pursued him with sirens blaring and lights
flashing.”
vr.
In his Opening Brief on appeal, Respondent asserted
that to be convicted of reckless driving, his conduct must have
created “a high probability” of the prescribed harm.
By definition, the degree of risk of harm posed by the actor
ast arise to’ aubstantial righ, such that disregard of the
Fisk anounts toa gross deviation from the orginary standard
Gf care. Evidence based serely upon speculation, or which
establishes the possibility that the harm sought to be
Prevented would occur, does not suffice as proof of a
Substantial risk, Gvidence of a substantial risk requires
proof chat the actor's conduct erestes 2 high probability.
Ehat such harm would occur
(Emphases in original.) To support his argument, Respondent
cites Commonwealth v, Bullick, &30 A.2d 998 (Pi
2003), in which the Pennsylvania Superior Court considered the
Super. Ct.
state of mind requisite to conviction of reckless driving in
willful or wanton disregard of safety of persons or property”
synonymous with the definition of recklessness based on
“conscious disregard of substantial and unjustifiable risk.” Id.
at 1002. In that case, it was determined
thet the uns Len necessary to support the offense of reckle;
Griving iss eatiresene shat (the driver) drove sn suche sasner
That there existed » substantial risk that injury woald renal
Hem hls deivingy tier, a high peabebiiity that & motor vehicle
“ident would result fren driving in that manner, chat be wae
‘Stare of that risk and yer continved to drive in such a manner, Sn
12
[FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER***
essence, callovsly disregarding the risk he was creating by his
town reckless driving
Id. at 1003.
Respondent maintained that, “[w]hile the record shows
that (Respondent’s] driving may have posed some degree of risk of
harm to others, it cannot be concluded that there was a high
probability of such a risk.” He, however, summarizes the
circumstances surrounding his alleged conduct as follow:
officer Krekel's testimony in the light most favorable to
fellewing
Felevant conditions
exiting the tunnel. 2) Traffic was very iight. When
Géticer Krekel #irct cited Respondent], his was the
Vehicle inthe left lane of the freeway. Officer Ki
Gcccribed' [Respondent] passing Less then half a dozen cther
Sutomobiles.
ea Tins ak
‘Lines_iuice to bass other vehicles, (51 Respondent swerved
‘into-an “ensoning 1anev-at high speed, end (6) Respondent)
Sisteaarded two efop sions.
(Emphasis added.) Respondent argues that:
The circumstances described by Officer Krekel -- the
very light traffic and the early morning hour, show that
although [Respondent] committed # number [of] traffic
Infractions,
there was no evidence that any othex persons
ved bi e Ofticer Kreker tostified
Efst Inespondent] execored quick lane changes to pass other
Vehicles traveling in the same direction. However, there is
hho evidence that these maneuvers in any way impeded or
Thterrupted the forward movement of the other cars. There
ie no evigence that (Respondent) drove too close to the
‘other cars, oF cut them off, or caused then to brake or
Swerve. There is no evidence that (Respondent's) driving in
any way impacted the other vehicles on the road.
ne tame is true of the other instances of lane
changes on the Kahekils [H)ighvay and disregarding the stop
Signs, Where there are no other vehicles or persons in the
Area. such consust dose not creste 2 substantial risk, or
bich‘Grobebilicy. of harm or intury.
(Emphases added.)
The standard of a “high probability” of risk of an
accident is not contained in HRS § 291-2 and, thus, is not
binding in this jurisdiction, Nevertheless, the definition of
3
‘*47OR PUBLICATION IN WEST’ § HAKAI'T REPORTS AND PACIFIC REPORTER*:
reckless conduct as set forth in HRS § 702-206 is similar. In
that regard, the “reckless” standard is not to be
indiscriminately applied, for “the conscious disregard of every
risk of harm to @ protected social interest should not, in every
instance, be sufficient to impose penal liability for an untoward
eventuality.” Commentary on HRS § 702-206. The probable
Likelihood of an accident paradigm, however, is embodied in the
requirement under HRS § 702-206(3) that the culpable risk is one
that must be “substantial and unjustifiable.” In assessing
whether an identified risk meets these criteria, the Commentary
on HRS § 702-206 “points expressly to the factors to be weighed
in judgment: the nature and degree of the risk disregarded by
the actor, the nature and purpose of his conduct and the
circunstances known to him in acting.” (Citation omitted.)
