Datasets:

HFforLegal

/

case-law

like 11

Follow

Hugging Face for Legal 153

27673e72-b4ba-439a-b963-a26d332d7a8b

Estate of Mathison v. Mathison

hawaii

Hawaii Supreme Court

No. 28109 IN THE SUPREME COURT OF THE STATE OF HAWAI'E Lone ld 22 ESTATE OF YVONNE MARIE MATHISON, by Special Administrator David Kaapu, et al;, Plaintiff-appellee, 5 KENNETH WAYNE MATHISON, Defendant-Appellant, and MICHAEL MATHISON, Plaintiff-Appellee KENNETH WAYNE MATHISON, et al., Defendant-Appellant APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (cv. 94-554) R (By: Moon, C.J. for the court) Petitioner-appellant Kenneth Mathison's application for writ of certiorari filed on Decenber 26, 2006 is hereby rejected DATED: Honolulu, Hawai'i, January 22, 2007. FOR THE couRT: GRE: ‘considered by: Moon, ¢.J., Levinson, Nakayama, Acoba, and Duffy, 23 atte 

abe1d864bb96e70ee03d5697c68d6d1e0d320405f8afbc38a6c53d46b0493587

2007-01-22T00:00:00Z

711d673b-9010-4a04-81a7-f8de5c6cc2f0

Campbell v. State, Department of Public Safety

hawaii

Hawaii Supreme Court

No. 28306 ome IN THE SUPREME COURT OF THE STATE OF HAWAT'T BRANDON CAMPBELL, Petitioner, « Wd 2 STATE OF HAWAI'I, DEPARTMENT OF PUBLIC SAFETY, Respongient. SF ORIGINAL PROCEEDING ER D: BED: (By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.) Upon consideration of petitioner’s motion to withdraw the petition for a weit of habeas corpus, which is deemed a motion for dismissal pursuant to HRAP 42(b) and the papers in support, IT IS HEREBY ORDERED that the motion is granted and this proceeding is dismissed. DATED: Honolulu, Hawai'i, January 2, 2007. Mirtha Oliveros, deputy public defender, on the motion Secu bi rmaceiey Ie Vanen &: Duc ams 

a2781763f2e6034dcdb06560e01c392c3aec24ce849306684742d89a839a681b

2007-01-02T00:00:00Z

a40dc287-3031-4ed8-a5d0-2b0878aba084

Office of Disciplinary Counsel v. Mirikitani

hawaii

Hawaii Supreme Court

LAW LIBRASY No. 24761 IN THE SUPREME COURT OF THE STATE OF HAWAI'I a OFFICE OF DISCIPLINARY COUNSEL, Petitioner, &/ 3 gx oz vs. BE = = ios ANDREW K, MIRIKITANT, Respondent. BS F foe fh © 8 8 (ope 01-153-6897) OF Moon, €.J., Levinson, Acoba, and Duffy, JJ. land Intermediate Court of Appeals Associate Judge corinne K.A. Watanabe in Place of Nakayama, J., Recused) eration of the Disciplinary Board’s Report ew K. Mirikitani, re that upon consid and Recommendation for the Disbarment of Andri and the transcripts and exhibits in the record, it app Respondent Mirikitent committed a criminal act that reflected tess as a lawyer, adversely on his honesty, trustworthiness or fi ty, fraud, deceit, or and engaged in conduct involving dishon 8.4(b), and misrepresentation in violation of Rules 8.4(a), ‘Therefore, 8.4(c) of the Hawai'i Rules Of Professional Conduct. IT IS HEREBY ORDERED that Respondent Andrew K. Mirikitani is disbarred from the practice of law in this Jurisdiction, effective immediately. IT 18 FURTHER ORDERED that Respondent Mirikitani shall not be eligible for reinstatement unless he has complied with any order for payment of costs entered upon a properly verified bill of costs submitted by the Office of Disciplinary Counsel. DATED: Honolulu, Hawai'i, February 20, 2007. 

902c7cacf13f683542cdf4560a07a0e68b9cf4d43c60e4c3010541bdc366a583

2007-02-20T00:00:00Z

1cb3ea96-fabc-433e-9ddc-85edf5a209f4

Park v. State, Department of Public Safety

hawaii

Hawaii Supreme Court

wo, 28392 IN THE SUPREME COURT OF THE STATE OF HAWAI'I DERRICK E. PARK, Petitioner, STATE OF HAWAI'I, DEPARTMENT OF PUBLIC SAFETY, Res ORIGINAL PROCEEDING ‘ORDER : Moon, C.J., Levinson, Nakayama, Duffy, and Acoba, JJ.) Upon consideration of the petition for a writ of habeas corpus and the papers in support, it appears that there is no evidence showing that the probable cause determination for #2D Report No. 07-031609 was made by a district judge whose impartiality was impaired by a conflict of interest known to the judge when the probable cause determination was made. Therefore, IT 18 HEREBY ORDERED that the petition for writ of habeas coxpus is denied. DATED: Honolulu, Hawai'i, January 30, 2007. Joseph S. Lee, Deputy Public’ Defender, on the petition - — Sheer Gievmae Poctes CN eak sey ANE Gee, Dicey he aaa 

28a205243506fad8158ade672d2bab692cab2bf5ae498a1785094b1ad52885a8

2007-01-30T00:00:00Z

afea8b6e-9d1c-49ad-a2e8-4f6576db6620

Goodman v. Hifo

hawaii

Hawaii Supreme Court

No. 28390 cw tae surnexe cone or mae stare or mar's|, ze JK 0, coon, Petitioner, AE 8S rs vosongee robs ses2aner sos, sce or nie esac comptor ‘THE FIRST CIRCUIT, STATE OF HAWAI'I, Respondent. & WELLS FARGO HOME MORTGAGE, INC.; WELLS FARGO BANK, NATIONAL ASSOCIATION; JOHN DOES 1-50; JANE DOES 1-50, DOE PARTNERSHIPS 1-50; DOE CORPORATIONS 1-50; DOB ENTITIES 1-50; ‘and DOE GOVERNMENTAL UNITS 1-50, Respondents, Real Parties in Interest. ORIGINAL PROCEEDING (CIV. No, 07-31-0062) ORDER (By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.) Upon consideration of the petition for a writ of mandamus filed by petitioner John Goodman and the papers in support, it appears that the granting or denial of the January 16, 2007 motion for temporary restraining order was within the discretion of the respondent judge, petitioner fails to demonstrate that the respondent judge flagrantly and manifestly abused her discretion in denying the January 16, 2007 motion, and petitioner can seek an injunction against @ transfer of the subject property pending an immediate appeal of the denial of the January 16, 2007 motion. Therefore, petitioner is not entitled toa writ of mandamus. See Kena v. Gaddis, 91 Hawai'i 200, 204- 205, 982 P.2d 334, 338-339 (1999) (A writ of mandamus is an extraordinary renedy that will not issue unless the petitioner demonstrates a clear and indisputable right to relief and @ lack of alternative means to redress adequately the alleged wrong or aad 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, 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 @iscretion, 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 is denied. pare! Honolulu, Hawai'i, January 29, 2007. Gro hkeeeCpllemnge beastie, COT abet NR Game. Pact 

4b2b105b49c8c6f1bff99cdddf438aeea374883dae33ef5dcc545484ac7037bc

2007-01-29T00:00:00Z

f83274eb-524c-4cc6-bbca-8d64dd2a0d6b

State v. Ke

hawaii

Hawaii Supreme Court

++ NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER. No. 26495 IN THE SUPREME COURT OF THE STATE OF HAWAI'I STATE OF HAWAT'T, Pleintiff-Appellant, ~ ad) WARREN WON HO KE, Defendant-Appellee. — 8 APPEAL FROM THE DISTRICT COURT OF THE THIRD zo (REPORT NO. G-93151) tafowy 2 (ey: Moon, €.3., Lethnon Nakayena, Revs, and Duffy, 39.) Plasneitf-Appellant state of Haval'l (*prosecution”), appeals fron the first circuit district court's! (*aistrict court) April 1, 2004 order dismissing CIT. NO. G-83181 without prejudice.? On appeal, the prosecution contends that the prosecuting attorney's failure to appear at 2 pretrial hearing did not warrant dismissal under either Rules of the District Courts of Hawai'i ("RDCH”) Rule 15(b)? or the district court’s {the Honorable Matthew $.K. Pyun presided. 2 the prosecution filed complaint on December 26, 2003 charging Warren Won Mo Ke [°ke") with four counts of the offense of False Swearing in Sefisiel Matters, in viclation of HRS §-710-1062(1) (a). RS § 720-1061(2) (a) (1993) provides that “[a] person commits the offense of false swearing in SielaleP'eatters if the person makes, under an cath required or authorized by Saw, a dalse statenent which the person does not believe to be true, and . [tlhe statenent is made in an official proceeding(.|" The offense is « Aigcenesnor, Se HRS § 710-1061(2) (1983) ("Felse swearing in official Batters it & misdeneancr.") 2 ROC Rude 151) (2004) states that ajn attorney who, without just cause, fails to appear when the Attorney's case 14 before the court on a call or motion oF on pre- EESGI"or trials or anjustifiebly fails to prepare fore presentation to the court necessitating a continuance, my be Eubiect to such Sanction as the court deems appropriate, including (continved..-) nos  NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER * inherent powers. 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 that the prosecution has failed to demonstrate that the district court abused its discretion. It is well-settled that the district court has the inherent authority to dismiss a criminal case. See State v Maceo, 78 Hawai's 33, 37, 689 P.24 1092, 1096 (App. 1995) ("A trial court's exercise of its inherent power to dismiss a criminal case with prejudice was upheld in State v Moriwake, 65 Haw. 47, 647 P.2d 705 (1982)."). Thus, “the crucial question is not the existence of power, but the propriety of its exercise on the facts of a particular case.” State v, Braunsdorf, 297 N.W.2d 808, 818 (Wis. 1980) (Day, J., dissenting). Here, the district court granted Ke’s motion to dismiss the prosecution's case without prejudice because the prosecuting attorney failed to appear at a scheduled pretrial hearing and failed to make arrangements for another to appear in his stead. The prosecution contends that the district court should have granted a continuance and imposed sanctions against the prosecuting attorney as opposed to dismissing the case. While (., seont inves) ‘an award of reasonable etorney's fees, + we review o trial court's dismissal of an indicteent for an abuse of discretion, See State v. Kim, 109 Hewai's $9, €2, 122 P.3d 1157, 1160 (App. 2005) ("A trial court’s ruilng on # motion to dismiss an indictment ie feviewed for an abuse of discretion.”) (Citing State v. Mendonca, 68 Haw. 260, 263, 711 P.2d 731, 734 (1965) -]  NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER the district court would certainly have been within its discretion to sua sponte deny the motion and continue the matter, under the present circumstances we do not believe that it “exceeded the bounds of reason” or “disregarded rules or principles of law or practice to the substantial detriment of a party litigant” by granting the motion. Office of Hawaitian Affairs v. State, 110 Hawai'i 338, 351, 133 P.3d 767, 780 (2006) (citing Ranger Ins. Co. v. Hinshaw, 103 Hawai'i 26, 30, 79 P.3d 119, 123 (2003). ‘The prosecution attempts to enhance our scrutiny of the district court's ruling by characterizing it as a dismissal with prejudice.’ The prosecution asserts that the district court's ruling must be construed as a dismissal with prejudice, insofar as the two-year statute of limitations set forth in HRS § 701- 108(2)(e),* for all practical purposes, precluded the prosecution from refiling the complaint. However, that contention is belied + a gismissal with prejudice would have required the district court to *palanc(e] the interest of the state against fundamental fairness to = Setendant with the scded ingredient of the orderly functioning of the court Systems”, Morivake, €5 law, at 56, 687 P.2d at 712 (quoting Braunadoit, 257 Wheda oe SET EEh Such situations, we have also admonished triei courts to Josue written findings of fact and Conclusions of law, See id. at 57 0.16, G4)'8.20 ot 113 n-16 ("Because of the Nature of crininal proceedings, and Sacause they are in the interests and for the protection of the public, there Sea sound basis in public policy for requiring the judge who assumes the ferious responsibility of dismissing a esse to set forth his reasons for doing So in order that all may. know what invokes the court’s discretion and whether fee action is justified") (Quoting Sale Lake City v. Wanson, 425 F.2d 773, 355 (Oton 1967).)7 Mago, 78 Hawai'i at 38, 669 P20 at 1097 (*In the future, fal courts exercseing this poner should issue written factual findings Setting forth their seasons for dismissal with prejudice so that reviewing Court may accurately assess whether the trial court duly exercised its Siseretion.") + aRs § 701-108(2) (©) (Supp. 2001) states that “(a) prosecution for stisdeneanor' oz parking violation must Be commenced within fWo years after sx fe" commieteal.J" 3  + NOT_FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER by the fact that the statutory deadline fell on a Saturday, thus allowing the prosecution to refile the following Monday.’ The prosecution's failure to refile its complaint foreclosed its ability to prosecute Ke, not the district court’s dismissal without prejudice. Therefore, IT 18 HEREBY ORDERED that the final order from which the appeal is taken is affimed. DATED: Honolulu, Hawai'i, February 7, 2007. on the briefs: Loren J. Thomas, Deputy Gro— Prosecuting attorney and Nicole C. Wipp, Law Clerk on the brief, for plaintirt- _Slicab sien sem appellant Dayna-Ann A. Mendonca, Det Owe Oe Deputy Public Defender, for defendant-appelice Boe Gores «igs rs The complaint alleged that the conduct for which Ke was being charged occurred on of about December 27, 2001. The complaint was filed on December 26, 2003, The statute of limitations was tolled during the pendency Of the prosecution. Sge HRS § 701-108 (6) (b) (Supp. 2001) (~The period of Tinitacton does not run [dJuriag any time when a prosecution against the accused for the sane conduct is pending in this State(.]").. The district Court dismissed the case on March s, 2004, When the matter was dismissed, the Statute of Limstations segsn to run, affording the prosecution until March 6, 2004 to Fefile its complaint. Gecaise March Gy 2006 fell on a Saturday, the deadline uss extended to March & 2004, the following Monday. See RS § 1-29 (1993) (The tine in which any act provided by law 1s to be done is computed by excluding the first day and including the Last, unless the last day is 2 Sunday or heliday and then it ie also excluded. oficoust, the last dav cleo shall be excluded i¢ fetes Saturday") (Euphasis eddec.); #RPP Rule 45 (2004) (~The last day of the period so Computed shall be included unless it is a Saturday, a Sunday, of a holiday, sn Watch event the period runs until the end of the next day which As note Saturday, Sunday, oF a holiday.”) 

cf9c5d6887dc85b2993d1561e2a87ecd96d25d59c4f2f706aa6b22dad1b4db3f

2007-02-07T00:00:00Z

d20f5e6e-254b-43a2-84c9-e900e3df8862

Kaanapali Hillside Homeowners Association v. Doran. ICA Opinion, filed 10/13/2006 [pdf], 112 Haw. 356. ICA Order Denying Plaintiff-Appellees Motion for Reconsideration, filed 10/31/2006 [pdf], 112 Haw. 470. S.Ct. Order Accepting Application for Writ of Certiorari, filed 03/08/2007 [pdf], 113 Haw. 471. S.Ct. Order Denying Motion for Reconsideration, filed 07/20/2007 [pdf].

114 Haw. 361

hawaii

Hawaii Supreme Court

LAW LIBRARY +++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** IN THE SUPREME COURT OF THE STATE OF HAWAI'I 00. YAANAPALI HILLSIDE HOMEOWNERS’ ASSOCIATION, a Hawai"i nonprofit corporation, by and through its Board of Directors, set leloner/Plaintift-Appellee 2 ws. a. = ze 8 one 8 ney mma som EF s 2 Aespondanee/becancencestpoeiance BRB AMERICAN SAVINGS BANK, F.S.B., a federal savings’ Ek, 2 i Respondent /Sefendent-appeltee 2 JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; DOE ENTITIES 1-10; DOE GOVERNMENTAL AGENCIES 1-10; and DOE ELEEMOSYNARY CORPORATIONS 1-10, Defendants No, 25585 CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIV. NO. 99-0488(3)) June 21, 2007 MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ. OPINION OF THE COURT BY DUFFY, J. Petitioner/Plaintiff-Appellee Kaanapali Hillside einafter, KHHA] filed a timely Homeowners’ Association (1 Application for Writ of Certiorari (Application) seeking review (1) the November 3, 2006 judgment of the Intermediate Court (CA) on its published opinion in Kaanapali Hillside 145 P.3d 899 (App. of Appeals Homeowners’ Ass'n v. Doran, 112 Hawai'i 356, 2006) [hereinafter, KHHA I), which (a) affirmed in part the +++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** Novenber 26, 2002 final judgment of the Circuit Court of the jecond Circuit! in favor of KHHA, but (b) vacated that portion of thé judgment awarding fees and costs to KHHA and remanded for redetermination of the appropriate amount of fees and costs: and (2) the ICA's subsequent “Order Approving in Part and Denying in Part [KHHA]’s Request for Attorney's Fees and Costs” (hereinafter, fees and costs order]. KHHA asserts that the ICA gravely erred in: (1) holding that (a) KHHA is not a “planned community association” as defined by Hawai'i Revised Statutes (HRS) § 4219-2 (Supp. 2002), and thus, (b) KRHA is not entitled to recover the fees it incurred in the circuit court pursuant to HRS § 4210-10 (Supp. 2002);? and (2) holding in its fees and costs order that (a) RHHA is not a “planned community association” as defined by HRS § 607-14 (Supp. 2006),? and thus, \ the Honoreble Joseph €. Cardoza presided over this matter. 2 WRS § (219-10 states, in relevant part: (a) A121 costs and expenses, including reasonable attorneys’ fees, incurred by or on behalf of the sssociation for (2) Gellecting any delinguent assessments against fany nit er the owner of any unity (2) Foreciesing any Vien on any unit; or (3) Enforcing any provision of the asscciation documents or this chapter; sozinet 2 senner, occupant, tenant, employes of a member, or any other persen’ who in any manner may use che property, shall be promptly paid on demand to the association by such person or persons = 2 HRS § 607-14 states, in pertinent part: (continued... FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** 8 cannot exceed (b) the amount that KHHA can recover in f twenty-five per cent of the judgment. We accepted KHHA’s Application. We now: (1) affirm the ICA’s November 3, 2006 judgment, but for the reasons stated herein, and therefore vacate the circuit court’s judgment with respect to its award of fees and costs and remand with instructions; and (2) reverse the ICA’s fees and costs order with respect to its award of fees. 1. BACKGROUND ‘The following are relevant portions of the facts and procedural history as set forth by the ICA. AL Des i ion on Decenber 15, 2972, pursuant to an sqreenent of sale, Ploneer Mil Company, Limited (Picneer| sold 70 acres Of long on Maui (the Property) to Chbaysshi Hawaii. -continved) a ail the courts, in all actions in the nature of acconpeit'. ..- there shell be taxed as attorneys’ fees, to be paig by the losing party and te be included in the sum for which execution may iseue, @ fee that the court Geternines to be reascrable; <=. prov inet exceed twenty-five per Cent of the tu " Nothing in this section shall limit the recovery of ‘Socuments, or affect any right of a prevailing party to Fecover attorneys’ feas in excess of twenty-five per cent of the judgnent porsuant fo any statute thet specifically provides that a prevailing Party may recover all of ite Feasonsble attorneys’ fees ist the variates of this section neana-e-nennrodit fezeouners or conmonity association existing pursuant te covenants Tunnsng with the lang. (Exphases added.) ‘** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** Corperation (ONC). The bulk of the Property was used to Sevelop the [xsanapali Milleige Supdivieien hereinafter, Subdivision) ]. On June 18, 1980, Pioneer recorded a Declaration of Covenants and Restrictions (Declaration) against the Property. Later that day, in satisfaction of the agreesent of sale, 2 deed was recorded conveying the Property to OHC, subject to the Declaration. fon July 16, 1982, Pioneer and ORC recorded a First Anendnent of Declaration of Covenants and Restrictions (First vended Declaration), which conpletely anended and replaced the Declaration. Ihe First Aeanded Declaration dmbored various covenants and restrictions relating to-land stand te permissible architecture, structures. and ‘The First Anesded Deciarstion declared that the covenants and restrictions were "in furtherenee of 8 connon building schene hereby, Imposed on the Property « ..« for the purpese of enhancing and protecting the valve, dessramiiity ana attractiveness of the Property.” Tt further provided that the gavenante and xestricticns “shall run with the land and shali be binding ‘Saal partics havina or accuirina-any right. citle or interest in the Property or any part therect.” Under the First Anended Declaration, all structures built, inprovenents nade, and landscaping dene in the Property were subject to Pioneer's prior approval. Pioneer ues suthorizeg to sssign ite rights ang duties under the First Amended Declaration "at any time” and "to any party.” Pioneer, ONC, and any lot cwner in the Property were suthorited to bring @ civil action to enforce compliance ith the covenants ang restrictions set forth in the First Bnended Declaration. The First Anendes Declaration dig not include @ provision establishing « procedure by which its Sere cobla be snendes KHHA I, 112 Hawai'i at 357-58, 145 P.3d at 900-01 (emphases added) (footnote omitted) (some alterations in original). B. The Incorporation of KHHA, Its Charter, and Ite By-Laws ‘on ctober 1, 1962, employees of OHC filed a Petition for Charter of Incsrporaticn with the Department of Regulatory Agencies (now known as the, Def and Censuner Affaizs), state of Hawai's, KHHA se a non{]profit corporation. The petition was granted. WiIIA's Charter of Incorporation (Charter)... Provided that each owner of a lot in the Subdivision “shail + the agreement of sale stated that the Property was subject to the Soeelaration of Covenants and Restricticns,” which wae attached as an exhibit and later recorded on June 19, 1980  “++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER * autonaticelly become a nenber of (KHHA} and chal be entitled to ang be bound by all the rights, duties, Privileges and obligations of 2 nenber” as’ cstablizhed by the ‘Charter, the By-Laws of KUNA, and any rules and Fegelatione adopted by KAKA.” The Charter granted various Powers co KHHA, including the following express powers: (6) Te may fix, levy, collect, and enforce payment of, by any lawful means, any and all charges nd sssessnents against ite nenbers . «+ (e) 1 may adopt rules and regulations governing the’ facklities, propert. mente, and other areas Sunes ond/or mointsined and persted by [HHA]. {£) 1 may, but shell not be obligated to, take such action a6 1¢ dened necessary to enforce sny Eecerded or unrecorded covenants and restrictions Governing the use of the property within the Scbaivisson, including, but pot limited to, the Declaration of Covenents and Restrictions = + = as sane may be amended from time to time. HSA’ s By-Laws provides, anong other things, that [t]he rights of nenbership [in KiHA) are subject to the paynent of sesesenents levied by [KHKA], the Sbligation of which aesesenents 1s Imposed Sosinst Sach Owner of and becomes a 1ien upon the lot ageinet which such sssecenents are made Neither OHC nor Pionsex recorded WA's Charter or joules soainet Subaiv shih were csseureter gesocistion To lev carers in the Subdivision. KBA I, 112 Hawai'i at 358-59, 145 P.3d at 901-02 (emphasis added) (some alterations in original). ¢. The Bartial Assignment and Other Services Provided by KHHA Since [Merch 27, 1986], KHKA has maintained... a private Park avaliable for vse’ by KHHA senbers only. Tho park Eontaine inprovenent® such ae welkways, lights, benches, plenle: tables, grace, trees, and hedges which require Fegular expenditures for repair, maintenance, Feplacenents the fark has been’a enefit ce lot owere in the Subdivision. Te has been used By let owners for recreational activities ané has provided open space for the Subdivision.  FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** (on June 20, 1986, @ Partial Assignment of Declaration of Covenants and’ Restrictions (Partial hesignnent) wae Fecorded in the Puresu of Conveyances. Pursuant to the Earelal aselonnent, Pioneer assigned and transferred to XiA i et z = hs “KHER agreed to enforce each of the provisions, covenants, and conditions of the Declaration and First Amended Decisration and to indennify Pioneer Sgainet any lose or somage arising from KHHA's failure to 60 So. GHC consented te and joined in the Partial Aseigraent- By virtue of the Partial Assignnent, KINA has been reepeneible since 19€8 for reviewing and Seproving architectural plans for inprovenents to lots submitted by ot owners. MHHA has monitorea construction of the improvenents to ensure compliance with the approves plans and specifications. Kia has also enforced the other Ceverante and restrictions contained in the First Amended Declaration. It has incurred expenses in resolving dispute relating to its architectural review decisions and its enforcenent of covenants and restrictions, including Forsving and defending ageinat leeuite afising out of these matters. In addition to maintaining the park, reviewing and approving plans for propoted improvenents, and enforcing the Gevenante snd reetrietsons in the First Auended Declaretions WKA has provided other services that Benefit the Subdivision. Anong other things, MINA has maintained & Flanting screen estenent and landscaping along public rights Of may, including an srrigaticn aysten and fences within the Ssndscspes area. it has cleaned unkengt vacant lots by owing then and removing fubbisn. Kila also maintained the Toads in the Sobdivieion until the roads were dedicated to the County of Maui in April 1950. KHMA hae imposed assessments against lot omers and collected such Sescesnents to fund its activities since October 1, 1983. HEHA I, 112 Hawai'i at 360, 145 P.3d at 903 (enphasis added). D. The Dorans' Purchase of Their Lot (on July 5, 1596, [Respondents/Defendents-Appellents Dena 0. Doran ahd Michael P. Doran) became the ouners of Lot No. ¢2'in the Subsivision when their warranty deed was recorded. ‘Prior te purchasing their let, the Dorans had actual and constructive notice of the existence of AHR u the First dnended pects Enrtial Assionzent. The Partial Assicnsent identified Kits Sethe oreanizstion ressonsible for enforcing the covenants and restrictions in the Declaration and First muenced Declaration, The corens’ warrenty dees, however, G2d not  * FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *% state that their lot w (laws. fevbject to KMMA'® Charter or By- . Prior to closing, the Dorans received documents which referred to KilK, the tandstory nature of nenbership in Kuh, “and the obligation to pay assessments for services provided by HHHA. “In particular, the Dorans scnit they Feceived copies of xiNA’s Charter and By-(L]aws Before they porchesed. The Dorans” Deposit Receipt Offer and Acceptance TOROA) stated that "Maintenance Fees are $240.00 paid Guarterly,” ang their escrow sett lenent statenent reflected fhe apportionment ‘sf the £240.00 guerterly saintenence fee With the seller. The Derang’ OROA notified chen that thelr obligation to purchase wae contingent on their review of henecwner crgenization documents, including the articles of incorporation, [B]y-[Llawe, minstes of the Lest annual and financial statements. The Derans also executed je dated duly 1, 1996, that contained & planned unit Gevelopnent (PUD) rider, which stated that the Dorans’ property vas part of a PUD. The PUD rider required the Berane to perform sil thesr obligations snder PUD" s ‘Const stvent Documents,” which were defined to include the cuore association's articles of incorporstion and (B)y= [Ljaws. The Derans were required to “promptly pay, when ve, 2il dues and assessments imposed pursuant to the Constituent Documents.” At trial, Michael Doran testified that at the tine he purchased hie home, he was under the impression thet the Subdivision was a PUD, that menbersnip in KAKA was mandatory, and that he wae obligated to pay acsesenente to NUMA. From July 1596 through March 1989, the Dorans paid assesenente to KUNA, participated in KEEA meetings, and even Feguested that KilA enforce the land use restrictions Contained in the Faret Amended Deciarstson against other lot Senora. tn Tezruszy 1999, however, the Oorane circulated & Resletter to nonccwners disputing the authority of KHHA to Collect seeesenents. The Corans stopped paying their Sesesenents and denanded that HHA refund the assessments they hed previously paid. On June 22, 1998, the Derans sued KGHA dn shail claims court seeking the return of ments Paid to KHEA. ‘The suit was leter dismissed. KOA I, 112 Hawai'i at 360-61, 145 P.3d at 903-04 (emphasis added) . E. The Circuit Court Proceedings on August 2, 1999, KHHA filed a complaint in circuit court against the’ Dorané, Anerican Savings Bank, F.8.8. (ierican Savings), and varsove Doe ineividvels ang entities. MIA sought: 1) a Judgnent declaring thet the Dorane were obligated to pay assesenents (Count 2); 2) an ++ FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER *** injunction ordering the Dorans to pay assessments (Count 2): 3) a lien against the Dorans" lot for the aeeesements end ether charges due and owing (Count 31; 4) a Jucgment against the Dorans for the sssesenente and other charges due and owing (Ccunt 4); 5) a judgment estopping the Dorans fro Fefusing to pay sesessnents and other charges due {Count 5) 6) a foreclosure sale of the Corsns’ lot ae a seans of collecting the outstanding fees and charges (Count 6); and 7) an award of attorney's fees and costs (Count 1). KRHA s claine against hnerican Savings were later volunterily Gienissea By stipolation. fon Yay ¢, 2000, Judge Artemio Baxs entered an order granting the Corans’’sotion for partial summary jodgment and Gismiseing Count € of the complaint (the foreclogure ceunt) vith prejudice. Inthe erder, Juage Baxe found: 1. That Plaintiff ie not on “aesociation” within the meshing of... (HRS) (cJhapter 4239 (2004). 2. The mandatary membership in Plaintitt and any obligation to pay assessments is not 5 real covenant Fonning with the land at law 3."That there is not cnd he never been any present, valid, existing lien on Defendent’s property in‘ favor of Flaineaze. After a bench trial before Judge Cardoza held in August and Septenber of 2002, Judge Cardozs ruled in favor Of KHIA ch all the Tesaining’ counts. Judge Cardota encered 2 Final Jodgnent in fever of KiHIA that: i) declared that the Dorans are required to pay their share of the costs of neintsining the commen ares and acainistering the Subdivision; 2) granted injunctive relief ordering the Dorans to comply with thelz payment cbligations as long as they own Lot 42; 3) determined thet KHKA has a 1ien on the Dorans’ lot for unpaid assessments and other charges due and owing anda right to enforce the lien; 4) entered = monetary judgment in the sun of $6,411.23, representing accrued assessments of $8,150, late fees of $175, and interest of £486.23; 5) entered judgnent equitably of otherwise estopping the Dorans from refusing to pay sesessments and ether charges due to KiWA; and 6) entered s monetary judgment in fevor of KOHA tor Aes legal fees of $261,287.35 and its costs of $44,255.71. In the Final Judgment, Judge Cardoza acknowledged the prior dieniseal of KINA's foreclosure count by JU; but ruled that KiHA 1s not precluded from attempting to enforce its lien for unpaid arsesenente and cther charges onder any available renedies, including foreclosure. in his post-trial “Findings of Fact and Conclusions of Law and Order,” Judge Cardeza also reconsidered ang reversed the eerlier findings nade by Judge Baxa when Judge Saxe granted tthe Dorane’ motion for partial summary judonent and Gitniseed the foreclosure count. Judge Cardoze concluded  FOR PUBLICATION IN WEST’ naw! REPORTS AND PACIFIC REPORTER *** ‘thet: 1) MIWA As an ssocistion within the meaning of HRS (elhapter 4219 (2004); 2) that mandatory membership in KAHA ind the obligation to pay secessnente axe covenante running ith the Iang; and 3} SHHA has a valid Lien on the Dorens’ Joe ko secure paynent of acsessnents. Judge Cordoza’s deternination that HHA was an association under HRS [cinapter 4219 was particularly significant because At provided a statutery Basis for MAHA to seek full recovery of Kes attorney's fees and costs. KAWAI, 112 Hawai'i at 361-62, 145 P.3d at 904-05 (sone alterations in original). F . cad qhe-Aopen)-and the Ich’s Published cpinion-and Fees and The Dorans appealed, pro se, alleging twenty-five points of exror, the relevant portions of which can be distilled into the folowing two contentions: (1) the Dorens are not obligated te pay assessments to KHHA because the Declaration and First Amended Declaration do not mention KEHA and do not inpose an obligation upon lot owners to pay assessments; and (2) the circuit court erred in awarding attorneys’ fees and costs pursuant to HRS § 4219-10 because KHHA does not meet the HRS chapter 4210 definition of “association.” With respect to the first issue, the ICA affirmed the circuit court’s Novenber 26, 2002 judgment, holding that “under the circumstances of this case, the Dorans implicitly contracted and agreed to pay the assessments authorized under KHHA’s Charter and By-[L]aws. The Dorans were bound by an implied obligation to pay their share of  FOR PUBLICATION REPORTER *** WEST'S HAWATI REPORTS AND PACH the costs incurred by KRHA in providing services that benefitted the Subdivision.” KHHA I, 112 Hewai'l at 363, 145 P.3d at 906. . In regard to the second issue, the ICA vacated that portion of the circuit court's judgment awarding fees and costs to HHA and remanded for redetermination of the appropriate amount of fees and costs. Id. at 365-67, 145 P.3d ati 908-10, ‘The ICA reasoned that KHHA was not entitled to fees and costs under HRS § 4210-10 because KHHA did not meet the HRS § 4219-2 definition of “association” inasmuch as there were no recorded instruments that granted KHHA the authority to impose on units or on the owners or occupants of the lots, any mandatory payment of money. Id, The ICA rejected KHHA’s argument that the First Amended Declaration -- because it required a lot owner seeking architectural approval for planned improvements from KHHA to bear all costs incurred in connection with the review and approval Process, and authorized KHHA to bring a civil action to enforce land use and architectural restrictions against a lot ovner whe violated such restrictions and to recover damag and attorney's fees in such an action -- created such authority in KHHA. Id. at 366, 145 P.3d at 909. Specifically, the ICA state: We agree with the Dorane thet KHHA’s ability to require a lot onner to pay the costs aesociated with Srenitectural approval for desired improvenents te his or her cum lot dees not cenonstrate that HAHA hag the authority te inpose on Jot cuners 8 “mandatory payment of money as 8 regular ennual essescrent or otherwise” under the ARs & 4219-2 definition of “aeclaration.” Nor se the statutery 10  * FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER definition satisfied by KiHA'e ability to collect demages or attorney's fees inva civil suit to enforce Land use ang architectural restrictions. Under the First inended Declaration, os sesigned, KIKA did not have the authority to impose a “mandatory Payment” on lot omers becsuse KINA could not compel ict cuners to pay any money. Only the Earticular lot cwner sho sought aychitecturai approval. for Secired inprevenente or who violated @ restrictive covenant was cbligeted eo pay. As we construe the HRS § 4213-2 definition of “declaration,” the recorded instruments must give the association the power to require lot owners, on a collect basis, ‘to pay for the services renceres by the association. The abilicy to denana peyment. from an individual lot omer for & specific service requested by that lot cuner or as Sencticn for that lot owner's siolation of the restrictive Covenants ie not enough. Otherwise, the statute's Use of the plural form of the term “onite" in referring to "the autherity in the eesociation to impose oh unite” and the statute's use of the term “mandatory” to cescrsbe the “payment of money” would be superfidous. See Camara wa \SeAlud, 67 Maw. 232, 215-16, 685 F.2d 794, 797 (198@) ("It isa cardinal rule of statutory construction that courts are bound, if retionel and procticable, to give effect to ai] parts of a statute, and that no clause, sentence, of word Shall be construed as svperfiueus, void, or insignificant if 2 construction con be legitimately Found which will give force to and preserve all the words of che statute.”) Although Kia's unrecorded Charter and By=[Llous provided ‘that KGHA had the authority to impose mandatory payments of snoney on let cuners, the instruments that had been recorded Bowinet the Subdivision lets did not. Id. (footnotes omitted) (emphases in original). ‘The ICA entered its judgment on appeal on Novenber 3, 2006. On Novenber 14, 2006, HHA filed a request for attorneys’ fees and costs incurred on appeal, noting that HRS § 607-14 provided a basis for an evard of fees to KHHA. KHHA also asserted that because it was a “planned community association” for purposes of HRS § 607-14, its fee award was not subject to HRS § 607-14"s cap of twenty-five per cent of the judgment. KHHA reascned that, “whether or not KHHA is a planned conmunity a  2+ FOR PUBLICATIO’ association for the purposes of [HRS] [cJhapter 4213. . . is irrelevant to its entitlement to an award of all of its feasonable attorneys’ fees and costs pursuant to [HRS] § 607-14" because the definition of “planned community association” in HRS § 607-14 was significantly broader than the definition in HRS chapter 4213. On December 29, 2006, the ICA granted in part KHHA’S request for fees and costs pursuant to HRS § 607-14 and Hawai'i Rules of Appellate Procedure Rule 39, but capped KHHA'S award of fees at twenty-five per cent of the judgment based on its conclusion, without discussion, that KHHA was not a “planned community association” as defined by HRS § 607-14. G. Application for writ of Certiorar: KHHA filed this timely Application on January 30, 2007, and the Dorens filed their response on February 14, 2007. we accepted certiorari by order dated March &, 2007. On March 16, 2007, the Dorans filed a “Notion for an Order Permitting the Filing of @ Supplemental Brief," and on March 19, 2007, KHHA filed a “Motion for Leave to File Supplemental Brief.” By order dated March 20, 2007, this court granted both parties’ motions. On April 2, 2007, KHHA filed its supplemental brief, alleging: (1) public policy supports the circuit court's decision that KHBA falls within the scope of the statutory definitions of @ “planned community association”; (2) KHHA is a planned conmunity 2 #4 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** association under BRS chapter 421d; (3) the Dorans should not be permitted te make new arguments in their response (4) HHA is a planned conmunity association under HRS § 607-14; and (5) the Dorans misinterpiet the ICA’s decision and attempt to raise issues not before this court. The Dorans filed their supplemental brief ex officie on April 2, 2007, contending: (2) the ICA correctly determined that KHHA is not a planned conmunity association under HRS chapter 421J;* and (2) the ICA committed plain error in determining that the Dorans have an inplied ebligation to pay assessments.‘ IT. STANDARD OF REVIEW Statutory interpretation is “a question of law reviewable de nove.” State v, Levi, 102 Hawai'i 282, 285, 75 P.3d 2173, 1176 (2003) (quoting State v. Arceo, 84 Hawa 928 P.2d 843, 852 (1996)). This court's statutory construction "41, 20, Ag guided by established rules: + In ther supplenental Brief, the Dorans dizect this court's attention failed legislative bill, which would have anended the definition of “planned cenmunity aseeciation” in HRS § 4219-2 and URS § 607-14, Such cltation will not be ciscveced further ineenuch ae st is in contravention of Jinks § 64172 (Sopp. 2006), which stoter that "[elvery appeal shell be texen on the Fecore, and ho new evidence shall be introduced in the supreme court. te «Because the Dorans did not apply for a writ of certiorari to review the ICA's determination that the Derane have an implies cbligation to pay, ezenente, and because we perceive no plain error, we will not address this irgument forther herein. See State -v. Belesan, 7€ Heuei'i 86, 69, £90 P26 693, 676 (1998) ("When a party fails to properiy chi @ ‘ruling of the Sex, he ordinarily will net adcrese thet! roling absent plain error.” (Citing State's. iiiets, 77 Hawai'i 308, 310 n.1, #84 P.2d 372, 373 m2 (2894).)). 2 ‘¢# FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** the fundanental starting point for statutory rotation ir the language of the stetute itself, Second, where the statutory Language is plain and ranbiguovs, cur sole duty is to give effect to its Plain and obvious meaning: Third, implicit in the task of statutory construction is our forenost Sbligatsen to ascertain and give effect to the Sntention of the legislature, which is to be cbtained primarily from the language contained in the statute Eeeelf. Fourth, when there is doubt, doubleness of Reaning, of indietinctiveness or uncertainty of an enpressicn used in a statute, an snbiguity exist And fifth, in construing an ébiguous statute, the Reaning of the anbigueus words may be sought. by Seamining the contest, with which the sabscuous words, Phrases, snd sentences may be conpared, in order to Becertein their true meaning. Peterson v. Hawaii Elec. Light Co., Inc,, 85 Hawai'i 322, 327-28, 944 P.2d 1265, 1270-71 (1997), superseded on other rounds by HRS § 269-15.5 (Supp. 1999) (block quotation format, brackets, citations, and quotation marks omitted). m1. USSION KHHA_is Not_a “Planned Community Association” hs 7 HRS Chapter 4210 and Thus is Not Entitled to Recover the Fees It Incurred in the Circuit Court Pursuant to HRS $ 4239-10. KHHA asserts that the ICA gravely erred in holding that (2) KUNA is not a “planned community association” as defined in HRS chapter 421J, and thus, (2) KHHA is not entitled to recover the fees it incurred in the cireult court pursuant to HRS § 421J- 10, We disagree. HRS 4213-2 defines “association” as “a nonprofit, incorporated, or unincorporated organization upon which responsibilities are imposed and to which authority is oranted in u + FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER *** declaration which governs a planned community.”” (Emphasis added.) In turn, “declaration” is defined as: any recorded nstrunent, however denominated, that impos Gh an sesociatson neintenance or operations? ponsibilities for the connon @ at pies sto0! ‘on_units, or-on the ea reaui heruize in be benefit of ser = Secunente of the unite or the common areas. A declaration Ghelodes ony esenceent or supplement to the instrunente. described in this definition. > A “planned community, the definition of which is not at issue here, 2 connon interest community, other than a condeningum or EeoSperstive housing corporation oF # tine share plan which Sheluses si"ef the following characterastice 2)" xean property subject to 8 reccrded declaration Placing restrictions and obligetions on the Ourere of the real property and proviging for signee snd reepenibilseies of a separete entity, “the setocistio (8) “mien Sime and maintains certain propert thin’ the planned ceanunity for the Connon ee or Benefit, or both, of the Genere of unite within the penned conmsnity: (8) hich ir obligated co maintoin ceztein Property it aes not own within the Planned conmanity for the comon use oF Benefit, or bothy of the ouners of units within the planned community) or tc) mien is soligated to provide services to Say auch owners or units (2) Individual onners cm separate unite which are pert of a planned cenmunity st least cone of hich are inproved by or are to be inproved by Feridential Gwellings? (2) Sines nave suzanstic and non-seversble menserehip in an atscciation by virtue of Sunership of unite mithin the planned cenmunity: (6) Giners, other than ¢ master developer ox declarant, are cbligated to pay mandatory fetenants by virtue of cunership of 2 dst within the planned conmonity. ns § 4213-2 ‘** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** HRS § 4219-2 (emphases added). ‘The question here is whether the First Amended Declaration, which is the only relevant instrument that is recorded, creates in KHHA the authority as required by the definition of “declaration” set forth ebove.' The portion of the First Amended Declaration that KHHA contends constitutes such a grant of authority states: 2. Architectural Contrel. mo structure shall be ‘ctedy placed or altered on the Property untsi the plant and specifications therefor have been submitted to and pprcved by. {KBHA] Sneluding = a, en a Ssbreving plane and epecisiestione (Emphasis added.) We disagree that a requirenent that a lot owner “bear all costs” incurred in connection with the review and approval of that lot owner's proposed architectural plans is equivalent to e grant of authority to “impose . . . [a] mandatory Payment of money as a regular annual assessment or otherwise in connection with the provisions, maintenance, or services for the benefit of some or all of the units, the owners, or occupants of the units or the common areas.” Notwithstanding the statute's use of broad terminology such as “or otherwise” and “some or + the Dorans also argue thet there is no recorded instrument “that imposes on an steociation maintenence or operational responsibilities for the common eres” as required by the first part of the definition of “declarsticn.” This axgusent, however, need not be discussed further herein Because our helding that the First Anenced Declaration does not create in ¥iltA the suthersty required by the second part ef the definition is dispositive. 1 #9 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTE! 11,” KHHA’s argument asks this court to stretch the language of HRS .§ 4213-2 beyond its reasonable interpretation.’ Clearly, the statute meant to encompass instruments with language such as that used in KHHA’s unrecorded Charter -- “(KHHA) may fix, levy, collect, and enforce payment of, by any lawful means, any and all charges and assessments against its members[.]” Because the Charter was not recorded, however, and because KHHA’s First Amended Declaration cannot reasonably be interpreted as creating the requisite authority in KHHA, the ICA did not gravely err in concluding that KRHA is not an “association” under the plain meaning of HRS § 4219-2.!° Consequently, the ICA did not gravely with the ICA's conclusion that “the recorded “Teeociation the power te require lot owners, on @ ccllective ‘ervices fendered by the association.” KIA [112 Hawai't at 366," 145 7.38 at 909. We agree with the ICA that the plain Reaning of the statute requires that the recorded snstrumenta authorize the Scsccldcion te infete on mublaie onita, cimerg, ot cecupanta mandatory sents of resey sn connection with cetvices for the benefit of "some of all [Liew not just one) of the unitg, the owners, oF cceupantg.” “ARS § 4210-2 (exphises added). % AGHA’ s argument that public policy favors supporting the legal framework of community Theeed, this se not a situation wherein a9 or status és @ “planned nvnity seeceiat ion” tute’ s requirenent®, isther, it appears chat HAS chapter é21i was enacted epproxinetely £1 ft years after the incorporation cf KallA. Thus, it 1s possible that the Yegisuature, in enacting IRS chapter (213, intended that exteting organisations such ss HHA -- s.e,, orsenizetions that would be *associations” pursuant to chapter 4217 but for the failure to include the aesesanent power Ena recorded snstrunent =~ wovld fall under chapter 4210. However, even if we Believe thet the legislature sntended to include organizations such ss KEHA Unser HRS § 4219-2"s definition of “aescciation,” we cennot depart from the plain and snanbiguoss language requiring that the instronent granting the Required authority must be recorded. See State ¥. Dudeit, $0 Hawai't 262, 251, 976 P.24 700, 108 (7993) ("He do not legislate or sake laws. even where Ene court is convinced in ita own mind that the Legislature really meant and (Continved. n  ++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER err in concluding thet KHHA is not entitled to fees and costs puréuant to HRS § 4219-10. B.’ Fees and Costs on Remand While we agree with the ICA that KHHA is not entitled to fees and costs pursuant to HRS § 421J-10 and that the matter should be remanded, ve write to clarify the extent to, which attorneys’ fees and costs may be avarded. We emphasize, that, on remand, the circuit court is limited to redetermining an avard of fees and costs pursuant only to those grounds upon which KHHA had previously relied. Remand is not an opportunity for KHHA to be awarded fees and costs besed on other grounds upon which it could have raised earlier, but did not. 1. Fees Aside from HRS § 4219-10, KHHA requested fees based on HRS § 607-14.5 and also specifically requested $2,995.06 in fees pursuant to the circuit court’s March 20, 2000 order finding that the Oorans violated Hawai'i Rules of Civil Procedure (HRCP) Rule 11 and granting KHHA’s request for sanctions to include attorneys’ fees and costs. Because the Dorans did not appeal the circuit court’s award of $2,995.06 in fees based on the sanctions (, .seontinved) Antended Senething not expressed by acthority to cepart from the plain meaning of the language used.” phraseology of the Act, it has ne (Qucting States mever, €1 Haw. 74, 75, S98 F.2d 266, 291 (1979)+) (Enphasss, eaitted.]) Fey s+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** order, limiting their appeal to the circuit court’s determination that KHHA was entitled to fees pursuant to HRS § 4219-10, KHHA is entitled to this amount. ‘Therefore, on remand, the circuit court is instructed to award KHHA fees in the amount of $2,995.06, and determine whether and to whet extent KHHA is entitled to additional fees based on HRS § 607-14.5. 2. Costs Although KHHA is not entitled to costs under HRS § 4210-10, KHHA also requested costs in the circuit court pursuant to HRCP Rule 54 and HRS § 607-9 (1993)."" However, because, as recognized by the ICA, “[t]he circuit court's award of $44,225.71 in coste included items . . . that KHHA only argued were authorized under HRS § 4210-10(,]” KHHA IT, 112 Hawai'i at 364-65, 145 P.3d at 907-08, the ICA did not err in vacating the circuit court’s order of costs and remanding for recalculation of costs purevant to HRCP Rule 4 and HRS § 607-9, We therefore affirm 4 BRE § 607-9 provides in relevant part: ALL actual éisbursenents, including but not Limited to, ineractate travel expenses for witnesses and counsel, expenses for deposition transcript originals and copies, and Other incidentsl expenses, including copying costs, Sntrastate long distance telephone charges, ané postage, guorn to by an attorney or a party, and deemed reasonable by the court, may be siloved in taxation of costs. 1s *s** FOR PUBLICATION IN WEST'S AWAIT REPORTS AND PACIFIC REPORTER *** that portion of the ICA's judgnent that vacated the circuit court's award of costs. C.' Kila {sa “Planned Commun a5 Defined in HR Coste Incurred on Appeal. KINA also argues that the ICA gravely erred in holding in Ste Decenber 29, 2006 fees and costs order that, because KHHA is not @ “planned community association” as defined in the assunpsit statute, HRS § 607-14, supra note 3, “the attorney's fees that nay be svarded [to HHA) pursuant to HRS § 607-16 are Limited to twenty-five per cent of the judgnent.” Notwithstanding the ICA's conclusion that KHHA is not @ “planned community association” as that phrase is utilized in liRS chapter 4210, KHHA argues that it is a “planned conmunity association” as that phrase is defined in HRS § 607-14. KHHA therefore asserts that it is not subject to the twenty-five per cent cap on its fees and costs incurred on appeal. We agree. 1, The definition of a “planned community association” in HRS § 4219-2 differs from the definition of that phrase in URS § 607-: WHA points out that in contrast to the definition of ‘planned community association” set forth in HRS § 4219-2 discussed in Section III.A, supra, HRS § 607-14 provides a significantly broader definition: “*Planned community association’ for the purposes of this section means @ nonprofit 2 ##* FOR PUBLICATION IN WEST'S HAWATI REPORTS AND PACIFIC REPORTER ** homeowners or community ssseciation existing pursuant to covenants running with the land.” HRS § 607-14 (emphasis added). HRS chapter 4213 was created by the sane Act that anended HRS § 607-14 to include an exception to the twenty-five per cent cap for planned conmunity associations. 1997 Haw. Sess. 1. Act 132, the legislature §§ 1-2 at 247-53. KHHA argues that becau: defined the sane phrase differently in the same Act, the legislature intended different definitions. The Dorans appear to counter that, because the ICA concluded that HINA is not a planned community associetion under HRS chapter 4219, it cannot be a planned community association under HRS § 607-14. Based on the following, we agree with KHHA. Ie must be presumed that in defining the phrase ‘planned community association” when the legislature amended HRS § 607-14 in Section 2 of Act 152, the legislature knew the definition it sseigned to that phrese in Section 1 of the same Act, which would create chapter 4210. Cf. Tenashiro v, Dep't of Hunan Servs., 112 Hawai'i 368, 427, 146 P.3d 103, 142 (2006) (stating that “the legislature is presumed to know the law when enacting statutes") (quoting Agustin v. Dan Ostrow Constr. Co. Inca, 64 Haw. 60, 63, 636 P.2d 1548, 1351 (1981)). Thus, had the legislature intended that the definition of a “planned community association” be the same for both statutes, the legislature could 2  *#* FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER * have defined the phrase in HRS § 607-14 by reference to the definition in chapter 4219. The legislature did not. Rather, in the legislature used the defining the phrase in HRS § 607-14, language “for the purposes of this section,” expressly indicating that the legislature intended a different definition. See State vs Kalani, 108 Hawai'l 279, 283-84, 118 P.3d 1222, 1226-27 (2005) ("[C)ourts are bound, if rational and practicable, to give effect to all parts of a statute, and that no clause, sentence, or word shall be construed as superfluous, void, or insignificant if a construction can be legitimately found which will give force to and preserve all words of the statute.” (Citations omitted.)). Gf. Rodrigues v. State, $2 Haw. 156, 168, 472 P.2d $09, SIE (1970) (stating that “in the absence of an express intention to the contrary, words or phrases used in two or moze sections of a statute are presumed to be used in the same sense throughout") (quoting Gaspro, Ltd. v. Comm'n of Labor & Indus. Rel., 46 Haw. 164, 377 P.2d 932 (1962)). Thus, notwithstanding the fact that the word “association” is used in HRS § 607-14’s definition, it does not have the same meaning as “association” es defined by HRS § 4219-2. Because the legislature utilized different definitions within the same Act, it may reasonably be inferred that the legislature ultimately decided to implement @ broader definition in HRS § 607-14. This court need not determine why the 2  LICATH IN WEST'S HAWAP REPORTS AND FOR. legislature acted as it did; it suffices to conclude that, although KHHA may not be a “planned conmunity association” for purposes of HRS chapter 4219, it can be a “planned community association” for’ purposes of HRS § 607-14. 2. KBHA is a “planned community association” pursuant to HRS § 607-14 and is thus not subject to the twenty-five Per cent cap on its award of fees. We next address whether KHA is a planned community association pursuant to HRS § 607-14 such that it is not subject to the twenty-five per cent cap on its award of fees. As set forth above, HRS § 607-14 defines a “planned community association” as “a nonprofit homeowners or community association existing pursuant to covenants running with the land.” There ss no dispute that KIHA is a nonprofit organization. The question that remains 1s whether KHHA “exist(s] pursuant to covenants running with the land.” According to the Charter, KHHA exists for the purpose of, inter alia, “provid{ing) for the management, maintenance, protection, preservation, adzinistration, and development of the (Subdivision, ]” and has the power to, inter alia, “take such YRS chapter ¢219 uae enacted in 1997 and Spplies to “ell planned conmunity ssscciatsone evicting as of June 16, 1997 and all plannea corsunity Gecocsations created thereafter.” HRS § 421J-2 (Supp. 2002). KHBA wae Sneorporated in 1952. the legislature contemplated that sone sroups wosld sot qualify a5 “sescciations” st defined by HRS chapter 4210, But stil] Nented to sliow the full recovery of ateorn w=" Lees, net subject te Titi Menty-five per cent cap uncer #RS § 60 fo tne preveiling party sn Ttigetion invelving those erganizaticns 2  FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** action as is deened necessary to enforce any recorded or unrecorded covenants and restrictions governing the use of the property within the Subdivision, including, but not limited to, ‘the Declaration of Covenants and Restrictions . . . as same may be amended fron time to time.” The First Anended Declaration sets forth various covenants, and pursuant to the Partial Assignment, also provides that KHHA is authorized to enforce such covenants. Based on the following analysis, it is clear that these covenants run with the land such that KHHA falls within the definition of a “planned community association” as set forth in HRS § 607-14. Our discussion begins with Haikiki Malia Hotel, Inc, vs Kinkai Properties Ltd, Partnership, in which we stated that “[£ler @ covenant to run with the land: (1) it must ‘touch and concern’ the lands (2) the covenanting parties must intend it to run with the lend; and (3) there must be privity of estate.” 75 Haw. 370, 383, 862 P.2d 1048, 1057 (1993) (quoting Flying Diamond Oi] Corp, vs Newton Sheep Co., 776 P.2d 618, 623 (Utah 1989). Although Waikiki Malia is distinguishable from the instant case insofar as the issue in that case was the enforceability of a covenant against @ party as opposed to the interpretation of a statute, we look to the three-prong Waikiki Melia analysis for guidance.  FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** Here, with respect to the first requirenent, the First Amended Declaration sets forth various covenants that “touch and concern” the land, including the imposition of various restrictions relating to land use, permissible architecture, and landscaping within the subdivision. See Waikiki Malia, 75 Haw. at 384, 862 P.dd at 1087 (concluding that @ height restriction “[ellearly” satisfied the touch and concern element because it diminished the value of the land by limiting what could be built on it). Thus, the first elenent is satisfied. To determine whether the covenanting parties intended the covenant to run with the land, the language of the deed is examined. Id, at 384, 862 P.24 at 1057. The Dorans’ warrenty deed states that their lot is subject to the First Amended Declaration, which expressly states that the covenants and restrictions set forth therein “shall run with the land and shall be binding on all parties having or acquiring any right, title or interest in the Property or any part thereof.” Such language et rly supports the conclusion that the parties intended the covenants to run with the land. Cf, Lee v, Puamana Cnty. Ass’n, 109 Hawai'i $61, $68, 128 P.3d 874, 881 (2006) (*{W]e have long held that where a deed makes a specific reference to @ restrictive covenant, the grantee is on notice that his interest is subject to the terms of that restrictive covenant.” *** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** (Citations omitted.)). Furthermore, the fact that the covenants weré created as part of a general plan of development for the Subdivision demonstrates that the covenants were intended to run with the land. As set forth in the Restatement of Property: If the promise was procured by the promises in pursuit of general flan of ceveicpnent which includes not only the Jand with respect to whieh the promise was made but other land @s well, the likeliheed that the promise was expected to be binding upon the successors of the promicor is’ greet, es st would in ali prozabslity seriovely interfere with the successful carrying out of the plen sf this were not true A general plan implies a controlled stability of use end eppesronce. “This fact is one of the chief inducenente to Purchase under the plan. Such stability de within che norms] expectations of the parties to promises nade persuent to it. “Tt would not exist unieas the prom: eting bse nade by the perties to the conveyances uncer the play ound not ondy the respective proniscrs but their successors ee well. Hence the fact that 6 promise ie nage pursuent te general plan tence strongly to prove that the promise War intended to bind the successors of the prosiser. Restatenent of Prop.: Servitudes § $31 cmt. ¢ (1944). Thus, the second element is also clearly net. According to Waikiki Malia, privity of estate is the third element required for covenant to run with the land. 75 Haw. at 383-84, 862 P.2d at 1057. As stated in that cast Generaily, “privity of estate requires @ particuler kind of relationship! between the original covensnter and the. covenantee." Elving Oiencnd' Oi], 776 F.2d at 626, There are three types of privity: (2) mutuai, ite, a covenant arising from sincltanecus Snterests in the sane land; (2) norizentel, sec, covenant created in connection with a conveyance of en estate from one of the perties to ancther and. (3) vertical, i.e,, the devolution of an estate burdened or benefitted by s covenant fron an original covenanting party to a successor. 2 s+ FOR PUBLICATION IN WEST'S HAWatl IC REPORTER *** REPORTS AND | Waikiki Malia, 7 Haw. at 386-87, 862 P.2d at 1088. We did not specify, however, which of the foregoing three types of privity are required to fulfill the privity of estate element. Rather, we focused only én vertical privity, holding that its existence satisfied the requirenent. Id, at 387, 862 P.2d at 1058. As stated in that case, “[vJertical privity arises when the person presently claiming the benefit, or being subjected to the burden, is a successor to the estate of the original person so benefited or burdened.” Id, at 387, 862 P.2d at 1058 (inteznal quotation marke, brackets, and citations omitted). It appears, however, that the vertical privity analysis is not applicable to the instant case. As mentioned above, Waikiki Malia is distinguishable from the instant case because the igsue in that case was whether privity of estate existed between the covenanting parties such that a specific covenant was enforceable against @ specific covenantor. Here, on the other hand, there is no “person presently claiming the benefit, or being subjected to the burden” because we are not determining whether a specific covenant is enforceable against @ specific party. Rather, we are faced with the more abstract question of whether the covenants set forth in the First Amended Declaration constitute covenants that run with the land as a matter of statutory interpretation. ‘Thus, a vertical privity of estate analysis is not necessary in 2 ++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** the unique situation presented here. We therefore turn to a discussion on the renaining two types of privity: horizontal and mutual. It appears that horizontal privity was present in this case with respect to the original Declaration insofar as the covenants therein were created in connection with the: conveyance of the Property from Pioneer, the original covenantee, to OHC, the original covenantor. See supra Section I.A. It further appears that mutual privity is elso present in this case with respect to the First Amended Declaration because the covenants therein arcse from “simultaneous interests in the sane land” inasmuch as OHC was the fee owner of the entire Property at the time the covenants were imposed thereon by recordation of the First Anended Declaration, and Pioneer, by virtue of the original Declaration, had the authority to enforce the covenants. See supra Section I.A.# 8 we recognize that scne suthority suggests that horizontal and mutual privity should no longer be required for a covenant to run with the land. ‘a. Elvine Disnend O11, 776 P.24 at €28 ("Mocern legal writers unanineusly Favor the abolition of at leset mutual and horisontal privity.” (voting § Richard R. Powell, ‘The Lew of Real Proverty 4 €73(2) (el, at 66-67 (2968) 2))7 Bright v. Lake Litsanore tern, Ind,, €56 A.24 377, 390" (Md. App. 1998) (noting that snodern view" of privity “abolished the requirenenta of both horizontal ane mitual privity, retaining only she requsrenent of vertical privity" 1986) (Horizontal privity of estate is for an agreement to run with the land and bind Successors in snterest.” (Citation omitted.)}. It sppeare however, that those cases focusing ch vertical privity, Like Haikiki Malia, ciseves whet! a covenant runs with the land for purposes of determining its enforceability (continued) FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER *** Accordingly, the covenants in the First Amended Declaration run with the land such that KHHA is 2 “planned community association” for purposes of HRS § 607-14. we therefore hold that KHHA is not subject to the twenty-five per Gent cap on ite attorneys’ fees incurred on appeal."* Iv. CONCLUSION Pased on the foregoing, we affirm the ICA's November 3, 2006 final judgment, which affirmed the circuit court’s judgment 3, .continved) ageingt Specific party. See, e.0., Flving Disnond O11, 776 P.2d 618 (suit iohiRfecee cnner of mineral estate's promise to pay surface owner); Bright. $Se hida°S2)" tnemecwnere’ azsociation sued lot ouners seeking te enforce CSkehine ageinse them). The focus on vertical privity arises from the view Efet"ethe Parties te en action to enforce a covenant, if not thenselves makers Shine contract. most each have succeeded by privity te the estate of one of Such makers... =" Flying Disnond Oi, 776 P.2d at €28 0-23 (quoting 163 pictavay' giao. inc. vi ity investing Co, 120°F.26 €13, 816 (2nd Cir PETES aitcussed above, however, the present case is not an ection to thos, the reason for anforee a covenant sgeinst 4 specific party, and, focssing on vertical privity dees not exist he We express no opinion regarding the view that horizontal and mutusl privity shoold not be requized for e covenant to run with the land in the Pettkd Gf enforcing @ specific cevenent against a specific party. Rather, we Seip aete that horizontel and mtual privity exist here and hold that Strlicel privity anaiyets se not necessary in the unique situation presented by his cece because there is he person “presently claiming the benefit, or Bling Subjected to the burcen,” thereby distinguishing Maikiki Malia. 1M the Restatement (Third) of Property supports this conclusion, In « ction entitled *Servivudes iaplied from Generel Plan,” it provides: “Unless She eSces “or circunstances indicate a contrary intent, conveyance of land poleuast te 2 generel plan of cevelopment inplies the creation of servitudes : (third) of Prop.? servitudes § 2.14 (2000). The hestatenent defines “servitude” a *a legal device that creates e right or an Seiigotien het suns with Jand or an interest in land,” Restatenent. (Thire) Of Prope! Servitudes § 1-1 (2000). © We enphasize that our holding that MHKA is entitled to attorneys’ fees incutfed on appeal pursuent to HRS § 607-14 does not entitle KHER to itguest fees, porsuent to this statute for the fees it incurred in the circuit Scere. See Section I71-8.1, sunra. 2s  ‘OR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER **# in part and vacated with respect to its avard fees and costs, but for the reasons stated herein. Accordingly, the matter is Femanded to the circuit court with instructions: (2) (a) to enter an award of fees in favor of KHHA to be taxed against the Dorans in the amount of $2,995.06 and (b) to determine whether and to what extent KHHA ie entitled to additional feed based on HRS § 607-14.5: and (2) to recalculate its award of costs Pursuant to HRCP Rule 54(d) and HRS § 607-9, We further reverse the ICA's December 29, 2006 fees and costs order with respect to soyce ¥. Nesiey, J be sata OD. Paviny Over bana 8. Soren, fe Peopondents/defendancs- aaa he response me seers Krm €, Daly Be + «A separate order suarding fees and costs incurred on apre: of MIKA to be taxed against the Derans will be entered forthwie ‘this opinion. 0 

56be5d406e6ccb6bcb58b9df7ea195435bd09d94a189ed76507ffdb9c79f2c60

2007-06-21T00:00:00Z

565e0c3f-a6ff-493e-881f-88329db102e8

Mizukami v. Mizukami

hawaii

Hawaii Supreme Court

no. 28338 IN THE SUPREME COURT OF THE STATE OF HAWATY a ~- e — DONNA EDWARDS MIZUKAMI, nka DONNA EDWARD = Plaintiff-Appellee ae ue Losiuy 9} GLENN KIYOHIKO MIZUKAMI, Defendant-Appellant ORIGINAL PROCEEDING (Fe-D NO. 90-4214) onpel (By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.) Upon consideration of movant Glenn Mizukami's “motion for order of stay or to preserve status quo of November 22, 2006 order [pending] appeal," the papers in support and the record, it appears that movant seeks, pursuant to HFCR 62(g), a stay from ‘this court of the family court's November 22, 2006 order. HFCR 62(g) recognizes this court's power under HRS § 602-5(6) (Supp. 2005) to preserve the status quo in a restraining order case pending before this court. The November 22, 2006 order is not a restraining order and an appeal of the November 22, 2006 order is not pending before this court. Therefore, IT IS HEREBY ORDERED that this original proceeding is dismissed. The dismissal is without prejudice to seeking a stay of the November 22, 2006 order with the intermediate court of aa appeals pursuant to HRAP 8 upon appeal of the November 22, 2006 order DATED: Honolulu, Hawai'i, January 16, 2007. Gienn Kiyohiko Mizukam, defendant-appellant, Gre Daastes Creare ce 7 N Gore, Onaayy br + 

1c4f759aeffb111b5f84ab59a849b6f94490c54acf1e7eb81a4310657ed0a75a

2007-01-16T00:00:00Z

92e14c34-3ec6-4c57-9f20-8f354b0431fb

Adam v. State

hawaii

Hawaii Supreme Court

No. 27630 IN THE SUPREME COURT OP THE STATE OF HAWAI'T __—_________ 4 3 Ey a 2 2 RICHARD ADAM, Petitioner-Appellant, =i] 9 = = zP, fm ve ms oo STATE OF HAWAI'I, Reapondent-Appellee. —3| a CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (8.P.P. NO, 03-1-001X) Ri APPLICATY (By: Moon, C-J., for the court”) Petitioner-appellant Richard Adam's application for writ of certiorari, filed Decenber 4, 2006, is hereby rejected. DATED: Honolulu, Hawai'{, January 11, 2007. Richard Adam, petitioner-appellant, appearing pro se, on the application Lp see SEAL Recess FOR THE COURT: * Considered by: Moon, c.J., Lavingon, Kakayana, Acoba, and putty, ad. 