Hence, the “substantial and unjustifiable” standard is
essentially equivalent to the high probability standard and the
governing statute establishes the factors to be applied in
arriving at the relevant conclusion.
vit.
The circumstances surrounding Respondent's alleged
conduct indicate that Officer Krekel observed Respondent
traveling at 80 mph in a $5 mph zone, that Respondent passed
about six other vehicles, changed lanes twice to pass the other
Vehicles, swerved into an oncoming lane at a high speed, and
disregarded two stop signs. On the face of it Respondent's own
rendition of his conduct emphasized above, indicates evidence of
4
FOR PUBLICATION IN WEST’ S HAMAI'T REPORTS AND PACIFIC REPORTER**+
acts which, taken together, would enable a reasonably cautious
person to believe the safety of other persons and property then
on the highway was put at “substantial and unjustifiable risk.”
HRS § 702-206(3). Thus, taking the evidence in the strongest
Light for the Petitioner, the evidence was of sufficient quality
and probity to enable a reasonably cautious person to conclude
that Respondent disregarded the safety of persons or property,
Bul, 104 Hawai'i at 467, 92 P.3d at 476 (citations omitted), and
that such circumstances, Eastman, 61 Hawai'i at 141, 913 P.2d at
67, reasonably demonstrate that Respondent's disregard of the
risk to oth
was conscious and “involve[é) a gross deviation
from the standard of conduct that a law abiding person would
observe in the same situation," HRS § 702-206(3) (4). Moreover,
deference must be given to the court, which was the trier of
fact, with respect to questions of credibility and weight of the
evidence. In re Doe, 107 Hawai'i at 19, 108 P.3d at 973. In
reversing the court it does not appear that the ICA applied the
foregoing governing standards.
[As to the reckless component of the charge, Petitioner contends,
Se Ligtle doubt that a Law abiding person would
gnize thet possible repercussions of traveling at 60 mph
he high ent should [Ret
‘Similarly, such @ citizen could
Sscertein that
hanain i
Yebicle (Gr any vehicle’ while simJtansously excesdina the
[need Linit would eoteil-e sarkedly higher risk of accident
Biiniury, Such actions singly, but certainly in
Etmbinatign involve a gross deviation from the standard of
Gare that 2 normal law abiding person would observe in the
Sone situation:
8 added.)
15
vitr.
Therefore, the August 15, 2006 SDO of the ICA is
reversed and the January 21, 2005 judgment of the court is
of times. s
Anne K. Clarkin, Deputy :
Prosecuting Atcorney, heca flor nse
City « county of Honolulu,
Petitioner/Plaintift-
Appellee State of Hawas"t =
Deborah L. Kim, Deputy ere
Public Defender, on
the response for Vanen «rds re
Respondent /Defendant~
Appellant Louis Kruse
Agard IV.
16
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09f1bf58-d538-4507-939d-48ec87a65216 | Thomas v Takabayashi | hawaii | Hawaii Supreme Court | Law upRaey
No. 27553
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
TARA THOMAS, Plaintiff-Appellant-Petitioner
vs.
MONICA TAKABAYASHI, Defendant-Appellee-Respondent
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(Civ. No. 3-1-0200)
(By: Levinson, J., for the court)
upon consideration of the application for a writ of
certiorari filed on January 16, °2007 by the plaintift-appellant-
petitioner Tara Thomas, the application is hereby rejected.
DATED: Honolulu, Hawai'i, February 6, 2007
FOR THE COUR
STEVEN . LEVINSON
Associate Justice
Steven D. Strauss,
attorney for plaintiff-
appellant-petitioner,
‘Tara Thomas, on the
application,
11:8 WY 9- 34 L002
aa
Considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 99.
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