becb4549584fa1cd03be48ea7fc9cf7b47ccbf17f671ac2f466d42978568a929

2007-01-11T00:00:00Z

0a5ffb7d-3d70-4f34-a0d3-b3e156ea19ee

State v. Deguair

hawaii

Hawaii Supreme Court

LAW LIBRARY NO. 28133 IN THE SUPREME COURT OF THE STATE OF HAWAT'T STATE OF HAWAT'Z, Plaintiff-Appellee, | id SZ Wat LOO WALTER WAYNE DEGUAIR, Defendant-Appellant=| c 2h c APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIR aire (cR. No. 92-0509) a ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI, VACATING ORDER DISMISSING APPEAL AND REMAND EU TE F API (By: Moon, C.J, Levinson, Nakayama, Acoba, and Duffy, JJ.) Petitioner-appellant Walter Deguair appli for a writ of certiorari to review the Intermediate Court of Appeals’ November 30, 2006 order dismissing petitioner's appeal for lack of appellate jurisdiction. The Intermediate Court of Appeals concluded that the order appealed -- an August 7, 2006 order denying a May 8, 2006 post-judgment motion filed by petitioner in Cr. No, 92-0509 -- is an order denying an HRFP Rule 36 motion to correct a clerical error that is not an appealable order. Petitioner's May 8, 2006 motion, by title, was an HRPP Rule 36 motion to correct a clerical error ina sentence, but in substance, was a motion to correct @ sentence alleged to be illegal because it did not comport with the sentence pronounced ‘The motion, in substance, was a motion, made more than ninety days after imposition of sentence, to correct an illegal sentence pursuant to HRPP Rule 40(a) (1) (iii). See HRPP Rule 35(a) ("A motion made by a defendant to correct an illegal sentence more than 90 days after the sentence is imposed shall be made pursuant to Rule 40 of these rules.*). The August 7, 2006 order denying the May 8, 2006 motion is a judgment entered pursuant to HRPP Rule 40(g) (3) that is appealable pursuant to HRS § 641-11. Therefore, IP IS HEREBY ORDERED that the application for a writ of certiorari is accepted. I? IS FURTHER ORDERED that: (1) the November 30, 2006 order of the Intermediate Court of Appeals dismissing No. 28133 for lack of appellate jurisdiction is vacated and (2) No. 28133 is renanded to the Intermediate Court of Appeals for disposition on the merits. DATED: Honolulu, Hawai'i, January 25, 2007. Walter Wayne Deguair, pro se EZ 2: on the application Resets, CNet ORE 

702c452765373a6cb8a37462b977503bfb1e5bdcb6325f72480152497390bcc2

2007-01-25T00:00:00Z

ffd15988-627d-4225-9e0a-60170e37eb4f

Bruins v. Healy Tibbitts Builders, Inc.

hawaii

Hawaii Supreme Court

No. 27315 IW THE SUPREME COURT OF THE STATE OF HAWATE!, g 5 RICHARD BRUINS, Claimant-Appellee Z5/z ve. age = al a Tee 9 HEALY TIBBITTS BUILDERS, INC., Employer-Appe’ and HAWAII EMPLOYERS MUTUAL INSURANCE COMPANY, Insurance Carrier-Appellant APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD (CASE NO. AB 2004-503 (9-02-00133)) ORDER (By: Moon, C.J., Levinson, Nakayama, Acoba and Duffy, JJ.) Upon consideration of Insurance Carrier-Appellant Fawaii Employers Mutual Insurance Company's Submission of Evidence of Approved Settlenent, the exhibit attached thereto, and the records and files herein, it appears that the Labor and Industrial Relations Appeals Board has approved the settlement n filed with the supreme and evidence of such approval has b court. Therefore, IT IS HEREBY ORDERED that this appeal is dismissed. DATED: Honolulu, Hawai'i, April 20, 2007. Leighton K, Oshima Bip and Elena Ledoux for insurance carrier- appellant Hawai! Employers Mutual Insurance Company Psseces CT Maekoey Geores © Datigsy + arms 

71edbd6384b43dfc05fff6f8cd94aa1224f91f77a2fff6401d25ed4d745249e8

2007-04-20T00:00:00Z

b112a5df-957f-48c1-a198-3d2942668e70

State v. Shores

hawaii

Hawaii Supreme Court

No. 26995 IN THE SUPREME COURT OF THE STATE OF HAWAT'T se STATE OF HAWAI'I, Respondent /Plaintiff-Appellee JUSTIN A. SHORES, Petitioner/Defendant-Appellant ee CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (HPD TRAFFIC NO, 5579394N0) Duffy, J., for the court") petitioner/Defendant-Appellant Justin A. Shores" application for @ writ of certiorari, filed on Decenber 11, 2006, is hereby rejectes ATED: Honolulu, Hawai'i, ganvary 9, 2007 FOR THE couRt: Came: Ded dy Associate Justice Phyllis J. Hironaka, Deputy Public Defender, for petitioner/defendant— appellant on the application 6 Nir Lae * court: Moon, C.J., Levinson, putty, 97. aaws 

91eefa852692a9a237f443d569c609f118a8e630af1a7fbd43a2136b9b2b8a5a

2007-01-09T00:00:00Z

bc1b72c7-e064-4c6d-b165-166562686f19

Fukusaku v. State

hawaii

Hawaii Supreme Court

LAW LIBRARY No. 26149 IN THE SUPREME COURT OF THE STATE OF HAWAL'I RAITA FUKUSAKU, Petitioner-Appellant, = STATS OF HAWAI'I, Respondent -Appellee. OS CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (8.P.P. NO. 02-1-0087) (By: Moon, C.J., for the court’) Petitioner-appellant Raita Fukusaku’s application for writ of certiorari, filed December 26, 2006, is hereby rejected. DATED: Honolulu, Hawai'i, January 19, 2007. FOR THE couRT: Raita Fukusaku, petitioner-appellant, appearing pro se, on the application on, Wakayama, Acoba, and Duffy, 93 * Considered by: Moon, C.J., Levi 

cec3217b767f2bb1bd97bd8554aaab7b321b67c7df67acdb63d58913c3a48dbc

2007-01-19T00:00:00Z

fb8c39ff-8717-4da8-b3d8-f4572097aecf

State v. Agard

hawaii

Hawaii Supreme Court

No. 27219 IN THE SUPREME COURT OF THE STATE OF HAWAT'T STATE OF HAWAI'I, Petitioner/Plaintiff-Appellee LOUIS KRUSE AGARD IV, Respondent /Defendant-Appellant CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (HPD TRAFFIC NO. 5775863M0) ‘Acoba, J., for the court") Petitioner-Plaintiff/Appellee State of Hawaii's application for writ of certiorari filed on December 12, 2006, is accepted. DATED: Honolulu, Hawai'i, Janvary 8, 2007. FOR THE COURT: srugon R. acosa, ap. Associate Justice g = ing § } court: Moon, C.J.» Levinson, Nakayama, Acoba, and Duffy, 3¥. oa 

b5e24a2a310fcb0167a5b6ec41065b4a8a219736ca2ee02d520e51292237b5c6

2007-01-08T00:00:00Z

7eeebb20-d406-4984-89b4-02d5160173bb

State v. Dulatre

hawaii

Hawaii Supreme Court

LAW LIBRARY. Wo. 26956 IN THE SUPREME COURT OF THE STATE OF HAWAT'T STATE OF HAWAT'T, Plaintif£-Appellee-Respondent, MARK DULATRE, Defendant-Appelant~Petitioner. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (FC-CR. NO. 04-1-1450) (By: Levinson, J., for the court’) upon consideration of the application for a writ of certiorari filed on December 14, 2006, by the defendant~ appeliant-petitioner Mark Dulatre, the application is hereby rejected. DATED: Honolulu, Hawai'i, January 17, 2007. FOR THE COURT: Sle PoLownte Lo Graven #. Lavigne Oa) 2 Rascclate Justice Katie L. Lambert, Deputy Public Defender, for the defendant ~appellant- petitioner, on the application dered by: Moon, CuJ.y Levinson, Nakayama, Acoba, and Duffy, J9 

402b0a5faeaf42e13097fd4ba82085a8d21781787e436fdf042d0de2292152c7

2007-01-17T00:00:00Z

963044a3-c90a-4b37-ac20-a7b2009a9759

Alakai Na Keiki, Inc. v. Hamamoto

hawaii

Hawaii Supreme Court

LAW LIBRARY {++ NOT FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER No, 27559 IN THE SUPREME COURT OF THE STATE OF HAWAI'T ALAKA'I NA KEIKI, INC., AppellantAppellant PATRICIA HAMAMOTO, in her official capacity as Superintendent of Education, Appellee-Appellee and DOES 1-10, Appellees APPEAL FROM THE FIRST CIRCUIT COURT (CI¥. No. 05-1-1658) (By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy JJ.) Appellant~Appellant Alaka‘i Na Keiki, Inc. (hereinafter, ANK} appeals from the October 10, 2005 final judgment of the circuit court of the first circuit! which dismissed for lack of jurisdiction ANK's appeal of the decision of Appellee-Appellee the State of Hawai'i Department of Education's Superintendent of Education, Patricia Hanamoto [hereinafter, DOE}. ANK raises one point of error on appeal, to wit, that the circuit court erred in concluding that Hawai'i Revised Statutes (HRS) chapter 103F (Supp. 2005), “Purchases of Health and Hunan Services,” precludes HRS chapter 91 (1993) judicial review of the decision. The DOE counters that the circuit court correctly ruled that HRS chapter 91 jurisdiction + the Honorable Eden Elizabeth Hifo presided over  + NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER does not exist to review the actions of a purchasing agency under HRS chapter 103F. Upon carefully reviewing the record and the briefs submitted by the parties, and having given due consideration to the argunents advocated and the issues raised, we hold that the circuit court did not err in ruling that it lacked HRS chapter 92 jurisdiction in the instant case. See ARS § 91-14(a) (1993) ("Any person aggrieved by a final decision and order in a contested case . . . is entitled to judicial review thereof under this chapter.” (Emphasis added.)); HRS § 91-1(5) (1993) (defining “contested case” as “a proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing”): HRS § 91-1(6) (1993) (stating that an “agency hearing” “refers only to such hearing held by an agency innediately prior to a judicial review of 2 contested case as provided in section gi-14yys Haw 'n, 76 Hawai'i 128, 134, 870 P.2d 1272, 1278 (1994) (“[I}£ an agency hearing is ‘required by law,’ it is a contested case for the purposes of judicial review."); i count Planning Comm'n, 79 Hawai'i 425, 431, 903 P.2d 1246, 1252 (1995) ("In order for a hearing to be ‘required by law,’ [the hearing] {++ NOT FOR PUBLICATION IN WEST'S HAWAT' REPORTS AND PACIFIC REPORTER *** may be required by statute, agency rule, or constitutional due process.” (Citation omitted.)). The submission of ANK's written protest, the DOE's written response, and ANK’s written reply did not constitute a “nearing” within the meaning of HRS chapter 91. Although a “hearing” necessarily requires an aggrieved person to present evidence and/or arguments to a decision-maker, the converse is not true that every time an aggrieved person submits evidence and/or arguments to a decision-maker a “hearing” has occurred. See HRS § 1-14 (1993) ("The words of a law are generally to be understood in their most known and usual signification, without attending so mich to the literal and strictly grammatical construction of the words as to their general or popular use or meaning.”). None of the cases cited by ANK support its definition of “hearing.” In Diamond a Appeals, 52 Haw, 518, 523-24, 479 P.2d 796, 799 (2971), and Town vw. Land Use Commission, 55 Haw. 538, 539, 548, 524 P.2d 84, 86, 91 (1974), this court observed that public hearings could constitute contested case hearings. Those cases, however, do not hold that written submissions constitute a “hearing” within the ) hs the O0E points cut, ANK does not argue that a hea by constitutional due process. As such, this argunent is dei Rawas't RUlee of Appellate Procedure (HEAP) Rule 26(b) (7) ("Points not argued ay be deened waived."). #1" NOT FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER **¢ meaning of HRS chapter 91. Additionally, ANK’s citation to v, Allecheny=) , 406 v.s. 742 (1972), and United States v. Florida East Coast Railway Co., 410 U.S. 224 (1973), for the proposition that “the procedure of notice and written comments satisfies a statutory requirement of ‘hearing’” are equally unavailing. Neither case, both of which deal with rule-making proceedings under the Esch Car Service Act of 1917, 49 U.S.C. § 1/24) (a), support ANK’s position because the instant case does not concern the Esch Car Service Act, nor, more importantly, does it present this court with the question of whether a hearing requirenent is satisfied. Although written submissions may satisfy the Esch Car Service Act's hearing requirement, Elorida E. Coast By., 410 U.S, at 241, it does not follow that written submissions always constitute a “hearing.” Furthermore, the circuit court correctly ruled that it did not have jurisdiction under HRS chapter 91 to review the decision because neither the plain language of HRS chapter 103F nor that of Hawai'i Administrative Rules (HAR) chapter 3-148 mandate a hearing prior to deciding @ protest. See Bush, 76 Hawai's at 134, 870 P.2d at 1278 (“IE the statute or rule governing the activity in question does not mandate a hearing Prior to the administrative agency’s decision-making, the actions of the administrative agency axe not ‘required by law’ and do not amount to ‘a final decision or order in a contested case’ from  {IREPORTS AND PACIFIC REPORTER, [NOT FOR PUBLICATION IN WEST'S HAW, which a direct appeal to circuit court is possible.” (Citations omitted.) to the extent that there is any doubt or uncertainty as to whether the legislature intended to require a hearing prior to decision-making under HRS chapter 103F, we construe HRS chapter 103F, the human services procurement code, with reference to HRS chapter 1030, the public procurement code. while HRS chapter 1030 provides for a hearing to review any request from a party aggrieved by a determination of the chief procurenent officer or head of a purchasing agency,’ a similar provision is > WRS § 1030-709 (Supp. 2005), entitied “Adninistrative proceedings for review," states in relevant part (2) The severe] nearings officers shal have juriediotion to review and determine de novo’ any request ftom any bidder, offeror, contractor or governmental body aggrieved by # determination of the chief procurement Officer, head of a purchasing agency, or a designee of Gither officer under sections 1030-310, 1030-108, or fosp=102- {bi Hearings to review and deternine any request nade pursvant to subsection (aj shell counence within twenty-one Eslencar days of receipt of the request. The hearings officers snail have power to issue suspoenas, aaminister oaths, near testinony, find facts, make conclusions of law, Gnd iSeue a written decision wiieh shall be final and Conclusive unless s person or governmental body adversely Gffected by the decision commences on appeal 1A the circuit fourt of the circuit where che case or controversy arises Under section 1030-720 (ci Only parties to the protest made and decides pursvant to sections 1030-701, 1030~708(a), 1030-310 (b), and fiese-702(g)] may initiate # proceeding under this section. The party initiating the proceeding shall have the burden of frock, including the burden of producing evidence as well as The burden of persussion. The degree or quantum of proof Shall bes preponderance of the evidence. All parties to the procseding shall be afforded an opportunity to present oral! or documentary evidence, conduct crossvexamination 38 ay be required, and argunent on sll issues involved. The Fules of evidence shall apply (continued...)  [NOT FOR PUBLICATION IN WES! conspicuously absent from HRS chapter 103F, thus demonstrating that the legislature did not intend to allow, and certainly did not intend to require, a hearing prior to decision-making under HRS chapter 103F. See State v. Rodgers, 68 Haw. 438, 442, 718 P.2d 275, 277 (1986) (*[W]here a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject is significant to show that a different legislative intention existed.” (Ellipsis and citations omitted.)), superseded by statute on other grounds. Additionally, preclusion of judicial review pursuant to HRS chapter 91 does not preclude judicial review through alternative means.‘ See HRS § $1-14(a) (*(NJothing in this section (91-14) shall be deemed to prevent resort to other means of review, redress, relief, or trial de novo, including the right oc seontinves) (£) The hearings officer shail decide whether the doterninations of the chief procurenent office: or the chief procurenent officer’s designee were in accordance with the Constitution, statutes, rules, and the terns and conditions of the solicitation or contract, and shall order such relief a5 may be appropriate in accordance with this chapter: «ie take judicial notice of Alake’ : civ. No. O5-1-1688-03, currently pending tn the circuit court, Which 15 ANK S| civ action to contett shether the agency hes conducted ite decisioo-mahing activities in accordance with applicable Laws, “Soe Hinshaw, 103 wowai'i 26, 29 n.7, 19 P-34 119, 122 n-7 (2005) noting Chat this Court tay take judicial notice ‘of a related case)? Bouse v, Mascos, 69 Hava!'t 81, 1102.9, 969 P.2d 1209, 1228 n.9 (1998) (nichourts have generally recognized that they may, in appropriate circumstances, take notice of proceedings in other courts, both within and without thelr Judicial those proceedings have # ditect relaticn to the matter at igsve.”” (Brackets snd citations omitted.)  NOT FOR PUBLICATION IN WES! of trial by jury, provided by law.” (Emphasis added.)); Bush, 76 Hawai'i at 137, 870 P.2d at 1281 (stating that the appellants were “not barred from contesting the [agency"s actions through alternative means, but they {were} prohibited from accessing review of these actions through inappropriate means”) therefore, 17 TS HERESY ORDERED that the circuit court's october 10, 2005 final judgment is affirmed. DATED: Honolulu, Hawai'i, January 22, 2007. on the briefs: Perry Confaione Gp and Avis K. Poa (of Carlsmith Ball ute) for appellant-appellant MivcP hn nae Deirdre Marie-Tha and Dorothy D. Sellers, Pasctes C eaeaejre Deputy Attorneys General, for appellee-appellee 3 on Yrrre. Ouily ith 

a06ccda906bc778ec8f25bb68913d2ee321e61002f00b4484e42da5cd0be8ee8

2007-01-22T00:00:00Z

76d013c6-c47d-4d1b-9a3b-6fa704af9880

Blaisdell v. Department of Public Safety. ICA s.d.o., filed 07/26/2006 [pdf], 111 Haw. 116. ICA Order of Amendment, filed 07/27/2006 [pdf]. S.Ct. Order Accepting Application for Writ of Certiorari, filed 12/13/2006 [pdf].

113 Haw. 315

hawaii

Hawaii Supreme Court

‘s+4pon PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER" IN THE SUPREME COURT OF THE STATE OF HANAI'T ---000" RICHARD BLATSDELL, Petitioner/Plaintiff-Appellant DEPARTMENT OF PUBLIC SAFETY, Respondent /Defendant-Appellee No. 27170 CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIV. NO, 4-1-1455) JANUARY 18, 2007 MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ. OPINION OF THE COURT BY COBB, J. On Decenber 13, 2006, we accepted the November 20, 2006 application for writ of certiorari! of Petitioner/Plaintiff- + pursuant to awal's Reviaed Statutes (HRS) § 602-59 (Supp. 2006), a party may appeal the decision of the intermediate appellate court (the TCA) only by an application to this court for a writ of certiorari. Sas HRS § 602— S5(a)., In determining whether to accept or reject the application for writ of Certiorari, this court reviews the ICA decision for: (2) 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, oF Sete own decision, and the magnitude of such errors or inconsistencies Gictating the need for further appeal Rs § 602-59 (b). The grant or denial of a petition for certiorari is discretionary with this court, See HRS § 602-59(a) aa ‘s*+FOR PUBLICATION IM WEST’ S HAMAI'T REPORTS AND PACIFIC REPORTERS*® Appellant Richard Blaisdell (Petitioner), requesting review of the July 26, 2006 Summary Disposition Order (300) of the Intermediate Court of Appeals (the ICA),* affirming the February 22, 2005 final judgment of the Circuit Court of the First Circuit (the court)? dismissing Petitioner’s case for non-payment of filing fees. We hold that, inasmuch as at the time of his request to proceed in forma pauperis Petitioner was confined to a prison facility, had only $15.28 in his prison accounts, and earned only $40.00 per month without other sources of income, the imposition of $275.00 in fees and costs as a precondition to the filing of suit was excessively burdensome to Petitioner. Therefore, it was an abuse of discretion for the court to deny Petitioner’s request to proceed in forma pauperis. Because the ICA affirmed, the ICA’s July 26, 2006 S00 is reversed and the court's February 22, 2005 judgment is vacated. ‘The case is remanded to the court in accordance with this opinion. In his application Petitioner raises the following question: “Whether the [ICA] erred by denying the (PJetitioner to proceed [iJn [fJorma [pauperis by holding that no [clonstitutional [r]ights were denied, and the [Petitioner’s) + the Summary Disposition Order was isaued by Chief Judge Janes 5. Barns and Aesociate Judges John S.W. Lim and Daniel R. Foley. >the Honorable Sabrina S. Mckenna presided: 2 espn PUBLICATION IN WEST’ § HAVAZ'T REPORTS AND PACIFIC REPORTER*#* ee claims were devoid of merit.”* Putative Respondent, the DPS, did not file a memorandum in opposition. In relevant part the procedural history of the case as set forth in the ICA’s SD0, states as follow: Jeitioner} appeals trom the Final Judgeent {110d on Fevcusry 22,2005 in the [cout]. in ita Order Olemissing [the] Case. fo¢ Noh-Payment of Peon filed on August 30,2006, the Leauge), ‘Gags stead dee 2008) EASES Riis iibccess ‘and soughe o judonent sectaring the Pertriction tule to be violative of § 353-22.5. SEGARA Shasta notice for fayent of reco, directing {Petitioner] to renit tiling foes of 6275. = « an oxaer Dismissing case for Nongement of fees, wiencut SESE Sa catered the order vas reduces to a Bitalsedament n‘ajpeat, (Petitioner) contends the [court] abused tts aiscretion by denying him the opportunity to proceed in forme pauperis. 800 at 1-2 (emphases added) (footnote omitted). In disposing of the appeal, the S00 states only that, “{uJpon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we hold that [Petitioner's] appeal is without merit(,]” SD0 at 2-3, and + ea second question in his application, Petitioner also inquires stulhether (Putative Respondent Defendant-Appellee Departrent of Public Safety (OPS)) can make a rule that violates the (HRS), and remove a portion of the Steaters pay and place it ina separate account that the inmate cannot touch against the (HRS] and not pay the inmates any interest on that money being held'in viclation of the [HRS).”" However, Petitioner stated in his Opening Brief that he "is not appealing anything except the fact that (the court] bused [its] discretion by denying [Petitioner] the opportunity to proceed [in ferns pauperisi,” Nonetheless, this question is subsumed in Petitioner's Coaplaint, filed with the court, and is addressable by the court on remand. See intza’ ‘s*4F0R PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERS+® affirms the judgment. Tt is unclear from the statenent in the S00 whether the merits of Petitioner's claim were considered and what arguments “by the parties” were evaluated, since the putative Respondent, the DPS, clains it was never properly erved, and, hence, did not file any response in the case. com In his complaint Petitioner maintained that “[t)he {DPS} has made a [xJuling that . . . (wJhen an inmate gets paid for his work that he does in prison, the committed person is allowed to keep the first $20. . . the balance of his earnings are divided in half(,]” that “(t]he committed person is allowed to keep one half of the balance but the other half is placed into a restricted account and the inmate is not allowed to use the restricted account to his liking[]” and that this “ruling” violates HRS § 353-22 (Supp. 2006). HRS § 353-22 states that “{nJo moneys earned by a committed person and held by the department, to any amount whatsoever, shall be subject to garnishment, levy, or any like process of attachment for any cause or claim against the conmitted person, except as provided for in section 353-22.5.” Petitioner requested “a (d)eclaratory judgment . . . that{] the [DPS] practice . . . violaties] . . . the H.R.S." On August 13, 2004, a “Declaration in Support of Request to Proceed in Forma Pauperis” was filed. Tt indicated that Petitioner is confined to “Prairie Corr. Facility” in “Minn.” [sic], he is “{plaid about $40.00 per month[,]” he has no 4 se4por PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REFORTERI*# other sources of income, although “last year (he] received about $400 - $500 from” his “daughter|,]” and that he had about “$15.28 in (b]oth [prison alccounts(.]” On August 13, 2004, the court filed an “Order Denying Plaintiff's Request to Proceed in Forma Pauperis,” which state: The court can waive filing fees and/or costs pursuant to HRS Section 607-3. cdition. the esse does not assert or raise tasues ‘Sencernina deprivation of 2 prisoner's constitutional ccht. Hicaover, “the case appears to be devoid of merit due to UBS Section S5s-21. Therefore, Plaintift"s request to proceed in forma pauper (sic) is hereby DENIED. (Emphasis added.) on August 23, 2004, Petitioner filed a motion for reconsideration, arguing in part that (1) “(Petitioner] has filed several civil suits in this [cJourt and has been granted [iJn [florma [pJauperis on every occasion, after all, [Petitioner] has only $12.28 to his name[,] . . . the fact that this is a civil complaint has nothing to do with not granting the request to proceed [i]n [fJorma [p]auperis[,]” (2) “deprivation of constitutional rights is only one of the criteria for validity of the complaint [,]” “HRS § 91-7” “states that if a rule violates the statutory provisions or exceeds the authority of the agency that the court SHALL DECLARE THE RULE INVALID(,]” (3) “{tlaking money from the committed person and making a second account is not within the statutory limits of HRS § 353-22.5 and therefore must be ruled to be invalid by this (cJourt.” (Capitalization in  ‘+A7OR PUBLICATION IN WEST’ HAMAI'T REPORTS AND PACIFIC REPORTE original.) On August 24, 2004, the court denied the motion for reconsideration. mr. Petitioner brought his request to proceed in forma pauperis under HRS § 607-3 (1993). HRS § 607-3 entitled “court costs, waiver of prepayment, reduction or remission of,” states that “Ltlhe judaes of all the courts of the State shall have discretionary power to waive the prepayment of costs or to reduce or remit costs where, in special or extraordinary cases, the cost of any suit, action, or proceeding may, to the judees, appear onerous.” (Emphases added.) In that regard, “[v]hen construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.” Custer v, Admin, Dir, of the Courts, 108 Hawai'i 350, 354, 120 P.3d 249, 253 (2005) (citations omitted) . “‘{ldjhere the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning.'” State v. Kalama, 94 Hawai'i 60, 64, 8 P.3d 1224, 1228 (2000) (quoting Citizens for Protection of North Kohala Coastline v. County of Hawai'i, 91 Hawai'i 94, 107, 979 P.2d 1120, 1133 (1999) (internal quotation marks and citations omitted)). As set forth above, HRS § 607-3 gives judges the “discretionary power to waive the prepayment of costs or to 6 [FOR PUBLICATION IN WEST'S HAWAI'I REFORTS AND PACIFIC REPORTER!*# reduce or remit costs where, . . . the cost of any suit, . . . may, to the judges, appear onerous.” (Emphasis added.) By virtue of the reference to “discretionary power,” the order denying in forma pauperis status is reviewed under an abuse of discretion standard. An abuse of discretion “is apparent when a trial court's discretion clearly exceeds the bounds of reason or disregards rules or principles of law or practice to the substantial detriment of 2 party litigant.” Kimura v. Kamalo, 106 Hawai's 501, 507, 107 P.3d 430, 436 (2005) (internal quotation marks and citation omitted) . Ww. The term “onerous” is not defined in the statute. In its ordinary application, onerous means “(e]xcessively burdensome or troublesome; causing hardship[.]” Black's Law Dictionary 1122 (eth ed. 2004). See Singleton v. Liquor Comm'n, 111 Hawai'i 234, 243-44, 140 P.3d 1014, 1023-26 (2006) (“here 2 term is not statutorily defined . . . we nay rely upon extrinsic aids to determine such intent. Legal and lay dictionaries are extrinsic aids which may be helpful in discerning the meaning of statutory terms.” (Internal quotation marks, brackets, and citation omitted.}). Under the plain language of HRS § 607-3, then, a judge has the discretion to “waive the prepayment of costs” where “the cost of [the] suit” would be excessively burdensome so as to cause hardship. Considering the same statute, in Minatova vw. Mousel, 2 Haw. App. 1, 8, 625 P.2d 378, 364 (1981), the ICA noted that, “when coneidering a person’s ability to pay, the court may 1 ‘s++70R PUBLICATION 8 WEST'S HAKAL'I REPORTS AND PACIFIC REPORTER*+# and his or her net consider the size of the movant’s estat worth.” (Citing Cleland v, Cleveland, 1 Haw. App. 187, 616 P.2d 1041 (1980).). The ICA held that the trial court did not err in denying a motion to appeal in forma pauperis when the contents of the affidavit supporting the motion were insufficient and movant owned a valuable parcel of real estate. Id. In contrast, in the instant case, the prepayment of costs requirement undoubtedly was excessively burdensome on Petitioner. As noted above, the court required that Petitioner pay $275.00 which included (1) $200.00 for filing his complaint; (2) $25.00 for an indigent legal services surcharge; and (3) $50.00 in civil administrative costs. However, at the time of his request to proceed in forma pauperis, Petitioner was confined to a prison in Minnesota, received only $40.00 per month without other sources of income, and had only $15.28 in his prison accounts. The court did not dispute Petitioner's ability to pay. The payment of $275.00 in fees well exceeded Petitioner’s meager earnings and “savings” and, thus, would be excessively burdensome. To require the prepayment of such costs under the circumstances, then, “clearly exceeds the bounds of reason[.]” Kimura, 106 Hawai'i at 507, 107 P.3d at 436 (internal quotation marks and citation omitted). Accordingly, it was an abuse of discretion for the court to deny Petitioners request to ‘s+4POR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERS*# proceed in forma pauperis pursuant to HRS § 607-3.° ve It should be noted that the court recognized that it could “waive filing fees and/or costs pursuant to HRS Section ' the Legtalative history of HRS § 607-3 confirms our decision. See ' Baht co, nds Natural Aes., 102 Hawai'i 257, 270, ‘55-P.3a 160, 173 (2003) (cating suave v- Butrekig, 98 Hawai’ 221, 227, 47 bead 396, 342 (2002). ("Although we ground our holding in the statute's plain Language, we nonetheless note hat ite legislative history confirms our view." (Citations omitted.)})-_ On April 30, 1923, the legislature enacted Act 101, GGtitied "an act to provide for the reniselon of court costs in certain cases,” which has Ultimately become HRS § 607-3, Act 101 states in relevant parts ‘The magisteates and judges of all courts of the Territory of Hawaii shall have discretionary power to reduce or remit costs chargeable to a defendant, where, in special oF Guceptional cases, the costs of any suit, action or. proceeding, may, to such magistrate or court, appear 1923 Haw. Sess. L. Act 101, $ 1 at 118. The legislature specified that the provisions of Act 101 were to “apply to all actions at law and proceedings in Sgulty." 2923 Haw. Seas. L. Act 101, $2 at 118 (emphasis added). With respect to Act 101,'the Legislature stated, This Bill would grant to all magistrates and judge: Giseretionsry power to reduce of renit costs chargeable to Sefencant™ are all of such costs should be remitted. Stand. Com. Rep. No. 264, in 1923 Senate Journal, at 574 (emphasis added); see, alsa Stand. Com. Rep. No, 267, in 1923 House Journal, at 687 ("Ihe purpose of the'pill is te permit district magistrates and circuit court Juages to Tame ‘upon the Gefengant.” (emphases added.) Act 10) wae subsequently amended in 1939, 1970, and 1972. see. 1939 Haw. Seas. L. Ack 19) $3 at 1027 1970 Haw. Sess. L. Act 188, § 29 at 454; 1972 Haw. Sess” L. Act 88, § 5(b) at 335.” However, these anendeents do not affect the substance of ouf decision. §3g Stand. Com. Rep. No. 46, in 1939" Senate Journal, at 276-19 (stating that the purpose of the 1939 anendnent, was “to tinplify, clarify and modernize” the cost. schedules which had only Been changed slightly since 1903, and which contained numerous items “which [were] ambiguous in wording and difficult of application"); 1970 Haw. Sess. t. Rot 189, § 39 at 454 ("wherever the words ‘district court magistrate’, “district magistrate’ or inagistrate’ and words of like import appear’ in the (liks}, with reference to of in connection with the district courts, they are Amended to read respectively, ‘istrict court judge,’ ‘district judge” or “judge” and words of like inport, as the context requires.”); stand. Com. Rep. nos" 2,-12) In 1512 senate Souris at 008 (the! purpose of this bid 1s te the {8RS] 80 a8 to eliminate inconsistencies with the rules of court, delete outmoded provisions) make nprovenents of a technical nature; and Eransfer procedural natters to rules of court where sdvisable.”)- 8  ‘S#970R PUBLICATION IM WEST’ S HANAI'T REPORTS AND PACIFIC REPORTER 607-3." However, in denying the Petitioner’s request, as indicated supra, the court continued, “This is not a criminal case. In addition, the case does not assert or raise issues concerning deprivation of a prisoner’s constitutional right. Moreover, the case appears to be devoid of merit due to HRS Section 353-21.” Under the plain language of HRS § 607-3, the court may only consider whether requiring the payment of costs would “appear onerous” to a party. Therefore, the purported reasons given by the court are extraneous to the limited inquiry before it. In similar circumstances, the Court of Appeals of oregon in Curtis v. Lampert, 15 P.3d 626 (Or. Ct. App. 2000), considered whether the trial court abused its discretion in denying the prisoner’s motion to proceed in forma pauperis in a civil action against the superintendent of the correctional institution.* The Curtis court concluded that “the trial court erred in denying plaintiff's motion to proceed in forma pauperis based on its assessment of the merits of the action that plaintiff sought to file rather than on the available information pertinent to plaintiff's ability to pay the filing fee.” Id, at 629. ‘The Curtis court explained that “(t}he court is not ina position to assess the merits of the action that the plaintiff is + under Oregon's conparable statute, Or. Rev. Stat. Ann. § 21.605(1) (a) (West 2005), entitled, “Waiver or deferrai of fees and costs for Andigents,” a judge “nay'waive in whole or in part, defer in whole oF in part, or both, ell fees and court costs payable by a party to a particular civil action... ifthe... judge . . finds that the party is unable to pay all or any part of the fees and costs.” 10  {FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERS#* attempting to file because that action, until it is deemed filed, is not properly before the court." Idi. Likewise, in this case, under the plain language of HRS § 607-3, the court was required to decide whether the costs of the suit would be onerous as applied to Petitioner, and was wrong in evaluating the merits of Petitioner’s claim. See also Burgess, wi Holstedt, 965 P.2d 473, 474 (Or. Ct. App. 1998) (concluding that the trial court abused its discretion in “grant[ing] @ deferral for some fees but not the service fees” when “[b]ased on plaintiff's affidavit, it (was) apparent that he [could not) pay the service fees and nothing in the record suggest (ed) otherwise”); Stanwood v. Multnomah County, 898 P.2d 196, 198 (Or. Ct. App. 1995) (concluding “that the trial court abused its discretion in denying plaintiff’s motion for a waiver or deferral of fees” when “[bJased on the information contained in the affidavit accompanying plaintiff's motion, which [was] the only evidence in the record regarding plaintiffs ability to pay, it [was] apparent that he (could not] pay the required filing fee” and “[t}he record [was) devoid of evidence that would justify denial of plaintiff's fee waiver request”). vr. For the reagone stated above, the order denying in forma pauperis status “disregards rules or principles of law or practice to the substantial detriment of a party litigant,” and, thus, constitutes an abuse of discretion. Kimura, 106 Hawai'i at 507, 107 P.3d at 436 (internal quotation marks and citation u ‘S*APOR PUBLICATION IN MEST’ § HAWAI'I REPORTS AND PACIFIC REPORTER’ omitted). The ICA’s July 26, 2006 S00 affirming the court's February 22, 2005 judgment is reversed, the court’s February 22, 2005 judgment dismissing Petitioner's case for non-payment of fees is vacated, and the case is remanded to the court in accordance with this decision. Richard Blaisdell, petitioner /plaintife~ appellant, pro se, on . the application Bie IM Lin ce Pests Co roeeuryare Women Dels r+ 2 

335d47f5e986a179ae046db49a93dcd171de9299b794f5f632661351bc54dede

2007-01-18T00:00:00Z

b903f869-1bc7-43af-9986-4eec77921f4b

Stanton v. Lee

hawaii

Hawaii Supreme Court

Wo. 28396 IN THE SUPREME COURT OF THE STATE OF HAWAT'T BARBARA K. STRNEON; JOSEPH C. STANTON, FetitiongyS, gy ve Be BF THE HONORABLE RANDAL K. 0. LEE, voce or HE SOD CIRCUIT COURT oF THE FiRST crscurT, staTgye OF HAWAI'T, Respondent, BE 2 oF | » 2g KENNETH M. CHO, CHAD D. TOMIYASU; COSTCO WHOL! CORPORATION; JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; ROE “NON-PROFIT” CORPORATIONS 1-10; and ROE GOVERNWENTAL ENTITIES 1-10, Respondents, Real Parties In Interest. ORIGINAL PROCEEDING (CIV. NO. 04-1-2186-11 (RKOL)) ORDER (By: Levinson, Nakayama, Acoba, and Duffy, JJ. and Intermediate recused) Court of Appeals Judge Fujise, in place of Moon, C.J., Upon consideration of the petition for a writ of mandamus filed by petitioners Barbara Stanton and Joseph Stanton and the papers in support, it appears that the extent of discovery was within the discretion of the respondent judge, petitioners fail to demonstrate that the respondent judge flagrantly and manifestly abused his discretion in denying and Limiting discovery, and the denial and limitation of discovery is on appeal reviewable for abuse of discretion, not harmless error, (see Acoba v, General Tire, inc, 92 petitioners from a final judgment Therefore, Hawai'i 1, 9, 986 P.2d 288, 296 (1999). See Kema v, Gaddis, 91 are not entitled to mandamus relief. (A weit of mandamus is Hawai'i 200, 204, 982 P.2d 334, 338 (1999) an extraordinary remedy 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 as legal renedies in lieu of notmal 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 conmitted 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.). Aecordingly, IT 1S HEREBY ORDERED that the petition for a writ of mandamus is denied. DATED: Honolulu, Hawai'i, February 15, 2007. Arthur Y. Park, Laurent J. Remillard, Jr. Leb — and John ¢. McLaren for petitioners Seeute oS lo aoe Gane, Bed Ounce tot Geer 

d260ec1d4d078acca5773f4e284f9f757a2517d72595dcbd8f6cf0e68b1c9c48

2007-02-15T00:00:00Z

ae6f0a76-dcbf-4138-bd1e-58da01cfb18b

State v. Quel

hawaii

Hawaii Supreme Court

LAW LIBRARY No. 26769 IN THE SUPREME COURT OF THE STATE OF HAWAI'T STATE OF HAWAI'I, Respondent/Plaintiff-Appellee vs. JEFF QUEL, Petitioner/Defendant-Appellant CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS (CR. NO. 02-1-0546) (By: Acoba, J., for the court") ‘The Application for Writ of Certiorari filed on January 12, 2007 by Petitioner/Defendant-Appellant Jeff Quel is hereby dismissed as untimely. DATED: Honolulu, Hawai'i, January 23, 2007. FOR THE COURT: aa + Considered by Moon, C.J., Levinson, Nal and Duffy, 3J. 

dc121e8e64134a45df9f3d77ddfbda03d37a84fc0063364062fee263a7d472c2

2007-01-23T00:00:00Z

5d4e1482-238f-4ed7-bd26-13e4ae37fdc1

State v. Williams

hawaii

Hawaii Supreme Court

0 save 12 9x Wo, 26823 8e:0) IN THE SUPREME COURT OF THE STATE OF HAWAI'T ee STATE OF HAWAI'I, Respondent /Plaintiff-Appellee Pet itioner/Defendant Appellant LUTHER S. WILLIAMS, ee CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (HPD TRAFFIC NO. 003367800; TR 14 OF 9/21/04) \RDER GRAN PPLICATION FOR WRIT OF RART (By: Acoba, J. for the court") Upon consideration of the application for a writ of certiorari filed on December 20, 2005 by Petitioner/Defendant- Appellant Luther S. Williams, the same is hereby granted. December 27, 2005. DATED: Honolulu, Hawai'i, ARES FOR THE COURT: fFER aN 8 parle A. Partington, for petitioner/defendant~ appellant, on the writ. C.Je, Levinson, Nakayama, Acoba, and Duffy, JV. 1 me court: Woon, 

c0be3ab29c2884fe8d207c9783dece26300c7cfb32390b8372ae31eb7f1e993d

2005-12-27T00:00:00Z

a4f111ac-0eb4-4847-abcb-be5b67a3c117

Ameriquest Mortgage Company v. Kama

hawaii

Hawaii Supreme Court

LAW LIBRARY NO. 26267 IN THE SUPREME COURT OF THE STATE OF HAWAT'T ANERIQUEST MORTGAGE COMPANY and WELL PARGO BANK MINNESOTA NATIONAL ASSOCIATION AS INDENTURE TRUSTER FOR GRP/AG REAL ESTATE ASSET TRUST 2000-1, SUBSTITUTED IN PLACE OF PLAINTIFF ANERIQUEST NORTGAGE COMPANY ON MAY 30, 2002, as successor-in-interest to AMERIQUEST MORTGAGE COMPANY, Respondent /Plaintiff-Appellee, 2) ve. al 8 cleat GARY KAMA, JOEL J. KAMA also known as sozungghia, B -y JOHN D, KAUPIKO, algo known as JOHN KAUPIBE|® | WAY M. TAUPIND, also Know as YAY KAUPIKGEIE a Petitioners/Defendants-Appellants, Sas = B and JOHN DOBS 1-50, JANE DOES 1-50, DOE PARTNERSHIPS 1-50, DOE CORPORATIONS 1-50, DOE ENTITIES 1-50, and DOE GOVERNMENTAL UNITS 1-50, Respondents/Defendants. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIV. NO. 99-1503) (By: Moon, C.J., for the court?) Petitioners /defendants-appellants Gary Kama, Joelyn J. Kama, John D. Kaupiko, and May M. Kaupiko’s application for writ of certiorari, filed on January 8, 2007, is hereby rejected. DATED: Honolulu, Hawai"i, February 14, 2007. Gary Victor Dubin, FOR THE COURT: for petitioners/ defendants-appellants, NE on the application Cipher '£ Justice ® SEAL Cece ) Aeoba, and Dutty, av. 

15e9ca1a5a1aef59d00d64f16bcd715c1fe6a89a86ba4d10533f5eb482ecdc2f

2007-02-14T00:00:00Z

4c1d4ac6-63f2-4878-94f2-e2b610e0909e

In re: Manuel

hawaii

Hawaii Supreme Court

SCCQ-21-0000462 IN THE SUPREME COURT OF THE STATE OF HAWAI‘I ________________________________________________________________ IN RE: JASPER CESAR MANUEL, Debtor, Plaintiff-Appellee. (Case No. 11-02712 (RJF)) (Chapter 7) ------------------------------------------------------- RICHARD A. YANAGI, Chapter 7 Trustee, vs. BANK OF AMERICA, N.A., Defendant-Appellant. (Adv. No. 21-90001) ________________________________________________________________ ORIGINAL PROCEEDING SECOND ORDER OF CORRECTION (By: McKenna, J.) IT IS HEREBY ORDERED that the Opinion of the Court, filed March 8, 2023, is corrected as follows: On page 3, line 11, the word “undisputed” shall be replaced with the word “disputed”. On page 18, line 5, the word “the” shall be deleted. On page 21, lines 17-19, the words “Bank of New York Mellon v. ” shall be underlined, but underlining shall be removed from “, 107 Hawaiʻi 95, 110 P.3d 1042;” and “, 140 Hawaiʻi 358, 400 P.3d 559 (2017);”. On page 23, line 10, the word “Aames” shall be underlined. Electronically Filed Supreme Court SCCQ-21-0000462 16-MAY-2023 08:16 AM Dkt. 69 OCOR 2 On page 23, line 13, the word “Onaga” shall be underlined. On page 24, line 13, the word “at” shall be added after “P.3d.” On page 27, line 13, a period shall be added after the word “precluded” and before the closing quotation mark. On page 30, line 6, the word “mortgagee” shall be replaced with the word “mortgagor.” On page 30, line 21, the second instance of the word “of” shall be replaced with the word “is”; the third instance of the word “of” shall be replaced with the word “or.” The Clerk of the Court is directed to take all necessary steps to notify the publishing agencies of these changes. DATED: Honolulu, Hawai‘i, May 16, 2023. /s/ Sabrina S. McKenna Associate Justice

e7fe31c0c7d6647dbee4824fca857e21e7c26f2a00a51a80c9e49f890bef0647

2023-03-10T00:00:00Z

66db2bf5-a09b-411a-a661-1b3194abfec8

Aquarian Foundation v. Association of Apartment Owners of Waikiki Park Heights

hawaii

Hawaii Supreme Court

LAW LIBRARY No. 27015 IN THE SUPREME COURT OF THE STATE OF HAWAT'I,, AQUARIAN FOUNDATION, a Washington non-profit cory Plaintiff-Appel lant-Cross-Appellee-Petit ior 2 se oO : go 2 HTS, Son ASSOCIATION OF APARTMENT OWNERS OF WAIKIKI PARK Hi ‘association of apartment owners, Defendant -Appel lee-Cross-Appellant-Respondent , and 0 UNIPACK LIMITED, @ Japan Corporation, JOHN DOES, JANE DOES, DOE PARTNERSHIPS, DOE CORPORATIONS, TRUSTEES OR OTHER ENTITIES, Defendants. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (crv. No. 93-4924) (By: Levinson, J., for the court") upon consideration of the application for a writ of certiorari filed on January 8, 2007 by the plaintiff-appellant- cross-appellee-petitioner, the application is hereby rejected. Hawas"i, February 1, 2007. DATED: Honolulu, FOR THE COURT: STEVEN H. LEVINSON 3) Associate Justice. Jean Schiedier-Brown, for the plaintiff-appellant- cross-appellee-petitioner Aquarian Foundation on the application Considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JU. 

19f05de761b28eaeeb1a1aecd1e1eb6ca972b8ea2e9d33ccc00df0c8dd652e7c

2007-02-01T00:00:00Z

603d0750-094b-4d2c-bc93-df103553ff89

Survivors of Young v. Island Feelings, Inc. ICA Opinion, filed 03/18/2005 [pdf], 109 Haw. 287. S.Ct. Order Granting Application for Writ of Certiorari, filed 04/25/2005 [pdf], 107 Haw. 84. S.Ct. Order of Correction, filed 01/26/2006 [pdf]. 109 Haw. 255

hawaii

Hawaii Supreme Court

LAW LIBRANY *** FOR PUBLICATION *** IN THE SUPREME COURT OF THE STATE OF HAWAT'T 00. SURVIVORS OF ROY W. C. YOUNG, Petitioner /Clainant-Appellant, ISLAND FEELING, INC., and TIG P&C INSURANCE COMPANY, Respondent /Employer/Insurance Carrier-Appellee, and 2 SPECIAL COMPENSATION FUND, S = Respondent /Appellee. = No. 25661 CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CASE NO. AB 2001-238 (2-88-19920)) DECEMBER 28, 2005 MOON, C.J.) LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, 99 OPINION OF THE COURT BY DUFFY, J In this workers’ compensation death benefits case, Petitioner/Claimant-Appellant Shirlyn Young (Petitioner) and her son, Bronson Young (Bronson) [hereinafter, collectively, Petitioners}, as the survivors of the employee, the late Roy H.C. Young (Young), appealed the February 12, 2003 decision of the Labor and Industrial Relations Board (LIRAB), which used the date-of-injury maximum weekly benefit rate (NWBR) to calculate their death benefits as opposed to the date-of-death MWBR urged by Petitioners. On March 18, 2005, the Intermediate *** FOR PUBLICATION *** Court of Appeals (ICA) issued a published opinion affirming the LIRAB’s decision in Young v. Island Feeling, Inc., 2005 WL 628879 (App. March 18, 2005) (hereinafter, ICA’s Opinion or Young I]. Petitioners filed a timely application for a writ of certiorari (Application) We granted Petitioners’ Application for the sole purpose of addressing whether workers’ compensation death benefits are calculated using the MWBR on the date of injury or the date of death. Based on the following, we hold thet death benefits are calculated using the MWBR when the right arises: on the date of death.’ Accordingly, we reverse. 1. BACKGROUND on July 7, 1988, Young, the president and Manager of Island Feeling, Inc., a Havai'i-based clothing manufacturing company, suffered a ruptured cerebral aneurysm in the course of his employment and lapsed into a semi-conatose state. At the time of his injury, Young was married to Petitioner and together they had a son, Bronson. On November 16, 1988, Petitioner filed {Employer asserts that because Petitioners did not appeal their weekly benefit anount of death benefits, they cannot appeal the aggregate weekly benefit amount. Ordinarily, an appellate court “will not consider ue pot raised below unless Justice co requires.” Bape, 96 Hawai'i 243, 261, 30 P24 289, 268 (2001) texting 5 Geo e. Mark Conste. Ina, ‘56 Han. 466, 475-76, S40 0.24 976, ¥BS {1BTS)) Justice #0 Fequires in the instant case. By holding that the date-of-aeath WER should be used in calculating desth benefits, we hold thee the date-of- Geath MIE should be used in determining the aggregate weekly Benefits payable, the funeral and burial allowance, as well as the weekly benefit *** FOR PUBLICATION *** for temporary total disability (TTD) workers’ compensation benefits on behalf of her husband. In a decision dated Decenber 5, 1991, the Director of the Department of Labor and Industrial Relations (Director) ordered Young's employer, Island Feeling, Inc., through its insurance carrier, Transamerica Insurance Company [hereinafter, collectively, Employer], to pay Young TTD benefits. Hawai'i Revised Statutes (HRS) § 386-31(b) (1985) provides that where an employee suffers a work-related injury which causes temporary total disability, the employer must pay the employee “a weekly benefit at the rate of sixty-six and two- thirds per cent of the employee’s average weekly wages, subject to the limitations on weekly benefit rates prescribed in subsection (a)[.]” Id, Subsection (a) states the following Limitation: “Beginning January 1, 1975, and during each succeeding twelve-month period thereafter, not more than the state average weekly wage last determined by the director{.]” HRS § 386-31(a) (1985). Young’s average weekly wage (AWW) at the time of his injury was $644.23, Sixty-six and two-thirds per cent of this amount is $429.51, However, the State AWN in 1988 was $334.00, and the Director limited Young’s TTD benefits accordingly. The LIRAB affirmed this decision on January 18, 1994. *** FOR PUBLICATION *** on May 11, 1995, the Director held a follow-up hearing to evaluate updated medical reports regarding Young's physical condition. In a decision dated June 26, 1995, the Director awarded Young permanent total disability (PTD) benefits starting January 10, 1981. The relevant statute for PTD benefits, HRS § 386-31 (a) (1993), provides that where a work-related injury causes PTD, the employer must pay the employee “a weekly benefit equal to sixty-six and two-thirds per cent of the employee's average weekly wages, subject to the following limitation: Beginning January 1, 1975, and during each succeeding twelve- month period thereafter, not more than the state average weekly wage last determined by the director(.]" The Director calculated Young's PTD benefits based upon the date-of-injury MNBR of $334.00 per week. The Director also awarded Young a weekly benefit adjustment of $103.00 beginning January 1, 1992, pursuant to HRS § 386-35(1) (1993) + uRs § 386-35, entitled “Benefit adjustne part: provides in relevant (a) Effective January 1, 1992, and January 1 of every tenth year thereafter, any employee whose date of work injury 18 Before Jenuary 1, 1992, and January 1 of every tenth year thereafter, and who is’ at any tine after the work injury Geternines to be permanently and totally disabled shall be Paid, without applicetion, » supplemental allowance by the Fesponsible employer calculated in accordance with the following provisions (2) "in any case where the employee is entities to receive the maximum weekly income Benefit applicable on the date of the work insury, the Stpplenental allowance shall be an ancunt which ‘when added to the benefit will equal the maxinan weekly benefit as of January 1, 1992, and January 1 of every tenth year thereafter(.) 4 *** FOR PUBLICATION *** On May 18, 2000, Young died of complications from his work-related injury. On June 23, 2000, Petitioners filed a claim for death benefits as Young's dependents, under HRS § 386-41 (Supp. 2000), including @ funeral and burial allowance and a weekly benefit. On April 19, 2001, the Director held a hearing to determine death benefits for Petitioners. In a decision dated May 14, 2001, the Director calculated their death benefits based on the date-of-injury MWBR of $334.00. Thus, pursuant to HRS § 386-41 (a), Petitioners were avarded a total of $5,010.00 for funeral and burial expenses--$3, 340.00 for funeral expenses (5334.00 x 10 = $3,340.00) and $1,670.00 for burial expenses (3334.00 x 5 = $1,670.00). Pursuant to HRS $5 386-41 and -43 (1993 & Supp. 2000), the Director also awarded aggregate weekly benefits of $104,208.00 ($334.00 per week x 312 w ks). On Nay 23, 2001, the Director issued an amended, supplenentai decision that apportioned the obligation to make death benefit payments equally between Employer and the Special Compensation Fund (SCF) (hereinafter, collectively, Respondents], pursuant to their compromise agreement. on May 24, 2001, Petitioners appealed the Director's May 14 and 23, 2001 decisions to the LIRAB. The two relevant *** FOR PUBLICATION *** issues to be determined,’ as stated in the August 3, 2001 Pretrial Order, were: a. Whether the rate of compensation used te calculate funeral and burial expenses is based on the rate for the year injured employee died. © b. fhether the agoregate weekly Denefite payable for Seath benefits, pursuant to Section 386-43, HRS.) te based on the rate of compensation for the year injured employee died. on February 12, 2003, the Board filed its decision and order affirming the Director's May 14 and May 23, 2001 decisions. ‘The Board concluded, in relevant part It 4g clear from our reading of HRS § 386-43(b) & (cl, and RS. § 386-43(b), that the basis for computing Gependents’ weekly benefits is the deceased employee’ s Att [average weekly wages] subject toa statutory maximum and ininan, Since there is no dispute that AIM for the purpose of calculating disability benefits is limited in #RS.§ 966-31 fo the State aNW at the tine of the work iojury, and since both HRS § 386-42(5) & (c) and HRS § 386-83{b) cite or refer to the listtation prescrived in HRS § 366-31, 1 follows then that the AKW for the purpose of calculating Geath Benefits 1a also Linited by the state Alf at the time of the NOrk injury that caused the subsequent death. Accordingly, based on the foregoing, we conclude as follows: {1) che maximum benefit rate uscd to calculate foneral and burial expenses 1s based on the rate for the jear the injury or accident is sustained; and (2) the Aggregate weekly benefits payeble for death benefits, pursuant co aks § 386-43 (b), i¢ based on the maximum’ benefit Fate for the year the injury or aceldent is sustained. > A third iseue relating to apportionment between Eaployer and SCP was subsequently withdrawn at trial. + on Novenber 14, 2002, Petitioners filed an Application for correction of Board's Pretrial Order, stating thet issue “a” should have included weekly benefits along with foneral ond burial expenses, The LIRAB denied the Spplication, Petitioners appealed the denial to the ICA, which affirmed, See. inkza note 5. *** FOR PUBLICATION *** Petitioners appealed, and on March 18, 2005, the ICA issued its published opinion affirming the LIRAB. Specifically, ‘the ICA concluded: RS § 386-41 (2), governing funeral and burial allowances, HRS §§ 386-41(b) and ~41(c), governing weekly benefits, and HRS § 386-43(b), governing aggregate weekly benefits, 31] cap their respective death benefits by express of implied reference to "the maximum weekly benefit rate prescribed in section 386-31(.)" "HRS § 386-41 (0); HRS § Ste-43(b). There i9 no other colorable statutory reference The MOR frescribes in HRS § 386-31 48, sn turn, “the seate average weekly wage last determined by the director(s]". HRS @'Seer21 (a). ‘Because HRS $5 386-31(a) and -31(b) provide for PID and TTD benefits, respectively, that is, dieabiit benefits for employees injured on the job, the State average lWeekly wage referenced therein must perforce be determined fas at the date of the employee's injury. Climbing back up the chain of inference, we conclude that the celevletion of Workers’ ‘compensation death benefits mst likewise be based pen the datesof-injury MMBR, Crowley ¥_ Cle y i00 Hawai 1, Tinie, 38 F.3d Tey Ts-16 (app. 2002) {ih consteuing @ statute, “our fotenost responsibility 1s to ascertain and give effect to tthe intention of the legistature, cbteined primarily from the languge itself. Further, we must read the statutory Language in the context of the entire statute and construe it'in's manner consistent with its purpose” (citation and internal quotation marks omitted) |; Gray vw. Admin. Gir. of he Court, 64 Hawai'i 136, 148, 931 9.23 560, 590 T2997) in Construing an ambiguous statute, “‘the meaning of the fanbiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sent Compared, in order to ascertain their true (brackets and block quote fornst omitted) (quoting HRS $ 3-15(2) (1993)); HRS § 1-16 (1993) (“Laws in pari materia, or upon the same subject matter, shall De construed with Feference to each other. ‘what ig clear in one statute may be called in oid to explain what is doubtful in ancther.") Young I at +5.* We granted Petitioners’ Application, and we now 5 the ICA also addressed Petitioners’ contention that the Beard sbused its discretion in refusing Petitioners’ applicetion to correct the pretrial order. The ICR disagreed, but Petitioners did not raise this as an erzor in their Application. *** FOR PUBLICATION *** IT, STANDARD OF REVIEW Appellate review of the LIRAB’s decision is governed by HRS § 91-14(g) (1993), which provides: (G)__Upon review of the record the court my affirm tthe decision of the agency or renand the case with Enstructions for further proceedings; or it may reverse or modify the decision and order if the substantaal rights of the petitioners nay have been prejudiced because the Suninistrative findings, canclusicns, decisions, or orders (2) In violation of constitutional or statutory provisions? oF (2) Tnexeese of the statutory authority oF SUciedietion of the agency: oF (3) lade upon unlaweul procedure; or (a) Affected by cther error of law: or (8) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole Fecora; or (6) Arbitrary, or capricious, or characterized by Sbuse of discretion or clearly unwarrented exercise of discretion “(U)nder 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)1 and an agency’s exercise of discretion under subsection (6)." Inve Hawaiian Elec. Go, Inc., 81 Hawai's 459, 465, 918 P.2d S61, 567 (1996) (citing Qutdoor Circle v, Harold K.L, Castle ‘Trust Estate, 4 Hew. App. 633, 638, 675 P.2d 784, 789 (1963). Statutory interpretation is a question of law reviewable de novo. State v. Levi, 102 Hawai's 282, 285, 75 P.3d 1173, 1176 (2003) (quoting State v. Arce, 84 Hawai'i 1, 10, 928 P.2d 643, 852 (1996)) (quotation marks and citation omitted). *** FOR PUBLICATION *** TIT. — piscussion ‘The statutes at issue in this appeal are HRS § 386-41, which addresses death benefits, including a funeral and burial allowance and weekly benefits, and HRS § 386-43, which limits the total amount dependents may receive in weekly death benefits. HRS § 386-41, entitled “Entitlement to and rate of compensation,” provides in relevant part: (a) Funeral and burial etlowence. Where a work injury causes death; the employer shall pay, Ben ey uly penetit rate to the mortictan and Bexinus eekly penefit-rate to the conetery: (b) Weekly benefits for dependents. in addition, the enployer shall pay weekly benefits to the deceased's Gependents at the percentages of the deceased's average Weekly wages specified below, taking inte account pot pare {han the saximun weekly benefit vate prescribed in settian BEGG divided BY .G667 and not less than the minimum Preseribed in the Section aivided by -6667 (¢) Maximum weekly amounts. The sun of a1 weekly benefits payable to the dependents of the decessed employes shall not exceed sixty-six and tworthirds per cent of the enployse’s average weekly wages, computed by cheering the Site snecified in aubascticn ibi if necessary, the Gneividual benefits shall ee proportionally reduced, (Emphases added) . HRS § 386-43(b) provides thet “[t]he aggregate weekly benefits payable on account of any one death shall not exceed the product of 312 times the effective maximum weekly benefit rate prescribed in section 386-31{.]” *** FOR PUBLICATION *** A. The Rights of Dependents to Statutory Workers’ Compensation Desh Genelits are enacate Fron the Bishts of the Insured Petitioners assert that a claim for death benefits under the statutes at issue in the instant case is @ separate, discrete claim fron the claim of the injured worker. We agree, In Gambalan v. Kekaha Sugar Co., 39 Haw. 258, 263 (1982), this court stated that “(t]he right to enforce the dependency [death] benefits asserted attached at the tine of death and not at the inception of or during the employment relationship prior thereto." Additionally, numerous jurisdictions recognize that a claim for death benefits is an independent, separate claim fron that of the injured employee. See, fics, Richards v, Richards ¢ Richards, 664 P.2d 254, 255 (Colo, App. 1983) (“Disability benefits awarded to a worker and death benefits awarded @ worker’s dependents are entirely independent of one another. This results in ‘two distinct Fights--one for the benefit of the workman, the other for the benefit of his dependents.’” (citations omitted)); &.Q. Smith Corp. v. Indus, Comm'n, 485 N.E.2d 335, 337 (T11. 1985) (distinguishing between claims arising from injury versus those arising from death and stating that “a cause of action created in favor of [an employee's] dependents for his injuries resulting in death . . . . does not come into existence until his death from such injuries”); Am. Steel Foundries v. Indus, Comm'n, 198 N.E. 10 *** FOR PUBLICATION *** 687, 690 (11. 1935) ("The claim for compensation on behalf of the dependents is not derivative of the employee, but is an independent right of recovery for compensation created by the statute for the exclusive benefit of the dependents[.)”" (Superceded on other grounds)); Tran v. Avondale Shipvards, Inc., 665 So. 2d 507, 509 (La. App. 1995) (“[A] cause of action for death benefits accrues] upon the death of the injured party.")7 Qwens ex rel. Ovens v. Water Gremlin Co., 605 N.W.2d 733, 735 (inn. 2000) (“The rights of the employee's dependents or potential heirs . . . are separate inchoate rights(.]”); Booker wa Duke Med, Ctr,, 256 5.£.2d 189, 195 (N.C. 1979) (“[T]he dependents’ right to compensation [is] separate and distinct from the rights of the injured employee[.]”); Wray v. Carolina Cotton Woolen Mills Co., 172 S.E. 487, 488 (N.C. 1934) (stating that Jendents’ “right to compensation did not arise until his death, and... [t]he basis of their claim was an original right which was enforceable only after his death”); Sizemore v, State Workmen's Comp, Comm’r, 219 $.£.2d 912, 915 (W. Va. 1975) (*[TIhe dependents’ rights are truly separate and distinct from the injured enployee’s rights{.1"). 2. sane senets eat ie Must to Calcu, = fits. “ Because Petitioners’ statutory right to death benefits arose at the time of Young’s death, it follows that the law in n *** FOR PUBLICATION *** effect on that date must be utilized to determine their death benefits. A number of other jurisdiction have so held. See, 2.a., Peterson v. Fed. Mining & Smelting Co., 170 P.2d 611, 613 (Idaho 1946) ("[A]s to benefits and liabilities arising because of the employee's death, they become fixed at the time of the death.”); Quens ex rel, Owens v. Water Gremlin Co., 605 N.W.2d 733, 735 (Minn. 2000) ("The rights of the employee's dependents or potential heirs . . . are separate inchoate rights and are governed by the law in effect on the date of the employee's death.”); In.ze Death of Knight, 877 P.2d 602, 604-05 (Ok1. 1994) ("Since this statutory right [to death benefits] does not arise until death, it follows that the right which vests must be determined under the law in effect on that date.”); Silver King Coalition Mines Co, v. Indus, Comm'n, 268 P.2d 689, 691 (Utah 1954) ("[W]here the statute confers upon the dependents a new and independent right to compensation on account of his death, it is generally held that the right to such compensation is governed by the law in force at the time of death rather than at the time of injury, when the two events are separated in time.” (Quoting 58 ‘Am, Jur. Workmen's Compensation § 73)); Sizemore v, State Workmen's Comp, Comms, 219 S.£.2d 912, 915-16 (W. Va. 1975) [S}ince the rights of the dependents accrue at the tine of death, the statute in effect at the time of death should control as to such rights. No vested rights are impaired by applying the 2 *** FOR PUBLICATION *** statute in force at the time of death because, until death occurs, the surviving dependents have no rights and the employer has no fixed Miability.”) Consequently, we hold that workers’ compensation death benefits must be calculated using the law in effect at the time of death. We now turn to the language of the statutes at issue. ce. kers’ ne: ‘Statute With regard to statutory interpretation, this court has stated: When construing a statute, cur forenost obligation is to ascertein and give effect to the intention of the Iegisiature, which is to be obtained primarily from the igaguage contained in the statute itself, And we sust read statctory language in the context of the entire statute and Gonstrve it in a manner ‘consistent with its purpose. State Ferm Mut, Auto. Ins, Co, v. Gepava, 103 Hawai'i 142, 145, 80 P.3d 321, 324 (2003) (quoting Trover v. Adams, 102 Hawai'i 399, 409, 77 F.3d 83, 93 (2003)). This court has previously discussed the purpose of Hawaii's Workers’ Compensation Laws, including HRS $$ 386-31, -41, and -43: A large nunber of cages have recognized that our workers! Compensation statute has a beneficent purpose and should be Sftorded liberal construction in favor’ of the emplo folfill the humanitarian purposes for which it was Indeed, since the supreme court's first look at’ Ha then new workers’ compensation statute in 1926, analyses in these Kinds of cases have been grounded on the Nunanitarien purposes premise Korsak v. Havaii Permanente Med. Group, 94 Hawai'i 297, 306-07, 12 P.3d 1238, 1247-48 (2000) (internal brackets, citations, and quotation marks omitted) . 13 *** FOR PUBLICATION *** HAS $$ 386-41(b) and (c), and ~43(b) cap death benefits by reference to “the maximum weekly benefit rate prescribed in section 386-31." As correctly noted by the ICA, “The MiBR prescribed in HRS § 386-31 is, in turn, ‘the state average weekly wage last determined by the director(.]' HRS § 386-31 (a).” Young I at *5. Since the right to death benefits arises at the time of death and the death benefits statute must be interpreted as of the date of death, it follows that the MWBR used to calculate death benefits is the state average weekly wage last determined by the director at the time of death. This interpretation is consistent with the statute’s humanitarian and beneficent purposes. Indeed, the LIRAB utilized the date-of-death MWBR to calculate death benefits in ite decision end order in Teputepy vy M, _Shore Detective & Sec, Agency, Inc., Case No. AB 75-170, at 5 (1976). In Teputepu, the LIRAB faced the same issue we face in the instant case: “(Whether the law in effect on the date of the worker's injury or the law in effect on the date of the the [sic] worker’s death determines the benefits to which the dependents of the deceased worker who died from an injury which arose out of and in the course of his employment are entitled.” Id. at 1-2. The LIRAB recognized that “it is the death itself which is the compensable event, although the dependents’ right to death benefits arose out of the compensable injury.” Id. at 4; uu *** FOR PUBLICATION *** see also Flor v. Holguin, 94 Hawai'i 70, 63, 9 P.3d 382, 395 (2000) ("A compensable injury is an injury for which compensation is payable, and the date of such injury is not the time of the accident or the occurrence causing the injury, but the time . he ri mnpens: rues.” (Quoting Ince Palama, 34 Haw. 65, 71 (1937)) (emphases added). The LIRAB therefore concluded that the MMBR at the time of his death, which was greater than the MWBR at the tine of his injury, should be used to calculate death benefits, stating that “the effective date for the application of the statute is the date of death.” Teputepy at 5. Consistent with the LIRAB's prior decision in Teputepu, and based upon the plain and unambiguous language of the statutes at issue, we hold that death benefits should be calculated utilizing the date-of-death MWBR. Legislative Intent ‘The statutes’ lack of ambiguity in instructing the use of the date-of-death MWBR to calculate death benefits is confirmed by a review of the legislative history of Hawaii's Workers’ Compensation statutes. 1, Legislative history of section 386-35. SCF asserts that the legislative history of section 386-35 indicates the legislature's intent to calculate death benefits at the tine of injury, SCP points to the fact that, as 15 *** FOR PUBLICATION *** first introduced in 1979, the bill proposed supplemental benefits to “provide economic relief to totally disabled workers and dependents of deceased workers who receive low weekly compensation benefits based on previously legislated maximum benefit rate.” Hse. Stand. Com. Rep. No. 663, in 1979 House Journal, at 1486 (emphasis added). The Finance Committee then “amended the bill by deleting all references to death benefits.” Id. SCF asserts that the codification of HRS § 386-35 without reference to death benefits “nilitates against Dependents’ contention that the legislature intended to protect dependents against the negative effects of inflation.” We disagree. while it may have been the legisleture’s intent not to provide supplemental benefits to dependents of deceased workers after their death benefits had been calculated, it does not necessarily follow that it was not the legislature’s intent to use the date of-death MWaR for the initial calculation of death benefits. Indeed, the Employment Opportunities and Labor Relations Committee, addressing the same bill prior to deletion of references to death benefits, stated: “Considering today’s economy, a totally disabled worker who was injured many years ago, or a deceased worker's dependents receiving compensation benefits based on benefit rates at the time of the injury or Seath, would be in need of financial assistance.” Hse. Stand. Comm. Rep. No. 187, in 1979 House Journal, at 1229. This 16 *** FOR PUBLICATION *** statenent clearly indicates the legislature’s understanding that a totally disabled worker was receiving disability benefits based on the rates at the tine of injury, whereas a deceased workers’ Gependents were receiving death benefits based on benefit rates at the time of death. 2, Legislative history of section 386-41 (a! burial expenses. In 1971, the Hawai'i Legislature amended HRS § 386-41 to increase the maximum amount for funeral and burial expenses to $1,000 and $500, respectively (1971 Haw. Sess. L. Act 24, § 1 at 27), because the then-present maximum allowance was “inadequate to meet current funeral and burial costs." Sen. Stand. Conn. Rep. No. 220, in 1971 Senate Journal, at 680. The House Standing Committee Report for the sane bill stated that “an adjustment of the maximum allowance should be made to closely reflect the actuel funeral and burial costs which must be incurred by the families of the deceased workers.” Hse. Stand. Conm. Rep. No. 563, in 1971 House Journal, at 932. In 1982, the legislature again amended HRS § 386-41, by extending funeral expenses to a “maximum of ten ties the weekly benefit rate and [extending] burial expenses to five times the maximun weekly benefit rate(,1” which is the language applicable to the instant case and still in effect today. 1982 Haw. Sess. L. Act 52, § 1 at 587 Hse. Stand. comm. Rep. No. 745-82, in 1982 House Journal, at 1239. The v *** FORPUBLICATION *** Standing Comittee Report stated that the amendnent would “bring the allowances more in line with the current average cost of @ funeral and burial.” Hse. Stand. Comm. Rep. No. 745-82, in 1982 House Journal, at 12397 see also Sen. Stand. Conm. Rep. No. 338 82, in 1982 Senate Journal, at 1090. In the instant case, Petitioners’ actual funeral and burial costs were $14,262.07. Using the date-of-injury MWBR, they received $5,010.00; had the date-of-death MWaR been used, they would have received $7,935.00 ($529.00 x 10 + $529.00 x 5). Although still well below their actual expenses, using the date- of-death MWBR would reflect the legislature’s intent to “bring the allowances more in line with the current average cost of a funeral and burial.” 3. Legislative history of sections 381 Weekly benefits. 1(b) and (c) In 1974, the legislature amended sections 386-31, -41, and -43 by, inter alia, increasing the maximum weekly benefit amount, which had been set at $112.50, to the level of the State AWW, with annual adjustments of the maximum anount “to reflect changes in the All thereafter.” Sen. Stand. Comm. Rep. No. 755- 74, in 1974 Senate Journal, at 1039-40; 1974 Haw. Sess. L. Act 153, 851, 2, 4, 5 at 281-86. The Standing Conmittee Reports stated that this change would “remove part of the inequity of injured workers and dependents of deceased workers receiving less 38 *** FOR PUBLICATION *** than 2/3rds of the weekly wages of the injured or deceased workers, the intended benefit amount.” Sen. Stand. Comm. Rep. No. 755-74, in 1974 Senate Journal, at 1040 (emphasis added); Hse. Stand. Comm. Rep. No. 44-74, in 1974 House Journal, at 590 (emphasis added) . Another House Standing Committee Report stated: linen the weekly maximum of $112.50 wae by law established in 1965, the sum exceeded the State average weekly wage as determined snnsally By the Director nd the Bsximun Sof the work forse. Toasy, however, many Of the injured are Feceiving cofsicersbly lese than 2/3 of their wages Decause of the weekly maximum Limit Hise. Stand. Conm. Rep. No. 262-74, in 1974 House Journal, at 655 (emphasis added). The report further stated that pursuant to the amendment, the weekly limits would be automatically adjusted annually, which would “benefit the permanent total disability and death cases because the aggregate limit of $35,100 will be increased{.]" Id. ‘This legislative history evidences the legislature's intent to annually adjust the maximum amount payable for disability and death benefits in order to more closely reflect the employee's intended benefit, two-thirds of the employee's AWW. Utilizing the date-of-death MMBR to calculate death benefits is thus consistent with the legislature’s intent. 19 *** FOR PUBLICATION *** IV. CONCLUSION Based on the foregoing, MWBR should be used to calculate death benefits we hold that the date-of-death We therefore reverse the ICA’s Opinion and remand this matter to the LIRAB for calculation of Petitioners’ death benefits using the date-of- death NWBR and issuance of an order awarding such benefits. Herbert R. Takahashi and Rebecca L. Covert (of Takahashi, Masui & Vasconcellos) for petitioner/ claimant-appellant Survivors of Roy W, C. Young on the writ and supplenental brief Robin R. Horner for respondent /employer/ insurance carrier-appellee Island Feeling, Inc. and TIG P&C Insurance Company on the supplemental brief Frances £. H. Lum and Robyn N. Kuwabe, Deputy Attorneys General, for respondent/appellee Special Compensation Fund on the supplemental brief 20 Gm Maa Resimee Resse 6 eae oee™*N owen £. Dabliys fos 

11fbba0addfcb180d71772046d047abe7f7d89e12043d83c0d1c6f54ddd73402

2005-12-28T00:00:00Z

3ec471c6-3c73-425e-b5af-75dd714c88a2

Kahala Royal Corporation v. Goodsill Anderson Quinn & Stifel. Consolidated with No. 26670.

113 Haw. 251

hawaii

Hawaii Supreme Court

*** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter IN THE SUPREME COURT OF THE STATE OF HAWAT'L 00 No._26669 KAHALA ROYAL CORPORATION, Plaintiff-Appellant GOODSILL ANDERSON QUINN & STIFEL, a Limited Liability Law Partnership, LLP; JONES, DAY, REAVIS & POGUE, ‘a Foreign Law Partnership, and ALAN 8. FRIEDMAN, Defendants-Appellees; and JOHN AND JANE DOES 1-20; DOE BUSINESS ENTITIES 1-10; and DOE GOVERNMENTAL ENTITIES 1-10, Defendante. (CIV. NO. 03-1-0199) 9:6 HY No._26670 KAHALA HOTELS ASSOCIATES LIMITED PARTNERSHIP, Plaintiff-appellant, GOODSILL ANDERSON QUINN & STIFEL, a Limited Liability Law Partnership, LLP; JONES DAY, a Foreign Law Partnership; ALAN E. FRIEDMAN; WOLFGANG HULTNER; and JOHN WITT, Defendants-Appellees, and SOHN DOES 1-20, DOE BUSINESS ENTITIES 1-10; and DOE GOVERNMENTAL ENTITIES 1-10, Defendants, and KAHALA ROYAL CORPORATION, Party in Interest-Appellant. (CIV. NO. 03-1-0313) NOS. 26669 & 26670 oats *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter APPEAL FROM THE FIRST CIRCUIT COURT (CIV. NOS. 03-1-0199 and 03-1-0311) ANUARY 11, 2007 MOON, C.J., LEVINSON, NAKAYAMA, AND DUFFY, JJ, AND CIRCUIT JUDGE NISHIMURA, IN PLACE OF ACOBA,'3., RECUSED OPINION OF THE COURT BY MOON, C.J. Inasmich ae appeal Nos. 26669 and 26670 present identical relevant facts and similar legal issues, we consolidated these appeals for purposes of disposition, pursuant to Hawai'i Rules of Appellate Procedure (HRAP) Rule 3(b) (2006).* Central to both appeals ie the applicability of the defenses of Litigation immunity, collateral estoppel, and waiver, as well as whether the defendants in both actions were entitled to an award of attorneys’ fees, pursuant to Hawai'i Revised statutes (HRS) § 607-14 (Supp. 2005), quoted intra. ‘The parties to appeal No. 26669 are plaintiff-appellant Kahala Royal Corporation (KRC) and defendants-appellees Goodsill 2 MAP Rule 3(b), entitled "Joint or consolidated appeals,” provides hats 3f two or sore parties are entitled to appeal from a judgnent cr order and their interesta are such as to make jeinder practicable, they ray file a joint notice of appeal and ther 1 as a single appellant. hotion of © party, of upon stipulation of the parti Several appeaie pen ‘fo the (Gnphasis added.) *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter Anderson Quinn & Stifel (Goodsill), Jones Day, and Alan &. Friedman? hereinafter, the KRC Appeal]. The parties to appeal No. 26670 are plaintiff-appellant Kahala Hotel Associates Limited Partnership (KHALP) and defendants-appellees Gocdsill, Jones Day, Wolfgang Hultner, and John Witt [hereinafter, the KHALP Appeal). KRC is purportedly a ‘party in interest* to the KHALP Appeal Briefly stated, KHALP is a partnership that owns the Kahala Nandarin Oriental Hotel (the Hotel). The two general partners of KHALP -- KRC and non-party Mandarin Oriental Holdings (USA), Inc. (WOHUSA) -- have a contentious relationship, in large part resulting from KRc’s dissatisfaction with the performance of MOHUSA’s affiliates that manage and operate the Hotel on a day- to-day basi: KRC eventually initiated an arbitration proceeding against MOHUSA, claiming that MOHUSA failed to properly oversee and control its affiliates. KRC also initiated two separate arbitration proceedings on behalf of KHALP against MOHUSA’s affiliates, alleging that the affiliates mismanaged the Hotel. Subsequently, KRC sought MOHUSA’s permission to inspect and review KHALP’s books and recorde, which were in MOHUSA’s possession as the administrative partner of KIALP, in order to Prepare for the arbitration proceedings. MOHUSA, allegedly through Fultner and Witt, who are officers and/or directors of MOHUSA and/or its affiliates, then retained the law firme of * Friedman Se @ partner in the law firm of Jones Day. All future references to Jones Day include Friedman unlese othervive indicated  FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter Goodsill and Jones Day [hereinafter, collectively, the Lawyers] to purportedly represent its interests and those of its affiliates, The Lawyers thereafter undertook the management of the inspection and review process of KHALP‘s books and records KRC, however, clained that the inspection process frustrated its review, prompting KRC to modify ite earlier arbitration demand against MOHUSA to allege that MOHUSA had breached its contractual, common law, and statutory duties to KRC and KIALP by, inter alia, improperly interfering with KRC’s access to the books and records. KRC and KHALP thereafter separately initiated the instant actions againet the Lawyere for their role in allegedly aiding MOHUSA in interfering with KRC’s access to KHALP‘s books and records. XHALP also named Hultner and Witt as defendants for their alleged role in retaining the Lawyers In the KRC Appeal, KRC appeals from a final judgment of the Circuit Court of the Pirst Circuit, the Honorable Dexter D. Del Rosario presiding, entered on June 3, 2004 in favor of the Lawyers. Final judgment wae entered pursuant to an order granting the Lawyers motion to dismiss or for summary judgment and a separate order granting attorneys’ fees in favor of the Lawyers. On appeal, KRC challenges both orders, claiming that the circuit court erred in ruling that: (1) KRC was collaterally estopped fron bringing its claims; (2) the Lawyers’ conduct was privileged pursuant to litigation immunity; (3) KRC waived its *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter Fight to assert its claims against the Lawyers; and (4) the Lawyers were entitled to fees pursuant to HRS § 607-24. In the KEALP Appeal, KEALP appeals from a separate June 3, 2004 final judgment, algo entered by Judge Del Rosario, challenging separate orders of the circuit court granting (1) the Lawyers’ motion to dismiss or for sumary judgment, (2) Hultner and Witt’s motion to dismiss, and (3) attorneys’ fees in favor of the Lawyers, Hultner, ané Witt (hereinafter, the KHAL? Gefendants] and costs in favor of Hultner and Witt only, inasmuch as the Lawyers did not request an award of costs. specifically, }SALP contends that the circuit court erred in ruling, inter alia, that: (1) KALP was not the real party in interest; (2) KWALP was collaterally estopped from bringing its claims; (3) the Lawyers’ conduct was privileged pursuant to litigation immunity: (4) KHALP waived its right to rt ite claims against the KHALP defendants; and (5) the KHALP defendants were entitled to fees Pursuant to HRS § 607-24, KRC also appeale from the June 3, 2004 final judgment entered in the KHALP Appé 1, challenging the award of fees in favor of the KHALP defendants inasmuch ag the circuit court ruled that KRC, not KHALP, was liable for the fees and costs incurred by the KHALP defendants in the KHALP Appeal.’ + As indicated above, WOALP also challenges the orders granting fees in favor of the KWALP defendants and costs in favor of Multner and witt agesnet HRC. in its opening brief, KUALP explains that if i not inmediately prejudiced by the [olrders granting the HOALP djetendanta’ motions for tees [and co ie (continued...) *** FORPUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter For the reasons discussed below, we affirm in part and reverse in part the June 3, 2004 final judgnents entered in appeal Nos. 26665 and 26670 1. BACKGROUND A. Factual Backoround 1, The Partnership, the Partners, and MOHUSA’s Affiliates As previously stated, KHALP is a registered Hawai'i limited partnership that owns the Hotel. Pursuant to an "Amended and Restated Limited Partnership Agreenent,” dated February 1, 1995 (hereinafter, the Partnership Agreement], KRC and NOHUSA became the sole general partners of KHALP. The Partnership Agreement provides that KRC and MOHUSA each hold interests of both general and limited partners in KHALP. specifically, KRC holds a sixty percent interest in KHALP, and MOHUSA holds the remaining forty percent interest.‘ The Partnership Agreement also provides that MOHUSA is the “Administrative Partner" of KHALP, As the Administrative Partner, MOHUSA ie responsible for vall normal day-to-day administrations of the affairs of IXHALP,]" including the maintenance of KHALP’s books and records. *(. continued) nevertheless sppeais from those (o}rders solely to the extent thet it has a contingent liability thereunder a2 the Seal party in interest" in thie action + Although all the parties state that KRC holds a sixty percent interest in YHALP, the Partnership Agreenent states that nos-party Haha Hotel Operating 'Managenent Corp. (KHOMC) holds a ~zero and 6" limited interest in KIALP and that KRC holds a 59.4 percent interest in KIALD. Nevertheless, inassuch ae KIONC's interest in KEALP ig immaterial to the instant appeais, we will Likewise refer to XRC'# interest in KUALP ee wixty percent. *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter KHALP’s books and records were to be “open to inspection and examination by the [plartners . . . at all reasonable times during normal business hours.” ‘The Hotel is operated and managed on a day-to-day basis by MOHUSA’S three affiliates, Mandarin Oriental Management (USA), Inc., Mandarin Oriental Overseas Management Limited, and Mandarin Oriental International Limited {hereinafter, collectively, the Mandarin Manager: + Pursuant to three hotel management agreements with KHALP, which were contemplated in the Partnership Agreement Ihereinafter, the Management Agreements]. Although KRC is not actively involved in the operation and management of the Hotel, KRC has the power to “exercise” the “rights and privileges" of KHALP vunder, pursuant to[,] or otherwise with respect to" the Management Agreements and KHALP’s dealings with MOHUSA and its affiliates, i.e., the Mandarin Managers, under section 10.6.2 of the Partnership Agreement .* 2. The Financial Structure of KHALP and Initiation of the ‘Three Arbitration Proceedings As previously indicated, KRC holds a sixty percent interest in KHALP, and MOHUSA holds the remaining forty percent © specifically, section 10.6.2 of the Partnership Agreement provides in relevant parts Notwithstanding anyehing herein to the contrary, (KR) shal] be entitled, without (ajpproval of any other [piartner, to exercise ali Of the rights and privileges of the owner of the Hotel under, pursuant to or otherwise with respect ES the Manegenent Agreenent [s] and (KHAL?]'s dealings with IMoMUGal and [ita afeiiiates)  *** FOR PUBLICATION in West's Hawai'i Reports and the Pacific Reporter interest. Since the mid to late 19808, the Hotel has produced annual net operating incone ranging between $4 million and $7 million. However, at the same time, KHALP sustained operating losses, renovation cost overruns, and a first mortgage indebtedness with a principal balance of over $37 million. As such, the Hotel’s “level of net operating incone is insufficient to support the capital structure of [KHALP].” In addition, MOHUSA has a “put option" under the Partnership Agreement. Article XVI of the Partnership Agreenent provides MOHUSA the one- time right to require HRC to purchase ite equity interest in KHALP. The put option was to be exercised between January 1, 2005 and March 1, 2005. If the put option was exercised, MOHUSA was entitled to receive a minimun of $66 million for ite equity interest. KHALP’ financial struggles and the possibility of NOHUSA exercising ite put option appears to have caused the relationship between KRC and MOHUSA to become contentious. Moreover, KRC had becone dissatisfied with the Mandarin Managers’ operation and management of the Hotel. According to KRC, the Nanagement Agreenents provide for, inter alia, “substantial compensation for the Mandarin Managers regardless of the profitability of the Hotel[.]* Consequently, KRC decided to *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter initiate arbitration proceedings (1) against MOHUSA on behalf of itself and (2) against the Mandarin Managers on behalf of KHALP.* Four years prior to the put option deadline, on January 31, 2002, KRC served a ‘Notice and Demand’ for arbitration on MOHUSA pursuant to the Partnership agreement [hereinafter, the Partner Arbitration]. ‘The Notice and Demand for arbitration essentially alleged that MOHUSA breached certain duties by, inter alia, failing to investigate and prosecute claims of mismanagement against the Mandarin Managers. Also on the sane day, KRC -- on behalf of KHALP -- ved two separate Notices and Demands for arbitration against the Mandarin Managers, pursuant to the Management Agreements [hereinafter, the Managers Arbitrations]. Essentially, the two Notices and Demands for arbitration alleged that the Mandarin Managers had breached their fiduciary duties and mismanaged the Hotel Events Following the Initiation of the Arbitration Proceedings on February 2, 2001, the parties agreed, in writing, to stay the Partner Arbitration and the Managers Arbitration until thirty days after any of the parties “give(] notice to the other Of termination of the stay, provided that no such notice to terminate shall be given before March 31, 2001." on February 12, 2001, KRC -- on behalf of itself and KHALP -- sought MOHUSA’s “Both the Partnership Agreement and the Managenent Agreenents require all disputes arising under the agreenente to be submitted to arbitration *** FOR PUBLICATION *** ‘in West's Hawai'i Reports and the Pacific Reporter permission to inspect and review KEALP’s books and records Recording to KRC, such inspection was necessary in order to prepare for and substantiate the claine asserted in the Managers Arbitrations, KRC retained Peterson Consulting ae its authorized representative with respect to the inspection of the books and records. Meanwhile, MOHUSA and the Mandarin Managers, allegedly through Hultner’ and Witt," retained the Lawyers. According to a February 16, 2002 letter sent by Jones Day to KRC’s counsel, Jones Day informed KRC’s counsel that it was retained by MOHUSA and the Mandarin Managers to represent them “in connection with the disputes alleged by [KRC] . . . to have risen under the (Partnership Agreement] and/or the [Managers Agreement pertaining to the [Hotel]." Subsequently, the Lawyere, Particularly Goodsill, undertook the management of the inepection Process of KHALP’s books and records, The inspection proc * According to KIALP, Hultner ie (1) the president of MOHUSA, (2) the chief executive officer (C50) of Mandarin Oriental Management’ (USA). Tne. end (3) able to act on behalf of Mandarin Criental Overseas hanagenent iimieed and Mandarin Orieneel International Linstes. + according to KIALP, Witt is (1) @ director of MOHUSA, (2) the president of Mandarin Oriental Managenent (USA), Inc., (3) a “finance Girector" of Mandarin Oriental international Limited, and (4) able to Purportediy act on behalf of Mandarin Oriental Overseas Wanagenest Limited. In addition, section 10.7.1 of the Partnership Agreement provides that an “Executive Comittee” consisting of five “Authorizes Representatives of WRC and WOHUSA 8 to oversee the operations of HHALP and the activities of icity as the Administrative Partner. The five Authorized follows: (2) tw representatives of KRC (2) two representatives of MOHUSA chosen by MOHUSA; and (3) one kepresentative of AC chosen by KRC and approved by MOHUSA. According to WIALP, Multner and Witt have been held out to be MOUSA's Authorized Representatives: -10- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter established by Goodsill -- which was allegedly acting under the Girection of and/or in coordination with Jones Day -- required Peterson Consulting “to request information and/or documents and/or to pose specific questions about the particular records in writing." Litigation paralegals employed by Goodeill then reviewed the written requeste with a litigation partner employed by Goodsill. During or after such review, the requests were transmitted to the Hotel's accounting staff, “who would, to the extent that they were able to do 0, retrieve the records, create reports on requested information(,] or answer the posed questions." Although ERC claimed that the inspection process imposed by Goodsill limited its review of the books and records, MOHUSA maintained that the inspection process ‘acted to facilitate’ KRC’s request to review such books and records. Peterson Consulting ended ite efforts to review the books and records sometime in the late spring of 2003, “after it had received considerable quantities of information through Goodsi1i, but without having been able to generate any conclusions as a result of its inguirie * Goodsill's invoice for the services it rendered with respect to the management of the inspection process, in the amount of $47,920.74, was paid by the Hotel. Inasmuch as the Hotel’s funds were held by the Mandarin Managers “as the agent (s] for and in the name of* KHALP, OALP ultimately paid Goodsill’s invoice. te *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter on May 30, 2001, KRC requested MOHUSA’s permission to further inspect KHALP‘s books and records, “seeking an extensive List of particularized information from the books and records about specific areas of management practice." By letter dated August 2, 2001, MOHUSA denied KRC’s request for further inspection, “citing its duty to conserve the resources of the Hotel in the absence of a good faith business purpose being shown by [KRC] as to why the information should be generated.” For approximately a year and four months, the parties did not appear to discuss any of the pending matters. on November 13, 2002, KRC’s counsel sent three letters to the Mandarin Managers, providing formal notice of KRC’s and KHALP’s decision to lift the stay of the arbitration proceedings. 4. Goodeill’s Petition for Admission Pro Hac Vice On Decenber 31, 2002, Goodsill filed a petition for admis ion pro hac vice of Friednan and Gregory D. Schetina (of counsel to Jones Day) “to appear and represent [MOHUSA and the Mandarin Managers) in connection with arbitration proceedings and any related judicial proceedings in Hawai'i pertaining to the [Hotel] initiated by [KRC] and ite President, Katsumi Iida” with the circuit court [hereinafter, the petition]. ‘The petition was served on KRC. + the Honorable Gary W.B. Chang presided over this separate proceeding. -12- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter SSS On January 15, 2003, KRC and Iida jointly filed a memorandum in opposition to the petition, essentially contending that Goodsill, Friedman, and Schetina should be "disqualified" “from acting as counsel for parties adverse to [KHALP]” because “there is evidence that [Friedman and Schetina] have actually Participated with (Goodsill] in the representation of [MOHUSA] in its conduct of partnership business{.]" At some point, however, KRC and Iida withdrew their opposition to the petition. on February 12, 2003, the circuit court entered a judgment granting the petition 5. The Partner Arbitration In late January and early February 2003, KRC served Several pleadings in the Partner Arbitration that (1) withdrew the claine yerted in KRC’s lier Notice and Denand for arbitration, (2) set forth new claime against MOHUSA, and (3) articulated the relief sought by KRC based on the new claims. KRC essentially alleged that MOHUSA had breached its contractual, ™ On appeal, KRC explains why it decided to withéraw ite original Gleime (ses, ‘Ehat WOHUSA breached certain duties by, inter alla, failing to Anvestigate and prosecute cleint of misnanasenent against the Mandarin Managers) and assert new claine in the Partnership Arbitrat iene ‘The pursuit of KUALP's clains against the Mandarin Managers Un the Managers Arbitrations) ‘could not effectively cake Place until FRC had a fair opportunity to review HIALP's Books and records, HRCI,] thereforel,] recosnized that’ [the Fartner Arbitration] had to focus on gaining reasonable access to the books and records and stopping MOMUSA, watch, with the active participation of (the Liawyers, wae’ abusing ite position ae Aduinietrative Partner and breaching see Fiduciary duties to (HHALP] and FRC in order to provect ite affiliates, the Mandarin Managers. (Citation to the record omitted.) -a3- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter common law, and statutory duties to KHALP and KRC by: (2) improperly interfering with KRC’s access to KHALP’s books and records; (2) abusing its position as Administrative Partner by allowing the Lawyers to usurp ite powers in order to protect the interests of the Lawyers’ other cliente -- and KHALP‘s adversaries -- ice., the Mandarin Managers; and (3) using KEALP funds to pay the Lawyers. KRC set forth fifteen “resolutions,” many with several “sub-resolutions,* based on its new claims. ‘These resolutions requested, in relevant part 1. an order granting [1c] equal and identical acc the books and records of MAALP that MOHUSA enjoys. 2. Anorder requiring MOMUSA to imediately repay ¢o NIALP those attorneys’ fees and coste charged by [Geossill] ‘fer ite work assisting MOMUSA in responding to (KRC)"s requests for WIALP (believed to be at least $47,920.78) X determination that MOMUSA breached ite duty to. (RC) by not providing information concerning [KIALP) "s business and affairs after denané for informacion had been received. 4. X'Secefmination that MOHUSA has engaged in conduct Felating to KHALP business which makes it not Featonably practicable to carry on the business in partnership with MOHUSA. te 8." A determination that MOHUSA breached ite fiductary Guty of loyalty to [HRC] by dealing with IKHALP] in the conduct of partnership business as or on behalf of 2 party having an interest adverse to (KHALP] 6.2: An order directing MOHUSA to direct ite agents, Including but not limited to (the Lawyers], to cease taking positions adverse 20 [mani], in particular(,] to cease representing the Mandarin Managers against [KGALF] in relates arbitrations. 8.3: An order directing MOHUSA to turn over to (XKRC] ali documents in ite possession or its agent's Possession (including the files of [the Lawyers]) related co. (KRC]'s oF (KIALP]’s Gieputes against che Mandarin Managers. 2! ” An order of expulsion of MOHUSA as a partner in KHALP. 15. An order issolving the KHALP partnership between (HRC) and MOHUSA. wae *** FOR PUBLICATION * in West’s Hawai'i Reports and the Pacific Reporter (wunbering altered.) on March 20 and 21, 2003, an arbitration panel (the panel) held a hearing in the Partner Arbitration. On April 2, 2003, the panel issued its ‘Memorandum Opinion and order,” granting in part and denying in part KRC’s claims for relief (hereinafter, the arbitration order]. The panel ruled in relevant part as follows Turning first co the claim (that KR] was denied appropriate access to the books and records of [KP], che panel is in agreement with (KRC) In the panel’é Mew, while «=. IKRC)’s right Co inspect the books and Yecords ie not ag unfettered se that appropriate for an auditor, it is certainly greater in contextual environment than that which was afforded by (MOMUSA]"s procedures for Snepection. . . Mithout ascribing any particular otivation to the attorney review process’ incorporsted into IMOHUSA"e procedure, it ie clear that such a review was not invended to improve (KR¢] 's accese to books and records that by law and under the (Partuership] Agreement (HRC) was entitled to expect. B. . (HRC) ext argues that [MOMUSA] should be required to repay £0 [KIALF] the attorneys’ fees and costs charges by Goodell] in connection with its work on che Gocument inspection and production effort. " [MOMUSA) argue Chat Goodeilivs efforts benefited (sic) [KHALP) rather chan [woHUSR) and that the fees and expenses are thus properly payable by. (ALP) ‘The panel agrees with [IC] cn this issue. [MOHUSA) was and ie entitled to defend itself against claine made by Tac] “either under the parenerehip] Agreement or under the Nanagesent Agreenente for the fote!. The panel concure with (WOHUGA) that it ie algo entitied to engage the counsel of its choice for tht defense. Hovever, the panel concludes That (NOMUSA)"s engagenent of counsel for the inspection of tthe books and records undertaken by Petereon (Consulting) Was not to facilitate that procese on behalf of (KHALP). but Yather to regulate that process in a manner conducive to (WGC) 's defense against the then pending arbitration claime (MoHUSA) “cannot have it both ways. If (the Lawyers] were IMOHUSAI ‘s defense team representing [MOHUSA] and not DGALP], then the expenses associated with that defen Properly £0 be borne by (HOSA) G." "he main thrust of the balance of (xRC]'s requests for relief are centered on Evo concepts. First, [ic] argues that, ab Administrative Partner of (KWALP], (moHUsA} owed duties under common law, the (Partnership) Agreenent and the Havas statutes not to interfere wth TiRC] '¢ efforts, as NGHUSA]s partner, to investigate and -15- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter possibly pursue claims against the Mandarin Managers. Second, (Hc) argues that specific provisions of the [Partnership] Agreement... required that [MOHUSA] "etep back" and allow [IHC] to exercise the rights of Hotel omer fn any dispute with the Mandarin Managers. In both of these areas, [XEC] argues that’ [the Lavyere) were improperly Fetained to represent parties with conflicting intereste () and that the activities of the (Lawyers) in undertaking the Gefense of INCHUSA] and ite aefiliates(, ive., the Mandarin Managers, violates ethical and fiduciary cbligations. As result of (MOMUSA)'e sctivitier in conducting what ancunte to a common defense with the Mandarin Managers, [KRC] argues that ie de no longer reasonably practicable £0 carry om the business of [KALP] with (MOMUEA) aa the Administrative Partner. Thus, [KRC) seeks to have (GLP) dissolved, or in the alternative, have (MOMUSA] expelled ae partner in (HaHa) ‘The patel nae concluded that (KRC) had the right co inspect the books and records in order to pursue inquiries fneo the conduct of the Mandarin Managers, and that thoes rights were effectively abrogated by [WOHUSA)’s regulation fof the Inspection process. The panel has algo concluded That [MOMUSA] vas entitied to defend teel? with counsel of its choice against possible attacks by [XRC]. (KRC) is not entitled to require that (NOHUSA) ‘effectively lobotonize iteelt in ite dealings with ite affilistes By taking the side of (acl ‘he Sppropriate relief in this instance is not, however, what IKKC) has suggested. As noted, if 1s not appropriate to require (MOMUSA] tO attempt to create a "Chinese Wall” or to perform some other set unnaturel for corporate enterprise. it is leo not appropriate to Giseolve (ALP) or to expel INCHUSA] as auch relief i far foo draconian in ite impact on [MOMUSA] in the circunstanct Presented ‘The appropriate relief in these Elzeunstances is to temporarily renove the source of the Gifticalty, the power of the Adzinistrative partner to Fegulate (iRC}'s activities in ite legitimate review of the activities of (MOHUSA] and the Mandarin Managers. 5." " jmuch of (me's) argument relating to alleged breaches of fiduciary duties revolves around [WOHUSA]’® counsel. INRC] argues that(,] since (1c) and [MOMUSA] are partners in (GALP, ana since any clains against the Mandarin Managers are claine belonging to [RALP), then (WoHUSA] violated its Guties to [Kc] by retaining [ehe Lawyers] to act as counsel representing both [MoWUSA) and the Mandarin Managers in their disputes with (RRC). LIC] ‘Secepted by the [Lewe: re aged in w Fespectiv of sbursbie ‘The panel paid particular attention to the expert with Who Pestitied on the ethical issues raised by [iecl -16-  *** FOR PUBLICATION in West's Hawai'i Reports and the Pacific Reporter deat xpectat ‘8 1 would ‘The panel has previously concluded that [MOHUSA] has the right fo be represented by counsel of it defend itself, we have found chat choice and to juch defense could not extend to the use of [MOHUSA]‘s powers as Administrative hat counsel, whose only representation of IMOMUSA or the Mandarin Manage Signed in 1995 is with respect to these cl ‘since the original agreenente were predecessors, es oh Nous? Manasexa lie. the lawvera,] have acted ethically in all Keapecte aid have violated so duties to IRC] shether ender he common lax. statutes or otherwisa: (Smphases added.) The arbitration order also contained the following Yorder" [WoHUSA] ehall be entitled to retain counsel of it for ite defense of any cla: for hy Seunsel_for {MOHUSAL has nor engaged in unethical conduct oF Sonduck that constitutes a breach of any ethical. tiduciary. 08 choosing past or future, made by [kx] (Bmphasis added.) On October 27, 2004, the Circuit Court of the First Circuit, the Honorable Eden Elizabeth Hifo presiding, entered a judgment confirming the arbitration order. According to the parties, there has been no subsequent action taken with respect to the Managers arbitrations. B. Procedural History 1. The ERC Appeal a. KRC’s complaint On January 28, 2003, prior to the arbitration hearing and order, KRC filed a complaint againet the Lawyers with the circuit court. On February 20, 2003, KRC filed an amended complaint. In its amended complaint, KRC alleged: <7  *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 15, In [managing the inspection process of KIALP's books and records, the Lawyers] were acting and/or Purporting to act on behalf of KHALP in maintaining, Controlling, and protecting ite books and records. 37.” By virtue of its conduct [in managing the inspection process, the Lawyers) were the attorneys for WOULP and/or oved fiduciary duties to KGALP and’ [RC] is. “sy virtue of their representation of the Adniniatrative Partner, [the Lawyers) astumed fiduelary and good faith obligations to MIALP and ite partners, including ‘heey 25. Goodsill has comenced the representation of four clients: INOHUSA) and the Mandarin Ranagers in three separate arbitration proceedings. These include the nsnagers arbitrations and the Partnership Arbseration]- 0, By virtue of the foregoing, doodeill hae undertaken co represent parties with interests directly Adverse to those of their fiduciary and good faith cbiigee, eel 21, Gocdsi2i plane to continue that representation land to appear for the’ Mandarin Managers in the’ IManagere Arbitrations], while continuing co serve ae the agents of {(WoHUISA] and to represent (WOMUGA] in ancther proceeding , e., the Partnership Arbitration,] that will give it access to Confidential internal RIALP information 22.” By virtue of the foregoing facte, ae well Letters written and other conduct indicating representation, (Sones Day ha] comenced representing parties with Antereste directly adverse to those of their former fiduetary and good faith obligee, [x]. 26: ” The cooperation by [MOHUSA] with parties adver to MHALP ‘and [HRC], to wit, the Mandarin Managers, constitutes a breach of NOMUSA's fiduciary, good faith, and other legal duties co. [XKC) and (KHALP]. "by purporting fo fact on behalf of and undertaking the representation of ROWUSA [tic] at the sane tine they are Fepresenting the Mandarin Managers, (the Lawyers] have and’ are continuing to perform, assist, participate in, conspire ar to, induce and Bid and’ abet 1A. The manipulation of MOHUSA to the benefit of the Mandarin Nanagere; B. The Use of MOHUSA as the mere instrunentality or alter ego of the Mandarin Manager co “the communication of confidential partnership. information by WOWUSA to the Mandarin Manageres D. The cooperation of MOMUSA with the Mandarin to frustrate and/or defeat HHALP's claime against Manage: then and) E. The breach by MOHUSA of fiduciary, good faith land other duties owed by NOMUSA to (KRC] and KHALP; and FL The wrongful interference in [KRC]'e contractual relationship with MOMUSA, ae well as KHALP'® contractual relationship with the Mandarin Managers KRC's amended complaint set forth the following claims for relief: (1) unfair methods of competition; (2) intentional -1e-  *** FOR PUBLICATION ** in West’s Hawai'i Reports and the Pacific Reporter interference with contractual relations (IICR); and (3) intentional interference with prospective economic advantage (JIPEA). Specifically, KRC alleged: 27. (NOHUSA) is engaged in trade or comerce, as are [the Lawyers]. The . conduct by (NOHUSA] in colludsng and cooperating with adversaries of KHALP constitutes an Unfair method of conpetition in the hotel omership business within the meaning of [IRE clhapter 460. (ihe Lawyers] art Assisting and/or participating in that conduct and are therefore liable to. [xc] under (MRS c)hapter 480 28. (The Lawyers] are representing cliente and ‘earning fees in violation of the rules of professional Fesponsibility and the ethical duties attendant to these: profession. As euch(,) they are engaged in unfair sethode Sf competition within’ the meaning of [iieS cJhapter 480. 35. (The Layers’) conduct is knowingly interfering with [H@C)'s right to full performance of the [Partnership [Algreenent. ‘Said agreenent entities [xec] the ability to freely inepact [KHALP] books and records and to receive the complete fiduciary loyalty of its partner MOMUSA. [The Lawyers] are knowingly participating in a scheme under which MOMUSA ia limiting UC] 's inspection rights, and sharing attorneys" fees, conficences, strateay and information with nd for the benefit of the Mandarin Managere in their Giepute with HEALD. “By virrue of the foregoing facts, [the Lawyers] are Liable to (XC) for (1icR] and (TIPEA) Finally, KRC requested (1) a declaration that the Lawyers were disqualifies from representing MOHUSA and the Mandarin Managere in connection with their disputes with KHALP or KRC, (2) an injunction (a) preventing the Lawyers from representing MOHUSA and the Mandarin Managers in connection with their disputes with KHALP or KRC and (b) ordering the Lawyers to turn over all their files to KRC relating to the work done for MOHUSA and the Mandarin Managers with respect to any matter involving KIALP or KRC, and (3) money damages, including general and special compensatory damages, punitive damages, treble damages pursuant to HRS chapter 480, attorneys’ fees, costs, and other relief deemed “just and proper. -19- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter b. the Lawers’ motion to diemiss or for summary sudament On June 27, 2003, subsequent to the arbitration hearing and order, Jones Day filed a motion to dismiss or for summary judgment in which Goodsill joined on July 3, 2003. Jones Day's motion was based on three independent grounds: (1) collateral estoppel; (2) litigation immunity; and (3) waiver." Specifically, Jones Day asserted that, under collateral estoppel, the arbitration panel’s rejection of KRC’s contention that the Lawyers owed -- and breached -- contractual, common law, and statutory duties to KRC bars it from re-litigating the same contention in the instant action. According to Jones Day, inasmuch as KRC’s business tort claims are based entirely upon KRC's contention that the Lawyers owed KRC such duties and KRC is collaterally estopped from asserting that such duties exist, kRC’s claims fail as a matter of law. Moreover, Jones Day contended that a litigation attorney cannot be held liable to his or her client’s litigation adversary under any theory other than malicious prosecution, abuse of process, fraud, or malice. Accordingly, because the Lawyers allegedly served solely as litigation counsel to MOHUSA and the Mandarin Managers and KRC’s amended complaint does not © at the hearing on Jones Day's motion, counsel for Jones Day stated that the instant motion vas a summary juagnent sotion as wel! as a eismissal, notion. Specifically, counsel stated that the instant notion wae a dismissal ‘motion on the collateral estoppel issue and vas a summary judgment motion "on G1 other Sseues." -20- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter SS allege the aforementioned theories, Jones Day asserted that Litigation immunity bars KRC’s clains as a matter of law. Finally, Jones Day maintained that RC has waived any right to object to the Lawyers’ representation of MOHUSA and the Nandarin Managers. According to Jones Day, the undisputed evidence indicates that KRC was aware of -- but failed to object to -- the Lawyers’ representation of MOHUSA and the Mandarin Nanagers for nearly two years prior to the initiation of the instant action. Specifically, Jones Day pointed to the February 26, 2001 letter sent by Jones Day to KRC’s counsel, informing KRC’s counsel that it was retained by MOHUSA and the Mandarin Managers to represent them *in connection with the disput. alleged by [KRC] . . . to have risen under the (Partnership Agreenent] and/or the (Managers Agreements] pertaining to the (ote) .* A hearing was held on Jones Day's motion to diemiss or for summary judgment on October 15, 2003. At the conclusion of the hearing, the circuit court stated that it was persuaded by the arguments and authorities cited in Jones Day's motion and, thus, orally granted the motion. on De ember 1, 2003, the circuit court entered its written order granting Jones Day's motion and Goodsill’s joinder therein. e awers for attore Having prevailed on their motion to dismiss or for summary judgment, the Lawyers moved for an award of attorneys’ -23- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter fees pursuant to Hawai'i Rules of Civil Procedure (HRCP) Rule 54 (4) (2) (2005)** and HRS § 607-14" on December 17, 2004. The Lawyers contended that the instant action was in the nature of ascumpsit “because KRC allece|d] that [the Lawyers] breached duties to KRC arising from (s) their contractual retention as attorneys for [MOHUSA] and two of [the entities comprising the Mandarin Managers) and (b) the written Partnership Agreenent between MOHUSA and KRC." Jones Day sought fees in the anount of $257,066.55, and Goodsill sought fees in the anount of $88,354.41. The Lawyers did not move for an award of costs. on March 9, 2004, KRC filed ite memorandum in opposition to the Lawyers’ motion for fees, primarily arguing that the instant action was not in the nature of assumpsit. KRC also urged that the fees requested by the Lawyers were unreasonable inasmich as the Lawyers’ billing records were replete with duplications and une sary work and the hourly rates were excessive. 2 RCP Rule $4 (4) (2) provides in relevant part that “(cllains for attorneys" fees! ‘shall be made by notion unless the substantive law Governing the action provides for the recovery of such fees ae an element of Ganages to proved at trial.” 8 HRS § 607-14 provides in pertinent party 4a] actions in the nature of aisumeit..-, there shall be taxed as attorneys’ fees, to ‘Be paid by the losing party and to be included in the fon for which execution may iseue, a fee that the court determines to be reasorable(s) (anphasis added.) -22-  *** FOR PUBLICATION * in West's Hawai'i Reports and the Pacific Reporter A hearing was held on the Lawyers’ motion for fees on March 17, 2004. At the conclusion of the hearing, the circuit court stated that it was taking the motion under advisement. On une 3, 2004, the circuit court entered an order granting the Lawyers’ motion for fees in ite entirety, i,e., in the amount of $257,066.55 to Jones Day and $88,354.41 to Goodeill. Final judgment in favor of the Lawyers was entered on June 3, 2004, KRC filed its timely notice of appeal on July 2, 2004. 2. ‘The KHALP Appeal a. KHALP’e complaint Subsequent to KRC’s initiation of its action against the Lawyers, KHALP filed its complaint against the KHALP defendants (i.e., the Lawyers, Hultner, and Witt) on February 10, 2003. KHALP’s complaint set forth the following claims for relief: (1) “participation in, assisting, inducing, procuring, conspiring in, and/or aiding and abetting breaches of fiduciary, contractual and other duties"; and (2) unfair methods of competition." Specifically, KHALP alleged: 18, MoHUSA, as Administrative Partner, through Multner and Witt, purportedly retained [the Lavyers] to et it in carrying out ita duties as Administrative srener with respect to [KHALP’s] books and records, and in Fesponding to. [KRC's] request. On appeal, hovever, KHALP states that the following three clains for relief were asserted in ite complaint: (1) “tortious inducenent of breach of fidueiary duty"; (2) tortious interference with contractual relations; and (3) unfair methods Of competition. MIALP also “clarifies on appeal that conspiracy was not alleged ass separate claim for relief in ite complaint. 223+ *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 39." At the sane tine, Hultner and witt were acting fon behalf of the Mandarin Mahagers in connection with the Sieputes and requested arbitrations between KHALP and the Mandarin Managers 28, in [managing the inspection process of KHALP’s books and records, the Lawyers) were purporting to act on behalf of HHALP through MOMUSA, Hulener ana Witt’ 26, by virtue of their Mctions, [the Lawyers) were supposed to be acting as the attorneys for KHALP and/or owed fiduciary duties to. RIALP. 27.” “Hulener and Witt, as members of KHALP’s Executive committee and Authorizes Representatives of MOSUSA to KHALP(,] owed fiduciary and other duties to KHALP. 26." By virtue of their representation of its Administrative Parener, [the 1GALP defendants] in that cspacity assumed fiduciary and good faith obligations te 34] ” The cooperation of MOHUSA with the Mandarin Managera in matters adverse to MUALP constitutes a breach of NOHUSA's Fiduciary good faith, and other legal cuties to (ac) and (OLR). “By purporting to act on behalf of and undertaking the representation of MOMUSA in these matters at the sane time they are representing the Mandarin Managers, (the KELP defendants] have and are continuing to assist, participate in, conspire as to, induce and aid and abet: ‘Ar the mazipulacion of MOMISA to the benefit of the Mandarin Manacers, 5, the use of MOMUGA’as « mere instrumentality oF alter ego of the Mandarin mangers, c. the comminieation of confidential partnership Informacion by MOMUSA to the Mandarin Managers, D. the cooperation of MOMUSA with the Mandarin. Managers to defeat SUALP's claime against them and 5. the breach of fiduciary, good faith and other Guties by MOHUSA, a5 welll se F. wrongfully interfering with the contractual, Felationship between KUALP' partners, ite Partnership Agreement, and inducing ite Breech {eiel. 37. MOHUSA and che Mandarin Managers are engaged in trade oF commerce, at are (the KIALP defendante). The conduct by the Mandarin Managers in suborning the Gollusion and cooperation of MOMUGA, ite agente and attorneys with adversaries of WHALP’ constitutes an unfair rrethod of competition in the hotel business within the wreaning of (URE clhapter 460.” (The HMALP dlefendante are Seeieting and/or participating in that conduct and are therefore liable to. (KHALP) under (HRS cJhapeer 480. 3, (The Lawere) are representing clients and earning fees in violation of the rules of professional Feeponsibility and the ethical duties attencant to their profecsion. Ae such(,] they are engaged in unfair methods BE coapetition within’ the meaning of (HRS cl *** FORPUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter eee Finally, similar to KRC, KHALP requested (1) a declaration that the Lawyers were disqualified from representing MOHUSA and the Mandarin Managers in connection with their disputes with KIALP, (2) an injunction (a) preventing the Lawyers from representing NOHUSA and the Mandarin Managers in connection with their Gisputes with KHALP and (b) ordering the KIALP defendants to turn over to KHALP all their files relating to the work done for MOHUSA, the Mandarin Managers, and KIALP with respect to any matter involving KALP, and (3) money damagi including general, special, and consequential compensatory damages, punitive damages, treble damages pursuant to HRS chapter 480, attorneys‘ fees, costs, and other relief deemed “just and proper." In addition, KHALP requested an injunction preventing Hultner and Witt ‘and anyone acting in conjunction with them or at their behest from participating in any way in the disputes between KHALP and the Mandarin Managers on behalf of the Mandarin Managers.” b. Hultner and Witt’s motion to dismiss On March 31, 2003, subsequent to the arbitration hearing and order, Hultner and Witt moved to dismiss KHALP’s complaint in which Goodsill joined on May 2, 2003. Hultner and Wice entially claimed that, because the subject matter of the instant dispute had already been arbitrated in the Partner Arbitration, KHALP’s complaint must be diamissed as to them. In -25- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter addition, Hultner and Witt argued that KHALP‘s “aiding and abetting claim* must be dismissed for failure to state a claim. ce. the + motion or for dudament on May 6, 2003, Jones Day filed a motion to dismiss, for sumary judgment, or, in the alternative, to stay the proceedings in which Goodsi1l joined on May 21, 2003. Jones Day's motion was based on five independent grounds: (1) KRC’s prosecution of the instant action in the name of KHALP is ultra vires; (2) collateral estoppel; (3) litigation immunity; (4) waiver; and (5) failure to join indispensable partie: specifically, Jones Day asserted that the present action "is one by KRC to assert its rights, not the rights of KHALP.]* Jones Day argued that KRC could not prosecute the instant action in KHALP's name because (1) the Partnership Agreement does not permit KRC to eue third parties (as the Lawyers) in KHALP’s name and (2) KRC did not comply with applicable procedural requirenents for bringing this action as a derivative action. Jones Day’s argunents with respect to collateral estoppel, litigation immunity, and waiver mirrored those that were asserted \ sinsiar to the KRC Appeal, counsel for Jones Day stated that the instant motion was 2 sumary judgnént notion at well as a dismissal motion Specifically, aa previously mentioned, counsel stated that the snatant notion es @ dienigeal motion on the collateral estoppel issue and was 2 summary Jedgnent notion "on all other sseues." Moreover, the Lawyers state on appeal thet they do not advance the contention that JOALP's failure to join indispensable parties ie a basis to affirm the circuit court's decision in their favor. -26- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter in Jones Day's motion to dismiss or for sunmary judgnent in the KRC Appeal. See supra discussion at Part I.B.1.b. A hearing was held on Hultner and Witt’s motion to dismiss and Jones Day's motion to diemies or for sunmary judgment on October 35, 2003 (in conjunction with Jones Day’s motion to dismiss or for summary judgment in the KRC Appeal). At the conclusion of the hearing, the circuit court stated that it was persuaded by the arguments and authorities cited in the KHALP ai ndante’ respective motions and, thus, orally granted the motions. On December 1, 2003, the circuit court entered a separate written order granting the motions and Goodsill As prevailing parties on their respective motions to dismiss or for summary judgnent, the KHALP defendants separately moved for an award of attorneys’ fees and costs against KRC, because, according to the KHALP defendants, KRC initiated and controlled the prosecution of the KHALP Appeal. Hultner and wit moved for an award of fees and coste pursuant to HRCP Rule 54(d) and HRS §§ 607-9 (1993) (relating to actual disbursements that may be allowed in taxation of costs) and 607-14 on December 17, 2003. Hultner and Witt sought fea in the amount of $296,673.98 and costs in the amount of $16,731.76, for a total request of $313,405.74. On the me day, the Lawyers moved for an award of -27- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter fees pursuant to ERCP Rule $4(d) and HRS § 607-14. Jones Day sought fees in the amount of $203,056.71, and Goodsill sought fees in the amount of $48,666.73. on Narch 9, 2004, KHALP filed separate menoranda in opposition to the Lawyers’ and Hultner and Witt’s motions for fees. KHALP argued in both memoranda that, if the circuit court “is inclined to consider the [motions for fees], KHALP urges [the circuit c]ourt to allow KRC an adequate opportunity to respond to the allegations contained [in the motions for fees],” and attached, as an exhibit to both memoranda, KRC’s memorandum in opposition to the Lawyers’ motion for fees filed in the KRC Appeal A hearing was held on the KHALP defendants’ motion for fees on March 17, 2004 (in conjunction with the Lawyers’ motion for fees filed in the KRC Appeal). As previously mentioned, the circuit court stated at the conclusion of the hearing that it was taking the motions under advisement. On June 3, 2004, the circuit court entered two separate orders granting the Lawyers’ and Hultner and Witt’ motions for fees and costs in their entirety. Both orders contained the following findings: (2) (GALP) ie a Limited partnership comprised of only two general partners, (NRC) and. (NOHUSA). (2) "Purauant to the (Partnership (Al greement between HRC snd MOHUSK, HRC is specifically authorized to exercise the rights and privileges of (MHALP] under, pursuant to or otherwise with respect to the Managesent Kgreenent (2) and [HHALP) ‘# dealing with (the) Mandarin (Managers) 3) | Hc asserted the claims of [HUALP] in this case. -26- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter (4) _ the complaint entitled (SiALP v. Jones Day, 2., the KIALP Appeal,} was brought by KRC in the name of {Wiel to recover for purported injury te KIALPI.) (5) The allegations in the complaint [in the KEALP Appeal] =~ and OALP's concessions that it ie not the real party in interest -- but takes ite direction from Fae is Chis lawsuit -- make clear that KRC ie a party Bringing the lawsuit in the name of (KHALP] (6). Ag a result, ERC was and ie a party to the instant lawsuit because it Brought the action in the name of aL “()_ Wwe instigated, controlled, and directed the lawsuit in the nane of (WHALE) and Aad notice of the leveuie. 33)” ne the nature of [HRS] § 607-24, the instant action ie in smpeit. ‘The circuit court's order granting Multner and Witt’s motion for fees and costs stated in relevant part: (21) ¥RC had @ ful and fair opportunity to respond ko (iultner and Witt"s sjotion for (fees and cost] in ithe WOALP Appeai] by virtue of ite (siemorandun (i) (olppositien being attached as [an elxhibit . . . to KUALP's (mjemorandus (In. [elpposition(.] (02) "AB the party that iaitiated che instant laweuit. in the name of IKIALP], KRC is liable for [Bultner's and Wite’e) attorney" fees and coste. ‘The circuit court awarded the requested fees and coste in the amount of $323,405.74 to Hultner and Witt against KRC. Likewise, the circuit court’s order granting the Lawyere’ motion for fees stated in relevant part (22) ne had a full and falr opportunity to respond to [the Lawyers’ motion [for fees] by virtue of ite Imenorandum (1)n" [olpposition being attached as (an elxnibit to KIALP’s [nlenorandum’ (1]2_[olppesition(-) G2)" Ae the party thet initiated the instant lawsuit in the name Of [GALP], FRC ie liable for the Lawyerel") w eee and costs. {4 ‘The circuit court awarded the requested fees in the amount of $203,056.71 to Jones Day and $48,666.73 to Goodsill. % although the order stated that KRC ia Liable for the Lawyers’ fees ang costs, the Lawyers id not move for an avard of costs. -23- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter A separate final judgment in favor of the KHALP defendants was entered on June 3, 2004. KHALP and KRC timely filed their separate notices of appeal on July 2, 2004. II. STANDARDS OF REVIEW A. Motion to Dismiss °A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim that would entitle him or her to relief." Dunlea v. Dappen, 63 Hawai'i 28, 32, $24 P.2d 196, 200 (1996) (citations omitted) , overruled on other crounds by Hac v. Univ. of Hawai'i, 102 Hawai'i 92, 73 P.3d 46 (2003). This court mst, therefore, “view a plaintiff's complaint in a light most favorable to him or her in order to determine whether the allegations contained therein could warrant relief under any alternate theory." Id. (citation omitted). Consequently, “in reviewing the circuit court's order dismissing the plaintiffs’ complaint in this case, our consideration is strictly limited to the allegations of the complaint, and we must deem those allegations to be true." Idi (citation omitted) . B. Motion for Summary Judament ‘This court reviews the circuit court’s grant of summary Judgment de novo. Qlahu Transit Serve., Inc. v. Northfield Ine Gon, 107 Hawai" 232, 234, 112 P.3d 727, 720 (2005). The -30- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter SSS standard for granting motion for summary judgment is well settled: (Slumary judgeent is appropriate if the pleadings depositions, answers to interrogatories, ond adniesions on File, together vith the affidavits, if any, show that there 4s no genuine seeue ae co any naterial fact and chat the moving party is entitled to judgnent as a matter of law: A fact is nateriai if proof of that fact would have the effect of establishing or refuting one of the ceseatial elements of 4 cause of action or defense asserted by the parties, The evidence mist be viewed in the light most favorable to the on-moving party.” in other words, we mist view all of the evidence and the inferences dravn theretron in the Light most favorable to the perty opposing the motion Price v. AIG Hawai'i Ins. Co., 107 Hawai'i 106, 110, 111 P.3d1, 5 (citation omitted) (brackets in original) (2005). Cc. Motion orneve’ Fees an: ‘The circuit court’s grant or denial of attorneys’ fees and costs is reviewed under the abuse of discretion standard. Id TIT. DISCUSSION As previously stated, the circuit court granted the Lawyers’ motion to dismiss or for summary judgment against KRC in the KRC Appeal. The circuit court granted the Lawyers’ motion to dismiss or for summary judgment and Hultner and Witt’s motion to dismiss against KHALP in the KHALP Appeal. The issues common to both appeals pertaining to the claime asserted against the Lawyers include the applicability of the defenses of litigation immunity, collateral estoppel, and waiver. We, therefore, first examine whether the defense of litigation inminity is applicable to the instant action. o31- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter A. Litigation Immunity KRC and KHALP contend that the circuit court erred in determining that litigation immunity precluded the instant action with respect to the Lawyers. KRC argues that litigation immunity “applies only to claims for negligence, not to intentional torts such as IIRC and IIPEA, which are the claims KRC erted in its [first amended complaint] .* (Bmphé 1 omitted.) Specifically, KRC claims that, (iin érawing the line between negligence and intentional torts, courts have recognized that, in contrast to mere negligence, intentions! torts are Guteide the scope of an attorney's legitinate representation and involve conduct not mere advice. Th this case, ‘KRC indisputably alleged the intentions torte of IIRC and iIPEA against the (Lawyers) in its (first fanended complaint). The underlying factual allegation Supporting these claims centered on the [tawyers’) active Conduct (as opposed to mere advice) in taking control of and Fegulating KRC's inspection of KHALP’s books and records. ‘The [firet anended complaist] also alleged that [the Lawyers} acted outside the scope of their representation of MOHUSA and with an improper purpose insofar se their purpose was to benefit the Mandarin Managers at the expense of sna with ehe purpose of harming KRC and ALP. (Ee of RRC Hirer amended complain] (Some citations omitted.) KEALP agrees with KRC that “attorneys are not privileged from suit for intentional corte.” (Capital letters altered.) KHALP presents the additional argument that, because the Laxyers’ alleged misconduct “did not occur in Litigation[,]" (emphasis in original), the litigation privilege is “unavailable here.’ ‘The Lawyers, however, contend that *[i]t ie well settled that an attorney who represents a client in litigation Proceedings cannot be held liable to his client Litigation o32-  *** FOR PUBLICATION * in West's Hawai'i Reports and the Pacific Reporter SS adversary based on the attorney's conduct of the litigation, absent proof of malicious prosecution, abuse of process, fraudf,] or malice." (Citations omitted.) The Lawyers assert that *[eJhe only torts that have been recognized in Hawai'i for a lawyer's conduct in representing a client in civil litigation are the torts of malicious prosecution and abuse of process and fraud.* (Citations omitted.) The Lawyers argue that, under the foregoing principles, [the Lawyers’) conduct was protected by the litigation inmunity rule at a sacter of law.“ WOHUSA and ite affiliates(, ive, the Mandarin Managera,] retained (the Lawyers] to openly represent them im adversarial arbitration proceadinge instituted against then by [KRC/MOALP]. “As. [HRC/KAALP] concedes, the docurent production upon which this entire lawsure is based was s form of discovery in aid of (KRC's/KHALP'e) arbitration elaine. “the litigation inmunity rule clearly permitted (the Lawyers) to represent [MOMUSA and the Mandarin Managers) ~~ i.e., the parties that retained then in connection with that document discovery Genané, and’ to aesist [MOMSA and the Mandarin Managers) to resist che Genang, where they deened it appropriate todo so. That is ali that [che Lawyers] did. (HRC/HHALP), moreover, Gof! Act “sand cannot -~ contend that [ehe Lavyere’l resistance to (eneir) document Genand constituted either malicious prosecution, abuse of pri fraud oF malice, Because (uses ane ' complaints are] based entirely os [ene Lawyers'] assistance to their clients. in connection with the Litigation proceedings against then, the circuit court correctly recognized that the litigation imunity rails bars all of [kne"s/MGHALD's} claims. (Citations omitted.) The parties appear to agree that there are no Hawai'i appellate cases that specifically discuss whether litigation attorneys can be held liable to their client's adversary for intentional interference with contractual relations” or Ja {pMetidian Mortaece, inc, v. Firet Haws‘ian Bank, 109 Hawat"t 38, 4322 P36 1133 Opp.) cert. denied, 109 Haval'l 254, 128° P.3¢ 1089 (2005) the Intermediate Court of Appeals (ICA) reiterated the Tequlsive elements of intentional or tortious interference with contractual ‘relat iongs (continued...) -33- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter prospective economic advantage" for conduct eccurring during the course of the attorney's representation of his or her client. Generally, *[t]he scope of any privilege is based upon policy considerations.” Matsuura v. £.1. du Pont de Nenours 6 Co., 102 Hawai'i 149, 155, 73 P.3d 687, 693 (2003) (citations omitted) . In Matsuura, this court stated that the “interrelated policies associated with the litigation privilege” or litigation immunity include: (2) promoting the candid, objective, and undistorted Gisclonure of evidence; (2) placing the burden of testing the evidesce upon the litigants during trial; (3) svoiaing [Ehe chilling effect resulting from the threat of subsequent Litigation; (§) reinforcing the finalsey of jusgmente, (s] Limiting collateral attacks upon judgeente; (6) promoting zealous advocacy? (7) discoureging abusive Litigation practices; and (6) encouraging settlement 1(.. seonttnved) GQ) 2 Contract between the plaintif£ and a third parcy; (2) the Gefendant’s knowledge of the contract; (2) the Getendant’s intentional inducesent of ehe third party to breach the contract; (4) the absence of justification on the Gefendant’s part; (5) the subsequent breach of the contract by the third party? and (6) danages to the plaintife Ad, at 44, 122 P.3d at 1142 (quoting Neinbera v. Mauch, 78 Hawai'i 40, 50, £90 Beda 277,207 (1985) (emphasis onitted) (format altered) « In Robert's Hawaii School Bus, Inc. v.launahoshoe Tranaportation Sou, $1 Mawali 224, 902 F-24853 (1999), superseded by statuee on other Hawai'i Wed. Ass'n, Hawai Med, Serv Ags'n, ~~ Hawai'i + ss Fead-*= (2006), this court set forth the following elements constituting the tort’ of intentional or tortious interference with prospective Batinese advancag (2) the existence of a valid business relationship or = prospective advantage or expectancy sufficiently definite, specific, and capable of acceptance in the sense that there if'a reasonable probability of it saturing into @ future economic benefit’ to the plsintiff; (2) knowledge of the Felationship, sdvancage, or expectancy by the defendant; (S)a purposetsl intent co interfere with the relationship, advantage, oF expectancy; (4) legal causation between the dcx of interference and the inpsitment of the relationship, Sdvantage, or expectancy; and (5) actual damages: Id at 256, 962 F.2d at 687 (citations and footnote omitted). o3e- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter SSS Ia Im Clark v. Druckman, 624 $.5.2d 864 (W. Va. 2005), the West Virginia Supreme Court of Appeals applied the foregoing policies discussed by this court in Mateuura and concluded that it saw “no reason to distinguish between communications made Guring the litigation process ané conduct occurring during the Litigation process.” id, at 870 (enphases in original). In lark, the court was asked to decide the following certified question from the Circuit Court of Cabell county: Ie a party to a civil action barred, by virtue of the Aeigation privilege, from bringing’ claims for civil damages against the opposing party's attorney if the alleged act of the attorney ie of the attorney's representation ‘of the opposing party is conduct ang not a written or oral Statement which arose in the civil action and which hap sone Felationship £0 the civil actica? Id. at 871. In the underlying case, the plaintiff had asserted the following clains against the defendant-lawyers: (2) negligence; (2) intentional infliction of emotional distress; (3) tortious interference with the plaintif® doctor's business relationship with her insurance carrier; and (4) malicious Prosecution. Jd. at 866. In its analysis, the Clark court stated: As recognized by the Florids supreme court. (Albsolute immunity mst be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defanatory statenent or other tortious behavior... , so long as the act has sone relation to the proceeding. The rationale behind the munity afforded to defamatory Statenents if equally applicable to other Risconduct occurring during the course of judicial proceeding. Just an participance in Litigation must be free to engage in unhindered o35- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter communication, eo too mist those participants be free to use their best judgnent in prosecuting or defending a lawsuit without fear of having to Sefend their actions ins subsequent civil action for misconiuer’ ance Combany, 659 50.24 606, 608 (Fla. 1994). See algo Jackson v. BellSouth y572 Pad 1350, 2274 (Lith Cir. 200) (quoting Lavin) - 1 $66 8.8.24 595 UK va. 2002)), we recognized that absolute privileges, such as fhe Litigation privilege, should only be permitted in Limited circumstances. Collins, . 566 $6.24 at 598 Thus, we 60 not believe that « idtigation privitege should apply to bar liability of an attorney in all circunstanc in Mehatfy. Rider, Mindhols & Hilson v. Centcal Bank Denver, Migs, #92 F.26 230, 255 (Colo, 1998), the Colorado Supreme (Glourt noted that'van attorney is not Hable to a non client absent a finding of fraud or malicious conduct by the attorney." See algo Buclini vi Lauletta, 768 4,20 1825, 633-34 (lg. super] 2001) ("The one tort excepted fron the reach of the litigation privilege is malicious prosecution, or malicious use of process.")- We Believe Buch exceptions to an absolute litigation privilege arising from Conduct cecurzing during the litigetioa process are Fessonable accommodations which preserve an attorney's duty Of sealous advocacy while providing a deterrent to Sntentional conduct which ie unrelated to Legitimate Litigation tactics and which harme an opposing party. Ae recently noted by 2 California court: (A) fraud claim a from a fraud clas ‘ith a thira party, the face Capacity of attorsey for a cli Felieve him of liability. While an attorney’ professional duty of care extends only to his, Gun cliest and intended beneficiaries of bis Yegai work, the limitations on lability for negligence’ do not apply to liability for fraud, Yeoa v. Jones, Day, Reavie & Poaue, 27 cal. ptr. 34 26, 31-35 (cal Ce- App. 2004) (interna) citations and quotations oniiced) Id, at £70 (bold emphases added) (sone formatting altered); see algo Myers v. Cohen, § Haw. App. 232, 236 & 243, 687 P.2d6, 11 & 14-15 (1964) (stating that “an attorney may be liable for malicious prosecution if he acts for an improper purpose” and that an ‘attorney may also be sued and held personally liable if o36- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter he maliciously participates in [an] abuse of process") (citations omitted), overruled on other srounds by Myers v. Cohen, 67 Haw. 389, 688 P.2d 1145 (1984); cf, Matsuura, 102 Hawai"i at 162, 73 P.3d at 700 (concluding that “a party is not inmune from Liability for civil damages based upon that party’s fraud engage in during prior litigation proceedings"). Based on the foregoing discussion, the Clark court stated: [ile cen find no reasonable justification for distinguishing conduct from conminications for the purposes of the UGetgation privilege. Hovever, ve also recognize the need for Limited exceptions from application of the sbsolute iitigation privilege for certain intentional actions. Recordingly, we now hold that the Litigation privilege se Generally applicable to bar a civil iitigant's claim for Civil danages against an opposing party's attorney if the Steomey's representation of ‘ino as ‘Konduct related co the civil action. 624 S.B.2d at 871 (footnote omitted) (emphasis added) In Schott v, Glover, 440 N.B.2d 376 (I11. App. ct. 1982), the Illinois Appellate Court (the court) specifically addressed whether clains of IICR and ITPEA could be stated against an adversary’s attorney, The court stated that: A plaincife can ot Snterference with « contract a ‘conditionally privileges be-saidte exist. Such allesations ‘she unrelated to the attorney's deaire to procect ‘elient. + However, would Id. at 380 (citations omitted) (emphases added); see Fraidin v. Weitzman, 611 A.2d 1046, 1080 (Md. Ct. Spec. App. 1992) (stating that, “[tlo remove the qualified privilege, the attorney must pos a desire to harm which is independent of the desire to -37- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter protect his client. This would constitute actual malice and therefore substantiate a tortious interference with contract claim") (citation omitted). The court discussed the seeningly conflicting purposes behind recognizing the tort of tortious interference with a contract and the conditional privilege accorded to an attorney when advising his client, stating that: ‘The purpose of imposing Liability on persons who interfere with the contractual relationships of others ie to protect One's interest in such relationships against forme of interference which, on balance, the law finde repugeant ‘The question of justification therefore reeta on whether protection of the contractual interest merits prohibit‘ he particular conduct which interferes with that. intere Under certain circumstances(,) a third party my be privileged purposely to bring about a breach of contract Between other parties. This privilege occure where the third party acts to protect a conflicting interest which ie considered to be of equal or greater value than that accorded the contractual rights involved. ‘The fiduciary duty owed by an attorney to hie client is such an interest (.]. Although incorrect advice a2 toa client's contractual obligations might cause that client to Becone liable toa third party in contract, it does not fellow that the attorney wosld aleo be liable to thar party. 0 lmpose auch Liability on an attorney would have the’ undesirable effect of creating 2 duty to third parties which would take precedence over an attorney's fiduciary duty to hue euient. 440 W.B.2d at 379 (citations omitted). With respect to the tort of tortious interference with a valid business relationship and expectancy, the court stated that: Although an individual has 4 general duty not to interfere in the business affaire of another, the question whether such interference anounte to tortious conduct requires « Balancing of societal values. the right to engege in @ Business relationship is accorded lees protection than the Fight to receive the benefits of a contract. Consequentiy, interference in the business affaire of another by an outsider is even more likely to be privileged where no contract ie involved. Ad. at 380 (citation omitted) (emphasis added). Inasmuch ae the Plaintiffs’ complaint failed to allege facts that would -38- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter constitute actual malice with respect to the plaintiffs’ tortious interference claims, the Schott court held that the trial court correctly dismissed the plaintiffs’ complaint for failure to state a claim in light of the defendant-attorney’s conditional privilege. Id. at 380. Other jurisdictions have similarly held that an attorney is afforded conditional or qualified privilege when claims of IICR and IIPEA are asserted against him by hie client's adversary. The United States Court of Appeals for the Fighth Circuit, applying Minnesota law, held that “an attorney who acts within the scope of the attorney-client relationship will not be Liable to third persons for actions arising out of his professional relationship unless the attorney exceeds the scope of his employment or acts for personal gain.” Maness v, Star- Kist Foods, Inc., 7 F.3d 704, 709 (8th Cir. 1993) (citations omitted). ‘The Maness court further stated that the conditicnal Privilege "is lost only when the agent [, i.e., the attorney) acts with bad faith, personal i11-will, malice, or a deliberate intent to harm the [third party]. Id, (concluding that the district court did not err in entering summary judgment against the plaintiff on the plaintiffs tortious interference with contract claim because the record reflected “no evidence” that the defendant attorney ‘acted for personal gain or with ill-will toward" the plaintiff) (citation omitted); e Braidin, 611 A.2d at 1080 (stating that, ‘while an attorney is acting within the o39- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter scope of his employment, he may not commit fraud or collusion, or a malicious or tortious act, even if doing so is for the benefit of the client. Such actions are beyond the qualified privilege[.]*) (Citation omitted.) ; Macke Laundry Serv. Ltd Piship v. Jetz Serv. Co., 931 $.W.24 166, 182 (Mo. Ct. App. 1996) (recognizing “a privilege for attorneys, when acting within the scope of the attorney-client relationship, to advise and to act for a client even though that advice, if wrong, may cause @ client to tortiously interfere with another's business relationship or expectancy, so long as the attorney does not employ wrongful means and acts with good faith to protect the interests of the client and not for the attorney's self interest"); Burser v. Brookhaven Med, Arts Bldg., 131 A.D.24 622, 624 (N.Y. App. Div. 1987) (stating that “an attorney is not liable for inducing his principal, ise., his client,] to breach a contract with a third person, at least where he is acting on behalf of his principal within the scope of hie authority. Absent a showing of fraud or collusion, or of a malicious or tortious act, an attorney is not liable to third parties for purported injuries caused by services performed on behalf of a client or advice offered to that client") (citations omitted). Moreover, the Oregon Supreme Court has recently held that an attorney is afforded a conditional or qualified privilege when a third party seeke to hold him liable for substantially assisting and/or aiding and abetting in a client’s breach of -40- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter fiduciary duty. In Reynolds v. Schrock, 142 P.34 1062 (or. 2006) (en banc), the Oregon Supreme Court (the court) held that, “for a third party to hold a lawyer liable for substantially assisting in a client’s breach of fiduciary duty, the third party mst Prove that the lawyer acted outside the scope of the lawyer- client relationship." Id, at 1069. Specifically, the court stated [This court's earlier decisions hold that a person may be jointly lable with another for substancially assisting in the other's breach of fiduciary duty owed to’a third perty, if the person knows that the other's conduct constitutes a breach Of that fiduciary duty. Our tore case law aico makes clear, however, that, if a person's conduct as an agent or fon behalf of another cones within the ecope of « privilege, then the person is not liable to the third party.” In thie cave, we extend those well-recognized principles to context that we have not previously considered and hold thet fa lawyer acting on behalf of @ client and withis the scope Of the laxyer-elient relationship ie protected by euch = Privilege and is not liable for assisting the client in Conduct that breaches the client's fiduciary duty to a third parey. Id, The court also expressly noted that its approach was similar to that adopted by the Illinois Appellate Court in Schott. Ida at 1071 n.14. See discussion supra. As previously mentioned, KRC’s amended complaint set forth the following claims for relief: (1) IICR; (2) TIPE; and (3) unfair methods of competition. on appeal, KHALP alleges that it set forth the following claims for relief in its complaint against the Lawyers: (1) ‘tortious inducement of breach of fiduciary duty”; (2) tortious interference with contractual % on appeal, KHALP does not identify or explain the clenente constituting its s¢lf-cescribed claim of *Yortious inducesent of breach of (continued...) na1- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter relations; and (3) unfair methods of competition.** Contrary to KRC’s assertion, however, both KRC and KHALP failed to allege that the Lawyers were acting outside the scope of their lawyer- client relationship with MOHUSA and the Mandarin Managers. Moreover, KRC and KHALP also failed to “set forth factual allegations fron which actual malice may reasonably be said to exist.” Schott, 440 N.B.2d at 380 (citation omitted); see also Exaiden, 611 A.2d at 1080. As such, there are no allegations that indicate that the Lawyers “possess[ed] a desire to harm which is independent of the desire to protect [their] client[s].” Exaiden, 611 A.2 at 1080. Furthermore, the complaints are devoid of any allegations that the Lawyers “acted for personal gain or with ill-will toward{s]" KRC and KHALP. Maness, 7 F.3d at 709. The Lawyers’ conduct at issue in the instant case, that is, the management of the inspection and review process of KHALP‘s books and records, therefore, falls within the purview of the litigation privilege as set forth above. %(... -continved) yy duty* againet the Lawyers. Indeed, WALP does not present any argunent on appeal that this court should recognize such a tort. Consequently, we decline to consider whether to recognize guch a new claim for Felief in light of the absence of any argunent to do so.” See MRAP Rule 28(b) (2). (2005) (Points net argued may be deened waived.") As discussed wore fully infra, we sinilarly decline to consider whether to recognize euch claim against Hultser and Witt. Jd. % insemich as KRC and KSALP fail to address their unfair methods of competition claims against the Lawyers on appeal, it appears that such claine have been abandoned. Thus, KRC's and KHALP's claim of unfair methods of competition against the Lavyere ie dened waived. Sea HRAP Bule 20(b) (7). AS Siecussed sore fully iatra, OULP'e untalr methods Of competition claim Sgsinet Holener ang Witt ie likewise waived. 1a. -42-  * FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter Nonetheless, as previously mentioned, KHALP contends that, because the Lawyers’ alleged misconduct “did not occur in Litigation(,]* (emphasis in original), the litigation privilege is “unavailable here." Although not entirely clear from KHALP’s opening brief, it appears that KHALP’s contention that the Litigation privilege is “unavailable” is based upon the fact that the Lawyers’ conduct at issue occurred during the period that the Partner Arbitration and the Managers Arbitrations were stayed. ‘This court has previously recognized that arbitration is “a quasi-judicial proceeding[.]" Coral Kingdom of Kaneohe, Ltd. v, Harter, 65 Haw. 247, 249, 649 P.2d 1159, 1161 (1982). Other jurisdictions have held in a related context that, because arbitration proceedings are quasi-judicial in nature, Participants are absolutely immune from suit for statements made during arbitration proceedings. See Rolon v, Henneman, 369 F. Supp. 2d 517, 520 (S.D.N.¥. 2005) (stating that “the law expressly recogniz that statements made during quasi-judicial Proceedings, like those made during formal judicial proceedings, are entitled to absolute inmunity*) (internal quotation marke, brackets, and citation omitted); Preston v. O'Rourke, #11 A.2d 783, 760 (Conn. App. Ct. 2002) (stating that “parties to or witnesses before judicial or quasi-judicial proceedings [such as arbitration proceedings] are entitled to absolute immunity for the content of statements sade therein”) (citation and internal quotation marks omitted); Bushell v. Caterpillar, Inc., 683 -43- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter N.E.2d 1286, 1289 (111. App. Ct. 1997) (stating that “Lal majority of jurisdictions hold that absolute immunity applies to grievance and arbitration hearings") (citation omitted); W. Mose. Bla = oD. & Ca Go., 763 A.2d 398, 403 (R.T. 2001) (stating that quasi-judicial Proceedings such as arbitration proceedings are “judicial proceedings,” and, thus, statements in arbitration proceedings are privileged against suite for defamation) Here, as previously mentioned, the parties agreed in writing to stay the Partner Arbitration and the Managers Arbitrations on February 2, 2001. Ten days later, KRC -- on behalf of itself and KHALP -- sought MOHUSA’s permission to inspect and review KHALP’s books and records. According to KRC, such inspection was necessary in order to prepare for and substantiate the clains asserted in the Managers Arbitrations. Although the inspection and review process of KHALP’s books and records occurred during the stay, it is undisputed that such inspection would not have occurred but for the initiation of arbitration proceedings by KRC and KHALP against MOHUSA and the Mandarin Managers. Moreover, any of the parties could give thirty days’ notice to the other of termination of the stay, thereby resuming the arbitration proceedings. Consequently, we believe that the Lawyers’ conduct at i jue in this case occurred during a quasi-judicial proceeding, notwithstanding the fact that the proceeding was temporarily stayed. We, therefore, hold that a44- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter the litigation privilege is applicable to the instant appeals.” Such an interpretation “comports with this court’s proclaimed public policy . . . to encourage arbitration as a means of settling differences and thereby avoiding litigation [in the courts]." Fizenan! Hawai'i , 108 Hawai'i 343, 353, 126 P.34 386, 396 (2006) (internal quotation marks and citations omitted) (ellipeie in original). Accordingly, we also hold that the circuit court did not err in granting disnissal or summary judgment in favor of the Lawyers in both the KRC Appeal and the KHALP Appeal on the basis of the applicability of the litigation privilege.” % KHALP also appears to ra judicially estopped from taking the position that their conduct at isaue cook Place in litigation. Tue Lawyers, however, point out -- and KIALP concedes in ite reply brie! -- that "ALP did not raise ite judicial estoppel argument in the circuit court.-" Generally, "failure to raise or properly reserve 1esues at the trial level would be deened waived.” e 109 Mawai't $37, 546, 128 F.34 850, 889 (2006) internal quotation marke aid citation omitted). Inasmich as KKALP did not raise ite judicial estoppel fargunent at the circuit court level, ve decline to address sich argusent made for the first time on appesi. wevertheless, we note that ‘ehie court is vested with the discretion to, gla aponis, invoke the construct of judicial estoppel." Lge v, Pusnana Cntve Aen, 109 Hawai S62, 874 noid, 128 Pad 8%, 687 n.12 (2008) (citations omitted). Tn Leg, this court relied on, inter alia, Xolodae v. Boyd, 108 Cal. Rptr. 24749 (Cal. Ct. App. 2001), for the foregoing proposition expressed in Lee. In Kolodae, the Celifornia Court of Appeale stated that "judicial estoppel is warranted only upon a clear shoving thet inconsistency and unfairness would otherwise result." Ig. st 770. Such “elear showing” hae not been made by XHALP, Thus, we decline fo pun sponte invoke the construct of judicial estoppel. See ite, 109 Hawai't at S74 5-12, 128 Pisa at 667 n.22 (geclining co invoke judicial estoppel sua gnonte “based upon the Fecord provided") (eleations omitted) - ® RC also raises on appeal that the 1itigation privilege ie not applicable because (1) the Lawers oved fiduciary duties to FAC and (2) XRC and KHALP were not truly adversarial to WOMUSA, Specifically, with reepect to its latter contention, KRC argues that, “but for [the Layers’) intentional fand unjustified interference with NOHUSA’s fiduciary obligations to ERC and NALD, MOMUSA and IRC woula not have been adversarial.” ERC, however, does not provide any authority to support ite former contention that, [bly virtue of (the Lawyers) actively carrying out MOMUSA’s Administrative Partner (cont inved, -45- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter Inagmuch ae we have held that the litigation privilege is applicable to preclude the claims asserted by KRC and KUALP against the Lawyers, we need not address the remainder of the Lawyers’ defenses raised in their motions to dismiss or for summary judgment in the KRC Appeal and KHALP Appeal Accordingly, we next address whether KIALP‘s clains against Hultner and Witt were incorrectly dismissed by the circuit court. 8, Bis en KHALP contends that the circuit court erred in dismissing its complaint as against Hultner and Witt. As Previously noted, see supra note 14, KHALP maintaine on appeal that the clains asserted in ite complaint include: (1) tortious interference with contractual relations; (2) “tortious inducement of breach of fiduciary duty,” gee gupra note 19; and (3) unfair methods of competition, see supra note 20. KHALP argues that “[i}t is no defense that the tort [s] may have been committed on behalf of the corporate entity by the agent acting in a representative capacity.” #(.. continued) responsibilities in connection with XRC's inapection of KHALP's books and yecords, the [Iawers) were acting ae attorneys in fact for both [MEALP) and WOHUGA, “and therefore oved fiduciary duties to (KIALP) and ies partners, including HRC." HRC's argunent that it and KHALP were not truly adversarial Yo MOMUSA if likewise without nerit insemich ar ARC commenced the Partner Arbitration against MOMUSA in order to initially pursue it claies that MOHUSA breached certsin duties by. inter alia. failing to investigate and prosecute claims of misnanagenent against the Mandarin Managers, prigr to the Lawyers" involvenent that gave rise to the instant appes na6- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter Preliminarily, Hultner and Witt point out that KHALP’s complaint ‘does not allege any specific involvement of Hultner and Witt in the document inspection process as the basis for (aaLe’s] claim(s]." Nevertheless, Hultner and Witt contend that KHALP’s claims fail as a matter of law because they cannot be held liable for inducing or causing the entities that they represent to breach fiduciary or contractual duties. Specifically, Hultner and Witt argue that: ome) hi claims. WONUSA, officers of (one of the entities consisting of che Mandarin Managers), and to have acted on behalf of (one of the entities consisting of the Mandarin Managers), and all Sllecedly taken within their representative capacitiee =- there is fo allegation that either acted for hie ova Personal gain. Multner and Wite thus are legally incapable (Of inducing oF causing the entities in which they represent fo breach fiduciary of contractual. duti Similarly, * (tortious) interference with contractual relations” also requires there to be a ehird-party, land apart from the principal-agent relationship.” (XHALP's] ‘attempr to re-charact avoid the well: (Citations omitted.) (Emphasis in original.) Moreover, Hultner and Witt allege that KEALP’s assertion that they conmitted the tort of tortious inducenent of breach of fiduciary duty “must fail because Hawai'i does not recognize this novel cause of action." Lastly, Hultner and Witt maintain that [i]t appears (GIALP] has abandoned any claim for unfair competition as the lolpening (blrief fails to address the claim.” -a7- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter SSS Other jurisdictions have recognized that “employees or directors of a corporation cannot be held personally liable for tortious interference with a contractual or business relationship of their own company unless such interference is caused by actions taken outside the scope of their employment." In re Verestar, Inc., 343 B.. 444, 484 (S.D.N.Y. 2006) (applying Delaware law) (citations omitted); see Insituform Teche., Inc. vs Reynolds, Inc, 398 F. Supp. 2d 1058, 1064 (B.D. Mo. 2005) (*A corporate officer, acting within his or her authority, is privileged to induce a breach of a corporate contract provided that he or she uses no improper means, acts in good faith to protect the corporate interest and does not act out of self interest (Internal quotation marks and citation onitted.); Roselink Investors, LUC v. Shenkman, 386 F. Supp. 2d 209, 228 ($.D.N.¥, 2004) (stating that “[a] corporate officer or director generally cannot be liable for tortiously interfering with a contract between the corporation and a third party") (internal quotation marks and citations omitted); Keith v. Mendus, 661 N.E.2d 26, 36 (Ind. Ct. App, 1996) (stating that ‘an officer or director of a corporation will not be held independently Personally liable for inducing the corporation's breach of its contract, if the officer or director's action is within the scope of his official duties on behalf of the corporation") (citation omitted); Reed v, Michigan Metro Girl Scout Council, 506 N.W.2d 231, 233 (Mich. Ct. App. 1993) (stating that “[iJt is now settled -48- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter law that corporate agents are not liable for tortious interference with the corporation’s contracts unless they acted solely for their own benefit with no benefit to the corporation") (citations omitted) . That an officer or director of a corporation possesses Limited immunity from most charges of torticus interference with the corporation's contracts stems from both their role fe agente of the corporation snd the nature of the fort. A Party cannot “interfere” with its om contracts, so the tort itself can be committed only by a third party. In the case of a corporation, the legal entity acts through its Gixectors and officers. Thus, when officers or directors fact in thelr official capacity as agents of the corporation, Ehey act not as individuals but as the corporation itself. in doing to, they are not acting ae a third party, bot yather as a party to the contract and cannot be personally Liable for tortious interference with the contract. conversely, shen directors or officers act outside the scope of their official capacity, they no longer act agents of the corporation end therefore act as a chizd Party. Directors and officers who act outside the scope of Eheir official duties therefore can be Held personally Liable for tortious. interference with a contract. the officers and directors of corporations immunity from clains of tortious interference, ‘claim against the officers and sirectors cfs corporation, [the plaintife] must not only allege the basic elenents of tortious interference + Re must also allege gone interfering act by ofticers or directors that Fests cureide thelr authority as agents of the corperation. ail v. Boys 2 Club o} st Indiana, 845 N.E.2d 130, 138-38 (Ind. 2006) (citations omitted) (emphasis added); see also ituform Techs,, 398 F. Supp. 2d at 1065 n.2 (noting that, “because an officer or agent of a corporation acting within his or her official capacity is the corporation for purposes of the tort, a corporate officer cannot be held liable for tortiously interfering with the corporation's own contracte") (citation omitted); Jones v, Lake Park Care Ctr., Inc., 569 N.W.2d 369, 377 (Jowa 1997) (same) . -49- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter Se In the instant case, KIALP does not allege that Hultner and Witt acted outside the scope of their employment with MCHUSA and the Mandarin Managers. As previously mentioned, KHALP’s complaint alleges that: 38. MOMUSA, a6 Administrative Partner, through Noltner and Witt, purportedly retained [the Lawyers] to assist it in cartying cut ite duties ae Administrative Partner with respect to [WALP’s) books and records, and in Fesponding to [KRC's] request. 19." (At the sane tine, Miltner and Kite were acting fon behalf of the Mandarin Manager in connection with the Gisputes and requested arbitrations between KHALP and the Mandarin Managers. Ae pointed out by Hultner and Witt, it appears that “[t]he only allegation of misconduct by Hultner and Witt contained in OGALP’s clomplaint pertains to an alleged conspiracy against KRC and KHALP in the retention of (the Lawyers] to participate in Fesponding to KRC’s document request." KHALP, however, does not allege that the action of retaining the Lawers with regard to KRC's document request was outside the scope of Hultner’s and Wite’s authority as corporate officers and directors of MOHUSA and the Mandarin Managers. Moreover, KHALP fails to allege that, by hiring the Lawyers, Hultner and Witt “acted solely for their own benefit with no benefit to [MOHUSA].” Reed, 506 N.W.2d at 233. Consequently, KHALP has failed to state a claim of tortious interference with contractual relations against Hultner and Witt in their individual capacities. See In re Verestar, Inc., 343 B.R, at 484 (holding that, because the plaintiff did not allege that the defendants acted outside the scope of their employment -50- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter with respect to the plaintiff-s tortious interference claims, the plaintiff failed to adequately plead a claim for relief). Furthermore, as previously noted, KHALP does not identify or explain the elements constituting its claim of “tortious inducement of breach of fiduciary duty." See supra note 19, In fact, KHALP does not present any argument on appeal that this court should recognize such a novel tort. Id. As such, we decline to consider whether to recognize such a new claim for relief in light of the absence of any argunent to do Lastly, as Hultner and Witt aptly point out, *{4)t appears [KHALP] has abandoned any claim for unfair {methods of) competition as the (o]pening [blrief fails to address the claim. Tnasmich as KHALP has abandoned ite claim of unfair methods of competition against Hultner and Witt on appeal, KHALP’s claim ie deemed waived. See HRAP Rule 26(b) (7). Accordingly, we hold that the circuit court did not err in granting Hultner and Witt’s motion to diemies © WGALP also asserts that, *[x]here corporate officers or directors Participate in tortious conduct, ‘such as tortious interference with Contractual relations, they are not shielded by the corporation and will be Personally liable." ‘citing Bursess v. Arita, 5 Haw. App. 581, 704 P.24 930 (a985).) "We note, however, that MULP's reliance on Burcess io misplaced. In Burgess, the issue before the ICA was not whether a corporate officer oF Girector could be held liable for tortiously interfering with the es sown contracts. Rather, the issue was whether s corporate officer -- acting on behalf of » corporation ~~ could be held liable for torticusly interfering with s contract entered into by third pai App. at 583, 70¢ P.2d at 935. Inaemuch as the factual circunst Burdese are’ clearly distinguishable from the facts of the incea Burcess ie not germane to thie case. osi-  * FORPUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter Having held that KEALP (1) failed to state a claim of tortious interference with contractual relations against Hultner and Witt in their individ capacities, (2) did not present any argument on appeal that this court should recognize the tort of tortious inducement of breach of fiduciary duty, and (3) abandoned its claim of unfair methods of competition, we need not address the renainder of Hultner’s and Witt’s defenses raised in their motion to dismiss in the KHALP Appeal. Accordingly, we next examine whether the defendante in both appeals were entitled to an award of attorneys’ fees against KRC. Aktorneva’ Fees KRC contends that the circuit court erred in granting fees to (1) the Lawyers in the KRC Appeal and KHALP Appeal and (2) Multner and Witt in the KHALP Appeal. As previously discussed, the circuit court's orders granting fees and costs to the KIALP defendants were entered against KRC -- a non-party to the KHALP Appeal -~ beca\ according to the circuit court's @isputed finding, KRC “instigated, controlled, and directed the [KHALP Appeal] in the name of KHALP and had notice of the lawouit.* ERC initially contends that it has standing to appeal from the June 3, 2004 final judgment entered in the KIALP Appeal, which judgment refers to the circuit court's orders granting fees and costs to the KHALP defendants againet KRC. The KHALP defendants do not contend otherwise with respect to KRC's standing to appeal in the KHALP Appeal. 52. ** FORPUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter ‘This court has previously stated that: Generally, the requirenents of standing to appesl are: (Q) the person must first have been a party to the action; (2) the person seeking modification of the order oF sudgeent must have hed standing to oppore it in the trial courty ang (3) such person mst be aggrieved by the ruling, 1 person must be one who ie affected or prejudiced by the Sppealable order. Kepo'o v, Watson, 87 Hawai'i 92, 95, 952 P.2d 379, 383 (1998) (quoting Waikiki Malia Hotel, Inc. v. Kinkai Props., Ltd. P’ship, 78 Haw. 370, 393, 862 P.24 1048, 1061 (1993)) (emphasis added) (internal quotation marks and brackets omitted). It is “[a] well-settled rule . . . that only parties to a lawsuit... may appeal an adverse judgment." Stewart Props, Inc. v. Brennan, & Haw. App. 421, 433, 807 P.2d 606, 607 (1991) (citation and internal quotation marks omitted) (second set of ellipses in original). However,” *a non-party against whom judgment is entered has standing without having intervened in the [circuit] court action to appeal the [circuit] court’s exercise of jurisdiction over him." Hal Roach Studios, Inc, v, Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990) (citations omitted); see also Thompson v, Freeman, 64@ F.2d 1144, 1147 n.5 (8th Cir, 1961) (noting that, although the appellant was not a party to the underlying action, it may bring its present appeal “to contest the district court’s jurisdiction to bind it to the terms of the court’s injunction") (citations omitted); 15A Cc. Wright, A. Miller & EB. Cooper, Federal Practice & Procedure: Jurisdiction and Related Matters § 3902.2, at 44324 (2006) ("The -53-  *** FOR PUBLICATION in West's Hawai'i Reports and the Pacific Reporter easiest cases for permitting nonparty appeal are those in which a court order directly binds the nonparty by name.") (Footnote omitted.) (Emphasis added.) . In this case, the circuit court's orders granting fees and costs to the KHALP defendante directly bound KRC by name. Such orders were referred to in the final judgment in the KIALP Appeal. Consequently, under the circumstances of this case, we hold that KRC -- a non-party to the KHALP Appeal -- has standing to appeal the award of attorneys’ fees against it without having intervened in the circuit court action. We, therefore, next address whether the circuit court's exercise of jurisdiction over KRC was proper in the KHALP Appeal. 2, The Circuit Court’s Exercise of Jurisdiction Over ERC in the KHALP Appeal KRC contends that the circuit court erred in awarding fees and costs to the KHALP defendants against KRC in the KHALP Appeal because the circuit court did not have jurisdiction over KRC to enter such an award against it. specifically, KRC argues that: KRC . ._. was never a party to the action below. It was ever served with the complaint or gumons, No notions were filed to bring it into ene action. It never made an appearance. It did not participate in the proceedings below in any way. It never hada real opportunity to contest the (circuit) court's assertion of jurisdiction over it. The cirevit court{,] therefore(,) haa no jurisdiction to enter any ordere or judgments againet HRC (in the KIALP Appeal) (Footnote omitted.) XRC maintains that, *{i]f the [KHALP defendants] or the circuit court believed that KRC should be -54- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter SSS responsible for paying the fees and costs . . . , there are well- established means for them to attempt to satisfy the judgment against KRC. Entering a money judgment against KRC in a proceeding to which it was not a party is not one of those means." The Lawyers, on the other hand, contend that “RC voluntarily subnitted to the circuit court’s jurisdiction." (Capital letters altered.) specifically, the Lawyers argue that: XC eubnicted to, the surlediction of the circuit court in pany ways. First, it filed the (closplaine in thie action: "Second, KRC' appeared and argued in pposition to all of {the Lawyere’] notions in (the KEALP Appeal) and in Phe RC Appeal! KRC's counsel, Mr- (James) Bickereon, appeared and argued at the [consoliaated) hearings; and, at KRE'a Girection, JOALP's nominal lawyer (Mr. [John] Perkin) aleo appeared and argued.” Indeed, Mr. Perkin'e office filed art of its opposition to (the Lawyers") attorneys’ fees motion in (the KHALP Appeal] a copy of IRC'e opposition to (the Lanyers"] attorneys’ fees notion in the companion cave(, Lie. the HRC Appeal! (Citations to the record omitted.) The Lawyers also argue that, at the consolidated hearing on the fee motions, *KRC’s counsel + declined the cizeult court's offer to permit KRC to submit further briefing in opposition to [the Lawyers’] request for an order requiring KRC to pay the fees awarded in the [KEALP Appeal].* Noreover, the Lawyers agsert that “the circuit court was not bound by the formal designation of parties in the pleadings" and that *KRC wes undeniably the real party in interest [.]* Lastly, the Lawyers maintain that, “[elven if RRC wlas] not the real party in interest, its control over the conduct of [the KHALP Appeal] subjected it to an award of oss. *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter attorneys’ fees." (Capital letters altered.) specifically, the Lawyers allege that “a non-party is bound by a judgment where the non-party controlled the proceedings." Hultner and Witt set forth the same arguments made by the Lawyers on appeal. In response, KRC contends that “there is no question that KRC never made an appearance(] because it never invoked the powers of the court for its own purpose.” Specifically, KRC claims that: [Clontrary to [the KMLP defendante’ assertions! xc aid not *file" the [clomplaine in this case. KIALP, ‘through ite own attorney, filed the [clouplaint, which asserted KIALD’s ‘own substantive legal elaine.” while KC did cause IAL? Co initiace tne lewsuie, ie did soon behalf of the Iplartnership and pursuant to the provision in the Partnership Agreement that gave it authority to do sol. Les, section 10.6.2"). Moreover, ana fictional extity, @ Darthership such ae MULP mist act through one of Les Partners." The mere fact that KRC wae the partner that Caused [iaiati) to file ite own la Substantive legal clains does not ancunt to an sppearance or voluntary submission to the court't jurisdiceion KRC also argues that it was never served with the KHALP defendants’ motions for fees. KRC further reiterates that it “could not be added to the judgment even if it controlled the case." KRC maintains that the KHALP defendants’ contention that ‘@ non-party is bound by a judgment where the non-party controlled the proceedings is “baseless” inasmuch such an exception to wks previovsly noted, section 20.6.2 of the Partnership Agreenent, which RC relies on for the proposition that it had the authority to initiate the KHALP Appeal on betalf of KEALP, provides in relevant pert: Notwithstanding anything herein to the contrary, (KRC] shall be entitled, without (alpproval of any ther (piartner, to exercise aii of the rignts and privileges of the owner of the Hotel under, pursuant to or otherwise with respect to the Managenent Agreement (a) and [GULP] "s deslinge with Iwonusn} and (ite affiliates]. -s6- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter the general rule that “a judament cannot be entered against a Person over whom the court does not have jurisdiction “simply does not exist” in the context of this case. KRC asserts that “the main cases [the KEALP defendants] cite in support of their purported exception concern the familiar doctrines of res Judicata and collateral estoppel [.]* Generally, *{i]t is elementary that one is not bound by ‘@ judgment in personam resulting from litigation in which he ie not designated as a party or to which he has not been made a party by service of process." Zenith Radio Corp, v, Hazeltine Research, Inc., 395 U.S. 100, 110 (1969) (citing Hansberry v.. Lee, 311 U.S. 32, 40-42 (1940)); gee Romero v, Star Markets, Ltd, 62 Hawai‘i 405, 412, 922 P.2d 1018, 1025 (App. 1996) (same); see alec Haiku Plantations Ass'n v. Lone, 56 Haw. 96, 102, 529 P.2d 2, § (1974) (stating that, *[iJn order for the decree of the lower court to be binding upon such [absent] Persons, they must be made parties to the suit, either as Plaintiffs or defendants") (internal quotation marks and citations omitted). Other jurisdictions, however, have recognized exceptions to the aforementioned general rule. One such exception, relied on by the KHALP defendants in the instant case, is that *[i]t has long been the rule that a nonparty who controls the litigation is bound by the judgment. The reason would be that the non-party would have the power to determine what evidence and arguments should be offered in the litigation -57- *** FORPUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter and, if appropriate, the appeal." Explosives Corp. of Amv. Garlam Enters. Corp., 817 F.2d 694, 906 (1st Cir. 1987) (internal quotation marks and citations omitted) (hereinafter, Explosives Corp.J; see Montana v. United States, 440 U.S. 147, 154 (1979) ("One who prosecutes or defends 2 suit in the name of another to establish and protect his own right, or who assists in the Prosecution or defense of an action in aid of some interest of his own is as much bound as he would be if he had been a party to the record.*) (Internal quotation marks, brackets, citations, and ellipses omitted.). Such an exception, however, is generally applied in the context of collateral estoppel: “{A) non-party may be bound by a determination in a prior action if the non- party . . . substantially participated in the control of a party’s presentation in the adjudication or had an opportunity to do sol.]* Powers v. United Serve, Auto Ass'n, 6 P.3d 294, 298 (Alaska 2000) (citation omitted) (emphasis added); gee Mother's Rest. Inc, v, Mama's Pizza, Inc., 723 F.2d 1566, 1572 (Fed. Cir. 1983) (stating that "[f]ederal courts have repeatedly held a non- party may be bound by a judgment if one of the parties to the earlier suit is so closely aligned with the non-party’s interests as to be its virtual representative") (emphasie added) (citations omitted); Restatement (Second) of Judgmente § 39 (2982) ("A Person who is not a party to an action but who controls or substantially participates in the control of the presentation on “58. *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter behalf of a party is bound by the determination of issues decided as though he were a party." (Emphasis added.)). Here, as previously mentioned, the circuit court determined that non-party KRC was liable for the fees and costs incurred by the KHALP defendant in the KHALP Appeal because KRC “instigated, controlled, and directed the lawsuit in the name of [KHALP] and had notice of the lawsuit." However, such @ % ‘the Lawyers on appeal rely on the following testimony by Perkin, WALP's counsel, during the two-day hearing in the Partner Arbitration £6 substantiate the circuit court's finding that KRC controlled the Litigation in the KIALP Appeal: 0: _[(zt de unclear from the record who was doing the questioning.)]" And to the extent that you [(Perkin)] Yepresent [WALA] in the [elircuit (clourt action that you filed," (i.e, the TIALP appeal,] you take direction from hich’ epokesperson or spokespersons from the client? xr lay Perkin) "Heli. 1 take general direction with xesard to the scope of my retention fron IKsG) G:" " Ang have you discussed strategies with Hr: Bickerton and Mr. (Jerrold) Chun [(KRC's other counsel), have you? “Litigation strategies? Ke “T'gon'e think 0 Q: Dig you tell them, sir, that you were planning to file a motion for preliminary injunction? Ke "Yes. Aad’ indeed, 1 showed them a copy of St before I filed it. (Q: And they gave you comments on it, did they? Ri T'don't believe Mrs Chun =- maybe. T Gone recall Mr. chun giving me sny coments. ‘or “How about kr. Bickerton? Ko Yean (Bephasis added.) MHALP had filed a motion for preliminary injunction, seeking to vrestrain{) and enjoin{) (the KWALP defendante] from interfering With KIALP’s access co ite own books and records[.]" ‘The motion was denied by the circuit court, the Honorable Richaré Pollack presiding, on cune $, 2003. The denial of the motion is not challenged on appeal. ‘The Lawyers also point to the following statenent sade by Perkin during the consolidated hearing on the actions for fees and costs: “1 concede from Hight end cover to direct ALP with regard to these laine” (enphasie adsed.) Thus, contrary to KRC's aesertion, we believe that the circuit Courts finding that HAC controlled the laweit in the KHALP Appeal is not clearly erronecus 55. *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter finding merely supports the argunent that KRC should be precluded from re-litigating certain issues that were decided in the KHALP Appeal. The authorities relied on by the KIALP defendants do not support the contention that a non-party controlling the Litigation on behalf of the losing party may be held solely liable in the place of that party for the fees and costs incurred by the prevailing party in that same litigation. See Montana, 440 U.S. at 195 (stating that, “although not a party, the United States plainly had a sufficient ‘laboring oar’ in the conduct of the [prior] state-court litigation to actuate principles of estoppel*) (citations omitted); Clase Plaintiffs v. city of Seattle, 955 F.2d 1268, 1279 (9th Cir. 1992) (stating that “[iJt has been held that bondholders are not necessary parties to and axe bound by the decree -- even if adverse to their interests -- in Litigation wherein an indenture trustee under a bond issue is a party and exercises in good faith and without neglect hie contractual authority to represent and assert the lien securing the issue") (citation omitted); Alman v. Danin, 601 F.2d i, 4-5 (ast cir. 1986) (holding that incorporators of an inadequately funded corporation were jointly and severally liable for full ‘amount of judgment entered against corporation in an earlier Proceeding). ‘The XHALP defendants algo rely on Explosives Corp, in support of their argument that KRC should be held liable for the fees and costs incurred by the KHALP defendante in the KIALP Appeal. In that case, a subcontractor on a highway project -60- *** FORPUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter brought @ diversity action against the general contractor, alleging breach of contract. 617 F.2d at 695. The general contractor counterclained for breach of contract. Id, After trial, the subcontractor was found liable to the general contractor in the amount of $2,423,177. Id, The general contractor, however, argued that the parent corporation of the subcontractor -- a non-party to the case -- should be held liable for the damages awarded to the general contractor against the subcontractor. Id, at 904. The United States Court of App for the First Circuit (Piret Circuit) agreed, holding that the parent corporation was liable for the full amount of the judgment against the subcontractor and "must be substituted for [the subcontractor] as the defendant to (the general contractor’ s] counterclaim{.J* Jd, at $07. The Firet Circuit summarized ite reasons for such a holding as follows (the parent corporation] fron the beginning was the controlling stockholder of [ehe subcontractor]; it succeeded fo [the subcontractor’) interest in the lawsuit; (the Parent corporation) becane tne real party in interest, indeed(,] the only party in interest: (the parent corporation) financed and controlled the litigation; and {the parent corporation] ie found under the contract between (the subcontractor] and [the general contractor] aa [the Subcontractor’s) successor and 2 holding company of (the Subcontractor] « Id. The factual circunstances in Explosives Corp,, however, are clearly distinguishable from this case. Specifically, KRC is not the “controlling stockholder" of KIALP; it did not “succeed” to YOULP's interest in the KHALP appeal. There is no indication in the record that KRC financed the KHALP Appeal, and, as discussed -61- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter more fully infra, KRC did not become the real party in interest in the KHALP Appeal. Consequently, we believe that the KHALP defendants’ reliance on Explosives Corp, is misplaced. Moreover, the KHALP defendants’ contention that KRC was sundeniably* the real party in interest in the KHALP Appeal and that, therefore, it should be held liable for the fees and costs incurred by the KHALP defendants is without merit. As previously stated, the circuit court's findings in the orders granting fees and costs to the KHALP defendants provide in relevant part (2) Kn asserted she claims of OAL) in thie cai (3) The complaint entstied (GULP v- Jones Day, Aut, the HHALP Appeal,] was brought by FRC in the name of {ouiie) to recover for purported iniury to MIALPI.} (Bmphases added.) The foregoing unchallenged findings establish that the claims asserted in the KHALP Appeal were KHALP’s clains, not KRC’s claims, and were brought in order to recover for KHALP’s purported injury, not for KRC’s purported injury. Inasmuch as “HRCP Rule 17(a) ((2005)*] requires the prosecution of an action ‘in the name of the party who, by the substantive law, has the right sought to be enforced(,]‘* Lagondino v. Maldonado, 7 Haw. App. $91, 596, 789 P.2d 1129, 1132 (1950) (quoting 3A J. Moore, J. lucas & G. Grotheer, Jr., Moore's ™ acp Rule 17(2) provides in relevant part: Bvery action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, ‘erustee of an express trust, a party with whom of in je a contract has been nade for the benefit of ‘ora party authorized by statute my aue in its own Bane without joining witn it the party for whose benefit the action se Brought 62+ *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter Federal Practice { 17.07 at 17-42 (24 ed. 1989), and KHALP has “the right sought to be enforced” in the KHALP Appeal, it cannot be said that KRC was the real party in interest in the KIALP ‘Appeal. Furthermore, we do not believe that #RC “voluntarily submitted to the circuit court’s jurisdiction with respect to the KHALP Appeal. In Homero, the ICA held that the respondents id not voluntarily submit themselves to the circuit court's jurisdiction or waive their jurisdictional defense when they: (2) actively participated at a hearing held by the circuit court on the merits of their purported defenses; and (2) submitted a request for an award of attorneys’ fees. 62 Hawai'i at 426-17, 922 P.24 at 1029-30. Here, contrary to the KHALP defendant: assertions, KHALP’s counsel, Perkin, filed KHALP’® complaint. In addition, KRC’s counsel, Bickerton, was present at the and costs because of consolidated hearing on the motions for fe his representation of KRC in the KRC Appeal. At the hearing, Bickerton stated that he had “never seen* the motions requesting fees and costs in the KHALP Appeal and that he was never served with such motions. Moreover, it appears that Perkin had simply attached copy of ¥RC’s menorandum in opposition to the Lawyers‘ Request for fees in the KRC Appeal that Perkin’s office had received from KRC. Thus, it cannot reasonably be said that KRC voluntarily subnitted to the circuit court's jurisdiction with respect to the KHALP Appeal case -63- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter Accordingly, based on the foregoing, we hold that the circuit court, in granting fees and costs in favor of the KHALP defendants, abused its discretion by holding KRC responsible for the payment of such fees and costs because the circuit court did not have jurisdiction over KRC to enter such an award against it." We next address whether the Lawyers in the KRC Appeal were entitled to an award of fees against KRC. ‘The Basis for the Fee Award in the KRC Appeal KC contends that the circuit court abused its discretion by determining that the Lawyers should be awarded attorneys’ fees pursuant to HRS § 607-14 because the instant action was not in “the nature of assumpsit.” KRC argues that "HRS § 607-14 provides for attorneys’ fees only when the primary objective of the underlying action is to obtain monetary relief for breach of a contract." KRC asserts that: KRC filed the circuit court [1]awauit exclusively against hon-parties to the Partnership Agreenent -- MOMUSA’s and the Mandarin Managers’ attorneys.” The [firet ancnded complaint) clearly asserted non-contractual claims and sought equitable fang tort-based remedies against the [nawyers). Based on the wrongful conduct alleged() in ite iplrayer for ([rlelief, ‘ac tought declaratory and injunctive relief to Gisqualify the (Lawyers) from continuing to represent MOHUSA fang the Mandarin Managers. KRC algo sought general and Special compensatory damages, punitive damages, and treble Ganages under HRS [elhapter 460. Clearly, treble an Punitive damages are not renedice available for bre ARC briefly states on appeal without more that the avard of fees and costs against IRC in the KOALP Appeal "violate(a] KRC's fundanental due process rights of notice and an opportunity to be heard." However, because we hold that the circuit court errea in awarding fees and coste vo the YAALP defendants against FIC in the KUALP Appeal, we need not adress the contention ‘that KRC's due process rights were violated. -64- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter SSS He is true that ARC alleged that (the Lawyers) owed wnc various fiduciary duties and duties of good faith arising from their representation of (KIALP]. owever, an ection is not in the nature of assumpeit simply because « Plaintiff's claine concern or relate to a contract, Instead, the plaintiti's primary objective mist be to obtain monetary relief for breach of the contract. KRC primarily relies on this court’s decision in TSA International, Ltd. v. shimizu Corp., 92 Hawai'i 243, 990 P.2d 713 (2999) [hereinafter, TSAI, in support of ite contention that the instant action was not in the nature of assumpsit. ‘The Lawyers contend that the inetant action was in the nature of assunpsit inasmich as *KRC concededly base(d] all of its damage claims in this action on alleged duties arising solely from (the Lawyers’) contractual relationship with MOHUSA[.]* (Emphasis omitted.) Moreover, the Lawyere assert that KRC’s amended complaint “seeks only economic damages based on the frustration of KRC’s purported expectations under the agreements for legal services between MOHUSA and [the Lawyers]." ‘The Lawyers maintain that this court’s decision in Blair v. Ing, 96 Hawai'i 527, 31 P.3d 184 (2001), “is directly on point." As previously noted, HRS § 607-14 provides in relevant part: In ail che courts, in all actions in the nature of AEUMDEIE . . .. there shall be taxed as attorneys’ fees, to be paid By the losing party and to be included in the sux for which execution may ietve, a fee that the court determines to be reasonable (| (Bmphasis added.) See supra note 13. *‘Aesumpeit’ is a common Jaw form of action which allows for the recovery of damages for non-performance of a contract, either express or implied, written -es- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter or [oral], as well as quasi contractual obligations. Blair, 96 Hawai'i at 332, 31 P.3d at 189 (some internal quotation marks, brackets, and citation omitted) (format altered). (t]n ascertaining the nature of the proceedings on appeal, thie court hae locked co the essential character of the underlying action in the (etreuit] coure’ ‘he character of the action should be determined tron the facts and issues raised in the complaint, the nature of tthe entire grievance, and the relief sought. Where there ie Goubt as to whether an action is in aseumpeit or in tore, there is a presumption ehat the aust ie in assumpest Purther, a plaintife's prayer for attorney fees ies significant! indication that the action is in aesumpeit Leslie v. Estate of Tavares, 93 Hawai'i 1, 5-6, 994 P.2d 1047, 1051-52 (2000) (citations omitted) (emphasis added). In addition, "[t]he manner in which (the) plaintiff has characterized the action may also be accorded some weight. Larsen v. Pacesstter Sve. Inc., 74 Haw. 1, 51, €37 P.2d 1273, 3298 (1982) (citation onitted). In TSR, the plaintiff general partner (TSA) brought claims against the defendant general partner (Shimizu) primarily stemming from allegations of fraud, breach of fiduciary duty, and nunerous statutory violations relating to a loan workout agreement to settle the partnership's debt, 92 Hawai‘i at 264, 990 P.2d at 734. Shimizu, as the prevailing party at the circuit court level, had moved for an award of attorneys’ fees pursuant to HRS § 607-14. The circuit court granted the request for fee: Ad. at 251, 990 P.24 at 721. On appeal, this court reversed the award of fees, concluding that the action was not in the nature -66- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter of assumpsit. Id, at 264, 990 P.2d at 734. Specifically, this court stated: Although Shimizu argues that TSA’s clains are all predicated ‘upon the [loan workout agreement) and the partnership agreenest, TSA's claine do sot involve monetary damages Dated upon the non-performance of a contractual of gus contractual obligation (i.e., breach of contract). ‘The mere fact that TSA's Clains relate to a contract between che parties does not render a dispute between the parties an Sseumpeit action. Inetesd, T6h's claime for fYaud and breach of fiduciary duty wound in tort. izinie’case does not involve an attempt to collect ‘money danages based upon breach of contract. In facts it is lndigputed in this case that there vas no breach of either the [loan workout agreement) or partnership agreenent. Instead, the dispute in ehis case stems fron TSA°2 allegations that: (2). (75A was) fraudulently induced by Shimizu to enter into the [loen workout agreement] (2) Shinizu's nondisclosure of the appraisals, which constituted a breach of its fiduciary duty, caused TSA to mistakenly enter into the (loan workout agreement); and (3) (eicl Runerous statutory causes of action(, including a claim of unfair competition under HRS chapter 480). These considerations compel us £0 reverse the circuit court’s auard of fees Id. (footnotes omitted); see Leslie, 93 Hawai'i at 7, 994 P.2d at 1053 (stating that, *{w)hen the recovery of money damages is not the basis of a claim factually implicating a contract, the action is not ‘in the nature of assumpsit’) (citation omitted); Lee v. Aiu, @5 Hawai'i 19, 21-32, 936 P.24 655, 667-68 (1997) (concluding that a claim for specific enforcement of an agreement was not an action in the nature of assumpsit, even though the claimant prayed for damages as alternative relief); cf. Kona mntere., Inc. v, Estate of Bishop, 229 F.3d 877, 686 (sth Cir. 2000) (stating that, ‘where a party's breach of fiduciary duty claim is based on the non-performance or breach of contractual obligations and the complaint ks damages flowing from that -67- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter non-performance or breach, the claim would sound in assumpsit*) (citations omitted). In Blair, this court held that a professional salpractice action, alleging claims of breach of implied contract and negligence, was in the nature of assunpsit for purposes of awarding fees pursuant to HRS § 607-14. 96 Hawai'i at 333, 31 P.3d at 190. Both clains were premised on the allegation that the defendant accountant, in providing tax return preparation failed to take advantage of certain estate planning techniques that resulted in the loss of savings in excess of $200,000. Id, at 332, 31 P.3d at 189, This court stated that, “(bJecause the negligence claim in thie case was derived from the alleged implied contract and was inextricably linked to the implied contract claim by virtue of the malpractice suit, . it is impracticable, if not impossible, to apportion the fees between the assunpeit and non-assumpeit claine.” 1d, at 333, 31 P.3d at 190. Moreover, thie court also considered the fact that "the danages alleged were more closely akin to contract damages than to tort damages because they were economic damages arising out of the alleged frustrated expectation that [the defendant accountant] would take advantage of certain tax-saving devices.” Id, at 332-33, 31 P.3d at 189-90 (citation omitted) . ‘Thus, this court concluded that, based on the complaint, the “escential character” of the action against the defendant -68- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter accountant was ‘in the nature of assumpsit,” as provided under HRS § 607-14. Id. at 333, 31 P.3d at 190. In the instant case, the following claims for relief were alleged against the Lawyers in ERC’s anended complaint: (2) unfair methods of competition; (2) I1CR; and (3) TIPEA. Although the Lawyers essentially argue on appeal that KRC’s claims are predicated upon the contractual agreements for legal services between the Lawyers and MOHUSA, KRC’e claime do not involve monetary damages based upon the non-performance of such a contractual or quasi-contractual obligation. In fact, KRC does not allege that there was a breach of the contractual agreenents for legal services between the Lawyers and MOHUSA. Instead, a previously stated, KRC primarily requested (1) a declaration that the Lawyers were disqualified from representing MOHUSA and the Mandarin Managers in connection with their dieputes with KHALP or KRC and (2) an injunction (a) preventing the Lawyers from representing MOHUSA and the Mandarin Managers in connection with their disputes with KHALP or KRC and (b) ordering the Lawyers to turn over all their files relating to the work done for MOHUSA and the Mandarin Managers with respect to any matter involving KHALP or KRC to KRC. Although KRC also requested money damages, such a request does not appear to be based upon the non- performance of a contractual or quasi-contractual obligation. The “mere fact" that KRC’s claims relate to contracts between MOHUSA and the Lawyers does not render a dispute between the 69+ *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter parties in the nature of assumpsit. See TSA, 92 Hawai'i at 264, 990 P.2d at 734. Pinally, inasmuch as KRC does not assert claims of breach of implied contract and negligence, the Lawyers’ assertion that Blair ‘is directly on point’ is without merit. ‘Thus, based on KRC’s amended complaint, the “essential character” of the instant action is not in the nature of assumpsit, as Provided under HRS § 607-14. Accordingly, we hold that the circuit court abused its discretion in granting fees to the Lawyers in the KRC Appeal. IV. CONCLUSION Based on the foregoing, we affirm the June 3, 2004 final judgments entered in appeal Nos. 26669 and 26670 in all respects except: (1) based on our holding that the circuit court abused its discretion in granting attorneys’ fees to the Lawyers in appeal No. 26669 because the underlying action was not in the nature of assumpsit, we reverse the award of fees as determined in the June 3, 2004 order and referred to in the June 3, 2004 final judgment entered in appeal No. 26669; and (2) based on our and holding that the circuit court, in granting attorneys’ f costs in favor of the KHALP defendants in appeal No. 26670, abused its discretion by holding KRC responsible for the payment of such fees and costs because the circuit court did not have jurisdiction over KRC to enter such an award against it, we reverse the award of fees and costs as determined in the June 3, 2004 orders and referred to in the June 3, 2004 final judgment -10- *** FOR PUBLICATION *** Jn West's Hawai'i Reports and the Pacific Reporter entered in appeal No, 26670 without prejudice to the KHALP defendant: refsling a request for fees and costs if they so chooee for redetermination by the circuit court in light of our decision today. on the briefs Yy lors Matthew J. Vicla for plaintiff-appellant Kahala Laz DpZén' Royal Corporation in appeal No. 26669 and as perey in incerene seeoh ane Rats OM ereusparre 28 appeal wo, 26670 Kone bs ye Susan M. Ichinose for ser plaintift-appellant Kahala j Hotels Associates Limited Bebine Partnership in appeal Nov 26670 William A, Bordner and John Reyes-Burke (of Burke McPheeters Bordner & Eates) , for defendants-appellees Jones Day and Alan E. Priedman in eppeal Nos. 26669 and 26670 John S. Nishimoto and Calvin g. Young (of Ayabe Chong Nishimoto Sia & Nakamura) for defendant- appellee Goodsill Anderson Quinn & stifel in appeal Nos. 26669 and 26670 A. Bernard Bays and Sharon E. Har (of Bays, Deaver, Lung, Ros & Baba), for defendants-appellants Wolfgang Hultner and John wite in appeal No. 26670 one 

eefc1315e0c2695daf4def822f112447667d072c884b64ee3c046948f39b54a9

2007-01-11T00:00:00Z

e3942634-ca76-4926-a634-b8f2dce38b6d

State v. Anduha

hawaii

Hawaii Supreme Court

No, 24998 IN THE SUPREME COURT OF THE STATE OF HAWAI'T STATS OF HAWAI'I, Respondent-Appellee NORMAN ANDUHA, Petitioner-Appellant CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO. 01-1-1240) )RDER DENYING APPLICATION FOR WRIT OF CER’ (By: Nakayama, J., for the court") titioner-Appellant’s application for writ of 2005, is hereby denied. certiorari filed on December 20, DATED: Honolulu, Hawas't, December 30, 2005. FOR THE couRT: B Pee Chramayas ony) O} Associate Justice cynthia Kagiwada for petitioner-appel lant on the writ 3 Soe = oF - 5 Sconsidered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ, 

4e62890b8ba942439ac7ec9d4fc36f03c646c6434627af0cf91f4b393b8650aa

2005-12-30T00:00:00Z

9b704df0-6459-477e-b6e7-556aee2ec99f

Clement v. State

hawaii

Hawaii Supreme Court

No. 26022 IN THE SUPREME COURT OF THE STATE OF HAWAT'S a MATTHEW CLEMENT, Petitioner/Petitioner-Appellant, STATE OF HAWAT'L, Respondent/Respondent-Appellee CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (S-P-P. NO, 02-1-0038; CR. NO. 99-0376) 1 BI (By: Duffy, J. for the court") Petitioner/Petitioner-Appellant’s application for writ of certiorari filed on December 20, 2005, is hereby denied. DATED: Honolulu, Hawai'i, December 30, 2005. FOR THE COURT: Yone. ati re Associate Justice Peter Van Name Esser for petitioner/ petitioner-appellant on the writ é by: Moon, C.J., Levingon, Nakayama, Acoba, and Duffy, JJ. » consices qats 

a35c2484cab8d4af81f34977635b49b63efdc53e7fea17576cd7d68b496a4ac5

2005-12-30T00:00:00Z

5b4d937e-7a99-41a1-b2f5-07fb614bcd67

Office of Hawaiian Affairs v. State

hawaii

Hawaii Supreme Court

LAW LIBRARY No. 26615 IN THE SUPREME COURT OF THE STATE OF HAWAT'T SS OFFICE OF HAWAIIAN AFFAIRS, TRUSTEES OF THE OFFICE OF HAWAIIAN APFAIRS, Plaintiffs-Appellants/ Cross-Appellees, STATE OF HAWAI'I, Defendant -Appellee/ Cross-Appellant. APPEAL FROM THE PIRST CIRCUIT COURT (CIV. NO, 03-1-0505-07 (GWEC) ) n RE es (By: Moon, C.J., for the court’) Upon consideration of plaintiffs-appellants/cross-appel lees’ motion for reconsideration, filed September 19, 2005, and the record herein, IT IS HEREBY ORDERED that the motion is grantede| DATED: Honolulu, Hawai'i, December 23, 2005. © > FOR THE COURT: © qaus » Considered by Moon, C.J.. uevingon, xa) Circuit Juage Hara ‘aesigned by resson of vacancy jana, and Acoba, J. 

eb5dff8bd3b2e07bcb59457ce382f517bf0ba38fd7c0e5bc928103e45e9a5ad5

2005-12-23T00:00:00Z

31653647-3391-4bf6-8f63-94e49b9e1a96

Brooks v. Dana Nance & Co. Dissenting Opinion by J. Acoba [pdf]. S.Ct. Order Denying Motion for Reconsideration, filed 01/31/2007 [pdf], 113 Haw. 372. J. Acoba would grant reconsideration.

113 Haw. 406

hawaii

Hawaii Supreme Court

Y LIBRARY YOR PUBLICATION IN WEST'S HAMAr'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-Claimant, and ACS GOVERNMENT SERVICES, INC. fka COMPUTER DATA SYSTEMS, INC. aka COSI, Defendant. No. 26736 Pr APPEAL FROM THE SECOND cracurT cour the first amended complaint also named CSI as 9 defendant, but the company wes later Gismiesed from the action as to all four counts. 5  OR PUBLICATION IN WEST! HAMAI'T REPORTS AND PACIFIC REPORTER #4 of state or federal constitutional rights.” On November 20, 2003, Fidelity filed a cross-claim against Seasons for contribution and indemnification. On December 8, 2003, Seasons responded with a cross-claim against the Appellants for contribution and indemnification for the actions undertaken on its behalf, apparently in part alleging bad faith on the Appellants’ part in carrying out the inspections.‘ Seasons entered into settlement negotiations with the Brookses, overseen by the Honorable E. John McConnell (Retired). In their April 15, 2004 settlement conference statement, the Brookses (1) asserted danages in excess of $1,800,000.00, including property losses totaling $126,000.00, $500,000.00 in clains of lost profits from lost business opportunities resulting fron the seizures, and $200,000.00 in connection with the IZED claims and (2) demanded a minimun settlement of $500,000.00 plus $150,000.00 in attorney’s fees. By April 22, 2004, the settlement demand had fallen to $200,000.00 and, after Seasons tendered a settlement offer of $100,000.00 on May 12, 2004 én return for a release of all clains against Seasons and for indemnification by the Brookses in favor of Seasons for all claims arising from the matter, the Brookses evidently accepted because, on June 21, 2004, Seasons filed a petition with the circuit court for a determination of 2 good faith settlenent. on June 29, 2004, the circuit court conducted @ hearing on Seasons’s petition. With regard to the good faith + by August 12, 2003, Seasons had become insolvent, and ite representation had evidently been assumed by its insurance carrier, Wontgonery Insurance Group.  04 FOR PUBLICATION IN wES3 RAAT'T REPORTS AND PACIFIC REPORTER determination, the court observed: T have looked at Trover vw. Adams, 102 Hawai'i 399, 77 Psd 83 (2003)), whieh talks about the Eotality of the circumstances waich the court is Supposed to look at to determine whether a settlement Was made in good faith... [T]his 1s up to the Ulecretion of the court to nake this determination, but they list 2 number of sample criteria... ‘had, quite frankly, T think the realistic approximation of the total damages has been one of the Giese aisticuitics in this casey because there nas in, 1 think, very Little in terns of hard evidence Berto anat the special Gamages ore, and F think that's Gieticuit for everyone. ere, 1 don't think we have an issue of collusion or anything like that. ‘and some other evidence that the settlenent is aimed at injuring the interests of = non-settiing forefeasor or notivated by wrongful purpose. 1 certainly don’t see any evidence of that. With regard to the ancunt, given how difficult At nas been to come up with hard evidence of special Garages... ~~ and given the last demand of the Brookses, which I'think, Under the circumstances, w. cioeisgaite reasonable in Light of shat sone of the possibilities are if a verdict se in their favor{-*) T Son't think thet the amount that is being proposed here is improper or inedequate in any way. «. . 2 don't have a problen with the hundred thousand’ doLiars being # reasonable amount in Light of ALL the totality of the circumstances So I’m basically finding that this settlement was made in good faith. In reaching its conclusion, the circuit court considered the relative degree of fault borne by Seasons, remarking that I know that there is a dispute anong the tortfeagors about the . . . question of who's at fault here, if anybody is. .'.” [Blut . . . the key issue here is... we have, co far as the court can see from the documents, |. . a mutual indennity agreenent. And to'me, ‘that is the key issue, because rermyou have gots section of the iaw which talks About preserving the rights of an indeanity agreement in (HRs §) 663-15.5((d) 1), ga aunza note 1). T don’ think there is really any question here that there is an indemnity agreement betwoen the two) Alleged joint tortfeasors. And uhen I looked at (HRS $} €63-13,5(4), it's very clear that avermine that 'this aettlenent ia nade in aoed taith ‘+4 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER sp itdoos not bar any claims snone the toint Soctfeassrs based on 2 written indemnity ecreenent, bane ona uritten indemnity earessent. Now, "Tunderstand that an argument has been made here about the fact that... df the parties ected in Bad faith, then you don’t have to worry about the indemnity’ agreement. Sut the question about whether someone has acted in bad faith or not is really @ Jury question. LE don’t know waat the jury's going to 85 1 can't go ahead and make a ruling that ‘throws out the indemnity clause and makes that ineffective in Light of the current circunstances. Tolnce the jury has made a decision, then the court ultimately is going to have to make a final Gecision about the effect of the indemnity clause, but ect T'can't do ehat now (Emphasis added.) Seasons’s counsel made it clear, however, that, without dismissal of the Appellants’ cross-claims against Seasons, there would be no settlement. The court then struggled to balance the factors weighing in favor of a determination of good faith with what it recognized were reasonable argunents made by the Appellants’ counsel, Michael Lam, that, pursuant to HRS § 663-15.5(d) (1), the Appellants’ cross-claims could not be dismissed as part of the good faith settlenen: ‘the court: Well, look. I can decide that it’s unconditional at this point. Okay? “But if the Jury cones in and decide negligence, then you have got —~ the court will then deal, T suppose, with -- if they bring in sone kind of a motion for their attorney's fees and costs, ‘the court Will deal with that in light of the fact that the court is making a finding this Settlenant was sade in good faith, and the amount you paid out, and in light of the fact that there 1s = Sutual indemnity clauae, I'm not saying how t would rule Bot I would take all that into sccoune Well, I think -- in Light of the fact that the only clains that are still alive in this case are intentional forts, I think -- you know, the more the court has thought about’ that, the sore appropriate it would be to make this Snconditional. And depending on what findings are made by the jury, (the Appellants} may then be bringing motions before the court with regard £0 the isaue of indemnity after tesa. ‘404 FOR PUBLICATION IH WEST'S KAWAI'T REPORTS AND PACIFIC REPORTER **# Mr. Lam: ALL right, your Honor. So long as the order or the decision by the court's clear chat our cross-claim still existe, The Court: well, I'm making it unconditsonal ag this point ? Mr, Lam: So are you barring our cross-clai he court: to. Mr. Lan: Weil, that's what 1'm saying, 19 that you ean ~~ The Court: Well! they are borred . Subject to sone motions made fter the findings.» . unless there are findings which are Rade by the jury which would cause the court to reverse its Secision later ones ‘$0 I'm basically finding that this settlement was made in good faith, and... there are no... active crass claims on July 20, 2004, the circuit court entered an order granting Seasons’s petition, determining that the $100,000.00 settlement was made in good faith, and discharging and dismissing with prejudice the Appellants’ cross-claim against S Evidently, soon thereafter, the Appellants settled with the Brookses for $125,000.00. ‘The Appellants filed two timely notices of appeal on July 28, 2004, one, filed pursuant to HRS § 663-15.5(e), see supra note 1, appealing the order determining that the settlement was made in good faith, and the other, filed pursuant to HRS Ling the circuit court's § 641-1, see supra note 2, api dismissal of their cross-claims against Seasons. II. STANDARDS OF A, Determination Of A Good Faith Settlenent [t]he determination of whether a settlement is in gooa faith [1s left] to the sound discretion of the trial court in Light of the totality of the Circumstances surrounding the settlement. +. . On appeal, the trial court's determination will be reviewed for abuse of discretion. Drover, 102 Hawai'i at 427, 77 P.3d at 111, An appellate court should consider the decision “in light of all of the relevant  ‘+14 FOR PUBLICATION INU WEST'S HAMAT' REPORTS AND PACIFIC REPORTER +1 circumstances extant at the time of settlement.” Id, at 402, 77 P.3d at 86. “An abuse of discretion occurs when the decisionnaker ‘exceeds the bounds of reason or disregards rules or principles of law or practice to the substantial detriment of a party."” In ze Water Use Permit Applications, 94 Hawai'i 97, 183, 9 P.3d 409, 495 (2000) (quoting Bank of Hawaii v, Kunimoto, 91 Hawai'i 372, 387, 984 P.2d 1198, 1213 (1999)), quoted in State v, Wilmer, 97 Hawai'i 238, 243, 35 P.3d 755, 760 (2001); State v. Viiet, 95 Hawai'i 94, 108, 19 P.3d 42, 56 (2001). B. Appellate Jurisdiction [2]t is exionatic that ve are “under an obligation to ensure that (we have] jurisdiction to hear and Getermine each case and to dismiss an appeal on [ovr] ‘own motion where {we} conelude [wel 1ack( Jurisdiction.” BOM, inc. v, Sageeo, Inc., 57 Haw. 73, 43, $49. P.2d 1147, 1148 T1378) ‘perceive 2 Jurisdictional defect in an monte, dismiss that appeal.” (388, 369), 718 Pe2d 936, 937 (1586) Bacon_v. Karlin, 68 Haw. 648, 650, 727 P.2d 1127, 1129 (1986) (some brackets added and some in original). TIT. DISCUSSION A. This Court Lacks Jurisdiction To Address The Dismissa Of The Appellants’ Cross-Clains Brought Under HRS Sali. As noted supra in section 1.8, the Appellants filed their appeal of the circuit court's dismissal of their cross- claims pursuant to HRS § 641-1, see supra note 2. The July 20, 2004 final order, however, was not reduced to a separate judgment 10  ‘10+ yon PUBLICATION IN MEST’ S HAMAI'T REPORTS AND PACIFIC REPORTER + as required by Hawai'i Rules of Civil Procedure (HRCP) Rule 58° and is, therefore, not appealable under HRS § 641-1. See Jenkins vs Cades Schutte Fleming & Wright, 76 Hawai"i 115, 119, 869 P.26 1334, 1338 (1994) (holding that “[aJn appeal may be taken from circuit court orders resolving claims against parties only after the orders have been reduced to 2 judgment and the judgment has been entered in favor and against the appropriate parties pursuant to HRCP (Rule) 5” and announcing that “{a)n appeal from an order that is not reduced to a judgment in favor of or against the party by the time the record is filed in the supreme court will be dismissed”). Therefore, we lack appellate jurisdiction to address any of the Appellants’ points of error aside from the determination of good faith, which was brought pursuant to HRS § 663-15.5(e), see supra note 1. Wie note that the plain language of HRCP Rule 58, see supra note 5, requires that the court enter judgment, which “shall be set forth on a separate document,” (1) upon the verdict of a jury, (2) when a court “directs that a party recover only + RCP Rule $8 provides: Unless the court otherwise directs and subject to the provisions of Rule S¢(b), Jusgent upon the verdict of a jury Shell be entered forthwith by the clerk; bat the court shall Gltece the appropriate judgnent to be entered upon a special Verdict or upon a general verdict accompanied by answers to Interrogetories returned by a Jury pursuant to Rule (3. When the Glurt directs that a party recover only money or costs or that all felief be denied, the clerk shall enter Judgment forthwith upon Elcelgt ty hin of the direction; bat shen the court directs entry Gf judgeent for other relief, the judge shall promptly settle or Spprove the form of the judgnent and direct that it be entered by ihe clerk. the filing of the Judgment in the office of the clerk Constitutes the entry of the judgaent? and the Judgment is not Sffective before such entry. ‘The entry of the judgment shall not Ee delayed for the taxing of coste. Every judgment shall be set forth on a seperete docunent. uu  ‘S04 FOR PUBLICATION IN WEST’ 8 HAWAI'T REPORTS AND PACIFIC REPORTER +++ money or costs or that all relief be denied,” or (3) “when the court directs entry of judgment for other relief.” Inasmuch as the circuit court, in making its determination of good faith, did not “deny” any relief at all (but rather allowed the settlement to proceed) nor, as it pertains to the good faith settlement, did it direct entry of judgment for other relief, but merely made a determination of the settlement’s good faith character, none of the three categories in HRCP Rule $8 apply. The requirement, therefore, pursuant to HRCP Rule 58 and Jenkins, that the order oF judgment “be set forth on a separate document” is inapplicable to the good faith determination process described in HRS § 663-15.5. Rather, the right of appeal' under HRS § 663-15.5(e) is distinct and independent under that statutory authority.” Finally, insofar as a review of the good faith determination entails analysis of the indemnification clause and the use of the word “may” in the language of HRS § 663-15.5(6), see guora note 1, clearly denotes that the choice of appealing the Getermination rests, as it should, with the parties to the laweutt > indeed, as we noted in Travan, the legislature’ purpose behind enacting HAS § 665-15-5 was, inter alia, **t0 simplify the procedures. snd Feduce the costs associated with claime involving joint tortfeasors by Telstablisning s good faith settlenent procedure for joint tort fe. wc '102 Hawaii at 414,77 P3d at 98 (quoting Hise. Stand. Comm. Jie! i2io, in 2001 House Journal, at 1599) (emphasis omieted). Fart of th new good faith settlement procedure was the creation, ‘through HAS $'663-15.5(@), of an independent right of appeal of a good faith determination Separate from’ HRS § 641-1" 12 ‘444 FOR PUBLICATION IN WEST'S RAAT REPORTS AND PACIFIC REPORTER +++ the strength and vitality of the Appellants’ cross-claim against Seasons, this court has jurisdiction under HRS § 663-15.5(e) to do so. 8. Good Faith Settlements And The Trover Test In Troyer, this court confronted, as a matter of first impression, the question whether a settlement was made in good faith pursuant to the requirements of the newly enacted HRS § 663-15.5, and concluded that the legislature's goals of simplifying the precedures and reducing the costs associated with Elaine involving joint tortfeasors, while providing Courts with the opportunity to prevent collusive Settlenents aimed st injuring pon-settling forefeasors’ inter ving the Ueterminstion of whether s settlement is in good faith fo the sound discretion of the trial court in light of the totality of the circumstances surrounding the settlenent 102 Hawai'i at 427, 77 P.3d at 111. With respect to assessing the totality of the circumstances, we stated that the trial court may consider the following factors to the extent that they are known at the tine of Settlement: (i) the type of case and difficulty of proofat trial... ; (2) the realistic approximation Se total danagea thie the plaintiff seexs) (3) the Strength of the plaintiff's claim and the realistic Likelihood of his oF her success at terial; (4) the predicted expense of litigation? (5) the relative Sogroe of fault of the settling tortfeasors: (6) the fanount of conaideration paid te settle the clains; (7) the insurance policy limits and solvency of the joint (8) the relationantp among the parties and whether it i¢ conducive to collusion or wrongful Conduct; and (9) any other evidence that the Settlement is aimed at injuring the interests of a Ron-gettling tortfeasor or motivated by other wrongful purpos The foregoing List is not exclusive, and the court my consi any other factor that is relevant tO whether @ settienent has besn Given in good faith. Drover rejected the good-faith test articulated in Tech=Bilt, Inc, v, Woodward-Clyde & Assocs,, 698 P.2d 159 (Cal. 3 [FOR PUBLICATION TK WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** 1985), that would “require that trial courts conduct ‘mini-trials’ in order to determine the parties’ likely proportionate liability,” Trover, 102 Hawai'i at 426, 77 P.3d at 110, in part because “the [Hawai'i] legislature expressly declared its intent to ‘simplify the procedures and reduce the costs associated with claims involving joint tortfeasors,'" id. (quoting Hse. Stand. Comm. Rep. No. 1230, in 2001 House Journal, at 1599 and noting that “(t]his legislative purpose would be difficult to accomplish” under the Tech-Bilt test). Analyzing the structure and history of Act 300, which became HRS § 663-15.5," and comparing it to the law that preceded it, we observed that, in passing Act 300, “our legislature abandoned a statutory scheme that afforded a non-settling joint tortfeasor greater protection,” 102 Hawai'i at 426, 77 P.3d at 110, Rather, we concluded, the legislature was “more interested in encouraging settlements than making an attempt of doubtful effectiveness to prevent inequitable settlements” because the history and structure of HRS § 663-15.5 suggested that “the legislature[] . . . was more interested in encouraging settlements than ensuring the equitable apportionment of liability.” 1 Therefore, while, under the totality of the cixcunstances test, “‘courts are free to police collusive settlements that unfairly saddle one tortfeasor with a disproportionate share of Liability,’" by “*enabl{ing] the trial court to consider the potential proportionate liability of the parties in cases where such determinations are appropriate,'* the © gee 2001 Haw. Sess. L. Act 300, $$ 1 and 7 at 875-77. uu ‘10+ FoR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER **# test “‘does not require the court to consider it in every case.'” Drover, 102 Hawai'i at 424, 77 P.3d at 108 (quoting Mahathirai ve Columbia Gas of Ohio, Inc., 617 N.E.2d 737, 741-42 (Ohio Ct. App. 1992)). c. The Parties’ nts Reaardin: Good Faith Determination ‘The Appellants argue that the relative degree of fault between Seasons and the Appellants, the total damages sought by the Brookses, and the final consideration paid by Seasons demonstrate, in combination, that the circuit court abused its discretion in approving the settlement. They assert that, because the Appellants’ actions giving rise to the Brookses’ lawsuit were undertaken as a result of “strict instructions” from Seasons, Seasons would, in the end, be liable for any damages arising from its failure to convey to Fidelity the VA's Angtructions to refrain from entering the property. In addition, the Appellants note that the Brookses initially prayed for $25, 000,000.00 in their first amended complaint and sought $650,000.00 in their April 15, 2004 settlement conference statement and, apparently relying on settlement documents, contend that, at trial, the Brookses would have asked the jury for “no less than a million dollars in damages,” whereas, shortly after May 12, 2004, they accepted an offer to fully release Seasons from all claims in return for $100,000.00. They contend that the granting of Seasons’s petition for settlement drove them, in turn, to settle with the Brookses for $125,000.00° and maintain that the fact that they had to settle for more than * seasons contends that the settlement was for $135,000.00, 1s  YOR PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REPORTER *+# Seasons supports their contention that Seasons’s settlement with the Brookses was not in good faith because, despite having merely done Seasons’s express bidding, in the end they “had to bear the majority of the amounts paid in settlement.” construing its argument liberally, Seasons responds that the Brookses’ remaining intentional tort claims, if based on a theory of racial discrimination, were groundless because no agent of Seasons ever knew that the Brookses were African- American and, by implication, that the Brookses, having failed to allege any other motive for the intentional acts of conversion and ITED, would necessarily lose at trial. Seasons apparently argues that, therefore, any dispute between the Appellants and Seasons over relative fault would be irrelevant. Seasons also contends that, given the Brookses’ chances at trial, $100,000.00 was a reasonable settlement sun. Seasons asserts that, in order to prevail at trial on both the conversion and the ITED claims, the Brookses would, inter alia, have to establish the value of the property converted as well as the value of the enotional danage they suffered as a result of Seasone’s actions. Seasons asserts that, as of the time of settlement shortly before trial, the Brookses had not named any experts either (1) to value the property lost or damaged in the incident or (2) to assess their emotional distress claims.!° he Brookses, in their final list of witnesses filed on February 20, 2003, did nane, snter alig, four individuals uno arguably could testify to Senages:| three individuals who would testify “(ae to the facts and Circumstances of [the] case and [the Brookses") lo(s)ses” and Mr. Brooks's poychiaterst, with whon he “discussed” the incident. As an aside, “while we Rave stated in the past that... . supporting expert or medical testimony” is fot a prerequisite to. claim of infliction of omctional distress, such evidence “say nevertheless be gelavant to establishing the existence of (continued. 16  [FOR PUBLICATION IN WEST’ § WANAI'T REPORTS AMD PACIFIC REPORTER Seasons notes, furthermore, that, by April 22, 2004, the Brookses’ settlement demands had dropped to $200,000.00 and that the Brookses themselves, in a report to their insurance company, estimated the value of their property at the time of its loss to be $116,000.00. Seasons contrasts that estimate with its settlement payment of $100,000.00, arguing that it was both significant, given that Seasons contested both liability and damages, and reasonable, given foreseeable litigation costs at trial and the fact that, by the time of settlement, Seasons wa: insolvent. Finally, Seasons contends that, under Hawai'i law, there is no right of contribution or indemnity between joint intentional tortfeasors, citing Whirlpool Corp. v. CIT Group/Bus. Credit, Inc., 293 F. Supp. 24 1144 (D. Haw. 2003), and, accordingly, the only two remaining claims for relief in the lawsuit sounding in intentional torts, that the Appellants’ cross-claim was groundless. (..-continved) sserious’ ‘emotional distress as a response to 2 tortious event.” fi Slark-tquies coy, #5 awass 336, 361-62, 984 P.24 1273, 1304-05 (1997) (eaphasis in original]; see also ‘e Asimal Quix: ‘son, 63 How. $87, $64, 632 P.24 1066, 1071 (1961) (approving proposition that “medical tettanony [is] not necessary to substantiate plaintiffs’ claims of serious emotional distress”) & gseagons cites erroneously to an opinion by the same nane, 258 F. Supp. 24 1140°(D, law, 2003), announced eix months earlier, but quotes from 258 F. Supp, 22 14 vv  FOR PUBLICATION IH WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER * D. The Circuit Court Abused Its Discretion In Determining That The Settlement Between Seasons And The Brookses Was In Good Faith. ‘The _amoui wi ble hi r7 s slaima. In order to establish Seasons’s liability for conversion, the Brookses would have to prove, inter alia, that Seasons had “a constructive or actual intent to injure” the Brookses’ interest in the property by entering the lot and removing the items, See Iddings v, Mee-Lee, 82 Hawai'i 1, 9, 919 P.2d 263, 271 (1996) (“the commission of an intentional tort includes a constructive or actual intent to injure”) (quoting Pleasant v. Johnson, 325 $.£.2d 244, 249 (N.C. 1985)); Pac. Mill Co. v. Enter, Mill Co., 16 Haw. 282, 284, 286 (1904) (approving a jury instruction that “conversion is the exercise of dominion over an article with intent to repudiate the ownership of the true owner and in defiance of his rights”). An ITED claim requires the plaintiff to establish “[(J1) that the conduct allegedly causing the harm was intentional or reckless[; (J2) that the conduct was outrageous{;} and [(]3) that the conduct caused [(]4) extreme emotional distress to another.” Hac v. Univ. of Hawai'i, 102 Hawai'i 92, 95, 73 P.3d 46, 49 (2003) (adopting the elements of ITED prescribed by the Restatenent (Second) of Torts). “*{T]ntent’ is used throughout the Restatement . . . to denote that the actor desires to cause [the] consequences of his act, or that he believes that the consequences are substantially certain to result from it.” Restatement (Second), supra, § 8A. 18 AWWAL'T REFORTS 280 PACIFIC REPORTER ++4 + FOR FUBLICARION IN WES In our view, the record reflects that the Brookses’ case against Seasons for both conversion and ITED was reasonably strong, even absent proof of racial motivation. There is evidence in the record tending to establish that Seasons was aware of the VA’s instructions, but that Seasons nevertheless ordered Fidelity to enter and secure the property, arguably denonetrating at least (1) recklessness with respect to the Brookses’ resulting emotional state and (2) a constructive intent to take possession of the property in defiance of the Brockses’ rights. Moreover, the items seized from the property, including several vehicles, apparently could not be located and returned to the Brookses once the error had been recognized. Nevertheless, both the value of the itens seized and the effect the seizure had on the Brookses’ future income were vigorously disputed, and the extent of the Brookses’ damages was subject to considerable uncertainty. Considering the totality of the circumstances, the $100,000.00 paid by Seasons to settle the Brookses’ clains against it was not an insignificant sum and was consistent with the avoidance of foreseeable future litigation expenses. The amount that Seasons paid to settle the Brookses’ claims against it was therefore reasonable. 18  ‘104 FOR PUBLICATION IN WEST’ S HAWAI'I REPORTS AND PACIFIC REPORTER 2. Nevertheless, the circuit court abused ite HRS § 663-15.5(d) (1) plainly states that “Lal determination by the court that a settlement was made in good faith shall . . . (blar any other joint tortfeasor . . . from any further claims against the settling tortfeasor . . . » except hose based on a written indemnity agreement.” (Emphasis added.) Seasons and the Appellants do not contest the validity of the mutual indemnity agreement between them; what is in dispute is the extent to which the agreement binds Seasons in the present matter. Therefore, by the plain language of the statute, any cross-claims brought under the indeanity agreement between then would survive a good faith settlement. To the extent that the claims had merit, therefore, Seasons, through Appellants’ cros: its settlement, sought to employ the circuit court to eliminate those cross-claims expressly preserved under HRS § 663-15.5 (4) (1). Considered in the context of a good faith settlement determination, Seasons’s arguments that the cross-claims lacked merit are unpersuasive. Holding aside the fact that Whirlpool is @ federal decision and therefore not a precedent of this court, Seasons misapprehends key differences between the application of contribution and indemnity to joint intentional tortfeasors. In Whirlpool, the United States District Court for the District of Hawai'i determined that this court, when faced with statutory silence and a question of first impression, often mines the Restatement (Second) for guidance and, hence, relied on the 20  * FOR PUBLICATION I WEST’ 5 HAWAI'T REPORTS AND PACIFIC REPORTER ++ Restatement (Second) of Torts to forecast how this court might rule on the question of contribution among joint intentional tortfeasora. 293 F. Supp. 2¢ at 1147-50. The Whirlpool court correctly noted that Restatement (Second) of Torts § 886A(3) states that “[elhere is no right of contribution in favor of any Sortfeasor who has intentionally caused the harm,” 293 F. supp. 24 at 1148, but, in our view, mistakenly included indemnity in that rule. See 293 F. Supp. 24 at 1151 (finding “that the General rule, as set forth in the Restatement, applies here to ber contribution and indemnity claims anong joint intentional tortfeasors”) (emphasis added) The Whizipool court failed to note that § 886A(4) states that “(wlhen one tortfeasor has a right of indennity against another, neither of them has a right of contribution against the other,” because, “[wJhen there is a right of ‘ndennity, it controls." Restatement (Second), § e86A(4) and cnt 1. Indennity 1s expressly addressed in § 8868, which states in relevant part that: (2) 1£ two persons are Liable in tort to 2 third for the sane harm and one of then dischscges scents ic Phu’ Beate sates to (3) instances In which ingeanity 1s grantee Toe this Principle include the followiey? i} he indennites acted pursuant to directions Gf the indennitor and reasonably bel reved eos directions to be lawfully or] (e) [Bhe indemnitee was induced to act by a misrepresentation on the part of the indeaniter® upon Which he justifiably reliba Ad. (Emphasis added.) Restatement (Second) § 8868 does not Gistinguish between intentional and other forns of tort. Accordingly, the Restatement (Second) does not foreclose a right 21  {FOR PUBLICATION Tif WEST’ HAWAI'T REPORTS 280 PACIFIC REPORTER ++ of indennity for intentional torts in the present matter. See also Restatement (Third) of Torts: Apportionment of Liability § 22 (1999 & Supp. 2006): (a) hen two or nore persons are or may be auabie forthe same harm and one of then discharges the Liability of another in whole or in part by Settlement... , the person discharging the {iabiliey 42 entitied eo recover indemnity in the anount paid to the plaintiff, plus reasonable legal expenses, if (a) the indemnitor has agreed by contract to indemnify the indeanitee . +s id. In addition, by its express terms, the indemnification agreement covers Seasons’s negligent actions, see supra section I.A. Therefore, the Appellants’ cross-claim against Seasons for indemnification would be invalidated only in the event of bad faith on the part of Fidelity or Nance in carrying out the inspections. The record appears to be devoid of any evidence to that effect. In adopting and applying the totality of the circumstances test in Zrover, this court relied in part on two decisions of the Illinois Supreme Court, Dubina v. Mesirow Realty Devis Inc., 756 N.E.2d 836 (111. 2001), and In xe Guardianship of Babb, 642 N.£.2d 1195 (T11. 1994). In both Dubina and Babb, the Illinois Supreme Court concluded that 2 settlement agreement that allowed a settling tortfeasor to accomplish indirectly what governing law expressly forbade was collusive and, hence, not in good faith. Dubina, 756 N.E.2d at 842-43 (noting that, in addition to allowing the settling joint tortfeasor to evade the letter of the law, the settlement did not encourage the Illinois acts purpose of “equitably distributing among all joint 2  ‘t+ FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER * tortfeasors the burden of compensating the injured plaintiff”): Babb, 642 N.E.2d at 1204-05 (noting that neither the objectives of equitable distribution nor encouraging settlements was furthered by the agreement); see also Int’] Action Sports, Inc ve Sabellice, $73 So. 2d 928, 930 (Ela. Dist. Ct. App. 1991) (concluding that a settlement agreement was not in good faith in part because the agreement neither encouraged settlements nor equitably apportioned liability), cited in Trover, 102 Hawai'i at 425, 77 P.3d at 109. We hereby adopt the reasoning of the Illinois Supreme Court and hold that a settlement, wherein a party seeks to accomplish indirectly that which it is expressly barred by applicable law from accomplishing directly, is not in good faith. By the plain language of HRS § 663-15.5(d), see supra note 1, a good faith settlement agreement between Seasons and the Brookses would not have disturbed the Appellants’ cross-claims sons, however, caused an integral condition against Seasons. 5 of settlement to be that those cross-claims against it be dismissed, see supra section I.B., which thereby “allow{ed] the settling defendant (] to accomplish indirectly that which [it] could not do dixectly.” Dubina, 766 N.E.2d at 642. The record demonstrates that the circuit court strove to balance the competing policy interests at stake and the unresolved factual issues upon which the indemnity agreenent’s applicability would be ascertained. Nevertheless, by acknowledging that HRS § 663-15.5(d) (1) expr under the written indemnity agreement, any cross-claims brought ly preserved, by the Appellants but, nevertheless, acquiescing in a settlement, 23  FOR PUBLICATION I WEST’ S HAWAI'T REPORTS AND PACIFIC REPORTER **¢ @ central condition of which was the extinguishment of the cross- claims, the circuit court abused its discretion by “disregard[ing] rules or principles of law. . . to the substantial detriment of a party,’” see In re Water Use Permit Applications, 94 Hawai'l at 183, 9 P.3d at 495. Absent that offending provision, however, the agreement would otherwise have been a good faith settlement, and the circuit court would not have abused its discretion in so determining. IV. CONCLUSION In Light of the foregoing, we vacate the circuit court’s July 20, 2004 order determining that the settlenent was made in good faith and remand this matter for further proceedings consistent with this opinion. on the briefs: Michael L. Lam, Lauren R. Sharkey, Seth R. Harris (of Case Bigelow & Lonbarai) for ne defendant s-appellants/ cross-claimants-appel lants/ cross-claim defendants Rica coraaay amie Dana Nance & Co. and Fidelity National Field Services, Vamen &, Duby: Ine. tts be Elton John Bain and E. Mason Martin III (of Kessner Duca Unebayashi Bain 6 Matsunaga) for defendant- appellee/cross-claim defendant- appellee/cross-claimant Seasons Mortgage, Inc. 24 

c303b012f034888da59863a22891394f0662a653d5bde5be3d6ea597e9d877b0

2007-01-12T00:00:00Z

5d8158fd-bd76-4477-aa61-0184c5a940a7

Schnars v. Lee

27386

hawaii

Hawaii Supreme Court

No. 27386 s IN THE SUPREME COURT OF THE STATE OF HAWAT‘E 930 S002 | NANETTE SCHNARS, Plaintiff-Appellant WILLIAM JAMES LEE, DDS, Defendant-Appellee eee APPEAL FROM THE FIRST CIRCUIT COURT (crv. NO. 04-21-0708) ORDER Duffy, J.) vpon consideration of Defendant-Appeliee Willian Janes he’s motion to dismiss the appeal of Plaintiff-Appellant Nanette Schnars because Appellant failed to file an opening brief, the papers in support and opposition, and the records and files herein, it appears this court granted Appellant an extension of time to file the opening brief, and Appellant filed the opening brief on December 20, 2005. Therefore, If 18 HEREBY ORDERED that the motion to dismiss the appeal is denied. DATED: Honolulu, Hawai'i, December 21, 2005. John Reyes~Burke 4 for defendant-appellee £ Odile fon the motion Associate Justice 

affe329825b1891b6ddc9fdf9274bf633b033089be18fce9e38b7ea70a889738

2005-12-21T00:00:00Z

9a1df2ef-4740-4635-b49a-41648ac2d119

Bhakta v. County of Maui

hawaii

Hawaii Supreme Court

LAW LIBRARY No, 24780 IN THE SUPREME COURT OF THE STATE OF HAWAT'T SYOTSNA BHAKTA, Individually and as Personal Representative ‘of the Estate of MITESH BHAKTA, Deceased; NIKHIL BHAKTA, a minor, by his Next Priend, CANDACE TURNER; DEWAL SHAH, Individually and as Personal Representative of the Restate of MEGHAL SHAH, Deceased; DAKA BHAKTA, Individually ‘and as Personal Representative of the Estate of BHUPENDRA BHAKTA, Deceased; CATHY M. ARENDS, Individually ‘and as Personal Representative of the Estate of DONALD ARENDS, Deceased, Plaintiffs-Appellante, vs. R COUNTY OF MAUI, STATE OF HAWAI'I, == S30 Defendants-Appellees, 8s =F 4 > om and 2 6 JOHN DOES 1-5, JOHN DOE CORPORATIONS 1-5, JOHH DOE S PARTNERSHIPS 1-5, ROE NON-PROFIT CORPORATIONS 1-5, ‘and ROE GOVERNMENTAL AGENCIES 1-5, Defendants. opp op THe courr, (py: Levingon, J., for the court') IT IS HEREBY ORDERED that the last sentence of section III.B.1, on page 24 of this court’s opinion, filed in the above- captioned matter on December 13, 2005, is amended as follows (deleted language is bracketed and stricken; new language is underscored) + ft 7] Consequently, the validity of COL No. 101 need not be addressed inasmuch as it was rendered on the assumption that Act 190 is an affirmative defense. considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ. “ae ‘The Clerk of the Court is directed to incorporate the foregoing changes in the original opinion and take all nece: steps to notify the publishing agencies of these changes. DATED: Honolulu, Hawai'i, pecember 30, 2005. oe iE Q wea ie comes MacRae \a 5 Associate sutice Veg, ys) <> Order amending No. 24700 ‘the Opinion of the Couxt, filed Decesber 13, 2005 

fa5752dfe9f3e73f1ec5f467dbde73169db3bdbdda829442c5a21158e5a6dd64

2005-12-30T00:00:00Z

10f6a9a3-2ee2-45d0-9b71-77103acdea5d

State v. Pilon

hawaii

Hawaii Supreme Court

LAW LIBRARY No, 27432 IN THE SUPREME COURT OF THE STATE OP HAWAI'I STATE OF HAWAT'T, Respondent -Appellee, SYLVAIN PILON, Petitioner-Appeliant. - 7 CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CASE NO. LCL: 7/5/05) BR IG APPI ir a (By: Moon, C.J., for the court?) Petitioner-appellant Sylvain Pilon’s application for writ of certiorari, filed December 14, 2006, is hereby rejected. DATED: Honolulu, Hawai, January 19, 2007. Dawn M. Nekoba, FOR THE COURT: Deputy Public Defender, for petitioner-appeliant, on the application thn — € Justi ay 3a) SEAL ve} J OF ww » Considered by: Moon, C.J., Levingon, Nakayama, Acoba, and Duffy, 93 a 

8af02d56106ca5f2b0650f93ba3fb7f2d856c91499458eb78f0ede2162615e12

2007-01-19T00:00:00Z

c86140e5-f4b4-4d0a-9afe-42edb4f3adb3

State v. Sapanara

hawaii

Hawaii Supreme Court

wo, 26457 IN THE SUPREME COURT OF THE STATE OF HAWAI'T STATE OF HAWAI'I, Plaintif£-Appellee-Respondent, ROBERT SAPANARA, Defendant-Appel lant-Pet itioner. S CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (FC-Criminal No, 03-1-0004) (ay: Levinson, J., for the court) Upon consideration of the application for a writ of certiorari filed on December 19, 2005, by the defendant- appellant-petitioner Robert Sapanara, the application is hereby denied. DATED: Honolulu, Hawai'i, December 29, 2005. FOR THE COURT: fore STEVEN H. LEVINSON \. Associate Justice James S$. Tabe, Deputy Public Defender, for the defendant-appellant- petitioner Robert Sapanara, on the application © considered by: Moon, C.J. Levinton, Nakayama, Acoba, and Duffy, 33 ame 

122aa47462841b9176853b18b7b48b402f7fa2536791b3bc0269c040983ef420

2005-12-29T00:00:00Z

2b5a41a6-100d-41d1-88ec-028a261ed84c

State v. Kaiuwailani

hawaii

Hawaii Supreme Court

** NOT FOR PUBLICATION No. 26737 30 siva IN THE SUPREME COURT OF THE STATE OF HAWAI'T STATE OF HAWAI'I, Plaintiff-Appellee, 4 SUNSETTE K. KAIUWAILANI, Defendant-Appeb lant. APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (HPD TRAFFIC NO. 04081473) ORDER DISMISSING APPEAL (By: Nakayama, J., for the court") on August 2, 2005, this court ordered Appellant Sunsette K. Kaiuwailani, pro se, to either file the opening brief in the above entitled matter or an appropriate dismissal of the appeal within 30 days from the date of the order. Appellant having failed to comply end it appearing that the opening brief is in default, IT IS HEREBY ORDERED that the appeal is dismissed. 1 Decenber 8, 2005. Saou Ghraeunye os Associate Justice ‘considered by: Moon, C.J., Levinson, Nakayama, Accbs, and Duffy, aa 

32c72d3d88fd177022a8ad3e3570bbcc2e86407eb2df23f0fe097c04398eb612

2005-12-08T00:00:00Z

11031111-76b4-49dd-8ba7-17131350f1ee

Grandinetti v. Cayetano

hawaii

Hawaii Supreme Court

1 AW LIBRARY No, 27640 IN THE SUPREME COURT OF THE STATE OF HAWAS! FRANCIS GRANDINETTI, Petitioner aad GOVERNOR BENJAMIN J. CAYETANO; GOVERNOR LINDA C. STATE OF HAWAI'I, Respondents ORIGINAL PROCEEDING ORDER (By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.) Upon consideration of the Francis Grandinetti’s HRAP 21 Supervisory Writ of Mandamus Application to the Governors of the State of Hawai'i, and the papers in support, IT IS HEREBY ORDERED that the HRAP Rule 21 supervisory writ of mandamus application is denied. DATED: Honolulu, Hawai'i, December 16, 2005. Francis Grandinetti, petitioner, pro se, Gore ~ on the writ 

242b0a2e5645043f3163b48e9be0afc8319df73633367d0ecc691a224ec60508

2005-12-16T00:00:00Z

6e069f44-6697-4f85-8b85-672f20aaea84

State v. Dunse

hawaii

Hawaii Supreme Court

“A ERARY, *** NOT FOR PUBLICATION *** No. 25374 B IN THE SUPREME COURT OF THE STATE OF HAWAT'I- 3 ~ = = STATE OF HAWAI'I, Plaintiff-Appellee = m z co vs. x S MARK WADE DUNSE, Defendant-Appellant APPEAL FROM THE THIRD CIRCUIT COURT (CR. NO. 96-162K) ‘SUMMARY DISPOSITION ORDER (By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.) Defendant-appellant Mark Wade Dunse (Dunse) appeals from the September 4, 2002 final judgment of the third circuit court, the Honorable Ronald Ibarra presiding, convicting Dunse of murder in the second degree in violation of Hawai'i Revised Statutes (HRS) § 707-701.5 (1993) and sentencing him to life imprisonment without possibility of parole pursuant to HRS § 706-657 (1993).* On appeal, Dunse contends that (1) HRS § 706- 657 as interpreted by this court is unconstitutional insofar as uns § 707-701. provides: Marder in the second degree. (1) Except as provided én section 707-702, 2 person commits the offense of murder in the Second degree if the person intentionally er knowingly causes the Gesth of enother person. (2) Murder in the second degree is Felony for which the defendant shell be sentenced to inprisonment as provided in section 106-656 HRS $ 706-657 prov sn relevant part The court may sentence # person who has been convicted of murder in the second degree to Life imprisonment without Possibility of parcle under section 70s-65€ if the court finds That the mirder was especially heinous, atrocious, or cruel, manifesting exceptional depravity, Ae used in this section, the Phrase especially heinous, atrocious, or eruel, manifesting exceptions! depravity neane a conscianceless of pitiless crime Which is unnecessarily torturous to a victin. *** NOT FOR PUBLICATION *** it has denied Dunse his rights to (a) due process; (b) a jury trial; (c) a republican form of government; and (d) to be free from ex post facto laws. Dunse further contends that (2) due to prosecutorial misconduct, ise., the prosecution's destruction of and failure to preserve and produce both exculpatory evidence and expert opinion evidence it intended to introduce at trial, Dunse’s sentence should be amended to life with paroles (3) the trial court erred in (a) failing to perform a de novo review of the jury’s findings and (b) improperly refusing to instruct the jury on the element of “consciousness of the victim”; and (4) that there was insufficient evidence presented at either his 1997 trial or 2002 sentencing proceeding to support a finding that the victim suffered unnecessary torture and that the defendant intentionally or knowingly inflicted unnecessary torture on the victim. 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 sentence of the circuit court pursuant to our holding in State v. Young, 93 Hawai'i 224, 999 P.2d 230 (2000). Dunse’s constitutional arguments are without merit. The alleged prosecutorial misconduct was harmless beyond a reasonable doubt. The trial court did not err either in its instructions to the jury o in its review of the jury's findings. Considering the evidence presented to the trier of fact regarding the amount and types of injuries sustained by the victim and the reasonable inferences that the jury could draw therefrom, the prosecution presented credible evidence of sufficient quality and probative *** NOT FOR PUBLICATION *** value in both the 1997 and 2002 proceedings to allow triers of fact of reasonable caution to support the conclusion that the murder was especially heinous, atrocious, or cruel. Therefore, IT IS HEREBY ORDERED that the judgment from which the appeal is taken is affirmed. DATED: Honolulu, Hawai'i, December 20, 2005. On the briefs: David Glenn Bettencourt for W the defendant-appellant . Mark Wade Dunse LearxGoornser Dale Yamada Ross, Deputy Prosecuting Attorney, for Dresctts Guinean the plaintiff-appellee State of Hawai'l LY Gren dutty 

c78e6783d131cd551f69df0690ac753d2103d860430ffddc9a4af3ed9007be2c

2005-12-20T00:00:00Z

f38e55ce-a75b-4166-9253-60ae630ec8e9

State v. Heapy. Concurring Opinion by J. Levinson, with whom J. Nakayama joins [pdf]. Dissenting Opinion by C.J. Moon [pdf].

113 Haw. 283

hawaii

Hawaii Supreme Court

#+4FOR PUBLICATION IN WES! HAWAI'I REPORTS AND PACIFIC REPORTER#* IN THE SUPREME COURT OF THE STATE OF HANAT'! .000- STATE OF HAWAI'I, Plaintiff-Appellee Uy Hae (002 a RAYMOND J. HEAPY, Defendant-Appeliant = m o Wo. 27375 S22 APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT (CASE NO. 1:03/18/05; 04~50499) JANUARY 11, 2007 ACOBA AND DUFFY, JJ.; WITH LEVINSON, J., CONCURRING SEPARATELY, AND WITH WHOM NAKAYANA, J., JOINS ‘AND MOON, C.J., DISSENTING OPINION BY ACOBA, J. We hold that the district court of the second circuit (the court)? was wrong in denying the motion of Defendant- Appellant Raymond J. Heapy (Defendant) to suppre: “all of the evidence and statements obtained as a result of the police stop of (his] vehicle” because (1) the purported investigatory stop by the police violated article 1, section 7 of the Hawai'i ‘The Honorable ‘relay E. Macbonald presided. ‘s*4FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERS** Constitution? inasmuch as it was not supported by a reasonable and articulable suspicion that Defendant was engaged in criminal conduct and (2) the “chase car” police procedure of stopping all vehicles that lawfully turn onto a public way in advance of a checkpoint exceeded that statutorily authorized. Therefore, the court’s June 7, 2005 order denying Defendant’s motion to suppress is vacated and the case is remanded to the court with instructions to enter an order granting Defendant's motion to suppress and to allow Defendant to withdraw his conditional no contest plea. See State v. Kealaiki, 98 Hawai'i 309, 314 6 n.6, 22 P.3d 588, 593 & n.6 (2001) (observing “that in the case where the pretrial motion seeks to suppress the evidence incriminating the defendant and the appeal is decided against the government, the proceedings would also ordinarily come to an end, the question appealed being the underlying predicate reason for the conditional plea” and that Hawai'i Rules of Penal Procedure (HRPP) “Rule 11(a) (2) contemplates by its terms that the case would be remanded to allow withdrawal of the conditional plea, after which . . . dismissal [may] follow because of the absence of the evidence suppressed”). 2 article 1, section 7 of the Hawal't Constitution 49 identical to the Fourth anendnent to the United States Constitution. In relevant part, article I, section 7 provides that “(t]he Fight of the people to be secure in their persons. . . against unreasonable... seizures and invasions of privacy shall not be violated{.]” The Fourth Anendnent to the United States Constitution states that "(t]he right of the people to be secure in their Persons... against unreasonable... seizures, shall not be violated.”  FOR PUBLICATION IN WEST’ S HAWAI'I REPORTS AND PACIFIC REPORTER‘*# I. It is axiomatic that reasonable suspicion to justify a stop must relate to criminal activity. See, e.a., State Eleneki, 106 Hawai'i 177, 180, 102 P.3d 1075, 1078 (2004) (stating that a seizure or stop based on reasonable suspicion must be “tied to ‘some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity’ (quoting United States v. Cortez, 449 U.S. 411, 417 (1981) (emphasis added))). The criminal activity for which Defendant was stopped was operating a vehicle under the influence of an intoxicant (OVIT or DUI), Hawai'i Revised Statutes (HRS) § 2916- 61(a) (Supp. 2005).? However, the officer observed no acts indicating a violation of the statute before the stop. He > Hawai's Revised Statutes (HRS) § 2516-61 (Supp. 2005), “operating a vehicle under the influence of an intoxicant,” provide relevant part (a) Q person commita the offense of operating a vebicle uncer the Influence of an Sntocant if the ferson Suerte or assumes actual shvaical control of a vehicle: (I) White under the influence of alcohol _in an anount sufficient to inpair the person's normal ental faculties or ability to care for the person and guard against casualty; (3) "With .08 or more grans of alcohol per two hundred ten liters of breath; or (4) With’ s08 of more grans of alcohol per one hundred miliiliters or cubic centimeters of blood. (Bnphasis added.) Defendant asserts that he entered a conditional plea und HRS § 291E-€1(ai (3). Plaintiff-Appellee State of Hawai't (the prosecution), however, states that Defendant was charged with viclating HRS $ 2946-61 (a) (4) and does not specify under which section Defendant entered his conditionel ples. HRS $ 2918-61 criminalizes operating a vehicle under the influence of the requisite ancunt of alcohol, not evading an intoxication checkpoint. As such, an officer must have specific and articulable facts that would lead @ person of reasonable caution to believe that the defendant was operating = vehicle under the influence of alcohol: ‘seef0R PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER*#* therefore lacked any objective basis ~~ specific and articulable facts that Defendant was violating HRS § 2916-61 (a) so as to justify the stop. See, ¢.0., Terry vs Ohio, 392 U.S. 1, 21 (1968) (stating that “in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion”). Accordingly the officer had no grounds for reasonably believing criminal activity was afoot. See, e.c., State v, Trainor, 83 Hawai'i 250, 256, 925 P.2d 818, 824 (1996) (ruling that “the police may temporarily detain an individual if they have @ reasonable suspicion based on specific and articulable facts that criminal activity is afoot” (citation omitted)). Because such objective grounds were absent, no legal support existed for the stop. Ses Elenski, 106 Hawai'i at 180, 102 P.3d at 1078. The stop therefore was unlawful. Additionally, in stopping vehicles turning in advance of the checkpoint, the procedure exceeded the authority granted to the police to establish roadblocks under HRS $$ 2916-19 and -20 (supp. 2005). Since the stop was unlawful all evidence derived from the stop must be suppressed. See State v, Aguinaldo, 71 Haw. 57, 61, 782 P.2d 1225, 1228 (1989) (noting that “fruits of an ‘unlawful seizure’ are ‘proper subjects of a suppression order’ (quoting State v, Powell, 61 Haw. 316, 320, 603 P.2d 143, 147 (19799). ‘The relevant provisions of HRS §§ 2918-19 end -20 are reproduced  -+FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERY+# m1. In reaching today’s holding we do not ignore the important State interest in combating drunken driving. See Michigan Dep’t of State Police v, Sitz, 496 U.S. 444, 451 (1990) (stating that “[nJo one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it"). We emphasize that our ruling does not affect established roadblock procedures authorized by statutes. As to the practice in issue here, however, “[w]e may not,” as the U.S. Supreme Court has instructed, “vitiate constitutional guarantees when they have the effect of allowing the guilty to go free.” Davis vs Ws y o= OLS. (citing Kyllo v. United States, $83 U.S. 27 (2001). As was stated in the seminal case of Terry, “*{nJo , 126 S.Ct. 2266, 2280 (2006) right is held more sacred, or is more carefully guarded, by the connon law, than the right of every individual to the possession ‘and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law./" 392 U.S. at 9 (quoting Union Pac. Ry. Co. vs Rotsford, 141 U.S. 250, 251 (1891). Today's holding reaffirms the precepts established in Jerry and its progeny which we have adopted, and the longstanding constitutional protections in our Jurisdiction that have stood as a bulwark against unreasonable seizures. See e.g, State v, Perez, 111 Hawai's 392, 397, 141 P.3d 1039, 1044 (2006); Eleneki, 106 Hawai'i at 180, 102 P.3d at ‘s+4fOR PUBLICATION IN WEST’ S HAWAI'T REPORTS AND PACIFIC REPORTERS** 1078; Bowell, 61 Haw. at 321, 603 P.2d at 147-48; State v. Bonds, 59 Haw. 130, 133, $77 P.2d 781, 784 (1978); State v. Ogata, 58 Haw. $14, $72 P.2d 1222 (1977); State v. Barnes, 58 Haw. 333, 568 P.2d 1207 (1977); and State v , $2 Haw. 497, 479 P.2d 800 ca971) mr, Defendant was charged on August 4, 2004 with violating BRS § 2918-61 by operating) or assun{ing) actual physical control of Vehicle while under the influence of an intoxicant meaning That he was under the influence of aleshol in sn ancunt Sufficient to impair his normal mental faculties or ability fo care for himself and guard against casualty, and/or (by) operatling] or assum(ing) actus! paysical control of a Vehicle with -08 or nore grams of alcohol per one hundred milliliters of cubic centinsters of blood, thereby Committing the offense of Operating a Vehicle Under the Influence of an Intoxicant in violation of Section 2918-61 of the (HRS) on August 11, 2004, Defendant filed a “Motion to Suppress Evidence” contending that “[s]upression is required because the stop of Defendant's vehicle lacked probable cause or even reasonable suspicion, and therefore the nature and scope of the intrusion into Defendant’s liberty and privacy exceeded what was constitutionally permissible in light of the facts known to + tence, the dis: es reference to s bright-Line rule that in combating Intoxicated motorists i 120 to the rule of ‘Spparent, this case addresses intoxication checkpoi Shvolvenent in [unspecified] criminal activity,” di Gissent states. If the police have infornstion that persons are Sintentlonally avoiding @ checkpoint because of involvenent in eriminal activity," dissent at’ (espheais eddediy they would perforce have’ reasonable Suspicion to make a stop. As even the police admitted, in this Gininal activity was sbserved and the Fecord does not’ indicate the police had any prior knowledge of any “involvement in criminal activity.” At best the Gissent's characterization 1s 2 misunderstanding of this decision. Hence, there is no “abrogation” of the State's interest, dissent at 1, in public ty, as the dissent maintains, ‘+#¥FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*## police at the time.” Defendant requested that “{a}11 evidence and statement (sic) garnered as a result of the stop be suppressed and the matter dismissed. On February 18, 2005, the court held a hearing on Defendant's motion to suppress. At the hearing, the prosecution called Maui Police Department Officer Eric Correa (Officer Correa) as a witness. At the end of the hearing, the court orally denied the motion to suppress. That same day, Defendant entered 2 conditional no contest plea pursuant to HRPP Rule 11(a)(2). Following Defendant’s conditional plea, the court sentenced Defendant. On June 7, 2005, the court entered its written Findings of Fact, Conclusions of Law, and Order Denying Defendant's Motion to Suppress Evidence (Order). On June 9, 2005, Defendant filed 2 Notice of Appeal. Ww. On appeal, Defendant contends “it was error for the Gistrict court judge to find reasonable suspicion existed because it appeared to [Officer] Correa that [Defendant] was attempting to avoid the intoxication checkpoint.” In response, the prosecution maintains that “appellate jurisdiction does not exist where a notice of appeal is filed in violation of time Limitations prescribed under (Hawai'i Rules of Appellate Procedure (HRAP) Rule) 4(b)” and “[elven juming arquende, this court has jurisdiction in this matter, the trial court did not err in denying [Defendant's] Motion to Suppress Evidence.” As to  FOR FURLICATION 18 WEST’ § HAWAI'T REPORTS AND PACIFIC REPORTER'*# the prosecution's first response, we believe jurisdiction may be exercised in this case.* As to Defendant's appeal and the prosecution’s second response, we vacate the court's order denying the motion to suppress. The court's relevant findings are as follow: 1. On June 16, 200¢, at approximately 1830 Hours, iaiele Bi just south of the Entersection of Noxulele fighway and Mehaweha Loopy 2. Officer Corres has been employed with the Mau Police Department for twelve years and 18 currently assigned the traffic aivision; 3. Geticer Correa vas formerly a mesber for the DUI +n district court criminal cases, “[a)ppeals upon the record shall bbe allowed from all final decisions and finel judgnents.” ARS § 641-12 (1993). (T]he notice of appeal shall be filed in the aiserict =. court within 30 days after the entry of the judgment or order appealed from.” WAAP 1b) (1. °A Judguent or order 1s entered within the meaning of (HRAP fib) (2)) when dt 4a filed with the clerk of the court.” RAP €(D) (3) ‘The “Notice of Entey of dudgnent” fled by the district court clerk on February 18, 2008 constitutes the written judgment on Defendant’s Conviction that is appealable pursuant to ARS § 661-12. The denial of the Retion te suppress evidence is reviewsble on appeal from the February 1 Sodgment. pursuant to REP 11(3) (2). ‘The notice of appeal filed by counsel on June 9, 2008 was filed nore than thirty days after entry of the February 18, 2005 judgment and vas Untimely. However, in criminal cases governed by HRAP 4(b) (1), we have made enceptions to the requirenent that the notice of appeal be timely filed.” One Fecognized exception chat wo apply here excuses the failure to timely file a hotice of appeal when untimely filing was the result of counsel's failure to Competently pursue the defendant's first appeal from s criminal conviction Beate v. EAsgne, 60 Hawai't 318, 323-24, 909 P.2d 1133, 1138-39 (1996) (citing Skate. Erwin, 87 aw. 268, 584.24 236 (1976)) "The prosecution’ argues on appeal that ‘because Defendant failed to properly perfect his notice of appeal when he indicates that he was appealing Fron a March 18, 2005 "Notice of Entry of Judgrent and/or Order and Plea/dudgment™ instead of the February 18, 2005 "Notice of Entry of Judgment," and incorrectly stated that his appeal was brought pursuant to ARS § GéI-11 (2993) whieh pertains to criminal appeals fron a circuit court, this court lacks Jurisdiction. We have stated that "es mistake in designating the ‘2008 judgment... . should got result in loss of the appeal as long as the intent Eo-aposa) tions specific iudonent can be fairly inverse {rom the notice and Hie anoeliee 12 not misled by the aistake.~ State v Bohannon, 102 Hawes 22s, 235, 1¢ 2-34 560, S67 {2003} lunternal quotation marks and citation ‘nitted) (emphases in’ original). Therefore, inasmuch as the prosecst lon has pot argued that it wos misled by Defendant's error, and Lt was evigent as to eich Judgment Defendant was appealing from, we are not divested of appella Jurisdiction: ‘S*4FOR PUBLICATION IN WEST’ S HAWAI'T REPORTS AND PACIFIC REPORTER*#* Task Force unit for four years; 4. “officer Correa has participated in approximately 50 intoxication checkpoints, 5. Officer Correa estimated that he has been assigned car” position spproximately 20 cane: ‘Officer Corres indicated that be has effected appcoximately 40 stops of cara that attempted to avoid the ‘Antoxication checkeoint; ee Tiat in every case the individual avoiding the Antoxication checknoint as either intcxicated or was Siglabing she_law in sone other wav such as. not having suranse or P havine ‘utstanding warzent; ithe intoxication checknoint was in place to stop vehicle's traveling southbound on Hokaiele-Hahway ince unexical pattern to check for sions of intoxication; Officer corres was stationed Test north-of the I.” Brivers approaching ene intoxication checkpoint wore made aware of the impending checkpoint by two four foot by four foot, fluorescent orange, diancnd shaped, signe with the words “INTOXICATION CHECKPOINT” in Black, block letters TI, These signs were positioned approximately five hundred feet and two Rundred and fifty fect from the Checkpoint respectively and facing all southbound traffic; 32, The intoxication checkpoint itself was s.luminated by a large portable lighting tower with several high powered Halogen lights llunineting the intoxication checkpoint 130 ‘Approaching traffic was directed by = flag officer equipped with reflective vest, white gloves, and a flashlight with a'red, plastic, cone over the {iluminated portion of the flashlights Ty Officer Correa observed a 2004, sliver, Ford, Mustang, ‘convertible, bearing state of Hawai'i 1icense Plate unber MLX-761 (target vehicle) traveling southbound towards the intoxication checkpoints 15. Officer Correa observed the target vehicle to pags the two four foot by four foot diamond shaped signs Sescribed abover 16, “Officer Correa observed the target vehicle to effect a right turn onto the Mehaneha Loop after it had Passed both of the above described signs but before reaching the flag ofticer for the Intoxication checkpoint: 1). officer Correa indicated that the above mentioned tower Lighting and flag officer were fully visible trom the intersection of Mokulele Highway and Mehaneha Loop; te. tole ie tur hat hs signet observe a suspicious driving pattern as the tars vehicle approached on Motulele Hlahway, or thereafter, and 15, Officer Corres. testified that Metamehs Loop is approximately @ quarter of s mile long which tersinates with a'bright yellow, pipe metal, gate blocking the roadway? 20." Mehaneha Loop is’ surrounded on both sides BY sugarcane fields: 21. “Officer Correa indicated that the only structure located on Mehaneha Loop ie the animal shelter which was not open for business at the tine of the incident, ‘se4foR PUBLICATION IN WEST" RAKAI'T REPORTS AND PACIFIC REPORTERS 22. Officer Correa testified that after he cbserved the target venicle turn down Mehameha Loop he inmediately furnea down Mchansha Loop and began closing the distance between himself and the target vehicle; ‘Bar Officer Correa indicated that he did not turn on his energency lights and/or siren at that time; 34, ofticer Corres testified that he observed befendant to past the entrance to che animal shelter and Continde driving toward the metal gate 25. Officer Correa testified that he could see the etal gate from his position behind the target vehicle, that there are no further structures. located on the Mehameha Loop, but that the target vehicle did not appear to be Changing course of speed and continued driving toward the oat 26. Officer Correa indicated that after the target vehicle passed the entrance to the aninal shelter without making any attempts to turn he activated his emergency Lights and effected » traffic stop: 21. Upon making the stop Officer Correa observed (Defendant) te be the operator of the vehicle; 28. Ofticer Corres testified that he did not observe filer tothe stop, 29. Officer Corea testified that the sole reason for ck? SO. ofticer Correa testified that he was not ofticially part of the roadblock as he was assigned to park before the rosdblock and be a “chase cary” meaning thst he aa to pursue cars which tried to avoid the rosdblock (Emphases added.) The court’s relevant conclusions of law are as follows 8, The atop of Defendant w: authority of = warrant, 5 spen they [ei = conducted without the Td, Where intoxicated drivers are allowed to avold checkpoints by turning around and returning the way they Sane that the public's safety ia still at risk and the purpose of the checkpoint is not set. See State v. Forman, S27's.8.24 921 924 (N.C. 2001). Lis When the stop occurred after Defendant passed exo signs announcing the impending intoxicstion checkpoint, turned down an isolated, gated, dead end road surrounded by sugarcane, with only ong structure to be found on the road, Just prict to reaching the fiag officer where Defendant night be stopped, and (DJefendant passed by the only entrance to the only structure on the roadway, and based on Ofticer Correa’ s training and experience, that the officer Sid have reasonably articuleble fects which would warrant a tan of reasonable caution to harbor a reasonable suspicion. that criminal activity was afoot. See ad. stave w Thill, G0 NW.24'66, 87 (9-0. 1991}; Seeinbeck v, Commonwealth, -10- ‘+4708 PUBLICATION IN WEST’ § HAWAI'I REPORTS AND PACIFIC REPORTER*#* BE2 S.m,26 922, 913-16 (Ky. Ce. App. 1993) 12. Based upon all’ the findings of fact, supra, the (clourt finds that the [prosecution] has met ita burden of proof and shown that Officer Corres’ e stop of the Defendant's vehicle fell within one of the exceptions to the warrant requirement of the Fourth snd... . Fourteenth United States Constitution, and Article 1, Hawais State Constitution, ‘ACCORDINGLY, IT 18 HERESY ORDERED that the Defendant's Notion to Suppress Evidence is denied. (Emphasis added.) (Capitalization in original.) vt. The subject stop of Defendant's vehicle violated article I, section 7 of the Hawai'i Constitution which protects “[t]he right of the people to be secure in their persons . against unreasonable . . . seizures and invasions of privacy[.1” This court has held that “(a] stop of a vehicle for an investigatory purpose constitutes a seizure within the meaning of the constitutional protection against unreasonable searches and seizures.” State v. Bolosan, 78 Hawai'i 86, 92, 890 P.2d 673, 679 (1995) (citing Kernan v. Tanaka, 75 Haw. 1, 37, 856 P.2¢ 1207, 1225 (1993)). “A warrantless seizure is presumed invalid and, thus, unreasonable,) ‘unless and until the prosecution proves that the . . . seizure falls within a well-recognized and narrowly defined exception to the warrant requirenent./” Eleneki, 106 Hawaii at 180, 102 P.3d at 1078 (quoting State v Brendergast, 103 Hawai'i 451, 454, 63 P.3d 714, 717 (2004)) (emphasis added) (citation omitted). As observed in Eleneki, a “narrowly defined exception to the warrant requirenent .. . is that a police officer may stop an autonobile and detain its occupants if that officer has a ‘reasonable suspicion’ that the ae ‘S++7OR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER'** person stopped was engaged in criminal conduct.” Id. (quoting Prendercast, 103 Hawai'l at 454, 83 P.3d at 717 (citation omitted)) (internal quotation marks omitted) (emphasis in original) . Delaware v. Prouse, 440 U.S. 648, 661 (1979), established that highway stop must be based, at the minimum, on specific and articulable facts of criminal activity. wuse to believe that 2 driver is Violating say one of the maltitude of applicable traffse and equipment regulations ~ or other articulable that the driver is unlicensed oF his ‘Senicle unregistered ~ we cat ing any other. This tine of standardiess ind unconstrained discretion if the evil the Court has Giscerned when in previeus cases it has insisted that the ‘retion of the official in ehe field be circumscribed, at Yeast to sone extent, (Citing Almeida-Sanchez v, United States, 413 U.S. 266, 270 (1973); Camara v. Mun, Court, 387 U.S. 523, 532-33 (1967).) (Emphases added.) (Footnote omitted.) ‘Thus, it was held that a stop without “at least articulable and reasonable suspicion” violated the constitutional prohibition against unreasonable seizures: Je nolé that except in those situations in which there Le, that _= Rotorist is unlicensed oF that an autonobile 1s not Fegistered, or thet either the vehicle or an occupant is Ctherwise subject to seisure for violation of law, stopping an avtonebile and deteining the driver in order to check his Griver’s license and the registration of the automobile are Gnressonable under the Fourth Anendnent Id. at 663 (emphasis added). Under Prouse, then, individualized suspicionless stops are prohibited unless “articulable and reasonable suspicion” exists which indicates the presence of n12-  ‘*4FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER’ criminal activity. Id, rouse explained that “{t]he essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of ‘reasonableness’ upon the exercise of discretion by government officials, including law enforcement agents, in order ‘to safeguard the privacy and security of individuals against arbitrary invasions[.]'" Id, at 653-54 (quoting Marshall v. Barlow's, Ince, 436 U.S. 307, 312 (1978) (citation omitted) ). Subsequently, in Terry, the Court held that in order to justify an intrusion on the constitutionally protected interests of a private citizen by a police officer, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." 392 U.S. at 21, The Court declared that the facts of a case must be judged against an objective standard, ise,, “would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken w. appropriate(,]" . . . (because if} simple good faith on the part of the arresting officer . . . were the test, the protections of the Fourth Anendnent would evaporate, and the people would be secure in their persons, houses, papers and effects, only in the discretion of the police.” Id. at 21-22 (internal quotation marks, footnote, and citations omitted) . Exouse observed that “[a]n individual operating or traveling in an automobile does not lose all reasonable -13- ‘+*F0R PUBLICATION IN WEST! § HAKAZ'T REPORTS AND PACIFIC REPORTER: expectation of privacy simply because the automobile and its use are subject to government regulation.” 440 U.S. at 662. Thus, the Court noted that, “[als [Terry] recognized, people are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalks . . . [, nJor are they shorn of those interests when they step from the sidewalks into their automobiles.” Id, at 663 (citing Adams v. Williams, 407 U.S. 143, 146 (1972)). Hawai'i has adopted the Jerry reasonable suspicion test on independent state constitutional grounds and applied it to traffic situations. See State v. Kim, 68 Haw. 286, 290, 711 P.2d 1291, 1294 (1985) (holding that “under article I, section 7 of the Hawaii Constitution, a police officer must have at least a reasonable basis of specific articulable facts to believe a crime has been conmitted to order a driver out of a car after a traffic stop”). Thus, the principles of Prouse as they apply to vehicle stops on public ways rest on independent state constitutional grounds afforded by article I, section 7. See Powell, 61 Haw. at 320, 603 P.2d at 147 (noting that “stopping an automobile and detaining its occupants constitute a ‘seizure’ within the meaning of the Fourth Amendment to the United States Constitution and [article 1, [section 7 of the Hawaii Constitution, even though the purpose of the stop is limited and the resulting detention is ode ‘S*A7OR PUBLICATION IN WEST’ S HAWAI'I REPORTS AND PACIFIC REPORTER*®# brief” (footnote and citations omitted)).” In regard to highway stops, then, “‘the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Eleneki, 106 Hawai'i at 180, 102 P.3d at 1078 (quoting Prenderaast, 103 Hawai'i at 454, 83 P.3d at 717) (citation omitted). Accordingly, as mentioned before, a vehicular seizure or stop based on reasonable suspicion must be “tied to ‘some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity(.]/” Ad. (quoting Cortez, 449 U.S. at 417). Such a reasonable suspicion “must be present before a stop[,]” in order for the stop to be permissible. Cortez, 449 U.S. at 418 vit. ‘The findings of the court and the evidence before it conclusively established that Defendant was stopped without reasonable and articulable suspicion that he was operating a vehicle under the influence of alcohol. The totality of the circumstances, measured by an objective standard, must indicate that criminal activity is afoot. See Prendergast, 103 Hawai'i at 454, 83 P.2d at 717 (citing United states v Arvizu, 534 U.S. 266, 273 (2002)) (“When discussing how reviewing courts should \ Accordingly, the analysis in this opinion is grounded in article Ty section 7 of the flawai'i Constitution. See Bichigan w. Lona, 463 ve 1032, 1039 n.4 (1983) "(stating that, "where the Judgment of a state court upon tho grounds, one of which is federal and the other non-federel in jeter, uF jurisdiction fails if the non-federal ground is independent of the federal ground and adequate to support the Judgment” (quoting fax Film Sore es Mudler, 296 0.8, 207, 210 (1995))) a15- s+470R PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER'*# make reasonable-suspicion determinations, we have id repeatedly that they must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has 2 sparticula: nd_objectiv ‘ uspecting 1 wronadoing.”); (citing Barnes, 58 Haw. at 338, $68 P.2d at 1211 ("The ultimate test in these situations must be whether from these facts, measured by an objective standard, a man of reasonable caution would be warranted in believing that criminal activity wa and that the action taken was appropriate.” (emphasis added.)). Under this objective standard, Officer Correa did not possess “specific and articulable facts” before the stop giving rise to a “reasonable suspicion” that Defendant was at the time breaking the law, here, operating a vehicle while intoxicated. See Eleneki, 106 Hawai'i at 180, 102 P.3d at 1078. ‘The court’s undisputed finding no. 18 is that “Officer Correa . . . did not observe a suspicious driving pattern as [Defendant’s} vehicle approached [the checkpoint], or thereafter, [or] that the turn (made by Defendant] was effected in an illegal manner[.]” (Emphasis added.) The court's undisputed finding no. 26 is that “Officer Correa testified that he did not observe any traffic violations with regard to [Defendant’s| vehicle prior to the stop.” (Emphasis added.) The court's undisputed finding no. 29 is that “Officer Correa testified that the sole reason for and experience, he felt that he had a reasonable suspicion to n16-  ‘*+4F0R PUBLICATION IN WEST’ § HAMAI'T REPORTS AND PACIFIC REPORTERS roadblock.” (Emphasis added.) In sum then, Officer Correa did not observe Defendant driving in a suspicious manner or commit any criminal or traffic violation in the operation of his vehicle. Defendant made a legal right turn onto a paved roadway. Apparently the turn was not made erratically, and his headlights were on. Furthermore, even as Officer Correa followed Defendant, he did not observe Defendant driving suspiciously or in an erratic manner. Accordingly, Officer Correa had no basis to have a reasonable suspicion thet criminal activity was afoot.* Viewed in its best light, then, the only suspicion officer Correa had was that Defendant was attempting to avoid a roadblock, not that he was driving under the influence of an intoxicant.* The mere possibility of criminal activity does not satisfy the constitutional requirement that @ stop be based on suspicion “that criminal activity was afoot,” Trainor, 83 Hawai'i at 258, 925 P.2d at 826 Barnes, 58 Haw. at 338, 568 P.2d at + vefendant argued that he 1e not from Mavi and was driving a rental car, and that Officer Correa testified that Defendant informed hin that Defendant was lost. + Because the dissent cites to Murphy v, Commonwealth, 304 8.8.24 125 (Va. Ct. App. 1969) in support of its decision, we discuss it. Se dissent at i9 n.3. However, in that case, the Virginia Court of Appeals ‘Soneluded that ‘the act of a _driver in making a lawful siaht turn 250 feet before a rosdbiock dose not give tise to-a reascnable suspicion of erimina a he ariver" duit as sf erininsl activity 36¢ S-E-20 at 122 (extations omitted) emphasis accea). Likewise, in this case, Defendant's Hight turn 250 feet before the roadblock dig not give rise toa reasonable Suspicion of criminal activity. Gee id. Defendant's turn was not ulth*any “behsvior which independently raise[d) suspicion of criminal activity,” for Lt cennot be said that laxfully driving down a road fedependently raises suspicion of efininal activity.” Id, (emphasis added) -17- ‘s+4F0R PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER*® 1211, or that “legal wrongdoing” was taking place or about to take place, Prendergast, 103 Hawai'i at 454, 63 P.2d at 717 (citation omitted). Manifestly, the fact that Defendant exhibited signs of intoxication after the stop does not retroactively justify the stop. See, @.0., State v. Kido, 109 Hawai'i 458, 462, 128 P.3d 340, 344 (2006) (stating thet “[iJndeed, prior decisions of this court confirm that subsequent events can neither support nor invalidate the existence of probable cause at the time of the search or seizure” and that “(tJhis court has held that subsequent events cannot justify a search or seizure if probable cause was lacking at the time search or seizure was conducted” (citation omitted) (emphasis in original)); State v. Maldonado, 108 Hawai'i 436, 445, 121 P.3d 901, 910 (2005) (noting that “*{a]ssuming an unreasonable search or seizure, any evidence derived therefrom is inadmissible in a criminal prosecution, and a conviction obtained thereby must be reversed’ (quoting state YaWallace, 80 Hawai'i 382, 393, 910 P.2d 695, 706 (1996))); State v. Phillips, 67 Haw. 535, 541, 696 P.2d 346, 351 (1985) (adopting the rule that “{a] search is not to be made legal by what it turns up” and that @ search “is good or bad when it starts and does not change character from its success” (internal quotation marks and citation omitted)): Kim, 68 Haw. at 290, 711 P.2d at 1294-95 (ruling that “[a]n invalid search or seizure is -18-  “*AFOR PUBLICATION IN WEST'S HAWAI'T REFORTS AND PACIFIC REPORTER®* ——— not subsequently validated by what it produces” (citation omitted) ) « vir. The stop involved herein, then, did not fall “within a well-recognized and narrowly defined exception to the warrant vequirenent,” Eleneki, 106 Hawaii at 160, 102 P.3d at 1078 (internal quotation marks and citations omitted), and thus violated the proscription in article I, section 7 of the Hawai'i Constitution against unreasonable seizures. The court's ruling, then, subverted the reasonable suspicion standard because it authorized a stop based on non-criminal activity. Hence, the ruling would abrogate the “reasonable and articulable” suspicion standard by allowing stops on suspicion of conduct having nothing to do with criminal activity. rm. Indeed the majority of other jurisdictions have held, based on the facts presented, that it is not permissible to pursue end detain drivers of motor vehicles appearing to legally avoid sobriety checkpoints." See Howard v, Voshell, 621 A.2d the dissent cites to state vy. Till, 474 N.W.2d 86 (S.0. 1981), and quotes from the following past Notwithstanding the general freedom to avoid police confrontation, we find the avoidance of the police roadsiock in this instance’ was sufficient to ereste an srticulebie and Feasonable suspicion of criminal activity. Automobiles and their Use on state roads are the subject of significant stare regulation (guau(,1 licensing, registration). This fact distinguishes the gases relied upon in [state v, Talbot, 192 P.24 489 (Uteh Ct. App. 1990) ], the majority Of which Involved pedestrians, ‘And while people’are not shorn of their Fourth Anendment. protection when they step from the sidewalks into their automobiles, Brouse, 440 (cont ined. n19- ‘*A7OR PUBLICATION IN WEST’ S HAWAI'I REPORTS AND PACIFIC REPORTERI# 804, 807 (Del. Super. Ct. 1992) (stating that, “[a}e to the general issue of avoiding police confrontations, [tlhe ma of jurisdictions which have addressed the issue of flight have held that the mere act of avoiding confrontation does not create an articulable suspicion” (emphasis added)); People v. Bigger, 771 N.Y.8.24 826, 831 (N.Y, Just. Ce. 2004) (holding that a police officer lacked objective articulable reason to stop defendant's vehicle on ground that defendant turned around in attempt to evade sobriety checkpoint, where officer was not part of sobriety checkpoint detail, there was no written established procedure for stopping motorists who appeared to be evading sobriety checkpoints, and defendant was driving his vehicle in no apparent violation of any law; Commonwealth v. Scavello, 734 A.2d 386, 388 (Pa. 1999) (noting that, where “there is no requirement that a driver go through a roadblock[, fJailing to go through the (- -eontinved) nS. at 663, their actions on the road become subject to increased state cegulation and restriction. Consequently, actions taken on the Toad, the character of which would be innocent in another context, ‘nay well give rise to an articulable snd reasonable sospicion of 2 violation of the law respecting the use or Gwnership of an automobile 474 W.W.24 at 88 (emphasis added); dissent at 23. However, Zroute said, “An individual operating or traveling in an automobile does not Tose all reasonable expectation of privacy Sas? 440 U.8- ‘Tail sisstates grouse in attempting to distings Liculable suspicion” as relating only to pedestrian traffic. 792 P.2d at 495-94 (citations omiteed). Instead, Erouse pointed out that “(n]any’people spend more hours each day traveling in cars than walking on the streets. Ondoweedly, Se securie v snc x7 OF other modes Sf travel.* 440 0-5. at 662 Tenphasie added). hue, Erouse did not draw « Gistincticn between the requirenents for pedestrian, as opposed to vehicle seizures, that Thill seeks to make 20" **4FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER*#* roadblock in and of itself . . . provides no basis for police intervention” (footnote omitted) ); Talbot, 792 P.2d at 493-94 (recognizing that “[t]he majority of jurisdictions which have addressed the issue of flight have held that the mere act of avoiding confrontation does not create an articulable suspicion” (citations omitted). x. Additionally, as noted previously, it has been expressed that “(t]he majority of jurisdictions which have addressed the issue of flight have held that the mere act of avoiding confrontation does not create an articulable suspicion.” Talbot, 792 P.2d at 493-94 (citing Hinton v, United States, 424 F.24 876, 879 (D.C. Cir. 1969) (ruling that “flight [is not] a reliable indicator of guilt without other circumstances to make its import less ambiguous”); People v, Thomas, 660 P.2d 1272, 1276 (Colo. 1983) (en banc) (stating that “an effort to avoid police contact, by itself, is insufficient to support a stop”): Ince Did, 532 A.24 138, 141 (D.C. Cir. 1987) (observing that the defendant “merely attempted to walk away, behavior indicative simply of a desire not to talk to police” and that “(nJo adver: inference may be drawn from such a desire”); McClain v, State, 408 So. 24 721, 722 (Fla. Dist. Ct. App. 1982) (noting that defendant's “behavior which, taken for its most insidious implications, indicated only that he wanted to avoid police, land) could not give rise to a reasonable suspicion that he was -21- sespoR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER*#* engaged in criminal activity"); Beople v. Fox, 421 N.B.2d 1082, 1086 (111. App. Ct. 1981) (stating that “the mere fact that the vehicle drove away at the approach of a squad car does not serve as a justifiable basis for conducting a Jerry stop"); State Hathaway, 411 So. 2d 1074, 1079 (La. 1982) (ruling that “[e]ven where flight . . . reasonably appear[s] designed to avoid apprehension, reasonable cause will not arise unless flight” is coupled with other indicia of criminality); People v. Shabaz, 378 W.W.2d 451, 460 (Mich. 1985) (determining that flight “does not alone supply the particularized, reasoned, articulable basis to conclude that criminal activity [is] afoot”)). See also Little ve State, 479 A.2d 903, 906 (Md. Ct. App. 1984) (noting that pursuant to Maryland's policy regarding intoxication checkpoints, “[a] motorist wishing to avoid a sobriety checkpoint may make @ u-turn or turn onto a side road prior to reaching the roadblock” and that “{nJo action is taken against a driver doing so unless the motorist drives erratically”); State v. McCleery, 560 N.W.2d 789, 793 (Neb, 1997) (concluding that the police officers did not have a reasonable suspicion to stop the defendant’s car solely because she appeared to be evading an intoxication checkpoint in Light of Nebraska’s adherence to “The Use of Sobriety Checkpoints for Impaired Driving Enforcement,” (Nov. 1990) of the National Highway Traffic Safety Administration (NHTSA) (hereinafter, the Guide], which provides that “[a] motorist who wishes to avoid the checkpoint by legally turning before (entering) the checkpoint -22-  '+FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER**: area should be allowed to do so unless a traffic viclation(s) is observed or probable cause exists to take other action"). There are a multitude of reasons for making a turn similar to the present case as pointed out by other jurisdictions, See Bass v, Commonwealth, 525 S.£.2d 921, 925 (va. 2000) (stating that “(t)he reasons for which a driver may the dissent states that there is a “aplit on whether avoiding roadblock or checkpoint alane creates sufficient Feason for a traffic seep.” Dissent at 6 (quoting S16 S.W.2d 462, 464 no (Ho. Ct. App. 1996})- Conversely, we observe that the view that avoidance of a roadblock or checkpoint can provide the sole basis for 2 treftic stop appears fo be a distinctly, In Oughton, the Missouri court of Appeals based its conclusion that “(t]he majority position appears to be that Such avoicance can provide the ggle basis for such a stop" on seven cases: Sie s.w.2a at 46¢ m2 (citing 2 /788'S.We2d 873" (Ark. Cts ABB. 1988); Smith v. State, 515 So. 24 1¢9 (Ala. crim. App. 1987); Suyder v, state, 338 Nie, 26 961 find. Ce. App. 1989); Steinbeck, 862 §.W.2a 912; Boones ye State, 506 So. 2d 254 (lise. 1987); Theil, ¢7¢ NuWe2d Be; Commonwealth, "270 8.8.24 72i (Va. Ct. App: 1988) (emphasia in original) . However, at ieast five of these seven cases do not support such a conclusion, and the renaining two would not constitute @ majority. Th Sth, Snyder, Steinbeck, ‘Phill, and Sixoud, there were facts in addition to the avoidance of the roadblock or checkpoint which gave rise to Feagonable suspicion for the stop. See §aith, 515 So. 2d at 180 (the officer observed the driver avoid the roadblock, and turn rapidly into « private driveuay, stopping fifty feet from the front dost, and turning off his Lights bat not his engine wnile renaining in the car); Souder, S38 Nvec2d at 965266 (concluding that the officer's “experience gave him specific and articulable fects and inferences drawn therefrom to form a reasonable suspicion that, [the river] was committing a crine” but that "a driver who simply turns off the Yoad before entering the roadblock may not give rise to a reascnable suspicion, unless coupled with other articulable facts such as erratic driving or traffic violations”); Stainback, 862 8.W.2d at 14 (concluding that the driver's “turn away fron the sopriety checkpoint, coupled with the cepucy sheriff's experience in similar instances, the time of day, and the nature of the roadway onto which the appellant turned, const itute(a}’ specific, reasonable, and articulable facts which allowed the police officer to draw an inference sufficient to form a reasonable suspicion that the driver aight have been engaging in criminal activity"); Thill, 474 N.W.2a at 86 (concluding that the driver's “turnabout at the entrance of the roadblock and his subsequent circuitous route constituted a reasonable suspicion that [the driver] was in violation of the law respecting the use or omnership of an autonobiie")? Stroud, 370 9.£.2¢ at 723. (concluding that based on the officer's "eleven years’ experience with the state police, [the driver's] action in avoiding the Foadblock indicated that he was probably Unlicensed or otherwise in violavicn of the law"). Te would be inaccurate to say that the remaining two cases cited fo by the Quahten court, Coffman and Boches, are sufficient to support =. “najority rule.” Accordingly, we reject the conclusion in Qughtan chat "(t}he najority position appeers to be that such avoidance can provide the gole Haase for such a stop.” 916 S.W.2d at 464 n.2 (eaphasis in original) 236 FOR PUBLICATION I MEST’ S HAWAI'I REPORTS AND PACIFIC REPORTERS#* reverse direction other than to evade a traffic checkpoint are legion in number and are a matter of common knowledge and experience”). It has been observed that “citizens will avoid contact with police for reasons other than fear of being caught for a crime they have committed” and that “[a] completely Annocent person may wish to avoid the delay which a discussion with police may entail; others have a fear of police authority: still others resent and seek to avoid the ‘hassle’ of a stop which lacks any basis." Talbot, 792 P.2d at 494 n.11." A. With respect to the court’s reference to Officer Correa's experience with forty or so previous stops, the following has been stated: The fact that [the officer's) observation of [the motorist] gave rise to no nore than an unparticularized suspicion oF basedon hin training and experience. State v. Roberson, 592 $.£.2d 733, 737 (N.C. App. 2004) (internal quotation marks and citations omitted) (emphasis added). Here, Officer Correa did not possess any reasonable or articulable basis to support a stop based on Defendant making a lawful turn onto Mehameha Loop. 4 the dissent’s totality of the circumstances analysis, sen dis at 16, proves that, as known to the officer, no illegal activity tock place Tt ighores the fact that the sane pre-stop clrcunstances can be explained by Snnocent behavior av recognizes by other Jurisdictions and would net amount to objective reasonable factors indicating criminal activity. -24- ‘ATOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER*#* This is not a case where erratic driving behavior or an infraction of a traffic rule was observed prior to the stop. Here, it is immaterial that “in every case (wherein officer Correa effected approximately forty stops] the individual avoiding the checkpoint was either intoxicated or was violating the law in some other way such as{} not having a vehicle insurance or [a] driver[")s license or having an outstanding warrant[,]" as the court found in finding no. 7, Because an objective basis for the stop was absent, no legal grounds existed for the stop and what was subsequently discovered cannot validate it. See, e.a., Phillips, 67 Haw. at 542, 696 P.2d at 351. The stop therefore vas unlawful. B. ‘The dissent proposes a multi-factor test in support of the proposition that, taken together, “the evidence establishes sufficient specific and articulable facts upon which to base a reasonable suspicion that [Defendant] avoided the checkpoint to evade arrest or detection.” Dissent at 16. The factors the dissent points to are (2) the motorist’ s distance from the rosdblock when the turn or U-turn was made; (2) whether the motorist was able to see the roadblock before he or she took evasive action; (3) the snanner in which the motorist operated his or her vehicle in making the evasive action; (4) the arresting officer’ s experience; and (3) any other circumstances that would Indicate the motorist wes intentionally avoiding the roadblock to evade arrest oF detection: Dissent at 6-7, However, the factors identified by the dissent fail to provide any objective guidance as to the reasonable suspicion standard in the context of this case. =25-  ‘**4FOR PUBLICATION IN WEST’ S HAWAI'T REPORTS AND PACIFIC REPORTER® 1 First, all of the cases that the dissent cites to in its factor analysis acknowledge that in sone form or another, “a legal turn [before a roadblock], by itself is not sufficient to establish a reasonable, articulable suspicion.” State v. Foreman, 527 $.£.2d 921, 923 (N.C. 2000)." Although the court in Binion concluded that “where a motorist acts to avoid a roadblock, such action may by itself constitute reasonable suspicion that a criminal offense has been or is about to be committed(,]" it also determined that whether reasonable suspicion exists must be determined from a “totality of the circumstances on a case by case basis” and that “the lawful turn without more does not give rise to reasonable suspicion.” 900 S.W.2d at 703, 705, 706 (emphasis added) . In that case, where the driver executed a legal U-turn 1000 feet before the roadblock the court held that reasonable and articulable suspicion did not exist. id, at 706. That court also noted that “it was significant that the roadblock was not ‘controlled’ in that approaching drivers could avoid the sen lao Pooler vs Motor Vehicles Divs, 746 P.24 716, 718 (Or, Ct app. 1987) (holding that @ Tegal U-turn before @ Tosdblock does not by itself Constitute reasonable suspicion) 602 A.2d 1328, 1335 ‘Sommonwealth x. Meta, (Pa. Super. Ce. 1992) (holding that a motorist™s avoidance or attempt to avoid a police checkpoint must be coupled with other facts in order to provide s Police officer reasonable suspicion)? State v. Binion, 900 $.w.2d 702, 703 (Tenn. Crim. App. 1994) (stating that “the lawful turn without more does not give Sehe {o reaaonable suspicion”); Wurphy, 384 8.8.24 at 128 (stating that of « driver aking @ lawfel right turn 350 feet before s roadblock fot give fise tos reasonable suspicion of criminel activity unless the Jr's turn or action is coupled with other articslable such as jc driving, a traffic violation, or sone behavior which independently Talses suspicion of criminal activity" (citations omitted) )~ 26+ ‘s++f0R PUBLICATION IN WEST'S HAWAI'I REFORTS 28D PACIFIC REPORTER*#* roadblock by making safe, legal U-turns.” Id. Like the defendant in Binion, Defendant made a lawful turn prior to reaching a roadblock that was not “controlled” and which drive could avoid by making safe, legal turns. Briefly, with respect to factor (1), “the distance from the roadblock” is not really one factor. Most of the cases cited by the dissent support @ finding of no reasonable articulable suspicion, while the cases that do not do so are distinguishable." The dissent quotes United States v, Lester, which states, “Conversely, the closer a motorist is to a roadblock when he or she turns, the more objectively reasonable it may be to infer the turn was made out of a conscienceness of guilt.” 148 F. Supp. 2d 597, 603 (D. Md. 2001); Dissent at 9. However, in that case the court determined that “a per se rule + + has no place in Fourth Amendment jurisprudence.” 148 F. Supp. 2d at 603. Rather, the law dictates that the iclourt should examine the specific facts of the case to determine whether [the officer] had reasonable suspicion to justify the vehicle stop based on the totality of the circumstances.” Id, at 602-03 (emphasis added). Neither the specific facts pointed to * Soe State v, Powell, $91 A.24 1306, 1308 (He. 1991) (holding that Suspicion GF crsninal activity anere « motorist corned around as much as 2100 TSttal"taen nace 1000 fest Before: rondblock aid net give fise fo" ressomble suspicion of criminal activity); Zalbot, 792 P.2d at 489 (determining that avoiding a roadblock dig not create articulable suspicion); Baas, S28 8.6.24 St 325 {nolaing there was no reasonable suspicion to stop a actorist’”s vehicle here he meses legel U-turn about 500 feet from the roadblock) -27-  FOR PUBLICATION I WEST’§ HAWAI'T REPORTS AND PACIFIC REPORTE in Lester or the “totality of the circumstances” to support onable articulable suspicion were present in this case As to factor (2), notice of the roadblock, it is immaterial “whether a notice was posted . . . [in order to determine] a driver's scienter of guilt.” Dissent at 9. Signs are meant to be seen and whether a motorist was cognizant of the sign does not objectively indicate guilt. As to factor (3), the motorist’s manner in operating his or her vehicle, provides no instruction at all. If the driver vere driving erratically or had comnitted a traffic violation there would be 2 justifiable basis for a stop, under established case law. If the driver was driving lawfully this factor is irrelevant. It is undisputed that Defendant was driving in a lawful manner prior to the stop. The dissent thus Lists this factor without applying it. As to factor (4), it is unclear how the arresting officer's experience is germane to the assessment of the reasonableness of the stop. Because the legitimacy of a stop must be based on objective criteria, it is the circumstances surrounding the stop that must be judged, irrespective of the officer's experience." ‘The dissent points to Steisbeck, 962 §.H.2d at 913, where it was every vehicle tnot tures theres". the driver has been drinking’ aleonod(.)* ithougn'the arivers’ had Been drinking, they wefe all dafued DUI citations or Stinaing:, aes aw.ae av S1zs “Porchers Stticer Correc’s enpertencer of Course, wes not the same ae the officer in Steinbeck; the court's finding no. {cont inved. 28+  ‘*#70R PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REFORTE! The dissent’s factor (5) {s “any other circumstance() that would indicate the motorist was intentionally avoiding [a roadblock to evade arrest or detection.” Dissent at 7 (emphasis added). But this factor of “any other circumstance,” inculcates the very “kind of standardless and unconstrained discretion . [that was} the evil the Court . . . discerned when... it . insisted that the discretion of the official in the field be circumscribed, at least to some extent.” Prouse, 440 U.S. at 661. 3. Finally, as to all five factors, the dissent adopts the view that avoiding a roadblock is a sufficient basis for a stop.'* This is because all the dissent’s factors concern conduct resting on Defendant's purported avoidance of a roadblock. xr. This court has upheld DUI autonobile stops but only upon a totality of circumstances which support a reasonable suspicion that the driver was intoxicated. See, sau, State we Kaleohan, 99 Hawai'i 370, 378, $6 P.3d 138, 146 (2002) (ruling ¥(, continued} 7 Andicates that ot every driver stopped by Officer Core toa checkpoint hag been drinking. for turning prior “the dissent qualifies its position by characterizing Defendant! = facts as “intentionally evading arrest or detection” and, thus, ‘the dissent assumes the very fact in issue, See e.a., dissent at 5-6." To posit thet Defendant was avoiding “arrest” or “detection” presupposes that Defendant wos engaged in criminal activity. But the officers did not observe any objective arks of criminal conduct, and what was ciscovered after the stop Would not justity the stop. -29 “s++7OR PUBLICATION IN WEST’ § HAMAI'T REPORTS AND PACIFIC REPORTER*#* that police officer's observation that the “vehicle swerv(ed) within its lane of travel and cross{ed] over the solid double center line twice” was “sufficient to warrant an investigative traffic stop to determine whether [the defendant) was driving while impaired”); Kernan, 75 Haw. at 39, 856 P.2d at 1226 (holding that the “officer observed specific articulable facts that formed his reasonable belief that the crime of DUI was being committed” where the defendant was speeding and weaving out of his traffic lane and into the oncoming traffic lanes); Powell, 61 Haw. at 322, 603 P.2d at 148 (noting that the officer was able to articulate the basis of a stop, namely that the vehicle was “travelling at an abnormally slow rate of speed while repeatedly stopping and signaling prematurely at intersections[,]” and “the automobile hesitated for unusually long periods of time before negotiating turns in spite of a complete absence of vehicular traffic”); State v. Barricknan, 95 Hawai'i 270, 277, 21 P.3d 475, 482 (App. 2001) (holding that the defendant’s conduct in stopping his vehicle for three to five seconds and failing to follow the hand signals of an officer directing traffic, combined with the officer's observation of the defendant's glassy eyes and alcoholic breath, provided reasonable suspicion for an investigative stop). on the other hand, @ seizure and evidence therefrom have been invalidated in the absence of objective facts indicating that criminal activity was afoot. See, e.a., Eleneki, 30" ‘**FOR PUBLICATION IN WEST’ HAWAI'T REPORTS AND PACIFIC REPORTER To 106 Hawai's at 161, 102 P.3d at 1079 (ruling that police officers lacked reasonable suspicion to stop defendant where the officers had no reasonable basis to infer that person they were seeking would be an occupant of defendant’s vehicle because the subject person had been seen boarding said vehicle, defendant had been arrested for a drug-related offense, and officers were informed that defendant was a drug supplier); Trainor, 83 Hawai‘i at 259, 925 P.2d at 827 (affirming court's ruling that there was no reasonable suspicion to stop the defendant based on a drug courier profile where the characteristics in the profile “described an enormous set of presumably innocent travelers”); al Temple, 65 Haw. 261, 650 P.2d 1358 (1982) (holding that an anonymous phone call reporting defendant for stolen firearm offense was an insufficient basis to stop the defendant and, therefore, the conviction of the defendant and the order denying the motion to suppress were reversed); State v. Kupihea, 59 Haw. 386, 387, 581 P.2d 765, 766 (1978) (holding that defendant's crouching motion, without more, was insufficient to justify a stop, and the subsequent seizure of firearms was improper); state Meitulihee, 87 Hawai'i 487, 491, 960 P.2d 157, 161 (App. 1998) (holding that the evidence of defendant's DUI was illegally obtained where the officer lacked reasonable suspicion to seize the defendant). xIz. Assuming, arquendo, any doubt as to the application of “ne  /*FOR PUBLICATION IN WEST’ HAWAI'I REPORTS AND PACIFIC REPORTER*#* the reasonable suspicion standard, this case is resolved by article I, section 7 of the Hawai'i Constitution. ‘Though that section is like the Fourth Amendment, it has been established that “as the ultimate judicial tribunal with final, unreviewable authority to interpret and enforce the Hawaii Constitution, (the Hawai'i Supreme Court is] free to give broader privacy protection than that given by the federal constitution.” State v. Kam, 69 Haw. 483, 491, 748 P.2d 372, 377 (1988) (citations omitted); see also State v, Lopez, 78 Hawai'i 433, 445, 896 P.2d 889, 901 (1995) (stating that, “as the ultimate judicial tribunal in the state, this court possesses the final and unreviewable authority to interpret and enforce the Hawai'i Constitution” (citations omitted)) Significantly, this court has declared that, compared to the Fourth Amendment, article I, section 7 of the Hawai'i Constitution guarantees persons in Hawai'i a “more extensive right of privacy[.]" State v, Navas, 81 Hawai'i 113, 123, 913 P.2d 39, 49 (1996); see also State v, Dixon, 63 Hawai'i 13, 23, 924 P.2d 161, 191 (1996) (noting that “article I, section 7 of the Hawas'l Constitution provides broader protection than the [F]ourth [Almendment to the United States Constitution because it also protects against unreasonable invasions of privacy”); State va Tanaka, 67 Haw. 658, 661-62, 701 P.2d 1274, 1276 (1985) (“In our view, article I, § 7 of the Hawai'i Constitution recognizes ‘an expectation of privacy beyond the parallel provisions in the o32- ‘*47OR PUBLICATION IN WEST'S HAWAI'T REPORTS AND FACIFIC REPORTER*#* Federal Bill of Rights.”). Hence, it would be violative of the “extensive right to privacy” guaranteed by the Hawai'i Constitution for this court to permit seizures to occur on the basis of a suspicion that a motorist was avoiding a police confrontation by making a lawful turn. Unlike the exclusionary rule on the federal level, Hawaii's exclusionary rule serves not only to deter illegal police conduct, but to protect the privacy rights of our people. See Lopez, 78 Hawai'i at 446, 896 P.2d at 902. XIII. The logical corollary to the dissent’s rule, which penalizes a motorist for not going through a roadblock, is that motorists may be coerced lawfully into passing through one -- 2 proposition inimical to our constitution’s protection of the right of privacy ~~ to be free of individual suspicionless, and thus, unreasonable seizures. See also State v. Endo, 83 Hawai'i 87, 93, 924 P.2d $81, 587 (1996) (holding that article I, section 7 of the Hawai'i Constitution “requires that governmental Antiusion inte the personal privacy of citizens of this State be noareater in intensity than absolutely necessary” (citations omitted) (emphasis in original)). The dissent relies on citations to jurisdictions that have held that avoidance of an intoxication checkpoint is an articulable basis upon which to =33-  +7OR PUBLICATION I WEST'S HAWAI'T REPORTS AND PACIFIC REFORTER*** ee conduct a stop." However, not a single one of these cases relies on constitutional provisions that afford greater protection by way of an express right of privacy, as does Hawaii's constitution." The violative nature of the procedure followed by the police becomes apparent in the consequences resulting from these stops as evidenced by finding no. 7. As mentioned before, in finding no. 7 the court found that in Officer Correa’s forty stops, “the individual avoiding the checkpoint was either intoxicated or was violating the law in some other way such ae[] not having a vehicle insurance or [a] driver[’]s license or having en outstanding warrant." (Emphases added.) In cases where there was a violation “in sone other way,” such violation would only become apparent after the stop, confirming that in such instances the stops were made without reasonable suspicion » fag Diesent at 8-16 (citing Laster, 148 F. Supp. 24 597) Snudar, 530 N.z.24 961) Gheinbeck, B62 S.w.20 912; Quanton, 916 S.W.2d 462; Foreman. S21 Sifsod 921; Mhild, ¢74 N.w.24 86) Binion, 900 $.W.2d 2027 Stroud, 370 S2E.20 321; Commmmeaith v, Eaves, 408 S-£-24 $25 (Va. Ct. App. 1991), Mumohy, 364 8.8.24 125). % the dissent quote its proposition that "the effectivene: Feduced if motorists abe permitted co avoid then," dissent at 24, which Efates, in relevant part, sit is clear that the perimeters of the checkpoint Sethe area in which checks are conducted would include the area within which Grivers may become aware of its presence by observation of any sign marking or Giving notice of the checkpoint [,]” 527 9.E.20 at 324. ‘The question of whether a standard based Gn when “drivers will becone aware of a roadblock’ s presence” gives rise to unconstrained discretion sei x Would run efoul of cur State constitutional protection against Saressonable seizures; the requirenent that a vehicle stop be premised on Yeasenable suspicion indicates uch stop ig not a "minimal intrusion" a2 the Glasent contends, Dissent at 25, In any event, as Erouse and Sitz indicate, the Sninisal intiusion" "in combating intoxicated motorists,” dx, is Sccounted for by allowing non-discretionary enforcement at roadblocks even though no suspicion ef c¥ininal activity exists as to the drivers stopped. 527 §.£.24 at 924-25, in support of Of Intoxication checkpoints would be o34-  ‘s+4FOR PUBLICATION IN WEST’ § HAWAI'I REPORTS AND PACIFIC REPORTER* or probable cause of criminal activity, absent inculpatory pre- stop facts. Further, based on finding 7, it is evident that in such “other” cases, the drivers were not operating their vehicles under the influence of an intoxicant. Yet they were subjected to a stop that was not warranted under the constitution and under HRS §§ 291E-19 and -20. See infra. In effect, the police in this case set up an unauthorized checkpoint at which suspicionless stops were made in advance of the statutory roadblocks -- @ patent disregard of HRS 2916-20 (see the court's conclusion no. 9) and the heightened right of privacy protected by the Hawai'i Constitution. ip support of Ste “minimal intrusion” 2, dissent at 25, noe of which are germane, but are cl Unopposite: “State ve Ferseira, “968 P.2d'700 {idaho Ct, App: 1995), 12, supportive of the poaition herein. In that case, the idaho Court Gf Appeals Concluded that "the adainiatration of field sobriety teste following a tratfic Stop is but an investigative detention,” ig, at 706, and affirmed the Feasonable suspicion standard, stating, “Buch an investigative stop must be justified by some cbjective manifestation that the person stopped is) or $2 ‘about to be, engaged in criminal activityi.]" id at 705 (citations omitted) (enphesie addeayessthat court aotea that dela sobriety teste are reasonable nethods of conducting an investigation, based on ial.” Id. (enphasis addea) Therefore, Ferreira comports with our holding that the purported investigatory stop by the police violated article T, section 7 of the Hewaii Constitution insomuch se ie wag not supported by @ Feasonable and articulable suspicion that Defendant was engaged in criminal conduct egunent, the dissent cites ay » 15 F.3d 1233 (N.M. 2000), did not involve the reasonableness of ah investigatory stop on a public street and, therefore, is irrelevant. In Johnson, the Suprene Court of New Mexico considered "whether tthe Legislature intended to place geographical Limitation on the offense of Dur depending on the type of activity constituting the ‘driving’ of 8 venice,” di at 1295." the court held chat vthe State aay charge a person Who is in aetuel physical control of 8 a4 STG at 1aattenphasis-sdgeal i er Tt Haw. 368, 799. P.2d 983 (2990), upon balancing the interests involved, upheld the constitutionality of the Honolulu Police Department's (HPO) drug testing program and ia wholly Gistinguishable fron this case involving an alcohol checkpoint. For one, the Snteresta at play were very different as this court noted, “HPD"s progr serves to protect beth public and police safety and to preserve HPD's integrity and ability to perform its police function.” Id. at $79, 799 P.2¢ (continued. «.) “35  FOR PUBLICATION I WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*#* xiv. As noted previously, the stop also violated HRS $5 2918-19 and -20, Those statutes do not authorize, as part of a roadblock procedure, a stop of @ vehicle operated lawfully that turns in advance of the actual checkpoint. The Prouse Court noted that its holding, implicitly approving roadblocks, did “ preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion” and that “{[qluestioning of all oncoming traffic at roadblock-type stops is one possible alternative.” 440 U.S. at 663 (emphases added). In Sitz, the Court ruled that sobriety checkpoints established at pre-determined sites wherein all vehicles were stopped and the drivers examined for signs of intoxication for a (...eontinved) at 959, Further, as notes, “s police officer, by reason of the employment as S'police officer, has a diminished expectation of privacy.” 1d- % the dissents contention that roadblock procedures are not germane and that it declines to address such procedures is first belied by the court's Sun findings 11, 23, and 30, and conclusions 9, 10, and 11, see aupta, snd Second, by the Giesent’s eltations co cases which have analyzed the Feasonableness of the stop in conjunction with the relevant rosdblock procedure. See ea. Steinbeck, 662 5.W.24 at 913 (stating that “a sta bse of scbriety checkpoints does not violate the Fourth and Fourteenth Amendments to the United states Constitution when the state is conducting euch Checkpoints pursuant toe systematic plan” (citing Sitz, 496.0.5. 44 (1990) [emphasis adsed) 2900S -t2d at 705 (recognizing that “[a) precondition to the constitutional acceptability of seizure made as a result of a roadblock is “thet the seizure must be carried ut pursuant fo a plan embodying explicit, neutral Limitations on the conduct of individualized fficers(,]' ana that "[iJn accordance with these Constitutional Limitations, ‘the Tennessee Highway Patrol has formulated a set of rules for roadblocks designed to check for unlicensed drivers” (internal citation onitted)) ‘Therefore, the dissent implicitly concedes that stops in aid of roadblocks do implicate readblock procedures such as those in HRS $5 2915-19 and 20, The deterrent value of roadblocks and atops the dissent sdvocat fer, dissent at 25-25, is not for us to decide; our focus must be on whether the’ roadblock procedure was legal. 36  /FOR PUBLICATION IN WEST’ S HAWAI'T REPORTS AND PACIFIC REPORTER* brief period were reasonable. 496 U.S. at 454. This exception to the rule that a stop be based on reasonable suspicion is justified on the premise that systenatic and non-discriminatory seizures minimally intrude upon an individual's privacy. See Davis v. Kansas Deo't of Revenue, 843 P.2d 260, 262 (Kan. 1992) (observing that Sitz distinguishes Terry stops from “systematic roadside checkpoint stop(s]" and that under Sitz, Michigan’ s interest in preventing drunk driving outweighed the degree of intrusion on an individual motorist’s privacy); Commonwealth vs Tarbert, 535 A.24 1035, 1043 (Pa. 1987) (holding that the objective intrusion of a roadblock, measured by the duration of the seizure and intensity of the duration of the stop, and the subjective intrusion’ of such roadblock, described in Sitz as “the potential to generate fear and surprise in motorists,” can be “reduced to a constitutionally acceptable degree by the manner in which it is managed and conducted”). a In Hawai"i, the legislature has addressed the need to reduce the intrusiveness of @ roadblock by prescribing under HRS chapter 2918, certain procedures in effecting roadblocks. HRS § 2918-19 mandates that “{t}he chief of police in any county establishing an intoxicant control roadblock . . . specify the procedures to be followed [in the creation of such roadbleck) rovided that the procedures shall be in intrusive than the standards an -37-  ‘#*0f0R PUBLICATION IN WEST’ HAWAI'T REPORTS AND PACIFIC REPORTER® described in [HRS $1 2916-20.” (Emphasis added.) HRS § 291E-20 contains the “{m]inimum standards for roadblock procedures,” in the following manner: (a) Every intoxicant control roadblock program shall: (0) "Requize that al] vehicles approaching roadblocks be-utopbed of that certain vehicies be atooned buselecting vehicles ins specified nomerical, ‘sequence of pabtesn’ (2) Require that roadblocks be located at fixed Iocations for a maximon three-hour periods (3) Provide for the following Precautions at every roadblock: (a) Proper illusination: (B) Off"z0a0 or otherwise safe and secure holding areas for venicies involved in any roadblock step: (©) Oniformed law enforcement officers carrying proper dent ification; (0) Adequate advance warning of the fact and purpose of the roadblocks, either by ign posts, flares, or other alternative ethods. (f) Termination of roadblocks at the Giscretion of the law enforcement officer Sn charge where traffic congestion would otherwise result) and (4) Provide for a suffiotent quantity and visibility of uniformed officers and official vehicles to ‘ensure speedy compliance with the purpose of the ia to move traffic with a niniaum of ‘section shail prohibit the ‘establishment of procedures to make roadblock programs Antiusive than reouired by the einimun atandards dese provided in this section: (emphases added.) Hence, under HRS § 291£-20, any other procedure established by law enforcement officials in effectuating a roadblock must be “less intrusive than required by the minimum standard.” B. It is undisputed that Defendant was stopped in relation to a perceived evasion of a roadblock. Officer Correa vas responsible for watching southbound vehicles that (1) “pull off the road and shut down [their] lights on the shoulder to avoid 36+ ‘s++POR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER*** detection,” (2) “whip[] a U-turn before getting to the . . . checkpoint [,]" and (3) “turn[) off onto Mehameha Loop or another side [road]" “just north” of the checkpoint. HRS § 291E-20 does not authorize law enforcement officers conducting sobriety checkpoints to pursue and detain drivers of motor vehicles appearing to avoid the sobriety checkpoints in a lawful manner. Permitting officers to do so is beyond the express scope of the statutory procedures and, therefore, “more intrusive than the standards and guidelines described in [HRS §] 2916-20" and violative of HRS § 291£-19. ‘Thus HRS $§ 291E-19 and -20 are directly related and germane to the reasonableness of the sobriety checkpoint procedures in this case. State v. Fedak, 9 Haw. App. 98, 101-02, 825 P.2d 1068, 1071 (1992), superseded by statute as stated in State v. Claunch, 111 Hawai'i $9, 64, 137 P.3d 373, 378 (App. 2006), established that the reasonableness of a seizure and the guidelines provided in the HRS are interrelated: Adnerence to these guidelines . . . assures that 2 roadblock Selsure is the result of a plan embodying explicit, neutral Limitations on the conduct of individual officers. Conducting readblocks io accordance with auch neutral 5 iises the risk th 9 reasonable ihe official in the tied. Adherence to the guidelines" Fequirenents also assures thet the surprise, fear, and inconvenience to ~~ and therefore the intrusion on =~ the ~~ motoring public is minimized. (Emphasis added.) (Internal citations, quotation marks, and brackets omitted.) Fedak considered the guidelines under HRS § 286-162.6 (2985 & Supp. 1991). In enacting HRS § 286-162.6, the Committee =39- “++APOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTERY*# on Judiciary explained that constitutional restrictions against intrusion into an individual's privacy rights were recognized ‘well founded and proper” in authorizing roadblocks: (4) 19 analysis of Legislation of this type, concern over constitutional inplications is well-founded and proper. a searches authori x7 andarde iseretion any the level of intrusion on individual canis. (6) " The minimum standards for intoxication control roadblock standards should generally be provided for by Etatote, with specific procedures to be established by rules Gnd regulations adopted pursuant to (HRS) (e]hapter 91. Hse. Stand. Comm. Rep. No. 418-84, in 1984 House Journal, at 1033 (emphasis added), As observed in Claunch, 111 Hawai'i at 64 n.4, nacted 137 P.3d at 378 n.4, HRS § 286-162.6 was subsequently re as HRS § 2916-20 by Act 189, § 23 of the 2000 Hawai'i Legislature. HRS § 2918-20 embodies identical language to HRS § 286-162.6 with respect to roadblock guidelines. xv. Consistent with HRS chapter 2918, the Guide, promulgated by the NHTSA in November 1990 with the help of numerous law enforcement officers and agencies from various states, supports the view that @ lawful turn, in apparent avoidance of a sobriety checkpoint, is not a valid basis for a stop." The Guide at 1. In general, the Guide was designed “to In the Guide, the NHTSA acknowledged the contributions of indiviuels from he Dayton Police Department, Dayton, Ohio: . . . Franklin County Sheriff"s Department, Columbus, Ohio;. ... Indiana State Police; Maryland state Police: . . » Metropolitan Police Department, Washington, D.C-; |_| Michigan State (continued...) 40-  ‘s*4FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER: provide law enforcement agencies with a uniform method to plan, operate, and evaluate sobriety checkpoints(,]” id, by setting forth operational procedures that police adninistrators may vant to consider in order to ensure that sobriety checkpoints are Used legally, ‘effectively and safely. There points are Consistent with those specified in recent court decisions, Including the United states Supreme Court ruling in’. - itz, ‘upholding the constitutsonslity of sobriety ‘checkpoints. Id. at 2. When a driver chooses to avoid a sobriety checkpoint, the Guide specifically states that (al potersst who wishes to avoig the checkpoint by Legally turning before entering the checkpoint area should be Slowed to do so unless 2 traffic violation(s) is observed OF probable cause exists to take other action Id, at 7 (emphasis added). Other jurisdictions have observed that, pursuant to similar guidelines, a motorist should not be penalized for avoiding a sobriety checkpoint. See Little, 479 A.2d at 906 (noting that pursuant to Maryland's policy regarding intoxication checkpoints, “[a] motorist wishing to avoid a sobriety checkpoint may make a U-turn or turn onto a side road prior to reaching the roadblock{]” and that “[nJo action is taken against a driver doing so unless the motorist drives erratically”); McCleery, $60 N.W.2d at 793 (concluding that the police officers did not have a reasonable suspicion to stop the (,,. continued) Police; . . . New York State Police: . . . Palm Seach County SRCELEE'? Separtnent, Neat Falm Seach, floriday Redding Pol: wrtment, Redding, California(:] the Eoternstional Association of Chiege of Bolles’ {IAcE}" and the National Sheriffs’ Association. a41-  “seeroR PUBLICATION IN WEST RAWAI'T REPORTS AND PACIFIC REPORTER* a defendant's car solely because she appeared to be evading an Intoxication checkpoint in light of Nebraska’s adherence to the Guide). XVI. The argument that Defendant failed to raise on appeal HRS §§ 291B-19 and -20, and the exclusion of the Guide into evidence, is misplaced. Any exposition of the case law in our jurisdiction and from other jurisdictions would be incomplete and misleading without a contextual reference to the roadblock statutes and the Guide, which have their genesis in the constitutional text prohibiting unreasonable seizures.” See Bitz, 496 U.S. at 452 (emphasizing that “guidelines governing checkpoint operation minimize discretion of the officers on the scene”); Binion, 900 S.W.2d at 705 n.2 (noting that “guidelines governing the roadblocks held constitutionally firm in sitz and [state vil Manuel{, no, 87-96-IIT, 1988 WL 123988, at ¥2 (Tenn. Crim. App. Nov. 23, 1988),%) had provisions prohibiting officers 2 ence, we do not concur with the dissent's contention that Defendant “does not challenge... the propriety of the police establishing Fosdblocks [under the relevant statut Dissent. at 20) see intra note 24 Farther, we must respect fully disagr dnd "beconing advocates for the appellants, ‘Diasent eer eee fe Nocld be {il-adrieed to ignore the role of roadblocks, such as that. proscribed in HRE $§ 2916-19 and 20 and the guidelines in the evolution Gf tne case low nvolving OUI stops. In order to Fender an informed decision, We must, a3 have other juriedictions, examine the roadblock statutes and Guidelines for stops. Horeover, az noted supra, although not "officially" Bart of the rsadbiock, the salient facts demonstrate that the stop in this Bebe was part of the roadblock procedure. gee court's findings 1, 5, 17, 26 So.” In that respect, the dissent’s position is wrong. 2 Manuel was an unpublished dieposition by the Tennessee Court of Criminal Appeals upholding the constitutionality of a sobriety roadblock in Uight"se the governmental interest served by e roadblock and the minimal intrusion upon motorists’ privacy rights as evaluated under guidelines (continued...) 42+  ‘*+4F0R PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER: from apprehending motorists who made safe u-turns or turn-ofts to avoid the roadblock”); Stand. Comm. Rep. No. 416-84, in 1984 House Journal, at 1033 (noting that statutory roadblock procedures should provide “minimum standards which Limit officer Giscretion and the level of intrusion on individual rights”). A. Tt would be disingenuous in this case to perform an analysis of the reasonableness of the stop disengaged from consideration of HRS $§ 2918-19 and -20. Defendant's stop arose because of the roadblock, and that roadblock was subject to the directives of HRS § 2916-20. Hence, the court's undisputed conclusion no. 9 states that “[t)he Legislature had public safety concerns in mind when [it] enacted #.R.S. § 291£-20 allowing police to conduct intoxication checkpoints.” The court's undisputed finding no. 8 states that “the intoxication checkpoint was in place to stop vehicle[]s traveling southbound on Nokulele Highway in a numerical pattern to check for signs of intoxication.” Relatedly, the court determined in undisputed finding no. 9, that “Officer Correa was stationed just north of the intoxication checkpoint and was tasked with observing traftic and making stops based upon probable causel.1” (Emphasis added.) ‘The stop, then, was clearly made in connection with the (. ..continued) Lgned by the Tennessee Highway Patrol. 43+ ‘+ *470R PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERS roadblock, and in aid of that roadblock.’ Consequently, it is indisputable that the stop in this case would not have occurred but for the existence of the checkpoint, and that Correa’s surveillance and stop augmented the checkpoint. Such checkpoints are permitted only by virtue of Brouse’s allowance of a limited intrusion as implemented under HRS §§ 2916-19 and -20. Sitz also emphasized the importance of “guidelines governing checkpoint operation [which] minimize discretion of the officers on the scene.” 496 U.S. at 452. Given the holdings of Brouse and Sitz, and the express “concern over constitutional implications” of the legislature in enacting HRS chapter 291E, see supra, it is illogical to sever any analysis of the procedure employed by the police from HRS $$ 2916-19 and -20 irrespective of whether Defendant raised the statutes or quidelines on appeal or not. Such discussions are % Contrary to the dissent's objection that Defendant “does not challenge per ge the propriety of the police establishing roadblocks under #RS 55 2918-19 and =20, dissent at 20, Defendant, on appeal, has arguably Challenged the propriety of the police establisning roadblocks under HRS $§ 2816-19 and ~20. Defendant submits in his “Pointe of Error” that “(t]he trial Court exred in denying [Defendant's] Motion to Suppress Evidence[,]" and Sncorporstes by reference the trial court's ruling. This ruling, which appears in the trial transcript, 1a confirsed in the court's "Findings of Feet, Conclusions of Law and Order Denying Defendant's Motion to Suppress Evidence.” Indeed, as part of its decision the court acknowledged the ca Connection to HRS § 2918°20: ‘The Supreme Court it’s my understanding has reviewed 291E- he statute hed. that That Isle} would be ~~ because the Legislature has found thet there Is a danger to the public of intoxiceted drivers that we eA Tai ted sngraction on the Constitutional rights Of ail citizens is permitted if-a strict procedur followed. added.) ‘*A7OR PUBLICATION IN WEST'S HAWAI'T REPORTS AND FACIFIC REPORTER*#+ part and parcel of the case law that cogently decides these 8, The record indicates that the court, in determining the relevancy of the Guide, instructed Defendant's counsel that “you may_submit it as argument, it’s not the law.” (Emphasis added.) Hence, although ultimately excluded, the Guide was in the case. Also, consideration of the Guide on appeal, like HRS $§ 2918-19 and -20, is germane to the reasonableness of the stop in this case by virtue of the principles in Prouse and Sitz. ect of the investigatory stop at the - Dissent St 20. For following the court's ruling Genying Defendant's motion to suppress, the court clarified its ruling, stating that if the roadblock was in compliance with HRS § 2918-20, then Defendant would not be able to avoid passing through it. The court Subsequently entered conclusion no. 3 and finding nos. 8 and 9, specifically with respect fo the rosdblock. Sea gumsa- As discussed aumca’ the roadblock procedure implicitly spproved by the court exceeded the authority granted to the police under HRS §§ 2916-19 and -20. ‘The dissent also cites to Binion, 900 S.W.2d 702, and Murohv, 304 S.£.2d at 129'n.3, to conclude that it say "decline to consider any theories ot advanced by’ (Defendant, 1” such as “ehe propriety of the police establishing roadblocks under HRS §{S) 291E°19 and [-]20."" Dissent at 21, 20, Aside for the reasons previously discussed as to why consideration of such matters is inescapsble, Binion and MUEGhY are contrery to the dissent’ s position. In Binion, the court held “that the action of a motorist, under the circumstances of this case, in making a lawful turn 1,000 feet before Foadblock does not give Fise to a reasonable suspicion of’ crininal activity Unless the driver’ s turn or action is coupled with other articulable facts,” 300 S.w. at 206. Because the stop of the motorist waa not based on reasonable suspicion, the judgnent of the trial court was reversed, and the charges were dismissed. Id. Sinilerly, in Mugphy, the court held that "a driver's action in saking s Legal turn within sight af 2 rosdblock does not give a police officer a reasonable basis to suspect that the driver is involved in criminal wrongdoing.” 304 8.8.24 at 126, Because the officer lacked ressonsbie Suspicion to stop the defendant, the “fruit of the illegal stop” was ‘Suppressed, and the defendant's conviction waa reversed. Id. Accordingly, it was unnecessary for both the Binion court and the Murchy court to reach the propriety of the roadblock procedure snasmich as the officer's lack of reascnable suspicion was dispositive of the defendant's Claim. ere, that Officer Correa lacked ressonsble suspicion to stop Defendant wold be dispositive as well: =45- ‘S++FOR PUBLICATION IN WEST’ HAWAI'I REPORTS AND PACIFIC REPORTERS#* Like HRS § 2918-20, the Guide incorporates procedures designed to minimize the intrusion on a motorist’s privacy when conducting a sobriety checkpoint. Indeed, with respect to motorists who make safe turns in order to avoid roadblocks, it has been indicated in the case law itself that @ provision prohibiting seizure of motorists making “turn offs” may have been a consideration in upholding the roadblock in Sitz. We aust note that the auidelines covernis xoadblocks held constitutionally tim in site and Manuel had ‘brovisions urchibitina officers Zon aporenshdina motersate = Sofie to avoid the roadblock. Ke-auch condition ta Tn Deparenent of Safety General Order 410, and constitutional. ne fing it unnecessary to sddress the Sesue tn this opinion Binion, 900 $.W.2d at 705 n.2 (emphases added). The Guide expressly designed procedures that were “consistent with those specified in recent court decisions, including the [Court‘s] 3 of course, pursuant to Hawai't Rules of Evidence (HE) Rule 201, fan appellate court may take Judicial notice of acts of an executive agency. Seo tua., Arabruster v. tip, 5 Hew. hop. 37, 43, 67 P.20 77, 402 (1988) (taking Judicial notice of # letter from the acting regional director of the Nstional Labor Relations Board, made part of the record in s related proceeding, expressing his opinion that a party, the East-West Center is not fn Tenployer” within the meaning of the Hawail Enployment Relations Act) Rigo, this court may consider plain error for the apparent failure of Defendant to raise HRS S 2916-20 and the Guide on appeal. a8 Mchoig, 212 Hewel's 527, 334, 142 P.38 974, 981 (2006) (stating tnae “(A1E the substantiel rights of the defendant have been affected adveraely, the error will be deened plain error” (citation omitted) ). Appellate courts, in Griminal cases, may gua sponte "notice errors to which no exception has been taken, Lf the errors are obvious, or if they otherwise seriously affect the Fairness, integrity of public reputation of judicial proceedings(,]” state ¥, E5x, "10" haw, 48,56, 760 F-26676, 675-76 (1988), a8 in this. c ‘assuming, arquendo, that an “exception” must be “taken” with respect to 1IRS §6 2918-19 and “20 and the court's exclusion of the Guide, notice of plain error would be appropriate. As earlier explained, the procedures Listed in HRS § 2916-20 and the Guide are relevant to a discussion Sf the ressonableness of the stop. These prescribed procedures were developed in order to minimize intrusion upen an individual’ s privacy rights and are Eeferred to inmuch of the case law, Given the negative constitutional implications of the court's decision, application of the plain error doctrine would be propes 46  se4poR PUBLICATION 11 WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERS‘ ruling in [Sitz).” The Guide at 1. See also Binion, 900 S.W.2d at 105 (noting that seizure “must be carried out pursuant to plan embodying explicit, neutral Limitations on the conduct of individualized officers” (internal quotations marks and citation onitted)). Again, because the Guide is imbedded in the legal doctrine concerning roadblocks, it would be untenable to ignore the Guide in any informed discourse, irrespective of any arguable failure on the part of Defendant to raise it on appeal. xvir, ‘The stop in this case violated the precepts under article 1, section 7 of the Hawas'i Constitution and the statutory guidelines of HRS chapter 2918, For the reasons stated, the court's June 7, 2005 order denying Defendant’s motion o suppress is vacated and the case {e remanded to the court with instructions to enter an order granting Defendant’s notion to suppress and to allow Defendant to withdraw his plea pursuant to REP Rule 12(a) (2). See Kealaiki, 98 Hawai'i at 314 6 n.6, 22 P.3d at 593 6 n.6. on the briefs: Michelle b. Drewyer / x Setendant-appeliant. Vom & Resid, beter A, Hanano, Deputy Prosecuting Attorney, County of Maui, for plaintiff-appellee. oe 

e90f5b754369f8123398e20c9bcea741c19952b2b7062c728099fda16943876b

2007-01-11T00:00:00Z

eafb5a85-89f2-4a07-92cb-2afe29622e6f

Kemeny v. Mullen

hawaii

Hawaii Supreme Court

No. 26469 IN THE SUPREME COURT OF THE STATE OF HAWAI'I MATTHIAS DAVID KEMENY, Respondent /Plaintif£-Appellee KRISTINA I, MULLEN, Petitioner/Defendant-Appellant sss CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (FCM NO, 03-1-0220) ons NG APPL: Rk MRIT RI (By: Duffy, J. for the court") Petitioner/Defendant-Appellant’s application for writ of certiorari filed on December 2, 2005, is hereby denied DATED: Honoluly, Hawas"i, December 12, 2005. FOR THE COURT: Yore Buca hy Associate Justice Kristina I. Mullen, petitioner/defendant- appellant, pro se, . 3 fon the writ B az Considered by: Moon, C.J, Levinson, Nakayama, Acoba, and Duffy, 99. 

1a77bd546c09b99971f8d1cf5c5887ef477b70effcd5cb3bec2866b5aae83d38

2005-12-12T00:00:00Z

99e0f4de-7d80-4cca-8926-cffa62e5da5f

Office of Disciplinary Counsel v. Lichtenberg

hawaii

Hawaii Supreme Court

No. 27543 IN THE SUPREME COURT OF THE STATE OF HAWAI'I OFFICE OF DISCIPLINARY COUNSEL, Petitioner, vs. 2 ANDREW L, LICHTENBERG, Respondent. 3 + -166-81 ae (ove 04166-8146) 4 ° QBDER OF DISBARMENT a & (By: Moon, C.J., Levinson, Nakayama, Acoba, and buffy, JJ.) upon consideration of (1) the Disciplinary Board of the Hawai'i Supreme Court's (Disciplinary Board) October 12, 2008 report and recommendation to disbar Respondent Andrew Lew Lichtenberg (Respondent Lichtenberg) and order Respondent Lichtenberg to pay restitution in the amount of $347,800.00 and (2) the record, we adopt the Disciplinary Board’s findings and conclusions. In sum, Respondent Lichtenberg misappropriated Ellen R. Hyman’s $1,800.00 retainer, and misappropriated $373,000.00 from the sale of Ms. Hyman’s rea estate interest. Respondent Lichtenberg’s misappropriation and other misconduct violated multiple provisions of the following Hawai'i Rules of Professional Conduct (HRFC): + HRPC Rule 1.2(a) (requiring that a lawyer shall abide by a client’s decisions concerning the objectives of representation) + HRPC Rule 1.4(a) (requiring that a lawyer shall keep a client reasonably informed about the status of a matter); + HRPC Rule 1.4(b) (requiring that a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation); aa RPC Rule 1.7(b) (requiring that a lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s own interests) HREC Rule 1.15(a) (1) (requiring that every lawyer in private practice in the State of Hawai'i who receives or handles client fund shall maintain a client trust account into which all funds entrusted to the lawyer's care shall be deposited) ; HREC Rule 1.15(b) (requiring that each client trust account check shall be prominently labeled “client trust account”); RPC Rule 1.15(b) (requiring that client trust account checks shall bear preprinted consecutive numbers); HREC Rule 1.15(c) (prohibiting a lawyer from misappropriating a client's funds to his or her own use and benefit); RPC Rule 1.15(c) (requiring that funds belonging in party to a client and in part presently or potentially to the lawyer must be deposited into the client trust account): RPC Rule 1.15(d) (requiring that all funds entrusted to a lawyer shall be deposited intact into a client trust account); HRPC Rule 1,15(d) (requiring that all fee retainers shall be maintained in a client trust account until earned); HRPC Rule 1.15(e) (requiring that all client trust account withdrawals shall be made only by authorized bank transfer or by check made payable to a named payee and not to cash); HRPC Rule 1.15(f) (4) (requiring that a lawyer shall promptly pay or deliver to the client, as requested by the client, the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive); HRPC Rule 1.16(d) (requiring that, upon termination of representation, a lawyer shall take steps to the extend reasonably practicable to protect a client’s interests, such as surrendering papers and property to which the 2 client ig entitled and refunding any advance payment of fee that has not been earned) + HRPC Rule &.4(a) (providing that it is professional misconduct for lawyer to violate the rules of professional conduct); and + HRPC Rule 8.4(c) (providing that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation). In Light of Respondent Lichtenberg’s egregious ethics violations, we adopt the Disciplinary Board’s report and recommendation to disbar Respondent Lichtenberg, and we order Respondent Lichtenberg to pay restitution in the corrected amount of $374,800.00. Therefore, IT 1S HEREBY ORDERED that Respondent Andrew Lew Lichtenberg (attorney number 7850) is disbarred from the practice of law in Hawai'i, effective inmediately. It is further ordered Respondent Andrew Lew Lichtenberg (attorney number 7850) shall pay restitution in the corrected amount of $374,800.00 to Ellen R. Hyman. IT IS FURTHER ORDERED that Petitioner Office of Disciplinary Counsel (Petitioner ODC) shall notify the appropriate law enforcement authorities of Respondent Lichtenberg’s misconduct. Petitioner ODC shall make all of the records from Respondent Lichtenberg’s disciplinary matter available to law enforcement authorities. DATED: Honolulu, Hawai'i, December 20, 2005. Shea Ses tee brie er nro e. 

64c0173dc503cf5d6cd24dccc54c7fad87450e12787e6642f29884c6675e6ed9

2005-12-20T00:00:00Z

25d3d29f-7357-4881-a058-0e68791a8c0b

Kahooilihala v. Hifo

hawaii

Hawaii Supreme Court

No. 27607 IN THE SUPREME COURT OF THE STATE OF HAWAI'I" JOHN F. KAHOOTLIHALA, DOREEN K. KAHOOILIWALA, and JOHN K, MORRIS, Petitioners i THE HONORABLE EDEN ELIZABETH HIFO and KAWATAHA’ O*CHURCHE by and through Its Board of Trustees, Respondents ORIGINAL PROCEEDING ORDER DENYING PETITION FOR WRIT OF MANDAMUS (By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.) Upon consideration of the petition for a writ of mandamus filed by Petitioners John F. Kahooilihala, Doreen K. Kshooilihala, and John K. Morris, the papers in support, and the records and files herein, it appears that: (1) Petitioners are petitioning this court to review rulings and orders issued by the respondent judge in Kahooilihala v. Kawaiaha‘o Church, Civil No. 03-1-0166; (2) Petitioners will have a remedy by way of appeal from any adverse judgment, and a writ of mandamus is not intended to take the place of an appeal. Therefore, IT IS HEREBY ORDERED that the petition for a writ of mandamus is denied without prejudice to any remedy Petitioners may have in the pending circuit court case and without prejudice to any remedy Petitioners may have by way of appeal. DATED: Honolulu, Hawai"i, December 23, 2005. Wayne M. Sakai, Michiro Iwanaga, Uf and Daniel M. Chen . for petitioners on bee elearntem the writ Dein OO Nueteoe~ as Renn € Ott 

66a285a2db3b87024c0aedaeff2e984f0f5c2cc143e212aabbbc79e74f0dd632

2005-12-23T00:00:00Z

0b8340d3-0d49-49a3-a4fc-d6a5ac55ad84

Associates Financial Services Company of Hawaii v. James

hawaii

Hawaii Supreme Court

‘*** NOT FOR PUBLICATION *** No. 27246 IN THE SUPREME COURT OF THE STATE OF HAWAT'T oe ASSOCIATES FINANCIAL SERVICES COMPANY OF HAWAII, INC. corporation, Plaintiff a Hawai'i vs. ROGER LOPES JAMES and PAMELA ANN PUANANI CHIYONO MITCHELL JAMES, HENRY A.Y. AH SAN; JUDITH C. AH SAM; UNITED STATES OF AMERICA; COUNTY OF HAWAI'I; JOHN DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; DOE ENTITIES 1-10; and DOB GOVERNMENTAL UNITS 1-10, Defendants (cv. No. 98-329) BANK UNITED, Plaintiff-Appellee ‘olny 02}030 02 ROGER LOPES JANES and PAMELA ANN PURNANI CHIYONO MITCHELL Jal, Defendant s-Appellants and UNITED STATES OF AMERICA, ASSOCIATES FINANCIAL SERVICES COMPANY ‘OF HAWAII, INC., GREENWOOD TRUST, CHAMPION PRODUCTS, INC., and JOHN and MARY GOES 1-20, DOE PARTNERSHIPS, CORPORATIONS or OTHER ENTITIES 1-20, Defendants (CIV. NO. 99-474) APPEAL FROM THE THERD CIRCUIT COURT, HILO DIVISION (CIV. NOS. 98-329 and 99-474) (ay: Nakayama, J., for the court?) upon review of the record, it appears that the closing of the foreclosure sale is a matter incident to enforcement of the October 2, 2000 judgment of foreclosure. The matter is appealable upon entry of a deficiency judgment or an order ‘considered ©: Moon, C.J., Levingon, Nakayama, Acoba, and Duffy, 0. qa *** NOT FOR PUBLICATION *** finally ending the foreclosure case. See HRS $ 667-51 (a) (Supp. 2004); Sturkie v. Han, 2 Haw. App. 140, 146-147, 627 P.2d 296, 301-302 (1981); Hoge v. Kane I, 4 Haw. App. 246, 247, 663 P.2d 645, 647 (1983). The March 18, 2005 order is an order extending the closing date of the foreclosure sale and is not appealable pursuant to HRS § 667-51(a)(2) as a judgment confirming the foreclosure sale. Until a deficiency judgment or an order finally ending the foreclosure case is entered, the appeal of the March 18, 2005 order is premature and we lack jurisdiction. Therefore, IT IS HEREBY ORDERED that this appeal is dismissed for lack of appellate jurisdiction. DATED: Honolulu, Hawai'i, December 20, 2005. FOR THE COURT: Pierce Orewa Associate Justice 

c3f9df64ea12d367c5e87e9754fa863cae892cfb3ac57748f118e13807547f93

2005-12-20T00:00:00Z

e6621433-bedc-4216-be4f-250fa0d21b35

Geiger v. Hawai'i County Planning Commission

hawaii

Hawaii Supreme Court

No. 26215 = IN THE SUPREME COURT OF THE STATE OF HAWAT'E: a STEVEN GEIGER and KATHLEEN GEIGER, = = Appellants-Appel ents = vs. 8 HAMAT'L COUNTY PLANNING COMMISSION; CHRISTOPHER J.L. YUEN, in his official capacity as DIRECTOR, HAWAI'I COUNTY PLANNING DEPARTMENT; and ELIZABETH CHIN, ‘Appellees-Appellees APPEAL FROM THE THIRD CIRCUIT COURT (cIV. No. 03-1-0016) 7; Levinson, Nakayama, ‘and Duffy, JJ.) Appellants-Appellants Steven and Kathleen Geiger [collectively, the Geigers) appeal from the October 15, 2003 judgment of the circuit court of the third circuit! (the court) affirming a Decenber 20, 2002 decision and order of Appellee Appellee Hawai'i County Planning Commission (the Planning Commission) granting @ Special Permit to Appellee-Appellee Elizabeth Chin (Chin) to conduct certain commercial activities on land zoned for agricultural use, We affirm the judgment. on appeal, the Geigers argue that the court’s judgment, in affirming the Planning Commission’s Decision and Order, violated the relevant portions of Hawai'i Revised Statutes (HRS) ‘the Honorable Greg K. Nakamura presided. qa § 91-14(g) (1993),? Hawai'i Administrative Rules (HAR) § 15-15- 95(b),? and Rule 6.3 of the Planning Commission Rules of Practice and Procedure (Rule 6.3). 2 WAS § 91-1419) states: (@) Yoon review of the record the court nay-aftioa the decision of the agency of tenand the case with instructions for further proceedings; Orit say ceverse or modity the Gecision and order if the substantial Fights of the petitioners may have been prejusices because the Edsinistrative findings, conclusions, decissons, or orders (1) Mnziolation of constitutional or statutory provisions’ oF 2 ‘Guriadiction of the agency oF (3) Hace upon unlawful procedure; or (a) Affected by other error of law? or {3} Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole Record; of (6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted enereise of discretion. 18 added.) > HAR § 15-15-95(b) states: (©) Certain “unusual and reasonable" uses within aa ‘The following ‘stebiiehed in determining an “unusual and ‘use shall. not be contrary to the objectives sought je aceonplished by chapters 205 and 205A, HRS, and Tules of the comnissier ited use would not adversely affect surrounding property: (3) The use would not unreasonably burden public agenci fo provide roads and streets, ‘sewers, water drainage, and school improvements, and police and fire protection: (4) Gnusual conditions, trends, and needs have arisen Bince the district boundaries and rules were ectablished: and (5) The Land upon which the proposed use is sought is Unsuited for the Uses permitted within the district. (exphasis added.) «Rule 6.3 of the Planning Comission Rules of Practice Procedure entitled "Petition ana Content,” states in relevant par A Petition fora Special Permit shall be filed with tthe Commission's office and shall include the following: The Geigers advance the following nine points of error: (1) the allowed uses were contrary to the objectives sought by HRS chapter 205 and the Rules of the State Land Use Commission (Luc Rules), (2) the Planning Connission went beyond its statutory authority and jurisdiction, inasmuch as it unlawfully permitted conmercial uses within the agricultural district that were not unusual and reasonable and that required a boundary district amendment, (3) the allowed uses substantially and adversely affected surrounding property, including the property of the Geigers, (4) the allowed uses were unreasonably burdensome to public agencies that have 2 duty to provide roads and streets, (5) unusual conditions, trends, and needs had not arisen since the district boundaries and rules were established, (6) the land upon which the uses were allowed was suitable for the permitted (Sf chapter 205, ARS. sng why the propose! isan Dnjsual_and ceasonable use of the land. The ‘Potlowing eriterts shall also be addressed? (A) Such use hall not be contrary to the objectives Sought to be accomplished by the Land Use Law and Regulations: (®) The desired use shall not adversely affect surrounding properties: (c)_ Such use shail not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, school inprovenents, and police and tire protections (0) Unusual conditions, trends, and needs have ‘risen since the district boundaries and Eegelations were established: (&) The Land upen which the proposed use ie sought is unsuited for the uses permitted within the Gietrict: (F) The proposed use will not substantially alter or change the essential character of the land and the present use; and (G) The Fequest sill not be contrary to the General Plan and officiel Community Development Plan and Other documents such ag Design Plans. 3 uses within the district and Chin was not deprived of permitted uses in the agricultural district nor was she subject to hardship, (7) the judgment was unenforceable and exceeded the authority and jurisdiction of the Planning Comission by conditioning the Special Permit to require chin to pay an appropriate pro rata share of road maintenance expenses, (8) the judgment was clearly erroneous because it allowed uses that are inconsistent with the Hawai'i County General Plan (the County Plan), and (3) the judgment was clearly erroneous because it allowed uses that would substantially alter or change the essential character of the land and the present use. In this secondary appeal, we must decide whether the court’s order was right or wrong: Review of a decision made by the circuit court upon its Teview of an agency's decision is a secondary apps Standard of review ig one in which this court mus Whether the circuit court was right or wrong in its Gecision, applying the standards set forth in HRS § 91-14 (9) {} to ene agency's decision. anai Co., Inc. v. Land Use Comm'n, 105 Hawai'i 296, 307, 97 P.3d 372, 383 (2004) (quoting Morgan v. Planning Dep't, County of Kauai, 104 Hawai'i 173, 179, 86 P.34 982, 988 (2004)) (internal quotation marks omitted). HRS § 205-6 (1993) establishes the Planning Conmission’s authority to issue Special Permits for “certain unusual and reasonable uses within agricultural . . . Gistricts other than those for which the district is classified.” HRS § 205-6(a). ‘The Planning Commission may condition Special Permits with “protective restrictions as may be deemed necessary,” and Special Permits may be granted “only when the use 4 would promote the effectiveness and objectives of [HRS chapter 205).” HRS § 205~6(c). Specific guidelines on “unusual and reasonable uses” are found in (1) HAR § 15-15-95(b) and (2) Rule 6.3(5). See supra notes 3 and 4. As to the Geigers’ first point, HRS § 205~4.5(b) (1993),* pursuant to HRS § 205-6, does permit non-agricultural uses within agricultural districts, so long as the use comports with administrative guidelines for unusual and reasonable use. Special Permits are devised precisely to allow some uses in an agricultural district that are not specifically enumerated in HRS chapter 205. The evidence indicates that the instant case does comport with the objectives of HRS chapter 205 and the LUC Rules, and is substantially different from the court’s rejection of a Special Permit in Neighborhood goard No. 24 v. State Land Use Commission, 64 Haw. 265, 639 P.2d 1097 (1982). ‘The Planning Commission reasoned that Chin’s proposed use “is . . . a small agricultural-related and culinary facility based upon the quiet agricultural ambiance of the area.” Chin’s proposal is limited to approximately two acres of her five-acre parcel, is restricted to two forty-person events per month and ten sixty-person events per year, most of the activities are permitted as of right in agricultural districts, and conditions attached by the Planning Commission on Chin's proposed use comply with the Special Permit guidelines. + RS § 205-4.5(b) Lists the uses permitted as of right in agricultural districts  As to the Geigers’ second point, the Planning Commission concluded that “small gatherings in a rural farm-like setting,” Like the ones Chin has proposed, “is a logical use for a farm that may need additional income-generating activities to meet its expenses{, especially in a community focusing on tourism such as Hawaii.” HRS § 205-6 expressly authorizes the Planning Commission to hear and determine applications for Special Permits Like Chin's, including non-agricultural, commercial uses for land within state land use agricultural districts. As to the third and ninth points of error, based on evidence received, the Planning Commission was not wrong in determining that “{t]he absence of any sharp difference” between the number of gatherings under Chin’s proposed use and other subdivision residents’ activities, “reinforce[s] the logic of granting this Special Permit.” Testimony from menbers of the community in support of the proposed use, the continuance of existing agricultural uses in the property, the design of structural improvenents to blend in with the native rainforest landscape, and the minimization of any adverse impact to surrounding property constituted substantial evidence supporting the Planning Connission’s determination. Regarding the fourth point of error, (1) there would be no undue burden on the County of Hawai'i, inasmuch as the burden to maintain roads has been assuned by the Cymbidium Acres Road Maintenance Corporation (RMC), (2) any added burden that the 6 Special Permit would place upon the AMC is addressed by the condition that Chin pay additional assessment fees to the RNC, (3) the Planning Commission was within its authority, pursuant to HRS § 205-6, to attach necessary conditions to Special Permits, and (4) the steps Chin has taken to protect the RMC officers and directors from Liability, through the procurement of insurance and the signed-waiver requirement for guests, further reduces the burden on the RNC. As to the fifth point of error, as the Planning Commission states, there is no requirement for legislative recognition of a specific change in conditions, trends and needs, for a Special Permit to issue. Instead, HAR § 15-15-95(b) (4) oF Rule 6.3(5) (0) empowers the Planning Commission to make that determination. The Planning Conmission’s conclusions 6* and 25 recognize that the growing acceptance of agricultural-tourisn, eco-tourism, and the farmer-chef relationship evinces an emerging trend throughout the State which promotes agricultural products and Hawaiian agriculture in general. Thus, the judgment did not violate HAR § 15-15-95 (b) (4) or Rule 6.3(5)(D). As to the sixth point of error, it does not appear that the Planning Commission issued a conclusion of law specifically addressing guideline § of HAR § 15-15-95(b) and criterion E of * conclusion 6 reprinted here in part, concludes that trends have emerged to Justify the granting of the special Permit: it ie clear that “ag-tourisn” is now @ major activity An await County and throughout the State of Hawaii, and indeed, throughout the United states. 7 Rule 6.3(5), both of which require that “(t]he land upon which the proposed use is sought is unsuited for the uses permitted within the district." This court has said that guidelines “denote individual factors that aze not mandatory in themselves, but instead provide direction or guidance with respect to the ultimate decision[.]” Save Sunset Beach Coalition v. City & County of Honolulu, 102 Hawai'i 465, 479, 78 P.3d 1, 15 (2003). Hence, the Planning Commission's omission of a conclusion directly addressing the suitable-use guideline stated in HAR § 15-15-95 (b) (5) and Rule 6.3(5) (E) does not invalidate its ultimate Decision and Order to approve Chin's application for Special Permit. In this regard, it may be observed that the Planning Commission did conclude in conclusion 13 that the poor soil rating of Chin's property has limited the agricultural uses and resources available to her. As to the eighth point of error, the Planning Commission gave considerable attention as to how the proposed uses would be consistent with the County Plan. The Planning commission found that the facility is suitable for community activities, that no plant or animal species will be affected, and in light of the proposed uses the grant of @ special permit will be consistent with the County Plan. Conclusion 26 provides that the Property would provide a venue that would promote social, cultural, recreational, culinary, artistic and educational potential of the Volcano Community. Conclusion 27 provides in detail several economic goals, policies, and standards under the County Plan that would be met, including the land use goal of identifying, protecting and maintaining important agricultural lands, and the recreational goals of providing opportunities for the residents and visitors, maintaining the natural beauty of the recreation areas, and providing a diversity of environments for active and passive pursuits. Conclusion 28 recognizes the potential of the facility to enhance conmunity life, generate revenue, and create business partnerships within the community. Conclusion 28 concludes that approval of the permit would foster economic goals and policies of the County. The Planning Connission also concluded in conclusion 31 that the special Permit is consistent with the Hawai'i state Plan's goals of promoting diverse cultural, artistic, and recreational needs. Conclusion 32 further provides that the permit furthers the State Legislature's goals of promoting agriculture, Moreover, in conclusions 33-35, the Planning Commission found that the Special Permit would further the goals of the community, as defined in the neighborhood’ s Voleano Vision 2020 Plan, a strategic planning document developed for and accepted by the Volcano community in 1996, Hence, the Planning Commission's findings and conclusions that the granting of the Special Permit would be compatible with the County Plan supports the court's affizmance of its decision. Therefore, In accordance with Hawai'i Rules of Appellate Procedure Rule 35, and after carefully reviewing the record and the briefs submitted by the parties, and duly considering and analyzing the ° law relevant to the arguments and issues raised by the parties, IT IS HEREBY ORDERED that the court’s final judgment filed on October 15, 2003, from which the appeal is taken, is affirmed. DATED: Honolulu, Hawai'i, December 19, 2005. On the briefs: Steven D. Strauss for appellants-appellants. Ivan M. Torigoe, Deputy Corporation Counsel, County of Havai‘i, for appellee-appellee Hawai'i County Planning Commission. Bobby Jean Leithhead-Todd, Deputy Corporation Counsel, County of Hawai'i, for appellee-appellee Hawai'i County Planning Director. Steven S.C. Lim and Jerilynn Ono Hall (Carlsmith Ball LLP) for appellee~ appellee Elizabeth Chin. 10 

f6d90b2e8b4b17e3293ca95d1218cbc1046baa0d7303dddba55a26847533236b

2005-12-19T00:00:00Z

02cecc68-69e6-4996-9e66-dd4469d7f871

Waite v. Button

hawaii

Hawaii Supreme Court

Wo. 26441 IN THE SUPREME COURT OF THE STATE OF HAWAI'I MITCHELL D. WAITE, Petitioner-Appellant, DIANE BUTTON, Respondent-Appellee. is CERTIORARI TO THE INTERMEDIATE couRT OF APPEMh Ceetuced Ron Oe T-0026) (By: Levinson, J., for the court) Upon consideration of the application for a writ of certiorari filed on November 25, 2005, by the petitioner- appellant Mitchell D. Waite and the memorandum in opposition filed on December 1, 2005, by the respondent-appellee Diane Button, the same is hereby denied. Honolulu, Hawai'i, December 5, 2005, FOR THE COURT: STEVEN H. LEVINSON Associate Justice DATE! Robert M. Harris, for the petitioner Mitchell D. Waite, on the writ Charles T. Kleintop, of Stirling & Kleintop, for respondent-appellee Diane Button, on the opposition ppellant Considered by: Moon, C.J., Levinson, Nakayama, Aeoba, and Duffy, 39. 

222ba9c3006b9f435eb5018357fbbd8603f2089f9232a165beefc33b09c8ad5e

2005-12-05T00:00:00Z

a53f4058-972f-4f6f-85df-e1e6cffa0b73

Davidson v. Friedlander

hawaii

Hawaii Supreme Court

LAW LIBRARY *** NOT FOR PUBLICATION *** Wo, 27394 IN THE SUPREME COURT OF THE STATE OF HAWAI'I GIGI DAVIDSON, Flaintstt-Appellee 3 vs g MICHAEL FRIEDLANDER, Defendant-Appellant e oF = c WICHAEL FRIEOLANDER, Counterclaim Plaintigl — E GIGI DAVIDSON, Counter-Claim Defendant APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (CIV. CASE NO. 1RCOS-1-946) ‘ORDER DISMISSING APPEAL (py: Nakayama, J., for the court’) Upon review of the record, it appears that this court informed Appellant by letter dated October 21, 2005, that the time for filing the statement of jurisdiction expired on September 16, 2005 and the time for filing the opening brief expired on October 16, 2005, and that, pursuant to Rule 30 of the Hawai'i Rules of Appellate Procedure, the matter would be called attention of the court for such action as the court deened to the proper including dismissal of the appeal. Appellant having failed to respond to said letter or to otherwise oppose dismissal, IT IS HEREBY ORDERED that the appeal is dismissed. ATED: Honolulu, Hoval't, December 8, 2008. FoR THE counts Ke" By 2) dene Coreejan|® SEAL Associate Justice | \g 3) Sor, ) Levinson, Nakayama, Acoba, and Duffy, 93 ‘considered by 

805d5ac5b11d7aa7324592bf0264e94ac05c97dbfd5a3c2f8e3326ddee1c1e42

2005-12-08T00:00:00Z

a056c4fa-9b84-409c-a999-fb506734aa38

Botelho v. Hartey

hawaii

Hawaii Supreme Court

*** NOT FOR PUBLICATION *** No. 27347 IN THE SUPREME COURT OF THE STATE OF HAWAFE - “ = Plaintiff-appellee ROONEY WESLEY BOTELHO, JUDY ANN HARTEY, Defendant-Appellant APPEAL FROM THE FIRST CIRCUIT COURT (FC-D NO. 01-1-2614) ‘ORDER DISNISSING APPER ‘Je, for the court!) (By: Nakayama, Upon review of the record, it appears that this court informed Appellant by letter dated October 28, 2005, that the 2005, time for filing the opening brief expired on October 18, and that, pursuant to Rule 30 of the Hawai'i Rules of Appellate Procedure, the matter would be called to the attention of the court for such action as the court deened proper including Gismissal of the appeal. Appellant having failed to respond to said letter or to otherwise oppose dismissal, IT IS HEREBY ORDERED that the appeal is dismissed. December 8, 2005. FOR THE COURT: DATED: Honolulu, Hawai'i, Bula One are, Associate Justice ‘considered by: Moon, C.J, Levinsen, Nakayama, Accbs, and Duffy, 39. 

2a777a9fb96aa8e8c01cb1867a45cb999d63e8d96b0d403cf9468a432444ba9c

2005-12-08T00:00:00Z

5229570a-1cfb-4e2f-9a53-9291c8aecc36

Swift Securities Limited v. Wong

hawaii

Hawaii Supreme Court

Wo, 27562 IN THE SUPREME COURT OF THE STATE OF HAWAT'T ee SWIFT SECURITIES LIMITED, ASSOCIATED HOLDINGS LIMITED, NATIONAL COMMODITIES LIMITED, WALKER SECURITIES LIMITED, ASIA PACIFIC HOLDINGS LIMITED, and ENERGY SUPPLY INTERNATIONAL LIMITED, Defendants-Petitioners ‘THE HONORABLE FRANCES Q.F. WONG, SENIOR JUDGE OF THE FAMILY COURT OF THE FIRST CIRCUIT, STATE OF HAWAI'I, Respondent and Plaintift-Respondent GLORIA JOANN VAYL YAU, OOO ORIGINAL PROCEEDING wRIT 5} 330 soa Lhe yy DENY: TION Nakayama, Acobs, and Duffy, JJ.) (py: Moon, C.J., Levinson, upon consideration of the petition for a writ of prohibition or writ of mandamus filed by Petitioners swift Securities Limited, Associated Holdings Limited, National Commodities Limited, Walker Securities Limited, Asia Pacific Holdings Limited, and Energy Supply International, Limited, the papers in support, and the records and files herein, it appears: (1) Petitioners are petitioning the court to review orders and rulings issued by the respondent judge in Yau vs Yau, FC-D. No. 05-1-2047, presently pending in the Family Court of the First Circuit; and (2) Petitioners fail to demonstrate that they are oI entitled to a writ of prohibition or writ of mandamus. Therefore, IT 1S HEREBY ORDERED that the petition for a writ of prohibition or writ of mandamus is denied without prejudice to Petitioners seeking relief in the pending family court proceeding and without prejudice to any renedy Petitioners may have by way of appeal. DATED: Honolulu, Hawai'i, December 19, 2005. Ke-ching Ning and Sil! Raanow for defendanes-petitioners on the writ Btw Bhioniaon ue Co caneeyer sree po —arNS Conn 4 Daddys th: 

c5f2f618819e1788940538ca52394df2c5a3a4447acf495fd70d84b509f29723

2005-12-19T00:00:00Z

c82a49a0-b844-4031-9efa-a12cc5a25fcf

Kiehm v. Adams. Dissenting Opinion by J. Acoba [pdf]. ICA mem.op., filed 10/08/2003. ICA Order Granting Defendant-Appellant's Motion for Reconsideration and Vacating Memorandum Opinion, filed 10/22/2003 [pdf]. New ICA mem.op., filed 11/13/2003. ICA Order Granting Defendant-Appellant's Second Motion for Reconsideration and Vacating Memorandum Opinion, filed 12/03/2003 [pdf]. ICA Opinion, filed 04/30/2004 [pdf], 109 Haw. 278. Dissenting Opinion by J. Lim [pdf]. ICA Order of Amendment, filed 05/13/2004 [pdf]. ICA Order Denying Defendant-Appellant's Motion for Reconsideration of the Opinion filed on April 30, 2004, filed 05/13/2004 [pdf], 104 Haw. 460. S.Ct. Order Granting Application for Writ of Certiorari, filed 06/15/2004 [pdf], 105 Haw. 130. S.Ct. Order Denying Motion for Reconsideration, filed 01/19/2006 [pdf], 109 Haw. 578. S.Ct. Order of Correction, filed 02/03/2006 [pdf].

109 Haw. 296

hawaii

Hawaii Supreme Court

LAW UBAARY *** FOR PUBLICATION *** IN THE SUPREME COURT OF THE STATE OP HAWAI'T ---000: SUSAN KIEHM, Respondent /Plaintiff-Appellee, = aayes IAN ADAMS, Petitioner/Defendant-Appellant, and CSO O€ 930s DOES 1-10, Defendants. No, 25411 CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIV. NO. 02-101KN) DECEMBER 30, 2005 LEVINSON, NAKAYAMA, AND DUFFY, JJ.; AND ACOBA, J., DISSENTING OPINION OF THE COURT BY DUFFY, J. this court granted the application of MOON, C.J, On June 15, 2004, Petitioner/Defendant-Appellant Ian Adams (Adams) for a writ of certiorari to review the published opinion of the Intermediate (ICA) in Kiehm v, Adams, No. 25411, slip op. Court of Appeals the ICA vacated the August 21, (App. Apr. 30, 2004).! Therein, 2002 judgment and August 29, 2002 writ of ejectment of the District Court of the Third Circuit (the court)? entered against Adams with respect to the property of Respondent /Plaintiff- \dge Janes $. Burne authored the opinion, joined by ‘ascoeiate Judge John SW. Lim filed a 5 chiet Associate Judge Corinne Kk. Watanabe. dissenting opinion. ‘The Honorable Joseph P. Florendo presided. *** FOR PUBLICATION *** Appellee Susan Kiehm (Kiehm) located in Kailua-Kona, Hawai'i. Slip op. at 18. We now reverse the ICA's decision and affirm the judgment of the court.” I. BACKGROUND AL Eacts: The following background is drawn from the court’s undisputed findings of fact and from evidence adduced at trial. Kieha is the owner and landlord of the subject property, a single family residence. In or around January 2000, Tammy Ayau entered into a oral month-to-month agreement with Kiehm to rent the residence for $1,000 per month. In or about Novenber 2000, Adams, Ayau’s boyfriend at the time, moved into the residence and paid $500 per month to Ayau toward the rent. Ayau explained that she “had to find @ roommate because [she] couldn't afford the $1,000 a month,” but. that she did not “sublet or assign [her] lease [with Kiehm] to [Adans].” Adans testified that he had no written or oral rental agreement with Kiehm. He added, however, that he did have an “agreement with [Ayau],” although he did not elaborate on the type of agreement. During the time Ayau and Adams lived in the residence, Ayau directly deposited both her and Adams’ rent into Kiehn’s bank account at First Hawaiian Bank. > ania court reviews writs of certiorari for “(1) grave errors of law or of fact, or (2) obvicus inconsistencies in the decision of the Sntermediate appellate court with that of the suprene court, federal decisions, oF its own decision, end the magnitude of such errors or inconsistencies cictating the nees for further appeal.” Mawai'l Revised Statutes (HRS) § €02-29(D) (Supp. 2008) 2 *** FOR PUBLICATION *** Ayau recounted that on January 15, 2002, she delivered a letter to Adams notifying him that “he had to be out by February 28th, 2002,” and that “there [wa]s someone else moving in on the Ist of April.” Adams testified that Ayau often told him and wrote letters to him to move out, but “after the first twenty of them, [he] just started throwing them away. [He] wouldn't even read them.” He added, “(Ayau] was constantly threatening to throw me out if I didn’t do what she wanted me to do... . (The rental arrangement] was very unsecure [sic], you know.” Adams further related that he had not seen Ayau’s January 15, 2002 letter prior to the trial. According to the court's undisputed finding of fact no. 7, “[Kienm] and Ayau’s month to month tenancy was terminated by oral agreement effective March 31, 2002.” Ayau testified that she moved out at some unspecified time prior to March 31, 2002. After the end of the rental agreement between Ayau and Kiehm, Adams refused to move out. Kiehm and Adams both testified that on March 28, 2002, Kiehm told him to vacate the premises, but he refused to le: Ayau stopped the utility and cable service for the property at the end of the rental agreement. Kiehm then instructed the electric and cable company not to allow Adams or anyone else to restart service without a written rental agreenent. Kiehm also stopped vater service after the end of the rental agreement and instructed the water company not to allow *** FOR PUBLICATION *** Adams or anyone else to reinstate service without a written rental agreement. B. Procedura] History Kiehn filed suit against Adams on April 19, 2002 alleging that Adams was a trespasser and that he had no agreement to be on the premises. Kiehm asked the court for a judgment giving her possession of the property, damages equal to one month’s rent, and a writ of possession directing a sheriff or police officer to (1) eject Adams from the property and all persons in possession of the property through Adams, (2) remove all personal belongings of Adams or any other person from the property, and (3) put Kiehm in possession of the property. Adams counterclaimed on Nay 14, 2002 alleging that Kiehn (1) substantially interfered with his use of the property, (2) engaged in unfair or deceptive acts or practices in violation of Hawai'i Revised Statutes (HRS) § 480-2 (1993 & Supp. 2002), (3) maliciously threatened to evict him illegally by stopping his utility service, and (4) failed to disclose the identity of her designated agent for the property pursuant to HRS § 521-43(£) (1993), Adams sought money damages, attorneys’ fees and costs, and further relief as the court deemed just and proper. ‘The case went to trial on June 4, 2002. At the conclusion of the trial, Kiehm argued that the evidence showed unlawful," provides, in’ relevant part, t and unfair or deceptive acts or practices in the conduct of any trade or Commerce are unlawful.” *** FOR PUBLICATION *** that Adams had at most a “permission to remain on the property [from Ayau] -- not [a] landlord-tenant agreement (with Kiem) ‘he court asked for supplemental briefs regarding “whether or not the landlord is liable to a sublessee under a sub-lease contract,” and scheduled a post-trial hearing on that issue for June 25, 2002. After hearing argunent from the parties at the post~ trial hearing, the court orally ruled in favor of Kiehm, finding that Adans was 2 trespasser once the Kiehm-Ayau oral lease terminated. The court entered its findings of fact (findings) and conclusions of law (conclusions) on August 21, 2002. The relevant findings were as follows: tor si060\per sonth gn a eonth tevsonth eenancy) | 7” OY feprokinat tly So and operbolt years” ao: This pas an ors) _ + Ayau agreed to pay electric and cable. Iiehn| agieea' eo pay for water’ service: 5. In approximately Novenber 2000, . . . Ayau entered into an agreement sith [Adams] to rent part Of the residence for $800 per month 6. (Kiehm) was Landlord and Ayau was the 7. _{Kienm) and Ayou's month to month tenancy was terminated by oral agreement effective March 31, 2002 8. Ayau notified Adame thet their agreenent would end at chat tine. %. = Aya received cash from (Adams) and deposited the Zent into [Kieha’s] bank account 20, After termination of the tenancy, [Adams] refused zo move Out 21, There was no agreement between (Kiehn) and (cane) 2 = Ayay directed termination of the electric utility ane’ cable service on termination of her tenancy, 5 *** FOR PUBLICATION *** (leha] then instructed the electric and cable companies not to allow [Adams] oF anyone else without a written rental sgreenent to turn on the utilities in their nane- 13. The water service terminated for nonpayment after termination of the lease. [Kicha] then instructed che water company not to allow {Adans] or anyone else without written rental agreement to turn cn the water in their name. 14, There were no written agreements betw (Kiona], or [Adams] - + Aya. ‘The relevant conclusions were as follows: 1. A sun term of promises: se is 2 transfer of part of the Leasehold 2. There is no privity between landlord and sublessce. 3, (Klebm) and (Adams) had no agreement. A landlord hag no rights against a sublessee, and 2 sublessee has no rights against @ landlord arising ost of 3 landiora/tenant relationship. 5. when the month to month lease terminates, the sublease terminates, 6. (Adame} was not entitled to possession upon termination of the lease between Ayau and. [Aiehn) 7. {Adams} As not entitied to damages against [xieha] for unfdir and deceptive trade practices. 9. (Adams) is trespassing on the property owned by Odense) | 10. [Kiche) 1s entities to a judgment and a writ of ejectaent against [Adame]. 11. (Kuehn) Se entities to Judgment in ner favor on 11 (Adans'] ‘counterelains. 12, {Kuehn} is entitied to judgment against (Adams) for danages of $1000 per nonth from April 1, 2002 through fand inclusing Jone 25, 2002 (with per diem danages at the rate of $32.87 for those days in June) 13. (Kiehm) is entities to her costs and service fees. 14, [Adame] is not entitled to damages against (Kienn) for [Kiehn’a] failure to disclose # local agent, 25, [Kiehm) ie not entitled to punitive damages. *** FOR PUBLICATION *** Final judgment and the writ of ejectment were entered against Adams on August 21 and 29, 2002, respectively. on Septenber 20, 2002, Adams filed @ notice of appeal from the judgment and the writ. On appeal, Adams challenged findings no. 8 and 11 (to the extent they were conclusions of law) and conclusions no. 3, 5, 7,9, 10, 11, 12, 13, and 14. Specifically, Adams argued that (1) “the [c]ourt should have held that there is 2 residential landlord-tenant relationship between Adams (as tenant) and Kiehm (as landlord) governed by (HRS chapter] $21[,]" the Residential Landlord Tenant Code (hereinafter, the Code), and that Adams “is a month-to-month tenant under [HRS] § 521-22(;]”5 (2) the court should have made “[a] specific finding . . . that Adams was not given the required notice to terminate his sublease with Ayau[?]” (3) Adams, and not Kiehn, is “entitled to possession” inasmuch as (a) “the voluntary termination of Ayau and Kiehn’s lease does not terminat[e] Adams's sublease(,)” (b) by this “voluntary termination,” Adams “beclame) the immediate tenant of Kiehm[,]” (c) “Adams is entitled to proper notice [from Kiehm) under [HRS) § 521-71(a)* RS § 521-22 (1993), gntitied “Tern of rental agreenent provides, in relevant part, that "[t]he landlord and tenant may agree in feriting te any period so the term of the rental agreement (Enphasis added. 1 was § $21-71(a) (1993) states as follows: lien the tenancy is month-to-month, the landlord may ten Bent, in Anticipated termination. When the landlord provides notification of termination, the tenant may vacate at any Eine within the last forty-five days of the period between ‘eontinued...) *** FOR PUBLICATION *** before his month-to-month tenancy may be terminated(,]” and (d) “Kiehm failed to provide adequate notice to terminate Adams's tenancy(;]” (4) Adams is entitled to damages because “Kiehm willfully caused Adams to go without water and electricity for eight days” in “violation(] of HRS § 521-74.5 [(1993);]"” and (5) the “{clourt should have imposed a fine” against Kiehm for her failure to disclose a local agent to Adams as authorized by HRS § 521-67 [(1993)].* In response, Kiehm contended that (1) Adams had no agreement with Kiehm when the Kiehm/Ayau month-to-month tenancy terminated on March 28, 2002; (2) Kiehm was entitled to evict and eject Adams under HRS § 666-1 (1993)* as a trespasser; (3) Adams’ -continued) ‘the notification and the termination date, but the tenant shall notify the landlord of the date the tenant will vace the dwelling unit and shall pay a prorated rent for that period of eecupation. (Emphasis added.) + ans § $23-74.5, entitled “Recovery of possession Limited{,)" provides, in relevant part, that "(t]he landlord shall not recover or take Possession of a duelling unit by the wilfel snterruption or diminution o| Fanning water, hot water, of electric, gas, or other essential service to the tenant contrary to the rental agreement or section 521-42, except in case of abandonment or surrenser.” + ns § 521-67, entities “Tenant's remedy for failure by landlord to disclose(, |” provides that "[i]f the landlord fails te comply with any Gisclosure requirement specified in section 521-43 within ten days after Proper denand therefor by the tenant, the landlord shall be Liable to the Eenant for $100 plus reasonable attorney's fees.” , entitled “Summary possession on termination or states: Wnenever any lessee or tenant of any lands or tenements, or ny person holding under the lessee or tenant, holds foseession of lands or tenements without right, after the Eermination of the tenancy, either by passage of time or by reason of any forfeiture, under the conditions or covenants inva leat Teontinued. *** FOR PUBLICATION *** claims were properly dismissed inasmuch as Adams had no rights against Kiehm under the Code; and (4) Adams’ sole recourse under the Code, if any, would have been against Ayau, but he failed to raise a claim against her. In his reply brief, Adams asserted that (1) assuming HRS § 666-1 applied, Kiehn failed to give him the ten days’ prior notice required to evict him; (2) even if Kiehm had given proper notice under HRS § 666-1, she failed to give him sufficient notice under the Code and specifically HRS § 521-71(a);#* and (3) Kiehm’s factual statements and references to the transcript of proceedings are so replete with errors that bad faith is suggested. on April 30, 2004, the ICA issued a published opinion"? in which the majority assumed without discussion that Adams was @ sublessee of Ayau”? and ruled that Adams’ rights as a tenant *(. continued) (ii least ten dave, the person entitled to the prenises may Becrestored to the possession thereof in manner hereinafter provided. (Emphasis added.) * see supra note 6. "previously, on October 8, 2003, the TCA issued a memorandum opinion affirming the August 21, 2002 Judgment and the August 23, 2002 writ of ejectnent. On October 15, 2003; Adams filed a motion for reconsideration, On October 22, 2003, the ICA issued an order granting Adams’ notion for feconsideration and vacating the October €, 2003 memorandum opinion. On Novenber 13, 2003, the ICA filed a second tenorandum opinion, again affirming the court's judgment snd writ of ejectsent. On Novanber 25, 2003, Adens filed a'notion for reconsideration. On Cecenber 3, 2003, the ICA issued an order Granting reconsideration and vacating the ICR's second menoranum opinion. 3 the ICA dissent, however, concluded that there was no sublease and maintained thet the lower court's decision should be affirmed on that basis Slip oper Dissent at *** FOR PUBLICATION *** depended on whether ‘the primary lease between Ayau and Kiehn had been surrendered or terminated. Slip op. at 14. The ICA reasoned that if Ayau had surrendered her lease prior to completion of a tezm, then Adams would have become the direct tenant of Kiehm entitled to possession: if, however, Ayau and Kiehm had agreed to terminate the lease as provided for by the Code, then the rights of the sublessee Adams would have been extinguished. Slip op. at 10-14. The ICA thus vacated the judgment, the writ of ejectment, and the court’s conclusions no. 4, 5, 67, , 10, 11, 12, 13, and 14, and remanded the case with instructions to the court to determine whether Kiehm and Ayau agreed to terminate their month-to-month rental agreement twenty-nine or more days prior to the agreed termination date, explaining that “[\]£ the answer is yes, [(the oral agreement occurred twenty-nine or more days prior to the agreed termination date,)] the facts present a termination” and “[iJf the answer is no, [(the oral agreement occurred twenty-eight or less days prior to the agreed termination date,)) the facts present a surrender.” Id. at 14 On May 11, 2004, Adams filed a motion for reconsideration, which the ICA denied on May 13, 2004. on June 14, 2004, Adams made application to this court for a writ of certiorari, arguing that the ICA gravely erred “in concluding that an ora] agreement between @ residential landlord and tenant to end their month-to-month lease 29 days or more later results 10 *** FOR PUBLICATION *** in a ‘termination.’ (Emphasis in original.) While agreeing with the ICA’s use of the surrender-termination distinction and the consequences of its application to the instant case, Adams asserts that “the Opinion incorrectly concludes that the distinction between a ‘surrender’ and a ‘termination’ depends enly on whether or not the oral agreement was made at least 29 days before the ending of the lease, . - . disrecarding the ment... .” We granted Adams’ application on June 15, 2004, and now reverse the ICA’s opinion, but not for the reasons advanced by Adams. TT. STANDARD OF REVIEW “A trial court's conclusions of law are reviewed de novo, under the right/wrong standard of review.” Child Support Enforcement Agency v, Ros, 96 Hawai'i 1, 11, 25 P.3d 60, 70 (2001) (quoting State v. Ah Loo, 94 Hawai'i 207, 209, 10 P.3d 728, 730 (2000)) (internal brackets and quotation marks omitted). Tt ig well settled, however, that the appellate court may affirm @ lower court's decision on any ground in the record supporting affirmance, even if not cited by the lower court." See State vs Rosa, 69 Hawai'i 371, 378 n.4, 974 P.2d 11, 18 n.4 (2998) (“AN appellate court may affirm a judgment of the lower court on any the Dissent suggests that Kieha’s failure to argue that Adans was a Licensee prevents this court from eo holding. Dissent st 2. We disegres. he noted above, the appellate court may affirm the lower court's decision on any ground supported in the record. "Here, the record supports the conclusion that Sudgrent. was properly granted in Kieha’s favor on ancther ground (ig., that Adame was a licensee) *** FOR PUBLICATION *** ground in the record that supports affirmance.”) (internal quotation marks and citation omitted) . IIT. pISCUSSION As the ICA dissent notes, “[t]he foundation of the {ICA’s] majority opinion is the determination that a sublease . relationship existed between Ayau and Adams.” Slip op., Dissent at 1, It is undisputed that Adams was a roommate of Ayau by agreement between those two parties, and was therefore 2 tenant as defined by the Code. See HRS § 521-8 (1993) (defining “tenant” as any occupant under a rental agreement and “rental agreement” as any agreement concerning the use or occupancy of a dwelling). However, it does not necessarily follow from that fact that the type of Adans’ tenancy was a leasehold, as the ICA majority would have it. To the contrary, the Code and the conmon law of this jurisdiction compel the conclusion that Adams was not & (sub) lessee of Kiehn or Ayau, but instead a Licenses of Ayau, as the ICA dissent suggests. Accordingly, we hold, for the reasons set forth below, that Adams, as the holder of a license revocable at will, became a trespasser as of the time at which the licensor Ayau's interest in the property ceased on March 31, 2002. A, ‘The Relationship Between Not Sublease. First, while it is true that HRS § 521-8 defines “rental agreement” extremely broadly, the Code also notes that it does not provide for all legal rights or obligations arising out 12 *** BOR PUBLICATION *** of a rental agreement. HRS § $21-3(b) (1993). The logical conclusion to be drawn from the broad definition of “rental agreement” when juxtaposed against the Code’s acknowledgment of rental agreements giving rise to rights not covered by the Code is that the Code contemplates tenancies or arrangements other than leaseholds. Indeed, the Code specifically states that it is supplemented by the common law. See HRS § $21-3(a) (1993) ("Unless displaced by the particular provisions of [the Code], the principles of law and equity, including the law relative to . real property, - . - supplement [the Code’s] provisions.”). As set forth below, the common law of landlord and tenant provides for tenancies other than leaseholds, including licenses, and the Code has not displaced that law with respect to the tenancy found in the instant case. 4 The Dissent relies upon the “plain mesnine” of the term “sublet” fas synonymous with “lease” or “rent” based on the definition found in Merriam Nebster's Collagiate Dictionary and the general definition found in Black's Law Dictionary. Dissent at 6-7. We believe, however, that with respect to egal terns of art such as “lease” and “sublease,” reliance on general Gefinitions is misplaced. Rather, (assuming for’ the monent that there is 2 heed to consult a dictionary in the first place] a more appropriate definition fo consult would be a more specific one. the sissent characterizes the Aysu" Adans “sublease” as @ month-to-month tenancy, Dissent at 9 leading us to Consult the definition in Black's Law Ouetionary entitled “Month te month Tease.” Under that header, however, the dictionary states: “Tenancy where no Lease is involved, rent being pais monthly.°\ Slacks Law Dictionary (eth ed 4990) at 290 (emphasis added). In other words, the specific definition in this case suggests the opposite of what the Digaent contendsy namely, the agreenent between Aysu and Adams was got 2 lease in the legal sense. Ultinately, however, we believe there 1s po need to consult either a general is case law in this jurisdiction on point the discussion immediately be 127 (1868); K Park bre July (hereinafter, Eapiolansl, 69 saw. 569, 751 P.2a l0z2 (1988); end Bush te Matscn, 81 Howell 474,918 P.24 1230 (2996) a *** FOR PUBLICATION *** At common law, a roommate is not considered 2 sublessee."* See Brewer, 3 Haw. at 140 (“It was long since settled, that a covenant not to sub-let a tenement was not broken by taking lodgers{.]") (Citation omitted.). See also 49 Am. Jur. 2d Landlord and Tenant § 1167 (1995) ("Since a rooner or ledger is not a tenant in the strict legal sense, it has generally been held that the taking in of rooners or lodgers by a lessee does not constitute a violation of a covenant or provision against subletting.”). Instead, the rule is “well settled that an agreement by @ lessee with @ third person for the permissive use by the latter of the leased premises . . . merely anounts to a License to use the property.” Id, at § 1168 (citing cases) (emphasis added). In contrast to a lease, a license in the law of real property conveys no estate in land, is not assignable, and is revocable at the will of the licensor.%* Kapiolani, 69 Bush v, Watson, @1 Hawas's at 482-83 n.11, 918 P.2d at 1138-39 n.21. Haw. at 579, 751 P.2d at 1028~! 8 We acknowledge that the Code defines “rocner” and “boarder.” sea HRS § $21-8 (defining rooners and boarders as tenants occupying dwelling units ina bollding in which the landlord resides and sharing one or more major facilities such as bathroom or kitchen). However, the Code’ s definition by its terns applies only to traditional Bosrding houses of other buildings with multiple discrete rooms; it does not address situations in which the landlord fand tenant occupy the game dwelling unit. Thus section 521-8 is Snappiicable Gn its face to the instant case and provides no basis for us to find enat the Code displaces the common Law principles governing roommate relationships. This court most recently defined a License with respect to reat property in Brewer v, Weeks, 104 Hawai'i 43, 85 P.sd 180 (2004) There, we noted that a license “denotes an interest in land in the possession of another which (a) entities the ower of the interest tova use of the land, and (b) arises from the consent of the one whose interest in the land used is affected thereby, and (c) is not incident to-an estate in the land, and (d) 18 aot an easonent."" 14. at 609.26, 85 F.3d at 175 n.28 (quoting Restatement of Property § $i2"(1948)) a *** FOR PUBLICATION *** Having previously recognized the common-law distinction between leaseholds and licenses, this court has followed the rule that whether an agreement is a license or a lease depends on the intention of the parties as ascertained from the nature of the agreement.” Kapiolani, 69 Haw. at 578-9, 751 P.2d at 1028-29; Bush, 81 Hawai'i at 486, $18 P.2d at 1142. In Kapiolani and Bush, this court listed several factors that a court should consider in determining whether an agreement is a lease or a Licenst (2) Most importantly, does the grantee have the right to occupy @ distinct and separate part of the premises (ive, definite parcel)? Bush, 81 Hawai'i at 486, 918 P.2d at 1142 (citing 49 Am. Jur. 2d Landlord and Tenant $ 1161); Kapiolani, 69 Haw. at $79, 751 P-2d at 1029; sa@ alge 49 Am. Jur. 2d Landlord and Tenant § 21 (“Exclusive possession of the leased premises is essential to the character of a lease... . There must be a conveyance of a definite space in order for a lease, rather, than a license, to exist; both the extension and the location of the Harkine space within the lessor’s premises must be specified.” % the Dissent attempts to distinguish case law cited by the majority both within this jurisdiction (je, Kapiolani and Bush) and without (i.e, Marking} at being factually distinguishable im that those cases dealt with Ron-residentisl scenarios. Dissent at 3-10. A review of cases from cther Jurisdictions persuades us, however, that the lease-License distinction is equally applicable in a residential context. ‘ re Mavdon, 75! N.v,8.24 456, 457 (N.¥.A.0. Let Dept. 2002) {at-will occupancy of apartnent constitutes license rather than sublease); Har Holding Co. ¥ Feinberg, 697 N.Y.8.24 903, 904 (N.Y. Sup. 1999) (finding tnat roommate who Fenained in the epartaent after lessee tenants had vacated was a licensee not entitled to possession as against the landlord); Schell v, Schell, 165 F.22 G54, 656 (Cal. App. 4 1946) (lodgers in the hone of another are Ticeni her than lessees! as *** FOR PUBLICATION *** vs Win Corp., 771 A.2d 1025, 1027 (D.C. 2001) (essential distinction between roomers and tenants is whether the occupant has exclusive possession or control of the premises); (2) Is the grantee’s right to possession assignable (suggesting a lease) or is it a personal privilege (suggesting a license)? Kapiolani, 69 Haw. at 579, 751 P.2d at 1029; see also 49 Am. Jur. 2d § 21 (same); and (3) Is the agreement for a fixed term (suggesting = lease)? Kapiolani, 69 Haw. at 579, 751 P.2d at 1029; see also McCandless v, John Ii Estate, 11 Haw. 777, 788-89 (1899) (same); 49 Am. Jur. 24 § 21 (same). A consideration of these factors in the instant case leads to the conclusion that the agreement between Ayau and Adams was a license, not a sublease. First and foremost, as a roommate, Adams did not have exclusive possession of the property; rather, he shared possession with Ayau." With respect to the second factor, although there is no written agreement or other direct evidence regarding the transferability of Adams right to use the property, the circumstantial evidence (e.g, ae indicated sbove, it is in this ares that = roommate arrangenent is most clearly distinguishebie from a (aub} lease. in he typical, sublease Scenario, the sublessor is absent for sone period lese than the full term of tnd thus transfers possession and her interest. for that period to the sublessee. In contrast, 2 licensor does not cede exclusive postession or transfer her interest, but instead shares possession See Anerican deuish Theater vy Roundabout ‘theatre cou, ince, G10 NeisSi2d Zeer SST Roe et Dept. 198i) (vthe nature cf the transfer of absoivte contfol and possession ie what differentiates « lease from a License of any sther arrangement. dealing with property rights.")7 oberts ve Livan Ice Co,, 73 NE. 523; 526 (Mass, 3905)" (question of whether an agreement Concerning use of rea property is @ lease of a license depends on whether the agreenent cedes exclusive possession fron one party to the other). “See genetally ¢9 An. Jur.2d§ 21 (aiscussing distinction between lease and license) 16 *** FOR PUBLICATION *** previous romantic relationship; Ayau’s testimony that she did not intend to sublease) leads us to conclude that Adams did not have the unilateral right to assign his interest in the residence (iue., Ayau did not grant Adams 2 right to bring in an additional roommate or a new roommate to replace him) and thus his privilege to use the property was personal. Third, the agreenent between Ayau and Adams was not for a fixed term. Because each of these factors points toward the existence of a license," we hold that the agreement between Ayau and Adams constituted a license the Dissent's argument thet the application of the Kapiolani snd ‘Bush factors here yields the conclusion that the agreement was a {cablieace it Unpersuasive, Dissent at 7-9. First, there is no support in the record for tthe proposition that Adame had an agreement with Ayau for gxclugive possession of a aistinet part of the residence. sven assuming that the district court's Finding that Adams “rent [ed] part of the residence” can be taken to imply thet the "part" was distinct, there is no evidence, direct or circusstantiet, thi Adams had gxclusize possession of such part (day, that Ayau was not allowed to go into his room or part). Rather, the evidence (i.e,, prior romantic relationship; Ayau's constant threats to throw Adane oot? Ayau"s statement that to sublease was intended) shows that Ayau never intended to or did cede exclusive possession or control of any part of the residence to Adams. As set forth above, the same evidence also supports the conclusion that Adans’ License was’ not assignable: Also, the Dissent appears to confuse the provisions of the Code with the nature of the rental agreement When considering the term of the Bgreenent. Dissent at 9. There is no evidence in the record that the oral Sgreenent between Ayau and Adana vad intended to have any fixes term =~ that Agans peid $500 per month for his license does not make it a fixed-ters Agreenent any more thon a year-to-year license to erect a sigh prevente the ifsenesr from removing the sign end cancelling the License av its discretion y 18 N.B.2d 362, 364 (Mass. 1936) rocation of a License may constitute a See. (holding on those facts that *Ttihe breach of contract, and give rise to an action for danages. But it is nonetheless effective to deprive the licenses of all justification for Gntering or ressining upon the land.) (Citations onitted.). Although the Dissent is correct in noting that, by operation of law, section 521-22 of the Code specifies that the tern of a tenancy is month-to-nonth where no other Period is specified, Dissent at 9, and thus termination by the landlord in the Instant case may have required forty-five cays" advance written notice under secticn 521-71(a) of the Code, Dissent at 16, that suggests only that the Code has displaced the comon law with respect to the termination of licensing agreenents (a possibility which we recognize, Dut dismiss 26 not pertinent to This case, see dnfca note 21), see Olssent at 26, not the essential ature of the agreements 35 licenses. ” *** FOR PUBLICATION *** revocable at will rather than a sublease.” B. Adane Became 2 Trespasser when the Right to Possession of His Licensor Avau Terminated, From this point, the analysis is straightforward. First, @ license is revocable at the will of the licensor. See Bush, 61 Hawai'i at 487, 918 P.2d at 1143 (key feature of a License is that it is revocable at the will of the licensor) (citing 2 R. Powell and P. Rohan, Powell on Real Property § 34.25 at 34-298 through 34-301 (1995)). Second, @ License cannot continue to exist after the licensor's own interest in the land has been extinguished. Cf. McCandless, 11 Haw. at 789 (license is automatically revoked by sale of the land and ceases upon the death of either party). Here, evidence was adduced to show that Ayau gave notice to Adams both of her intent to revoke the Ayau- Adams agreement and of the impending termination of the Ayau- Kiehm agreement.” Moreover, it was the undisputed finding of the court that the Ayau-Kiehm lease agreement did in fact terminate on March 31, 2002. Accordingly, Adams’ license % This is not to say, however, that a roommate may never be 2 (sub)lessee or that parties are not free to contract out of the default Commen-iaw rules regarding notice and teraination. We hold only that on these facts, and in the absence of any oral or written agreements with Ayau or Kiehn to the contrary, Adams was the holder of 2 license revocable at will. To the extent that the Code has displaced the common law regarding termination of Licenses and Adans did not receive adequate notice of Fermination from Ayau, that would give Adans 2 claim only against his Licensor/iandlord, Aysu. On the other hand, Adame would have no claim against Kuehn Because she wag not initielly # party’ toa rental agreenent with Adans and never becane party thereto because the doctrine of surrender is inapplicable to licenses in that, as set forth above, @ license is tersinated aen the iicensor’s right is extinguished ond even improper termination does ot give the licensee a right to remain on the property. Accordingly, We need Bot consiger the iseve further herein 18 *** FOR PUBLICATION *** terminated no later than March 31, 2002, the last day of the Licensor Ayau’s interest in the property. As of April 1, 2002, therefore, Adams was a trespasser without right to possession. As such, he was not entitled to any notice to vacate from Kiehm; rather, it was Kiehn who was entitled to summary possession, ejectment, or other remedy to remove Adams.** Therefore, the judgment of the court was correct and the ICA erred in concluding otherwise. Iv. CONCLUSION For the foregoing reasons, the ICA’s April 30, 2004 opinion is reversed and the August 21, 2002 final judgment and August 29, 2002 writ of ejectment of the court are affirmed. Elizabeth B. croon For petitioner /oefendant- sppeblant on the writ Bt Slallvinaen Reset Co aeieeyrts Cenan.e. Duddy, Gre We agree with the Ich majority’ application of HRS § 666-2 to the instant facts, sip op. at 16, and hold that Adams was a “person holding under the lessee or tenant. [iuga, Ayau],” not a “tenant (of Kiehs) by parol” entitled to ten days’ notice to quit from Kiehn. 19 

7d8dd52eee964a6a54942e4af81e2f0e733cf47e9174c6bb99acb747bc88d69f

2005-12-30T00:00:00Z

9cb7371c-5994-4106-9bc3-886177b34111

Office of Disciplinary Counsel v. Phillips

hawaii

Hawaii Supreme Court

No, 26113 IN THE SUPREME COURT OF THE STATE OF HAWAI'I OFFICE OF DISCIPLINARY COUNSEL, Petitioner Respondent LUNSFORD DOLE PHILLIPS, 218 Hh 6~a30sigg In ve Application for Reinstatement of 5, LUNSFORD D. PHILLIPS, Petitioner (ove 01-142-6886) (By: Moon, C.J., Levinson, Nakayama, Acoba, JJ., and circuit Judge Cardoza, in place of Duffy, J., Recused) Upon consideration of (1) the Disciplinary Board’s report and recommendation for the reinstatement of Petitioner Luneford Dole Phillips (Petitioner Phillips) to the practice of law in Hawai'i, (2) a lack of opposition thereto by Respondent Office of Disciplinary Counsel, and (3) the record, it appears that Petitioner Phillips has proved by clear and convincing evidence his rehabilitation, fitness to practice law, competence, compliance with all applicable disciplinary orders and rules, and compliance with all other requirements that the supreme court imposed, as Rule 2.17 of the Rules of the Supreme Court of the state of Hawai'i requires for reinstatement. Therefore, IT IS HEREBY ORDERED that Petitioner Lunsford Dole Phillips's (attorney number 4407) Petition for reinstatement is IWS granted and Petitioner Phillips is reinstated to the practice of law in Hawai't. YT IS FURTHER ORDERED that upon Petitioner Phillips's payment of all required dues and registration fees, the Clerk of the Supreme Court of Hawai'i shall restore Petitioner Phillips to the roll of attorneys who are eligible to practice law in Hawai'i. DATED: Honolulu, Hawai'i, December 9, 2005. é ‘ ShecBknnvo— Raseeee Or wssdieny ares -— OT** 

4e21fa4aed20b46aad4506393011c9b895abb4734898cce62d1d68b1554dadaf

2005-12-09T00:00:00Z

bcda47be-9c84-4387-b22a-79b9c53bfcb2

Unity House, Inc. v. Heavenly Road Productions, Inc.

hawaii

Hawaii Supreme Court

No. 27595 IN THE SUPREME COURT OF THE STATE OF HAWAI‘T }oz 930 S002 UNITY HOUSE, INC., Plaintiff-Appellee HEAVENLY ROAD PRODUCTIONS, INC. and MICHAEL LUCAS, Defendant s-Appellants —_—_— APPEAL FROM THE FIRST CIRCUIT COURT (CIV. NO. 98-5043) ‘ORDER (ey: Duffy, J.) upon consideration of Plaintiff-Appellee Unity House, Inc.'s motion to dismiss the appeal of Defendants-Appellants Heavenly Road Productions, Inc. and Michael Lucas, the papers in support, and the records and files herein, it appears: (1) Appellee contends the notice of appeal filed November 14, 2005 is premature; and (2) the record on appeal will not be transmitted to the appellate court until January 13, 2006, and without the record, this court cannot determine whether the notice of appeal As premature. Therefore, IT 1S HEREBY ORDERED that the motion to dismiss is denied without prejudice to Appellee filing a subsequent motion to dismiss after the record on appeal is transmitted to the appellate court. DATED: Honolulu, Hawai'i, December 20, 2005. bavi J. Gterlach and Brian A. Duus Gree Deis dr, for plaintiff-appellee Associate Justice on the motion 

e2f99d9345629ce7b3e07b9b128d15aa16d3ec985375c44a3e629c123b8e50b0

2005-12-20T00:00:00Z

cec7c502-5dba-4ddc-8746-f3f92d3050ab

Office of Disciplinary Counsel v. Hartman

hawaii

Hawaii Supreme Court

Wo, 27521 IN THE SUPREME COURT OF THE STATE OF HAWAI'T ' OFFICE OF DISCIPLINARY COUNSEL, Petitioner GARY L. HARTMAN, Respondent qa (ope 05-130-8282; 05~146-8298) (By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.) Upon consideration of the petition filed by Petitioner Office of Disciplinary Counsel (Petitioner ODc) for the immediate suspension of Respondent Gary L. Hartman (Respondent Hartman) from the practice of law pursuant to RSCH 2.128, Respondent Hartman’s response to our order to show cause, and Respondent Hartnan’s second request for an extension of time to file menorandum in opposition to suspension of license, it appears that Respondent Hartman is the subject of an investigation by Petitioner OD and that while he did not timely respond to each of Petitioner 0Dc’s attempts to investigate the disciplinary matters, Respondent Hartman has now responded to each of grievants’ allegations in DC 05-130-8262 and ODC 05-146-8298. Although this court could conclude that Respondent Hartman is guilty of a failure to cooperate with Petitioner DC's investigation or disciplinary proceeding because of Respondent Hartman’s failure to respond timely and to appear in response to @ subpoena, Respondent Hartman's untimely response to our order to show cause (filed November 2, 2005) addresses the client's Grievance and attorney Scot Brower’s grievance and provides sufficient information for Petitioner 0DC to proceed. Therefore, Anmediate suspension would not be appropriate at this time. Respondent Hartman is admonished that this court will not be so lenient with regard to any other failure to cooperate with Petitioner oc, Accordingly, IT IS HBREBY ORDERED that the Office of Disciplinary Counsel's petition for the immediate suspension of Respondent Gary L. Hartman is denied without prejudice, and this case is remanded to the Office of Disciplinary Counsel for such further proceedings as are appropriate. I? IS FURTHER ORDERED that Respondent Hartman's second request for an extension of time to file memorandum in opposition to suspension of license is denied. DATED: Honolulu, Hawai'l, November 23, 2005. 

eb7ee227b24207db9ae69bc4dd297053013aa629ca7fa37c194a663dba22244c

2005-11-23T00:00:00Z

88369d2d-bbcc-41e8-b7ce-01dfc7347c25

In re Application of Waikoloa Sanitary Sewer Company, Inc. S.Ct. Order of Correction, filed 02/02/2006 [pdf].

109 Haw. 263

7287

hawaii

Hawaii Supreme Court

‘***FOR PUBLICATION*** IN THE SUPREME COURT OF THE STATE OF HAWAT'T . ---000--- Hd 62 930 S002 ans ee IN THE MATTER OF THE APPLICATION OF aj WAIKOLOA SANITARY SEWER COMPANY, INC., dba WEST HAWAI'I SEWER COMPANY For Approval of Rate Increases and Revised Rate Schedules No. 25087 APPEAL FROM THE HAWAI'I PUBLIC UTILITIES COMMISSION (DOCKET No. 00-0440) DECEMBER 29, 2005 C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ. OPINION OF THE COURT BY ACOBA, J, in this appeal by Applicant-Appellant Waikoloa Moon, We hold, Sanitary Sewer Company, Inc., dba West Hawaii Sewer Company (Appellant) that (1) because the filed-rate doctrine applies to the Contributions in aid of construction (CIAC) payments provision of the tariff filed by Appellant with Appellee Public Utilities Commission of the State of Hawai's (Commission), ‘+#*FOR PUBLICATION*** “contributions” collected by Appellant were nonrefundable under the terms of the tariff; (2) the use of CIAC funds by Appellant did not violate the terms of the tariff on file with the Commission; (3) the plain language of the tariff presents no conflict as to Appellant's use of Net Operating Losses (NOL) funds to offset its tax liabilities; and (4) Appellant failed to the issue of miscalculation of its Test Year income timely rai: taxes before the Commission. Therefore, (1) Decision and Order No. 19223 (decision and order) issued by the Commission on February 27, 2002, directing Appellant to refund contributions and (2) Order No. 19294 (order) issued by the Commission on April 10, 2002 denying Appellant's motion for reconsideration of the decision and order are reversed and Appellant’s appeal of the miscalculation issue is dismissed. I Appellant appeals from the decision and order and the order. The decision and order approved Appellant’s request for a general rate increase and directed Appellant to refund $681, 400 to the “contributors” to Appellant's CIAC funds from 1987 to 1996. In the proceeding before the Conission, Appellee Division of Consumer Advocacy, Department of Connerce and Consuner Affairs of the State of Hawai'i (the Consumer Advocate) disputed \ an dee decision and order, the Commission directs Appellant to refund CIAC funds to “contributors.” It appears that these contributors are nine zeal estate developers. ‘***FOR PUBLICATION*** Appellant's position on the treatment of CIAC funds for income tax purposes and the application of the tax gross-up method.’ m. Appellant is a public utility that provides wastewater collection and treatment service to residences, condominiums, commercial establishments, and public facilities located at Waikoloa Village on the island of Hawai'i. The facts concerning CIAC funds are as follows. Prior to 1987, section 118(b) of the Internal Revenue Code (IRC) provided that CIAC funds received by public utilities were not included in the taxable income of such public utilities, and therefore, were not subject to taxation. IRC § 118(b) (2986). Effective December 22, 1984, Appellant’s “Rules and Regulations, Description of Service Area and Sewer Rate Schedules” were published as tariff rules with the Commission. These rules did not include any references or instructions as to cnc funds. On January 1, 1987, the Tax Reform Act of 1986’ (Tax Reform Act) tock effect and repealed IRC § 118(b). As a result, CIAC funds were subjected to income taxes and treated as taxable income in the year received. + According to the Commission's Order No. 19335, gee discussion Antes, “[ulnder the full gross-up sethod, the contributors of CIAC. . . would bbe required to pay 2 sum, cver and above the CIAC. . .., sufficient to cover the taxes associated with the contributions|.)" 3 ‘+#*FOR PUBLICATION*** on May 1, 1990, Appellant filed a “Notice of Revisions to its Rules and Regulations” (notice) with the Commission. This notice proposed Rule XI as “[a] new rule requiring (CIAC] from developer and conmercial applicants for service . . . to help [Appellant] pay for the cost of expanding the capacity of its water eystem to serve such applicants.” The notice described Rule XI as follows: Proposed Rule XI is particularly important to the continued viability of [Appellant]. ul 8, Lo fex of substantially expanded develoments, subdivisions. bed commercial facilitier- It 19 common industry practice For water and sewer utilities to require developers and Commercial applicants to contribute the cost of adding water and sewer systen facilities. This enables the utilities to feise and/or repay the funds necessary to develop the new facilities, while ensuring that existing custoners will not be burdened with the costs of adding facilities to serve new Costonere. The amount of the proposed contribution was) Setablished based on a study conducted by (Appellant! s] Staff, with assistance from R.M. Towill Corporation. In nt icipated co: ng nu fe wv ‘sontiibutions. (Emphases added. ) The study proposing the amount of CIAC was attached to Appellant’ s notice as Exhibit £. Entitled “{appellant’s] Sewage ‘Treatment Facility Development Program and Calculation of CIAC Fee," Exhibit £ first explained that, [als yet, (Appellant) has not established a [CIAC] program . . . in order to provide the required capital for additional sewage treatment facilities needed to meet expected future demand. This report summarizes efforts to establish an appropriate CIAC for (Appellant).” 4 *#*FOR PUBLICATION*** Exhibit E then stated that “[a] CIAC fee is a non-refundable fee charged to developers for the cost of expanding capacity in the utility company to service new demand.” (Emphasis added.) Exhibit £ listed four components to the CIAC fee, including “Sewage Treatment Plant Capacity, Primary Collection, Income axes, and Financing,” and “attributed $2.25 inerl gallon to the Lilncome [tlax (clomponent.” (Emphases added.) Lastly, Exhibit E “concluded that a fee of $9.50 [per] gallon was ‘the fee which minimized financing charges over time and did not build cash reserves in [Appellant].‘” qn. on July 5, 1990, Appellant’s proposed Rule XI labeled as “WSSC Tariff No. 1" became effective as a tariff.’ Section 1 of Rule XI provided that “[a]s a condition of receiving service or substantially increasing sewage outflow volume from new or substantially modified facilities, developer and commercial, applicants shall be required to pay a non-refundable [CIAC] to {Appellantl.” (Emphasis added.) Section 2 of Rule XI generally described the uses of CIAC payments. It states in relevant part 2. ICIAC) payments are used by the Company to install Fequited to serve such applicants or consuners, including: (a) Construction of new primary collection main extensions) (b) Construction of new percolation ponds and injection wells: ® the parties do not dispute that Rule XI becane effective on July 5, 1990. ‘***FOR PUBLICATION*** (c) Construction of new primary collection system or Anprovenents to increase the capacity or efficiency of the existing primary collection system (a) Preparation, engineering and design work necessary to the construction of new sewer tr facilities; and (e) Related inprovenents intended to increase the capacity, efficiency or quality of the primary sever System (ase Exhibit C, Description of the System). (Emphases added.) Section 6 of Rule XI specified that “{tlhe amount of the {CIAC) shall be $9.50 per gallon of estimated daily 5 added.) sewage discharge ((EDSD)] from the premises.” (Empha Ww. on April 13, 1992, the Commission initiated Docket No. 7287, “Instituting a Proceeding to Examine the Gross-Up of [CIAC) and Customer Advances to Include Federal Income Taxes.” The Commission opened this docket, “on its own motion, to examine - + + whether a public utility should be required to gross-up CIAC . . , to include federal income tax requirements.” On February 11, 1993, the Commission conducted an evidentiary hearing in Docket No. 7287 and “admitted all filed submissions into evidence.” In 1996, the Small Business Job Protection Act amended IRC § 118. Under this Act, “CIAC funds received by an affected utility after June 12, 1996, were no longer subject to income taxation." Between January 1, 1987 and June 12, 1996 (time TAs Felated to the chonge in tax laws with the passage of the Snail Business Job Protection Act of 1996, the Commission noted the following in Footnote 11 of Order No. 19335 (continued, ‘+**FOR PUBLICATION*** period), Appellant collected approximately $1,930,444 in CIAC funds from the developers. An estimated $732,990 of these funds represented the portion for income taxes payable. During this time period, Appellant reported negative taxable income in all but two years and remitted @ lesser amount, approximately $51,590, to the taxing authorities for CIAC payments received. Due to its reported NoL, which fully offset any taxable income in the given year, Appellant was not required to pay any incone taxes for the other years. In accord with the Small Business Job Protection Act, Appellant filed a revised Rule XI with the Comission. The revised ule XI retained the language of Sections 1 and 2, but amended the language of Section 6 to provide that “[t]he amount of the [CIAC] shall be $7.25 per gallon of [EDSD) from the premises.” After June 12, 1996, no income taxes were collected as part of CTAC funds. The revised Rule XI became effective on August 12, 1996. continued) ith regards to this tax change, the {Clomission issued a Letter dated Avauet 21, 1997, to all reaulated water and Gtilities sdvising then to: (1) rev: GIac. . ; and (2) refund or creait the respective Contributors of CIAC . .. if any income taxes for then were received after the June 12, 1996, effective date. (Emphasis added.) ‘***FOR PUBLICATION*** vt. on January 19, 2001, Appellant filed an application with the Commission, pursuant to Hawai'i Revised Statutes (HRS) § 269-16(b) (Supp. 2004),* requesting approval for, inter alia, a wastewater treatment rate increase and rate schedule revision HRS § 269-16(b) states in relevant part: No rate, fare, charge, classification, schedule, rule, or practice, other than one established pursuant to an automatic rate adjustment clause previously approved by the Commission, shail be established, abandoned, modified, or Geparted from by any public utslity, except after thirty Gays' notice as prescribed in section 269-12(b) to the Coumission and pricr approval by the commission for any Increases in rates, fores, of charges. The commission may, in ite discretion and for good cause shown, allow any rat fare, charge, classification, schedule, rule, or practice to be established, abandoned, modified, or departed from upon notice less than that provided for in section 269-12(b). Contested case hearing shall be held in connection with any Sncrease in rates and such hearing shall be preceded by a public nearing as prescribed in section 269-12(c) at which the consuners of patrons of the public utility may present testimony to the commission concerning the incr ‘The Commission, upon notice to the public utility, may suspend the operation of all of any part of the proposed rate, fare, charge, classification, schedule, rule, or practice or any proposed abandonment oF modification thereof or departure therefron and after a hearing by order regulate, fix, end change all such rates, fares, charges, classification schedules, rules, and practices, so that the sane shall be Just and reasonable and prohibit rebates and unreasonable Giscrinination between localities, of between users OF Consumers, under substantially similar conditions, regulate the manner in which the property of every public utility is operated with reference to the safety and accomodation of the public, prescribe its form and method of keeping accounts, books, and records, and its accounting system, Fegulate the return upon ite public utility property, the incurring of indebtedness relating to its public utility business, and its financial transactions and do all things An addition which are necessary and in the exercise of such power and jurisdiction, all of which as so ordered, Fequlated, fined, and changed shall be just and reasonable, ‘and such as shall provide @ fair return on the property of ‘the utility actually used or useful for public utility purposes. ‘+**FOR PUBLICATION*** SS based on the 2001 calendar test year. On January 30, 2001, Appellant filed an amended application. The Consumer Advocate filed its initial statement with the Commission on February 9, 2001, and did not object to the completeness of Appellant's application as anended. By letter dated September 21, 2001, and signed jointly, Appellant and the Consumer Advocate agreed to (1) waive the evidentiary hearing before the Commissions (2) file a partial stipulation in lieu of the hearing, on the issues they had resolved; (3) file simultaneous briefs addressing any remaining issues in dispute; and (4) an award of interim rates to Appellant. On September 28, 2001, the Commission approved these agreements and permitted the filing of a stipulation and simultaneous briefs. on October 15, 2001, Appellant and the Consumer Advocate filed a partial stipulation which incorporated their agreenent on certain issues. On October 19, 2001, Appellant and the Consumer Advocate filed a joint supplemental stipulation in Lieu of @ hearing. According to the Consumer Advocate’ s answering brief on appeal, this joint supplemental stipulation (1) “discussed the treatment of . . . [CIAC] funds for income tax purposes, and the application of the tax gross-up method to crac,” and (2) “deferced resolution of the CIAC aross-up issue to Docket No. 7287.” (Emphasis added.) ***FOR PUBLICATION*** on November 5, 2001, the Commission issued its interim decision and order No. 18995. This interim order approved an increase in revenues of $103,944 or 17.38, over revenues at then existing rates. on Novenber 14, 2001, the Commission issued order No. 19015 “direct [ing] the parties to file simultaneous position statements on the CIAC tax gross-up issue in this docket and J the parties’ a of the tax = ue to 20." (Emphasis added.) On December 17, 2001, the parties filed their respective position statements on the CIAC tax gross-up issue. on February 27, 2002, the Commission issued its decision and order (1) ruling that Appellant “could increase its rate to produce additional Revenues of $139,965, based on an estimated Total Revenue Requirement of $740,383" and (2) “direct {ing Appellant] to refund the Remaining Balance to the Developers.” The decision and order stated in pertinent part as follows: Fros 1967 to June 11, 1996, CIAC funds received by (appellant) were considered taxable incone in the year received. During 1987 = 1996, (Appellant) collected appiouimately $1,230,444 in CIAC, of which an estimated 7 ‘$732,990 represented the portion for income taxes Eavable.['] However, since [Appellant] recorded negative Eaxable incone in all but two years, {Aopeljant| remitted a SIAC “TacpeLlant) retains she remaining six-flaure balance 1e effective on July 5 1980, none of the parties raise any arguments about the specific refundability of amounts Silocated as incone tax for CIAC collected fron 1988 to the effective date of the tarife. 10 ***POR PUBLICATION*** sie: a Bat nts. rats ints (1) CIAC, net of income tax, was recorded Tithe CTAe account: and (2) the income tax portion was recorded es a credit to the [i]ncone (t]ax [playable Opon careful review, the {Clommission finds that, under the facts of this case, ihe remsining balance of aman Sa ee a ee leche ander shih ae ea Taa0 to 1926 wa 0 wer Tne nts. This portion of the Seount collected was not used for the construction of new oF Gnpanced plant facilities. Rather, (Appellant) retained fhis pertion to pay the income taxes due on the various projects {] which CIAC was assessed. Brier to 1990, a Pet earl tne The = 400 netstat ne m fol ‘arozesup eethod. The full gross-up method was not Gntended to allow 2 utility to collect and retain cash Teserves for purposes other then the payment of income ta for tne tax year payable, As amply noted by the Californie Pabtic Utilities Commission, in the event the utility did fot have taxable income, there is no tex Liability, and the Gtility should refund the tax to the contributor. = the 7 ry balance of $661,400. within 10 days fron the cate of this Gecision and order, (Appellant) shall submit to the [clonmiseion for review and approval, a refund plan. Tn this respect, (Appellant) appears to’ identity 17 affected projects. Lastly, the refund of the $681,400, in and of Teselt, will have’ no impact on [Appellant’s] revenue Fequirenent, As @ result, no adjustment by the (Clomission to the attached schedules is necessary. (Emphases added.) (Footnotes omitted.) on March 11, 2002, Appellant filed a motion for reconsideration of the Commissions decision and order. On April 10, 2002, the Commission issued its order denying Appellants motion for reconsideration. n  ***FOR PUBLICATION**: vir. on May 3, 2002, the Commission issued Order No. 19335" in Docket No. 7287, texminating its investigation and closing that docket. By thie order, the Commission concluded that the matters concerning the treatment of the receipt of CIAC were vmoot” inasmuch as (1) “water and sewer utilities [were] no longer required to include the receipt of CIAC . . . as taxable income” because of the passage of the Snall Business Job Protection Act of 1996 and (2) “since the inception of this docket, the Connission directly or indirectly found in various concluded rate proceedings that the respective treatment of the receipt of CIAC . . . is reasonable, as applicable, for ratemaking purposes.” vant. on May 10, 2002, Appellant filed its notice of appeal that the Commission with this court. On appeal, Appellant argu erred by (1) “requiring that (Appellant) refund the Remaining Balance of the Income Taxes Payable (ITP) Account to the Order No, 19935 is attached to Appellant's opening brief as Appendix 10. In its opening brief, Appellant requests that this court “take Judicial notice pursuant to Rule 201, Hawai'i Rules of Evidence, of the fact That Docket No. 7267 was closed (1) on May 3, 2002, (2) without providing any generic direction to utilities under that docket relating to the regulatory Fani fications of income tax treatment of CIAC caused by the (Tax Reform Act) .” The Commission and the Consuner Advocate do not oppose this request in their answering briefs or challenge Order tio. 19335. Both the Commission and the Consumer Advocate also acknowledge in their answering Briefs that Docket No. 1289," kn October 2001, was a “pending investigation of the CEAC income tax 2 ***FOR PUBLICATION*** Developers” (the refund issue) and (2) “{mis}calculating [appellant’s} Test Year taxes” (the miscalculation issue). With regard to the refund issue, Appellant contends that the conmission erred (a) in concluding that “the remaining balance of $681,400 is not CIAC"; (b) in deciding that Appellant “collected approximately $1,930,444 in CIAC, of which an estimated $732, 990 represented (a severable) . . . portion for income taxes payable”; (c) “in refusing to recognize the [NOL] offset to pay the developer-caused tax liability”; (d) in determining there is a windfall for [Appellant] because “there is no ‘Remaining Balance’*; (e) in directing @ refund because “[rJefund of the ‘Remaining Balance’ is prohibited by State law”; and that (£) “(4)£ a refund is appropriate at all, it is something quite different from what the Commission calculates.” With regard to the miscalculation issue, Appellant maintains that the Comission miscalculated Appellant's Test Year income taxes leading to an underestimation of its Total Revenue Requirement and resulting in lower net income after taxes. The Commission contends that (1) the decision and order is correct because the Connission’s findings that (a) Appellant collected approximately $1,930,444 in CIAC funds, of which an estimated $732,990 represented the portion for income taxes payable and (b) the remaining balance of $681,400 was not CIAC funds are supported by “reliable, probative and substantial 13 ‘+**POR PUBLICATION*** (2) Appellant’s “NOL argument is evidence” in the recor: irrelevant to the CIAC tax gross-up issue”; and (3) “any alleged calculation error [was] not properly preserved on appeal.” The Consumer Advocate essentially reiterates the three arguments advanced by the Commission and also maintains that (2) “Appellant’s treatment of CIAC tax gross-up results in a windfalt for [Appellant]; (2) the Commission’s “decision does not result in a retroactive adjustment to CIAC”; (3) “the filed rate doctrine {s not applicable” because (a) “the funds collected to pay income taxes due on the various projects on which CIAC was assessed are not CIAC,"" (b) “the public policy concerns behind the filed rate doctrine are not present here,” and (c) “if the filed rate doctrine applies, Appellant has violated its own tariff”; (4) “Appellant's CIAC tariff rate included an amount for income taxes payable”; and (5) “Appellant's argument that receipt of CIAC increases a utility's potential tax liability in all cases is untimely as well as irrelevant.” ‘The Commission and the Consumer Advocate request that this court affirm in tote the Commission’s decision and order no. 19223, and order no. 19294, Appellant “requests that the [dlecision & [olrder be vacated to the extent of the Commission’ s direction concerning the . . . (xJefund issue, and that the case be remanded to the Commission with instructions to issue an order consistent with the Court’s opinion as it relates to the 4 ‘***FOR PUBLICATION*+* recalculation of the [Appellant’s] Test Year Income Taxes, TRR and Additional Revenues.” mK. a An appeal from a final order of the Commission is taken to this court pursuant to HRS § 269-15.5 (Supp. 1998).* All three parties refer to HRS § 91-14(g) (1993) as the applicable standard of review.? Pursuant to HRS § 91-14(b), in a direct appeal to the supreme court “the appeal shall be in like manner ‘as an appeal from the circuit court to the supreme court.” HRS § 91-14(g) provides in relevant part that “[u]pon review of the © RS § 269-15.5 provides in relevant part that “[a]n appeal from an order of the public utilities commission under this chapter shall lie to the suprene court, subject to chapter 602, in the manner and within the tine provided by chapter 602 and the rules of court.” MRS chapter 602 governs the Courts of appeal in this jurisdiction, with HRS § 602-5 (1993) setting forth tthe Jurisdiction and powers of the supreme court. HRS § 602-5(1) (1993) specifically provides that “the suprene court shall have jurisdiction and Powers... [t)o hear and determine all questions of lav, or of mixed law and Fact, which are properly brought before it on any appeal allowed by law from fany other court oF agency.” * us § 91-14(b) provides in relevant part: Except a5 otherwise provided herein, proceedings for review shall be instituted in the circuit court within thirty days after the preliminary ruling or within thirty days after service of the certified copy ef the final decision and order of the agency pursuant to rule of court Ancluding payment of the fee prescribed by section 607-5 for Hiling the notice of appeal (except in cases appealed under jections 11-51 and 40-91). The court in its discretion may permit other interested persons to intervene. (Bephasis added.) 4s  FOR PUBLICATION*** ee record [we may] . . . reverse . . . the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are. . . [alffected by . . . error of law{.]” under HRS § 91-14(g), “a revising court will reverse an agency’s findings of fact if it concludes that such a finding is clearly erroneous . . . . On the other hand, the agency's conclusions of law are freely reviewable.” Suasell v, Civil Serv. Comm'n of the City & County of Honolulu, 74 Haw. 599, 610, @51 P.2d 311, 327 (1993) (citations omitted). B. We note that the Commission and the Consumer Advocate argue that a “presumption of validity” is to be accorded to the Commission's decisions and that Appellant has a “heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences” under In re Gray Line Hawaii, Ltd., 93 Hawai'i 45, 53, 995 P.2d 776, 784 (2000). ‘The Commission also posits that its “interpretation of its own administrative rules, unless contrary to public policy, is given deference by the court” pursuant to In_re Wind Power Pac. Investors-II1, 67 Haw. 342, 344, 686 P.2d 831, 833 (1984). Because we are presented with the issue of whether the CIAC in this case fall within the purview of a tariff, the filed-rate doctrine is implicated. Inasmuch as the filed-rate 16 ‘+**FOR PUBLICATION*** doctrine originates in federal case law, see Balthazar v. Verizon Hawaii, Inc., No. 26977, 2005 WL 3131618, at *4 (Nov. 25, 2005), the standard of review for tariffs employed in the federal courts is persuasive. In Great Northern fy, Co. v. Merchants’ Elevator Co., 259 U.S. 285, 288 (1922), the United States Supreme Court was presented with a similar issue in which the defendant railway elevator company sought a refund from the plaintiff carrier that was alleged to have been collected in violation of the carrier's filed tariff. The carrier argued that the courts, under the doctrine of primary jurisdiction, were without jurisdiction to construe the tariff until the “true construction” was determined by the Interstate Commerce Commission (ICC). Id. at 289. The Court rejected this argument and held that “[e]very question of the construction of a tariff is deened a question of law.” Id. at 290-91. See also, Pan Am. Petroleum Corp, v, Superior Court of Delaware, 366 U.S. 656, 666 (1961) (concluding that “the attainment of uniformity does not require that in every case where the construction of a tariff is in dispute, there shall be a preliminary resort to the [ICC}"). Hence, we treat the construction of a tariff as a question of law. Balthazar, 2005 WL 3131618, at *4 (in a customer’s action against telecommunication company for unfair trade practices, terms of v ‘*#*FOR PUBLICATION*** the applicable tariff treated as a question of law under the filed-rate doctrine). [As to whether a presumption of validity should be extended in this case, a majority of this court stated in Paul's Elec. Serv., Inc. v, Hefitel, 104 Hawai'i 412, 419, 91 P.3d 494, 501 (2004), that the “unjust and unreasonable” language in HRS § 269-16(a) “does not represent a separate standard of review, but rather represents the application of the abuse of discretion standard to the statutory scheme underlying the PUC's rate-making powers.” (Emphasis added.) Furthermore, it was indicated that “[algency determinations, even if made within the agency's sphere of expertise, are not presumptively valid’; except “an agency's discretionary determinations are entitled to deference, and an appellant has high burden to surmount that deference.” Id. Inasmuch as no issue arises as to the exercise of discretion by the Comission in this case, see discussion infra, the presumption of validity as to the Commission’s decision does not apply. Generally, tariffs are “public document(s) setting forth services being offered; rates and charges with respect to services; and governing rules, regulations, and practices relating to those services.” Adams v, Northern Illinos Gas Co., 809 N.E.2d 1248, 1263 (111. 2004). See also George &, Failing 18 +**POR PUBLICATION*** Co. vs Watkins, 14 P.3d 52, 54 n.3 (Okla. 2000) (defining “tariff,” inter alia, as “*{a] schedule listing the rates charged for services provided by 2 public utility . . . a business (esp. one that must by law file its rates with a public agency) [,]’ (Black’s Law Dictionary 1468 (7th ed. 1999)); (and) ‘a table of fixed charges’ (The Oxford Anerican Dictionary & Language Guide 1032 (1999))"). ‘As explained in Balthazar, although the filed rate doctrine was originally applied in cases where an entity filed rates with a federal agency, the doctrine has been extended to all forms of regulated utilities and applies where rates are filed with a state agency. Balthazar, 2005 WL 3131618, at *4. See Southwestern Elec. Power Co, v, Grant, 73 S.W.3d 211, 216 (Tex. 2002) (stating that the filed rate doctrine “applies when state law creates a state agency and a statutory scheme under which the agency determines reasonable rates for the service provided” (citing Arkansas La, Gas Co, v, Hall, 453 U.S. 571, 579 (1981))); Zeleconnect co, v, U.S. West Communications, Inc., $08 N.W.2d 644, 648 (Iowa 1993) (applying the filed tariff doctrine where the Iowa legislature and the utilities board established a “uniform tariff regime"); Richardson v, Standard Guar. Ins. Co., 853 A.2d 955, 963 (N.J. Super. Ct. App. Div. 2004) (stating that the “filed rate doctrine . . . has also been held to apply to rates established by state agencies”). 19 ‘***FOR PUBLICATION*** Pursuant to the “doctrine, filed tariffs govern a utility's relationship with its customers and have the force and effect of law until suspended or set aside.” Southwestern Elec, 73 S.W.3d at 217. See also Brown, III v. MCI Worldcom Network Serva. Inc., 277 F.3d 1166, 1170 (2002) (stating that “[olnce a tariff is approved, it binds both carriers and shippers with the force of law” (quotation marks and citations omitted)). See also Balthazar, 2005 WL 3131616, at *4 (explaining that “neither the tort of the carrier nor the existence of a contract will work to vary or enlarge the rights defined in a tariff” (citing Keosh v, Chicago & Northwestern Ry. Co., 260 U.S. 156, 164 (1922))). But see U.S. West Communications, Inc. ¥. City of Lonamont, 948 P.2d 509, 515 (Colo. 1997) (rejecting analysis of intermediate court of appeals that “interpreted the tariff as if it were a statute” in dispute where tariff and municipal ordinance were in conflict). Additionally, “notice of the terms and rates established in a filed tariff is imputed to customers.” Balthazar, 2005 WL 3131618, at *4 (citing Bvanns v. ATé? Com., 229 F.3d 837, G40 (9th Cir. 2000)). See also Teleconnect Co., 508 N.W.2d at 647 (stating that “(t]he filed tariff doctrine conclusively presumes that both a utility and its customers know the contents and effects of published tariffs” (citing Maislin Indus. U.S., Inc, v, Primary Steel, Inc,, 497 U.S, 116, 127 n.8 20 ***FOR PUBLICATION*** (1990))) (other citation omitted). It is established that “[t)he filed-rate doctrine . . . does not preclude courts from interpreting the provisions of a tariff and enforcing that tariff," Brown, 277 F.3d at 1171-72, and that “[i}f the filed~ rate doctrine were to bar a court from interpreting and enforcing the provisions of a tariff, that doctrine would render meaningless the provisions of the [Federal Conmunications Act) allowing plaintiffs redress in federal court,” dd at 1172. xr. We conclude the Commission erred in directing the refund of $681,400 to the developers inasmuch as the filed-rate doctrine applies and the CIAC funds collected by Appellant were nonrefundable as set forth in Appellant's tariff." See Balthazar, 2005 WL 3131618, at *9 (applying the filed-rate doctrine in a case involving a public utility subject to the authority of a state regulatory agency pursuant to HRS § 296-16). As mentioned previously, Section 1 of Rule XI, Appellant's tariff, provided that “(a)s a condition of receiving a service or substantially increasing sewage outflow volune from new or substantially modified facilities, developer and commercial applicants shall be required to pay a non-refundable contribution ‘tions Wi and XII address Appellant's arguments 1(a), (bl, (@), {e) and (f), the Comission’s argunents 1(s) and (bl, and the Consumer Aavocate’s argunents 1 to 4 21 ***FOR PUBLICATION*** in aid of construction to the Company.” (Emphasis added.) The language employed in Section 1 of the tariff expressly prohibited refunds of CIAC. Section 6 of Rule XI also specified the CIAC amount as $9.50 per gallon EDSD, Exhibit £, which was submitted in support of the tariff, indicated that $2.25 of the CIAC amount owed because of $9.50 was for the purpose of paying income tax of the receipt of construction funds. The non-refundability and CIAC-specitic amount provisions in the tariff are not contested. I£ the Commission had intended any portion of the $9.50 CIAC amount to be refundable upon sone condition, a section providing 0 could have been included in the tariff itself. Because it was not, pursuant to the plain language of the tariff, the CIAC payment was not refundable. xIr. ‘As mentioned before, the Commission and the Consuner Advocate! assert that (1) the amount of $681,400, representing that portion of the CIAC charge not directly paid to tax authorities, is not CIAC and (2) thus the Commission correctly directed Appellant to refund such balance. In support of its position, the Commission relies on, inter alia, Exhibit £, Additionally, the Consuner Advocate argues that the doctrine is inapplicable to this appeal because allowing Appellant to keep the disputed 3681, 400 amount does not “further” “the public policy behind the filed{-]rate Goctrine [which] is to prohibit discrimination in pricing practices.” Toasmuch se the express, unambiguous language of Section 1 of Rule XT provides that CIAC is nonrefundable, it controls. See discussion infra. 2 ***FOR PUBLICATION*** Appellant's CIAC study, to establish that $2.25 of the $9.50 per gallon EDSD rate represented the amount “set aside for incone taxes payable” and such taxes were not paid out. Appellant does not dispute that the $9.50 per gallon EDSD rate incorporated $2.25 per gallon for income taxes. However, Appellant maintains, inter alia, that (1) its tariff expressly identifies the $9.50 per gallon EDSD rate as the CIAC amount which is a “non-refundable” fee, (2) the remaining balance of $681,400 has nothing to do with the $2.25/gallon tax component ($457,210), (3) one of the costs associated with Appellant’ s receipt of the plant is the tax associated with it, and (4) if the Commission is correct that the $2.25 amount identified as payable for income taxes is not CIAC, “there is no principled basis . . . to conclude that other component parts, [i.@.,] the $1.02 financing component, are CIAC.” The Commissions position ignores the non-refundability and CIAC-specific amount provisions of Sections 1 and 6 of Rule XI, respectively, and would render such provisions meaningless. Inasmuch as a tariff has the “force and effect of law,” Southwestern Elec., 73 $.W.3d at 217, this court 4s bound by the “cardinal rule of statutory construction. . . , 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 23 ***FOR PUBLICATION*** found which will give force to and preserve all words of the statute.” Coon v. City & County of Honolulu, 98 Hawai'i 233, 259, 47 P.3d 348, 374 (2002). To “refund” money is “to return money in restitution or repayment.” Black's Law Dictionary 1281 (6th ed. 1990). “Refundable” is defined as “capable of being refunded.” Webster's Third New Int’) Dictionary 1910 (1961). “Nonrefundable” means “not subject to refunding or being refunded.” Mirriam Webster’s Collegiate Dictionary 791 (10th ed. 1993). Hence, adopting the Commission's position that $2.25 of the $9.50 CIAC amount was refundable would “void” the term “non- refundable” as used in Section 1 of the tariff. See Balthazar, 2005 WL 3131618, at *10 (explaining that “a court should avoid interpreting a tariff in a manner that would nullify specific or substantial provisions”). The Commission therefore wrongly concluded that the disputed remaining $681,400, which represented that portion of the $9.50 CIAC amount payable toward income taxes, is refundable, XIII. ‘The Commission maintains that the $2.25 portion of the $9.50 BDSD rate collected by Appellant was not CIAC because it Was “set aside for income taxes payable.” Similarly, the Consumer Advocate also argues that “[b]y keeping separate accounts for the CIAC collected and another for the income tax 24 ‘***FOR PUBLICATION*** portion collected from developers in an incone taxes payable account, [Appellant] acknowledged the difference in the amounts collected.” However, Appellant's allocation of certain portions of the $9.50 EDSD to separate accounts, such as the income taxes payable account, is not dispositive of whether the $2.25 portion of the EDSD rate is to be refunded. For, “[t]he [filed-rate] doctrine applies to more than just rates; it extends to the services, classifications, charges, and practices included in the rate filing.” Stand Eneray Corp ve Columbia Gae Transmission Corp., 375 F. Supp. 24 631, 635 (S.D. Wi. Va. 2008). Moxeover, where a tariff is unambiguous the parties are bound by its terms. Balthazar, 2005 WL 3131618, at ¥10 (holding that customer could not escape teriff-imposed obligation under tariff’s plain and unambiguous language) . ‘The Section 6 definition of the CIAC fee as an amount of $9.50 per gallon of EDSD is part of the tariff. As mentioned previously, Appellant calculated this anount “by finding the fe which minimized financing charges over time and did not build cash reserves in (Waikoloa Sanitary Sewer Company).” To repeat, the proposed fee of $9.50, which was approved by the Conmission, was the sum of the sewage treatment plant capacity expense of $4.94, the primary collection expense of $1.29, the financing expense of $1.02, and the income tax expense of $2.25. Appellant's tariff is unambiguous inasmuch as it defines the CIAC 25. ‘***FOR PUBLICATION*** ‘as $9.50 per gallon of EDSD. Given that the tariff is clear in this respect, that Appellant may have allocated certain portions of the total CIAC to different accounts or categories in its accounting records is not determinative of whether the $2.25 incone tax expense per gallon of EDSD collected was part of the CIAC fee. Based upon the plain language of the tariff, we conclude that the CIAC fee included a portion to pay income taxes. xiv. ‘The Commission also argues that the $2.25 portion of the per gallon EDSD fees allocated for income taxes “was not used for the construction of new or expanded plant facilities.” Likewise, the Consumer Advocate maintains that “Appellant may have violated its on tariff by using money collected as CIAC for purposes other than those stated in its tariff.” The Consumer Advocate argues that if the filed-rate doctrine were applicable, it would Limit Appellant's use of the CIAC funds to those uses described under Rule XI Section 2. ‘The Consumer Advocate thus suggests that “[t}he tarift did not allow for the use of CIAC funds to pay for incone taxes.” As previously set forth, Rule XI Section 2 states that CIAC is used “to install or pav for new or expanded sewage treatment plant facilities” and enumerates 2 list of specific examples or purposes such as “{clonstruction of new percolation ponds and 26 ‘4**FOR PUBLICATION*** injection wells[.]" (Emphasis added.) Given that the term “including” precedes the enumeration of uses for the CIAC payments, the list is not an exclusive or exhaustive rendition of the purposes for which CIAC may be used. “[T]he term ‘including’ is not one of all-enbracing definition, but connotes simply an illustrative application of the general principle.” Fed. Land Rank of St, Paul v, Bismarck Lumber Co,, 314 U.S. 95, 99-100 (1941) (citing Phelps Dodge Corp, v, Nat’] Labor Relations Bd., 313 U.S. 177, 189 (1941)) (interpreting Section 26 of the Federal Farm Loan Act, 12 U.8.C.S. $§ 931-933). ‘Thus, Appellant does not violate its tariff by using CIAC to pay income taxes despite the fact that such use is not specifically designated in the list. The Commission and the Consumer Advocate do not consider using CIAC to pay income taxes as “install[ing] or payling] for new or expanded sewage treatment plant facilities.” In contrast, Appellant argues that “one of the costs associated with (Appellant’s] receipt of the plant is the tax associated with it.” In the instant case, we discern no ambiguity in Rule Xr Section 2 with respect to whether CIAC may be used to pay income taxes. Appellant’s use of CIAC payments to pay taxes constitutes “payling] for new or expanded sewage treatment plant facilities.” We agree with Appellant that, in light of Exhibit £ and the adoption of Tariff 1, a “cost[] associated with [Appellant's] 20 ‘+#*FOR PUBLICATION*#* receipt of the plant is the tax associated with it.” For, insofar as income tax consequences arose from Appellant’s receipt of construction funds used to expand or construct additional facilities, those incone tax expenses are costs associated with “pay[ing) for new or expanded sewage treatment plant facilities.” Thus, the Consumer Advocate’s argument that Appellant violated the tariff by using CIAC payments to pay income taxes is not persuasive. We therefore hold that the Commission's finding that Appellant's remaining balance allocated for incone taxes was not part of the CIAC fee is clearly erroneous in light of Exhibit and the tariff. xv. To the extent that the Commission's and the Consumer Advocate’s second argument on appeal that Appellant's “NOL argunent is irrelevant to the CIAC tax gross-up issue” advances ‘an interpretation of Appellant's tariff, this argument is discussed." Appellant maintains that it is “unjust and sonable” for the Commission to require Appellant to “refund the monies collected for those taxes” where Appellant “used shareholder-owned NOL to pay the Developer's [sic] [t]ax [Liability throughout the 1987-1996 time period.” The § this section addresses Appellant's argument 1(c), the Commission’ s argunent 2, and the Consumer Advocate’s argument 5. © the Consuner Advocate states that Appellant indicated the $681,400 balance was *'a source of funds from which regulatory assets were purchased.!" continued...) 28 ‘+**FOR PUBLICATION*** Commission rejects this argument as “irrelevant” while the Consuner Advocate states that this argument “obfuscates proper regulatory treatment of CIAC income tax expense.” ‘The Commission asserts that under Appellant’s “erroneous approach” of “utiliz[ing] its NOL to reduce its income Wt to the tax liability,” Appellant “was not required tor taxing authorities the entire grose-up amounts it collected under the full gross-up method . . . . (and) was somehow entitled to retain the $681,400 balance for its own use.” The Consumer Advocate explains that although Appellant made a “financial and tax decision to apply NOL to reduce the income taxes due on the CIAC contributions,” “{t]he fact remains that [Appellant] collected monies from developers for a specific purpose, that is, to pay for income taxes, and these amounts were not paid to the taxing authorities In response, Appellant acknowledges that it “used the [tlax [clomponent funds to reimburse itself for its use of shareholder-owned NOL to pay the [t]ax [1]iability, rather than ¥(. . continued) ‘The Commission maintains that “{ilf this is true” then Appellant “fai ake corresponding adjustment to its test year... net plant in (Emphasis added.) This matter is not further discussed, and the parties devote their argunent to the use of NOL ea a setoff against the CIAC income taxes collected. Thus, we do not express an opinion as to this issue M Appellant maintains that receipt of CIAC increases its potential tax Liability in response to its perception that the Commission contends that such receipt does not adversely affect Appellant. Because we need not address Appellant's argument, we do not reach Consumer Advocate’s argument 5 thet appellant's argument’ was untinely, 28 ‘***FOR PUBLICATION*** oe paying the [t]ax [c]omponent directly to the [t]ax [aluthorities,” but that this practice is proper as NOL were used vas an ‘advance’ on the tax payment that needed to be and was reimbursed to the shareholder.” The treatment of CIAC for ratemaking purposes, including the allocation of income tax obligations for CIAC, ees, whether the utility should pay these obligations directly or whether contributors of CIAC should pay these obligations through a “gross-up” on their CIAC amounts, was the subject of Docket No. 7287 opened in April 1992. As mentioned before, the Commission closed its investigation in this docket without issuing @ decision on this issue. The Commission simply noted these matters were “moot” and that “since the inception of this docket," the Commission had determined the treatment of CIAC to be “reasonable” in other rate proceedings. Appellant maintains that it “would not have used its Nob... . [41£ the Commission had held in 1992 that any unpaid taxes would need to be refunded.” To the extent that the Commission's and the Consuner Advocate’s position characterizes Appellant’s retention of the CIAC funds to be in conflict with the terms of the tariff, their position is inconsistent with the plain language of the tariff. The tariff does not contain provisions prohibiting Appellant fron using NOL to offset Appellant’s tax liabilities incurred from the construction of new 30 ‘+*POR PUBLICATION®** facilities funded by CIAC. Because there is no tariff provision prohibiting the use of shareholder NOL to offset Appellant's tax Liability, there is no conflict in the tariff provisions that must be addressed. xvr. The second issue on appeal involves the Commission’ s alleged miscalculation of Appellant’s Test Year income taxes that “in turn, results in the miscalculation of the Additional Revenues that (Appellant) is allowed to recover” under the Commission's Decision and Order No. 19223." Appellant argues that the Commission understated Total Sewer Revenue by $36,021 which resulted in an $11,307 understatement of income tex. Appellant maintains that such understatenent “resulted in a revenue requirement $17,605 lower than necessary to provide the allowable net income of $118,697 and a return of 10%.” ‘Therefore, Appellant requests that this be remanded to the Commission and that the Comission be directed to (1) correct its miscalculation, (2) recognize a Total Return Requirement of $757,988 ($740,383 + $17,605), (3) allow total Additional Revenues of $157,570 ($139,965 + $17,605), and (4) permit Appellant to amend its Tariff accordingly. % mnie section focuses on Appellant’ s argument 2 as well as the Commission's argument 3. 31 +#*FOR PUBLICATION*** The Commission asserts that Appellant is not entitled to any relief with respect to the miscalculation issue because “[Appellant] failed to file a timely motion for reconsideration of Decision and Order No. 19223, pursuant to [Hawai'i Administrative Rule] § 6-61-137" with respect to that issue. It also contends that Appellant is not entitled to relief becau Appellant has violated Hawai'i Rules of Appellate Procedure (HRAP) Rule 26(b) (4). ‘The Commission cites Bitney v. Honolulu Police Dept., 96 Hawai'i 243, 251, 30 P.3d 257, 265 (2001), for the proposition that appellate courts may not consider an issue that a party failed to raise below unless the interests of justice so require. Bitney indicates that in deciding whether to consider issues raised for the first time on appeal, an appellate court must determine “whether consideration of the issue requires additional facts; whether the resolution of the question will affect the integrity of the findings of fact of the trial court; WRAP Rule 28(b)(4) states in relevent part as follow () opening brief. within 40 days after the filing of tthe record on appesl, the appellant shall file an opening brief, containing the following sections in the order here indicated: 4) A Concise statement of the points of error set forth in separately numbered paragraphs. Each point shall state: (i) the alleged error committed by the court or agency; (it) where in the record the alleged error occurred; and (iii) where in the record the alleged error was objected to of the manner in which the alleged error was brought to the attention of the court or agency. 32 ***POR PUBLICATION*** Ses and whether the question is of great public importance.” Id. (internal quotation marks and citations omitted) . Review of the miscalculation issue requires that additional facts be considered. The underlying rationale for this factor is “that an appellate court should not review an issue based upon an undeveloped factual record.” Liftee yy. Boyer, 108 Hawai'i €9, 98, 117 P.3d 821, 830 (App. 2004) (quoting vo vs Lapez, 77 Hawai'i 262, 290-91, 884 P.2d 345, 353-54 (1994). Resolution of Appellant's miscalculation issue for the first time on appeal would compromise the integrity of the Connission’s previously rendered findings and therefore weighs against this court's recognition of plain error. See Earl Me Joraensen Co. vs Mark Constr, Inca, 56 Haw. 466, 476, 540 P.2d 978, 985 (1975) (recognizing plain error based upon the observation that “{t]he consideration of this issue raised for the first time on appeal will not affect the integrity of any findings of fact of the trial court”). It does not appear that the miscalculation issue involves a question of great public importance. for the aforementioned reasons we decline to review the miscalculation issue inasmuch as Appellant failed to raise this issue in earlier proceedings with the Commission. xvin. Accordingly, the Connission’s February 27, 2002 decision and order and the April 10, 2002 order denying 33 ‘***FOR PUBLICATION*** Appellant's motion for reconsideration are reversed and Appellant's miscalculation appeal is dismissed, and this case is remanded to the Public Utilities Commission for appropriate disposition. on the briefs: Alan M. Oshima and Wi Lawrence M, Reifurth . (Oshima Chun Fong & GMaHiriman— Chung) for applicant appellant. Niece Ch Neco ance Michael Azana for appellee State of Havai't Public Utilities Commission. Yer e. Sabiye r+ Laureen K.K. Wong and John E. Cole, for appellee Division of Consumer Advocacy, Department of Commerce’ and Consuner Affaire. 34 

97d110dfd82fd2fea69c8fb66926554a5915f63967aabedeb330d4b588f912a3

2005-12-29T00:00:00Z

e39d4e33-4ad1-41b2-b88e-2b57e42d56f3

Minnich v. Administrative Director of the Courts. S.Ct. Order of Correction, filed 01/05/2006 [pdf]. S.Ct. Order of Correction, filed 01/17/2006 [pdf].

109 Haw. 220

hawaii

Hawaii Supreme Court

‘***FOR PUBLICATION** IN THE SUPREME COURT OF THE STATE OF HAWAT'T ---000: DAVID C. MINNICH, Petitioner-Appellant vs, 3 ADMINISTRATIVE DIRECTOR OF THE COURTS, ==> = STATE OF HAWAI'I, Respondent Appellee S = & c No. 27068 60:01h APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (CASE NO. JRO4~0027) DECEMBER 19, 2005 MOON, C.J, LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ. OPINION OF THE COURT BY ACOBA, J. We hold, in this appeal by Petitioner-Appellant David C. Minnich (Petitioner), from the December 20, 2004 judgment of the district court of the first circuit’ (the court) affirming the October 4, 2004 decision of Respondent-Appellee State of Hawai'i Administrative Director of the Court: (Respondent),* that (1) Freitas v. Admin, Dir, of the Courts, 108 5 The Honorable David C. Low presi Hawai" Revised Statutes (HRS) § 2918-1 (Supp. 2004) states that, “ipirector’ means the administrative director of the courts or any other Person within the judiciary appointed by the director to conduct honinistrative reviews of hearings or carry out other functions relating to (cont inved. ‘***FOR PUBLICATION** Hawai'i 31, 116 P.3d 673 (2005) (hereinafter, Freitas IL), and Dunaway v. Admin. Dir. of the Courts, 108 Hawai'i 78, 117 P.3d 109 (2005) apply, and as to issues not decided by those cases, (2) the provisions under Hawai'i Revised Statutes (HRS) § 2918- 3(a) and (c) (Supp. 2004)? apply to administrative revocation of driver's License proceedings, (3) evidence of a defendant's blood-alcohol level obtained from a blood alcohol chemical (BAC) test more than three hours after an alleged violation is relevant but must be offered in compliance with the Hawai'i Rules of Evidence (IHRE) as prescribed under HRS § 291E-3(c), and (4) the Director was right in concluding that irrespective of Petitioner's BAC test result, the remainder of the evidence supported the conclusion that Petitioner was operating his vehicle while under the influence of an intoxicant (DUI). In Light of our holding, we vacate the Director's finding that the three-hour time frame for drawing a blood sample under ARS § 2918-3 applies only to criminal prosecutions, but affirm the court’s judgment. 1. on Septenber 5, 2004, Petitioner was arrested in Honolulu, Hawai'i, for DUI, in violation of HRS § 291E~61(a) +1. .continued) Administrative revocation under part III (entitled ‘Administrative Revocation Process']." See Adin, Dir of the Courts, 96 Hawai'i 114, 115 el, 26 Pi3d 1214, 1215 nt (2001), Hereinafter, “Respondent” is used interchangeably to designate the adninistrative review officer and the he officer. ring >The texts of those provisions are produced intza. 2 ‘**FOR PUBLICATION*® OE" (Supp. 2004)," after a motor vehicle he was driving collided with a median guard rail and after he failed the field sobriety tests. Subsequently, Petitioner consented to and failed a BAC test. Petitioner’s driver’s license was revoked and the revocation was sustained for a period of three months by @ review officer of the Administrative Driver's License Revocation Office (ADLRO) on September 10, 2004. Petitioner requested a hearing within six days of the revocation pursuant to HRS § 2916-37 (Supp. 2004)* and the hearing was scheduled on September 29, 2004. on the day of and prior to the hearing, two wonen came into the ADLRO and asked to attend Petiticner’s hearing. The ‘HRS § 2918-61 (a) (Supp. 2004) provides in pertinent part: Operating a vehicle under the infivence of an Antoxicant. (a) A person commits the offense of operating Vehicle under the influence of an intoxicant if the person operates oF assumes actual physical control of a vehicle: (1) hie’ under the influence of alcohol in an anount sufficient to inpair the person's normal ental faculties or ability to care for the Person and guard against casvaltys a) | With .08 or more grams of alcohol per one hundred miliiiiters or cuble centimeters of Bloods HRS § 2916-37 (Supp. 2004) provides in pertinent part: Adainistrative review; procedures; decision. (a) the director automatically shali review the issuance of notice of administrative revocation and shall issue a written decision adsinistratively revoking the license and privilege to operate a vehicle, and motor vehicle registrarion tf applicable, or rescinding the notice of administrative Fevocat ion. {i the respondent shail have the opportunity to demonstrate in writing Why the respondent's License and privilege to operate a vehicle . . should not be Sdninistratively revoked and, within three days of receiving the notice of administrative revocation... . shell submit any written infornation . .-. to the director's office er to any Office or aadress designated by the cirecter for that purpose. 3 ‘**4FOR PUBLICATION** women refused to follow the ADLRO’s sign-in and identification procedures, stating that to do so would violate their privacy. ‘The women offered to be searched instead, but were not granted entry. During the hearing, Petitioner, through his counsel, contended that, under this court’s decision in Freitas v. Admin. Dix. of the Courts, 104 Hawai'i 483, 489, 92 P.3d 993, 999 (2004) {hereinafter Freitas I), he was entitled to a hearing on the validity of the ADLRO security procedures. over Petitioner’s objections, the hearing officer ceived most of the ADLRO file into evidence, including the Honolulu Police Department (HPD) 396B Implied Consent Form (HPD 3968 form), the arrest report, the Standardized Field Sobriety Test (SFST) results, and the sworn statements of the arresting officer and BAC test technician. The arrest report indicated that Arresting Officer Miya Brouwer (Officer Brouwer) was sent by dispatch at approximately 10:35 p.m. and that she arrived at the scene at about 10:40 p.m. ‘The hearing officer then advised Petitioner that he could begin his presentation and that the hearing was conducted de nove, to which Petitioner objected. Petitioner requested that a particular procedure be followed.‘ The hearing officer stated that she was not required to follow Petitioner's requested procedure. + the written procedure proposed by Petitioner is identical to the hearing procedure requested in Dunaway v, Admin. Dir Mewai's 78, 61 9.5, 117 P34 103, 112 9.5 (2005) S*8FOR PUBLICATION*® = Officer Brouwer was then called to testify. officer Brouwer testified that she was personally supervised by her training officer, Officer Mei King (officer King). Officer Brouwer related that this was the third arrest she had made for DUI. When they arrived at the scene of Petitioners accident, another police officer, Officer Eric Lorica (Officer Lorica), was already present. Officer Brouwer noted that Petitioner's vehicle had sustained front end damage from having hit a guardrail of an on-ramp from Kamehameha Highway to the H-1 freeway and that the damage to the vehicle was severe. Officer Brouwer did not know how much time had elapsed between the time of the accident and her arrival. After questioning Petitioner for approximate ten minutes, at approximately 10:50 p.m., Officer Brouwer jan to administer the SFSTs because of Petitioner's appearar-» and the ‘odor of alcohol on his breath. While Petitioner’s eves were not red or bloodshot, Officer Brouwer observed the to be glassy and Officer Lorica reported then to be “watery and jlassy.” Officer Brouwer conceded that a driver would be “shaken up” in an accident such as this one. Officer Brouwer administered the SFSTs on the freeway. The ground was level and the street was damp as it had begun to drizzle, The three SFSTs are (1) the walk-and-turn (WAT), (2) the one-leg stand (OLS), and (3) the horizontal gaze nystagmus (HGN). Officer Brouwer administered all three tests to Petitioner. Officer Brouwer admitted to not knowing how the 5 ++#*P0R PUBLICATION** accident affected Petitioner's performance on the SFSTs, although Petitioner was observed to be, and clained that, he was fine. During his cross examination of Officer Brouwer, Petitioner's counsel referred to a manual entitled pI Detection 4 Su riety 1 nt Manual, 2002 ed., published by the National Highway Traffic safety Administration (NHTSA). The manual provides instructions for adninistering SFSTs. The WAT instructions state, that the “[w]alk and [turn test requires a designated straight line and should be conducted on a reasonably dry, hard, level, nonslippery surface.” officer Brouwer was not trained at the police academy to administer the WAT on an actual line and she did not do so with Petitioner. Officer Brouwer also admitted that the surface “might” have been slightly slippery fron the drizzle, but not wet. The OLS test instructions in the manual provide that the *fo]ne-leg-stand requires a reasonably dry, hard, level and non- slippery surface, suspect's safety should be considered at all times.” Officer Brouwer noted that the ground was level and that it had started to drizzle at the tine she administered the OLS to Petitioner. In connection with the HGN test, the manual contained an illustration of a protractor device which aids a police officer to estimate a forty-five degree angle required for the test's accuracy. Officer Brouwer had never seen the device before and had not used it in her training. Officer Brouver was taught it was important to be able to identify a forty-five 6 ‘**#FOR PUBLICATION** SSS degree angle when administering the HGN, and although she did not use a protractor to do so, she employed an alternative technique.” Petitioner asserted that all three SFST results wer inadmissible because the tests were not administered in accordance with NHSTA standards. ‘The record indicated that Petitioner was arrested and consented to a BAC test. The BAC test registered .23 grams of alcohol per hundred milliliters or cubic centimeters of blood. Between the time of his arrest and the time a blood sample was taken, Petitioner did not consume any food or beverage. * nar lefice® Brouwer explained the technique she was trained to perform for estimating the required forty-five degree angle for an HON test: If T walk up to the person and 1 place my hands on their shoulders and I position myself so that the maddie of ny body is lefe ‘sige ang T extend ay hhand, if 1 step back and extend ay hand to the fullest Jength that it'can go, thse is approximately fal forey-five gree angle. * Rs § 2926-3 (supp. 2004) provides, in relevant part Evidence of intoxication. (2) In any criminal Prosecution fora violation of section 2918-61 or 291E-61.5 or in-anv proceeding under part JIT: (0) 08 or sore arans of alcohol per one hundred z ore ent one bloods hin three’ hours a ‘shown by chemical analysis or other approved analytical Eechaiques gf the person's blood, breath, or urine shal) be saucer ei eat olatien om in ction be cos 2 iti i, in any criminal proceeding for a Wolation under section 2516-61 or 291E-61.5 or in ae proceeding under part IIL, of relevant evidence ofa three hours after an alleged viclations oreeiies she SPiceigengs Oeste in comoldance-adsh the aavali rules (Bmphases added). ‘**FOR PUBLICATION** Betitioner objected when Respondent adnitted the BAC test results into evidence, arguing that under HRS § 2916-3, such results are adnissible without further evidence only if the blood 4s drawn within three hours of the alleged violation, Petitioner clained that Because there was no evidence to indicate the time at what any alcoholic beverage was consuned and the time of the collision, the SAC test results vere inadmissible. The hearing officer found that the three-hour Limitation pertained to criminal prosecutions and that because the ADLRO process is a civil adninistrative proceeding, the three-hour Limit did not apply. Petitioner then made the following objections: (1) he vas denied his own hearing on the ADLRO security procedures: (2) a valid breath or BAC test is a jurisdictional requizenent for administrative revocation and, given the absence of a tine frame for the accident, the AUIRO does not have jurisdiction; (3) the Notice of Administrative Revocation (Notice) ie voi because the arresting officer failed to properly inform Petitioner of the implied consent laws (4) while Petitioner was informed that he had consented to a BAC test by driving, he was not informed that he had a legal right to refuse such a test; (5) the Notice fails to explain the distinction between administrative revocation and criminal suspension pursuant to HRS § 2918-34 (a) (2) (Supp. 2004); (6) the HPD 396B form (a) erroneously notified him that the only igeue in an ‘**FOR PUBLICATION** ee a administrative revocation was whether the result of the BAC test was .08 or over or the test was refused, and (b) erroneously advised him that the minimum length of revocation {s three months when HRS § 286-104(1) (Supp. 2004) mandates a minimum revocation of one years and (7) that the form misled him to believe that the State of Hawai'i could revoke his New York driver's license. I By a decision dated October 4, 2004, the hearing officer sustained the three-nonth revocation of Petitioner's deiver’s License. The hearing officer made the following relevant findings and conclusions: 4. Validity of the sesr. ‘he Arresting Officer testified that: she could not igentify the manual proferred by Counsel; tgaduioieter the SrSt, she adninistered the test in ance with her training, and, 2 Snr gataeamare a patentee oe cor ie 2d net auaaeas Les. This hearing officer finds that the IPetitionet s SPST was properly adninistered, given with consideration given to Counsel's arguments about the administration of the SFSS, the remainder of she’ ‘SEST and the evidentiary record contain anificient information ude a ie Antoxicant. 7. Blood Test he Tecord reflects that the Arresting Officer was dispatched to the scene of the MVC on SEPTEMBER 5, 2004 30:38 P.M., the [Petitioner] was arrested at 11:10 Pelle, and that the (Petitioner]'s blood sample was drawn at 12/35 A-M. fon SEPTEMNER 6, 2004, “If the MVC had occurred close to an hour prior to dispatch, the Blood sample nevertheless would have been timely drawn, ret noe en er on FORTHER FINDINGS OF FACT RELATING TO LICENSE REVOCATION 9. Wni1e Speaking to the [Petitioner], the Arresting 9 ‘**sFOR PUBLICATION** 20 16. n 18 30! ‘Beversue coming fron the [Petitioner]’s breath. Fhe Arresting Officer further observed other physical Signe of possible intoxication: The {petitionerl*s. ool and slurred bie worda. Tne (petitioner) adaitted that he had consumed , alcoholic beveracse ne (Petitioner) showed signs of immaizment opal rental Gane HG) Phase of the FST. During the walk-and-turn phase of the SPST, the sera ‘ampaizment Baring the one-leg-stend phase of the SFST, the Een -eeconds, and that phase of the test was Siecontinued for the (Petitioner]"s safety. [Petitioner] showed significant signs of impairment on the Srst Pot an sleoholic ‘Petitionerl's breath. and noted that the [petitioner] ues unsteady, is eves mere Groopy, and Nis speech was ‘low and deliberate. She Aasiating Officer observed that the [Petitioner gs very unsteady on his feat, that he stumbled twice ‘seunbles ‘incst falling, and continued te almeat (ai) uring ‘fhe sduinteteation of the SPST he testing equipment used to conduct the blood test functioned in accordance with operating procedures, and the test result showed 8 ‘Sonsentzation of .23on thet test. ‘CONCLUSIONS OF LAW RELATING TO LICENSE REVOCATION 2 “ ‘Ihe Director concludes there existed erobable cause to believe shat the (fetitioneri operated the vehicle aisle under the Influence of an intexicant: The Director concludes, by a preponderance of the evisence, that The Olrector concludes that the [Petitioner] had an Bleohol concentration, as defined by HRS S291E-1, of 08 or wore. ‘he Dizector separately and independently concludes, by 2 preponderance of the evidence, that irrespective of the (Petitionsri"s lorizontal Gaze vstaamis Test C'WoN"y test result, the cenainder of the record ‘the “hile under the infloence of an intoricant. The Oirector separately and independently concludes, by 2 preponderance of the evidence, that irrespective of the petitioneri's blood test cesuit, She remainder piele 10 +*#FOR PUBLICATION** (Emphases added.) Petitioner sought Judicial review and the court affirmed the hearing officer in a judgment filed on December 20, 2004. mt. On appeal, Petitioner essentially argues that (1) the court erred in holding that Petitioner's state and federal constitutional rights to 2 public hearing were not violated with respect to (a) restrictions on public access to his ADLRO hearing and (b) his right to his own hearing on the validity of those restrictions; (2) the court erred in upholding the hearing officer's findings that (a) HRS § 2916-3, which states that a BAC test taken within three hours of the alleged violation is competent evidence of DUI, has no application to administrative revocation proceedings and that (b) Petitioner had driven his car within three hours of his BAC test when there is no evidence in the record to support this finding; (3) the court erred in upholding the admission of the SFST results when (a) the SFTSs were not administered in accordance with NHTSA requirements and (b) the SFSTs were administered after Petitioner had been involved in a major car accident; (4) the court erred in ruling that Petitioner had not been denied due process of law based on (a) a seeming contradiction in HRS § 291E-38(a) which declares the revocation hearing will “review the (administrative review) decision” yet allows motorists to call witnesses and offer evidence, suggesting that the hearing is de nove, (b) the lack of a ‘**FOR PUBLICATION*# a uniform hearing procedure, (c) the admission of Respondent’ s entire file, (d) Respondent's adherence to Desmond v. Admin. Dir. of the Courts, 91 Hawai'i 212, 219, 982 P.2d 346, 353 (App. 1998) (hereinafter, Desmond I) (holding that hearing officers should inform the parties of the procedures at the beginning of the hearing), rev'd on other grounds, 90 Hawai'i 301, 978 P.2d 739 (1999), and (e) the apparent disregard of 2 HRS § 291E, Part IIT procedure which, according to Petitioner, requires a valid chemical test result or refusal to confer jurisdiction on Respondent; (5) the court erroneously upheld the revocation because HPD 3968 form (a) informed Petitioner that operating a vehicle on a public street meant that he had consented to a blood or breath test, but failed to tell him he had a right to withdraw that consent, (b) implied that the only issue in an administrative revocation is whether a test is over .08 BAC or is refused, and (c) misled Petitioner into believing that the State of Hawai'i had jurisdiction to revoke Petitioner's New York driver's license; and (6) Respondent reversibly erred in citing to unpublished district court decisions to justify her decision. wv. At the outset, we note that several of Petitioner's arguments have been raised before. Arguments 4(a), 4(b), 4(c), 4(d), 4(e), S(a), (5) (b), and 6 have been disposed of contrary to his position. See Freitas Il, supra, and Dunaway, supra. Accordingly, we consider Petitioner's remaining arguments. 2 ‘***POR PUBLICATION*® Ss ve ‘This court has established the scope of appellate review of a decision by the ADLRO: Judicial review of a decision of the DLrector regarding the revocation of a driver's license ia governed Dy HRS 266-260, and is linited to the record of the adainistrative hearing and the questions whether the Director exceeded constitutional of statutory authority, erroneously interpreted the law, acted in en arbitrary oF Capricious manner, committed an abuse of discretion, or made a Getermination thet was unsupported by the evidence in the recors. leview of a decision made by (a) court upon its review of an [administrative] decision iz 2 secondary appeal. The Stondard of review is one in which this court must determine nether the court (under review] was right or wrong in its decision!.1” Famer v. Adnin, Dir, of the Court, State of Hawai'i, 94 Hawai'i 232, 236, 11 P.3d 457, 461 (2000) (internal quotation marks and citations omitted). vr. ‘As to argument (1) (a), we have held that restrictions fon the right to a public hearing must comport with the three-part test adopted by this court in Freitas 1.’ Following our holding in Exeitas I, a majority of this court affirmed the validity of the Respondent's sign-in and identification requirement for members of the public who wish to attend a license revocation proceeding. Freitas II, supra. + ___.The three-part test is as follows: (1) that the regulation serve fan important governsental interest; (2] that this interest be unrelated to the Content of the information to be disclosed in the proceedings and [3] thet there be no less restrictive way to meet that goal,” fraitas 104 Hawai'i 483, 489, 52 P.34 995, 999 (2008) {adopting the Test as outlines in Brow amse, Corp rage Comm'n, 710 F.2g 116, 1179 (6tn cir. 1583) (citing United States Votre See, 367, 377 {1968))) (emphasis emitted). 13 ‘+*#FOR PUBLICATION** As to Petitioner's argument (1) (b) that under Freitas 1. he is entitled to his own hearing on the validity of the restrictions, we have held that under the déctrine of stare decisis a new hearing on the sane issue is unnecessary in a case involving similar circumstances, noting that Freitas II acted as precedent. Dunaway, 108 Hawai'i at 83, 117 P.3d at 114. Here, Petitioner argues that he was entitled to, but denied, @ hearing fon the ADLRO security procedures. Wwe hold, however, that the consent of @ member of the public to be searched in these circunstances does not obviate the Freitas II requirenents. In Exeitas II, a majority concluded *(1) that the ADLRO’s identification and sign-in procedure serves an important government interest in securing ADLRO hearings, (2) that the security procedure is unrelated to the content of the information disclosed at ADLRO hearings, and (3) that there is no less restrictive way to meet the goal of securing ADLRO’s hearings.” Exeitas Il, 108 Hawai'i at 37, 116 P.3d at 679. The basis for the majority's holding in Freitas II stemmed from the Respondent's findings in that case that the measures were instituted as a deterrent to people engaging in “unlawful, disruptive, or otherwise inappropriate behavior while within the hearing and inner-office area,” id, at 34, 116 P.3d at 676, and that the measures were established to “provide a deterrent to inappropriate behavior(,]” dd. at 37, 126 P.3d at 679. The Exeitas Ii majority found that the procedures in question were 4 ‘**4FOR PUBLICATION*+ the least restrictive means of securing hearings. Id, at 40, 116 P.3d at 682. Petitioner does not raise any arguments to warrant deviation from that finding. A consensual search would not be less restrictive than the current sign-in and identification procedure. vir. In argument (2) (a), Petitioner asserts that the court erred in upholding the hearing officer's ruling that HRS § 291E- 3(a) (1) does not apply to administrative driver's license revocation proceedings. Part III of HRS chapter 291E is entitled “Administrative Revocation Process.” Hence, a plain reading of the statute indicates that the phrase “any proceeding under Part III” refers to administrative license revocations. State vs Tovomura, 80 Hawai'i 8, 18, 904 P.2d 893, 903 (1995) (stating that “where the language of the statute is plain and unambiguous, our only duty is to give effect to its plain and obvious meaning”). We hold, then, that the court erred in upholding the hearing officer's ruling that HRS § 291£-3(c) applies only to criminal prosecutions and has no application to ADLRO cases. vant. Petitioner next asserts in argument (2) (b) that because there was no evidence that the BAC test was taken within three hours of his driving, the BAC test was not competent evidence and, thus, was inadmissible under HRS § 291£-3(a) (1). He argues 1s ‘+##F0R PUBLICATION** that because the hearing officer relied on this BAC test result, his revocation should be reversed." As indicated, see supra note 8, HRS § 291E-3(c) provides that “{nJothing in this section shall be construed as Limiting the introduction . . . in any proceeding under Part 111, of relevant evidence of a person’s alcohol concentration . . obtained more than three hours after an alleged violation; .d that the evidence is of a wi Hawaii mules of evidence.” (fmphases added.) Hence, HRS § 2918- 3(c) permits a BAC test result taken more than three hours after an alleged violation to be introduced as evidence so long as it is relevant and not excluded by the Hawai'i Rules of Svidence. However, we need not decide this issue. mK. For, irrespective of Petitioner’s 0.23 BAC test result, the record contains substantial evidence to support the conclusion by the hearing officer that Petitioner was DUI. See State v, Batson, 73 Haw. 236, 248-49, 831 P.2d 924, 931 (1992) (defining “substantial evidence” as “credible evidence which is of sufficient quality and probative value to enable a man of reasonable caution to support a conclusion”). The accident took place on a highway at the entrance to a major freeway. Officer Brouwer arrived at the scene at 10:45 p.m., within five minutes Respondent contends, however, that under HRS $ 2916-3(a) (1) (Supp. 2004), "2 BAC test taken “within three hours; .". shall be competent euigencs.” (Emphases added.) the parties co not challenge the admission of the BAC test ‘on this ground. 16 ‘***FOR PUBLICATION** SSS of being dispatched. There is no evidence of any significant delay between the time of dispatch and the time of the accident. The SFSTs were administered within ten minutes of Officer Brouver’s arrival. Petitioner does not contend that he consumed alcohol after the car accident. Petitioner admitted that he had consumed alcoholic beverages. Petitioner also had glassy eyes, @ strong odor of alcoholic beverage on his breath, and slow and slurred speech. Officer Brouwer asked Petitioner if he was injured, and Petitioner replied that he was not, and that he was fine. This forecloses Petitioner’s suggestions that the accident had an effect on the SFSTs. During the SFSTs Officer King observed Petitioner to be unsteady on his feet, and that he stumbled twice and almost fell. Officer Brouwer had to discontinue the OLS for Petitioner’s safety. Petitioner's objections to the WAT stems from his claim that the test was not administered on an actual straight line and that the ground was wet. His objections to the OLS also relates to his contention that the ground was wet. Officer Brouwer, however, disclaimed that the ground was wet but did admit that it had started to drizzle. Petitioner's objection to the administration of the HGN test was that the police failed to use a protractor. However, Officer Brouwer testified that she was trained to identify the same forty-five degree angle in an alternative manner. v7 ‘+##F0R PUBLICATION** The hearing officer further found that Officer Brouwer was qualified to administer the SFSTs, that she administered the test in accordance with her training, and that she had the benefit of the oversight of Officer King, her training supervisor. Under the circumstances, it cannot be concluded that the hearing officer abused her discretion in receiving evidence regarding the SFSTs. Miller v. Tanaka, 80 Hawai'i 358, 366, 910 P.2d 129, 137 (1995) (holding that “the Director's decision to receive evidence is reviewed for abuse of discretion”). Petitioner argues that many other jurisdictions have rejected such circumstantial evidence as insufficient to prove that the driver was intoxicated at the time he or she was operating the vehicle. See Abelson v. State, 604 S.£.2d 647 (Ga. Ct. App. 2004); Commonwealth v. Kelley, 652 A.2d 378 (Pa. Super. Ct. 1994); State v. Clark, 296 A.2d 475 (Vt. 1972). However, Respondent stresses that the cases cited by Petitioner are criminal cases which are subject to a “beyond a reasonable doubt standard.” In contrast, HRS § 91-10 (1993) titled “Administrative Procedure, Rules of Evidence; official notice,” Provides that “(5) [e]xcept as otherwise provided by law, the party initiating the proceeding shall have the burden of proof, including the burden of producing evidence as well as the burden of persuasion. The degree or quantum of proof shall be a preponderance of the evidence.” 18 ‘+##P0R PUBLICATION** Respondent emphasizes that the preponderance of the evidence standard merely requires that it be demonstrated that it was “more likely than not” that Petitioner was operating his vehicle at the time he was intoxicated. This court has held that “the preponderance standard directs the factfinder to decide whether the existence of the contested fact is more probable than its nonexistence." Masaki v. Gen, Motors Corp,, 71 Haw. 1, 14, 780 P.2d 566, 574 (1989) (internal quotation marks omitted). Based on the evidence adduced outside of the BAC test result, ve conclude that the hearing officer and the court did not err in finding that it was more probable than not that Petitioner was intoxicated during the relevant time period. Castro v. Admin, Dix. of the Courts, 97 Hawai'i 463, 40 P.34 865 (2002) (holding that a driving under the influence charge may be proved or an administrative license revocation may be sustained by relevant evidence of intoxication, even though a driver’s blood alcohol concentration level is not considered). x. In argument (5) (c) Petitioner contends that HPD 3968 form misled him into believing that the State of Hawai'i had jurisdiction to revoke Petitioner's New York driver's lice He maintains that because he believed a refusal to take the test would lead to a revocation of his New York license, his consent to the blood test was not informed consent. Petitioner claims 1s ‘***FOR PUBLICATION** that his license revocation should be reversed as a remedy. However, Petitioner must demonstrate how HPD 396B form suggested that his New York’s driver's license would be revoked Af he refused to take 2 test or if he took a test and failed it. In State v. Rodgers, 99 Hawai'i 70, 70-71, 53 P.3d 209, 209-10 (2002), we rejected a motorist’s argument that her consent to the chemical alcohol test was not knowing or intelligent because the form did not define “prior alcohol enforcement contact.” We noted that nothing before the court “explains why or how . [the petitioner] could have been misled into attributing the various interpretations she offers to the relevant term.” Id. at 75, $3 P.3d at 214. That proposition applies here. The form does state the consequences for refusing to take a test if his or her driving record shows prior alcohol or drug enforcement contacts. The forn’s definition of “alcohol enforcement contact” or “drug enforcement contact” includes “(al conviction in any other state . . . for an offense that is comparable” in its definition of “alcohol enforcement contact.” But the record does not indicate that Respondent has any prior alcohol enforcement contacts that would lead him reasonably to u Bubsee Yoslimy v, Sroderick, 91 999, 1003-04 (App. 1998) (holding that an arr indicate that the notice of adeinistrative revocation shall 2% temporary driving permit ae mandated by statute does not neces reversal of 8 license revocation) 20 ***FOR PUBLICATION®: a SSSSSSSSSSsSSsSSSSSSSSS believe that the provision applied to him and, hence, that his New York license could be revoked. Respondent correctly notes the form does not mention New York, but states only that the motorist’s “license and privilege to operate a vehicle will be revoked.” As Respondent maintains, “the form states at the outset that the information on the form is provided ‘{pJursuant to chapter 2918, Hawai'i Revised Statutes,/” in bolded letters. Hence, as Respondent contends, “[bJecause the events occurred in Hawas"i,” “the ‘License and privilege’ that will be revoked can reasonably be interpreted to reference only the motorist’s license and privilege in Hawai'i, not in other states.” Moreover, the language of the form focuses on this state. Under a reasonable interpretation, then, HPD 3965 form applies only to revocation of the right to operate a vehicle in Hawai'i and does not convey a different meaning, as Petitioner contends. As such, we are not persuaded by Petitioner’s argument (5) (c). the form states in part: 1, Any person who operates a vehicle upon @ public way a (It is untawfut for you to operate a vehicle on or in the waters of the state 8.” Fatcohol enforcement contact” or “drug enforcement id} ” Any conviction in this state (Emphases added.) 2 *#*P0R PUBLICATION** on tne beiate 2 Attorney General, state Recut Cretan a7 oo of Hawa, for respondent-appellee. a < Conc. Dettar te 

c77f54a9de23296cd054088949e882aa1566cc153fc8b2a9781f600472579df2

2005-12-19T00:00:00Z

c573a336-6374-49d9-b62e-9a565a0ec920

Office of Disciplinary Counsel v. Yoshino

hawaii

Hawaii Supreme Court

No. 26781 IN THE SUPREME COURT OF THE STATE OF HAWAI' ee OFFICE OF DISCIPLINARY COUNSEL, Petitioner 52 AON stig ROY M. YOSHINO, Respondent 02:6 11 (ODC 97-230-5424, ODC 968-079-5570, ‘ODC 993-099-5929, ODC 00-387-6733) S| ORDER OF SUSPENSION (By: Moon, C.J., Levinson, Nakayama, Acoba, JJ., and Circuit Judge Pollack, in place of Duffy, J., Recused) upon consideration of (1) the Disciplinary Board's April 15, 2005 report and recommendation for the suspension of Respondent Roy M. Yoshino (Respondent Yoshino) from the practice of law for a period of one year, (2) Petitioner Office of Disciplinary Counsel's (Petitioner DC) June 2, 2005 opening brief, (3) Respondent Yoshino’s August 12, 2005 answering brief, (4) Petitioner ope’s Septenber 21, 2005 reply brief, and (5) the record, we conclude that, in four disciplinary matters, Petitioner 00C proved by clear and convincing evidence that Respondent Yoshino violated several of the Hawai'i Rules of Professional Conduct (HRPC) while Yoshino was representing various clients. However, we reject the Disciplinary Board’s recommendation that Respondent Yoshino receive a suspension for | we suspend Respondent Yoshino from the one year, and, inst practice of law for a period of one year and one day. atte In ODC 97-230-5424, Respondent Yoshino eeled a client's bodily injury claim and underinsured motorist claim when Yoshino did not have the client's authority to do so, and, thus, Respondent Yoshino violated HRPC Rule 1.2(a) (requiring a lawyer to abide by a client's decision whether to accept an offer of settlement of a matter); and HREC Rule 8.4(a) (providing that it is professional misconduct for a lawyer to violate the rules of professional conduct, knowingly assist or induce another to do so, or do 0 through the acts of another). Respondent Yoshino used a client’s revoked power of attorney to settle the client’s bodily injury claim and underinsured motorist claim in violation of HRPC Rule 1.2(a) (requiring a lawyer to abide by a client's decisions concerning the objectives of representation); HRPC Rule 4.1(a) (prohibiting a lawyer from knowingly making a false statement of material fact or law to a third person in the lawyer's course of representing @ client); HRPC Rule 8.4(c) (providing that it is professional misconduct for an attorney to engage in conduct involving dishonesty, fraud, deceit or misrepresentation); and HRPC Rule 8.4(a) (providing that it is professional misconduct for a lawyer to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another). Respondent Yoshino failed to comply with the client’s request that Respondent Yoshino send a copy of the revoked power of attorney to the client, and, thus, Respondent Yoshino violated HRPC Rule 1.4(a) (requiring a lawyer to keep @ client reasonably informed about the status of a matter and promptly comply with reasonable requests for information); and HRPC Rule 8.4(a) (providing that it is professional misconduct for a lawyer to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another). Respondent Yoshine deposited the client’s settlement checks into his general business account, and, thus, Respondent Yoshino commingled the client’s funds with Respondent Yoshino’s personal funds in violation of HREC Rule 1.15(a) (1) (requiring that a lawyer who receives or handles client funds must maintain a Client trust account, separate from any business ‘and personal accounts, into which all funds entrusted to the lawyers care must be deposited); HRPC Rule 1.15(c) (providing that @ lawyer in possession of any funds belonging to a client, Where such possession is incident to the lawyer's practice of law, is a fiduciary and shall not commingle such funds with his or her own or misappropriate such funds to his or her own use and benefit); HRPC Rule 1.15(c) (requiring that funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be Geposited into the client trust account); HRPC Rule 1.18(d) (requiring that all funds entrusted to a lawyer must be deposited intact into a client trust account); and RPC Rule 8.4(a) (providing that it is professional misconduct for a lawyer to violate {he rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another). In ODC 98-079-8570, Respondent Yoshino failed to provide written fee agreements for seventeen clients whom Respondent Yoshino represented on a contingent basis, and, thus, Respondent Yoshino violated + HREC Rule 1.5(c) (requiring that contingent fee agreements shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated); and + BRPC Rule €.4(a) (providing that it is professional misconduct for a lawyer to violate the rules of professional conduct, knowingly assist or induce another to do s0, or do so, ‘through the acts of another). Respondent Yoshino failed to provide written settlement statements for at least three of the settling clients in violation of + HREC Rule 1.5(c) (requiring that, upon the conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcone of the matter and, if there is ‘a recovery, showing the remittance to the client and the method of its determination); and + HRPC Rule 8.4(a) (providing that it is professional misconduct for a lawyer to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so, ‘through the acts of another). Respondent Yoshino deposited the settlement checks for six of his settling clients into Respondent Yoshino’s general business account, and, thus, Respondent Yoshino commingled the clients’ funds with Respondent Yoshino’s personal funds in violation of + HREC Rule 1.15(a) (1) (requiring that a lawyer who receives or handles client funds must maintain 2 client trust account, separate from any business and personal accounts, into which all funds entrusted to the lawyer's care must be deposited); + HREC Rule 1.15(c) (providing that a lawyer in possession of any funds belonging to a client, Where such possession is incident to the lawyer's practice of law, is a fiduciary and shall not commingle such funds with his or her own or misappropriate such funds to his or her own use and benefit); + BRPC Rule 1.15(c) (requiring that funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited into the client trust account); + HRPC Rule 2.15(d) (requiring that all funds entrusted to 2 lawyer must be deposited intact into a client trust account); and + HRPC Rule 8.4(a) (providing that it is professional misconduct for a lawyer to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another). In O0C 99-09-5929, Respondent Yoshino failed to notify two clients of Respondent Yoshino’s withdrawal as their attorney, land Respondent Yoshino failed to send the clients their records in violation of + HRPC Rule 1.4(a) (requiring that 2 lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonably requests for information) ; + HRPC Rule 1.16(d) (requiring that, upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers 5  and property to which the client is entitled and refunding any advance payment of fee that has not been earned); and HRPC Rule 8.4(a) (providing that it is professional misconduct for a lawyer to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so, through the acts of another). In ODC 00~387-6733, Respondent Yoshino deposited the settlement funds for seven settling clients into Respondent Yoshino’s general business account, and, thus, Respondent Yoshino commingled the clients’ funds with Respondent Yoshino’ s personal. funds in violation of HRPC Rule 1.15(a) (1) (requiring that @ lawyer who receives or handles client funds must maintain a client trust account, separate from any business and personal accounts, into which all funds entrusted to the lawyer's care must be deposited); HRPC Rule 1.15(c) (providing that 2 lawyer in possession of any funds belonging to a client, where such possession is incident to the lawyer's practice of law, is @ fiduciary and shall not conmingle such funds with his or her own or misappropriate such funds to his or her own use and benefit); RPC Rule 1.15(c) (requiring that funds belonging in part to 4 client and in part presently or potentially to the lawyer or law firm must be deposited into the client trust account); RPC Rule 1.15(d) (requiring that all funds entrusted to a lawyer must be deposited intact into a client trust account); and HRPC Rule 8.4(a) (providing that it is professional misconduct for a lawyer to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another). Respondent Yoshino failed to provide written agreements for five clients whom Respondent Yoshino represented on a contingent fee basis, and, thus, Respondent Yoshino violated HRPC Rule 1.5(c) (requiring that contingent fee agreements shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated); and HRPC Rule 8.4(a) (providing that it is professional misconduct for a lawyer to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another). Respondent Yoshino failed to provide written settlement statements for four of his settling clients in violation of HREC Rule 1.5(c) (requiring that, upon the conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcone of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination); and HRPC Rule 8.4(a) (providing that it is professional misconduct for a lawyer to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another). Respondent Yoshino failed to properly identify his general business account in violation of REC Rule 1.15(b) (requiring a lawyer to prominently label each client trust account, as well as deposit slips and checks drawn thereon, as a “client trust account,” and requiring a lawyer to prominently label each business account as a “business account,” “office account,” or appropriate business-type account); and 7 + HRPC Rule 8.4(a) (providing that it is professional misconduct for a lawyer to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another). Respondent Yoshino falsely certified on his annual attorney registration statements that he maintained his clients’ funds, property, books and records in accordance with HRPC Rule 1.15 and Rule 11 of the Rules of the Supreme Court of the State of Hawai"t (RSCH), and, thus, Respondent Yoshino violated + HREC Rule 8.4(c) (providing that it is professional misconduct for an attorney to engage in conduct involving dishonesty, fraud, deceit or misrepresentation); and + HRPC Rule 8.4(a) (providing that it is professional misconduct for a lawyer to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another). ‘Therefore, IT 18 HEREBY ORDERED that Respondent Roy N. Yoshino (attorney number 1419) is suspended from the practice of law in Hawas's for a period of one (1) year and one (1) day, effective thirty (30) days after entry of this order, as RSCH Rule 2.16(c) provides. Respondent Yoshino shall comply with all requirements of RSCH Rule 2.16, and Respondent Yoshino shall not resume the practice law in the State of Hawai'i unless he successfully petitions for reinstatement pursuant to RSCH Rule 2.17(c). IT IS FURTHER ORDERED that Respondent Roy M. Yoshino (attorney number 1419) shall successfully complete, at his own expense, the mandatory Hawai‘ Professionalism course (that is 8 conducted under the joint sponsorship of the Hawai‘i State Bar and the Supreme Court of Hawai'i pursuant to RSCH Rule 1.14) before Respondent Yoshino petitions for reinstatement. DATED: Honolulu, Hawai'i, November 29, 2005. yre~ Pu BiLarisae Riceetts SNe nee fiche w- (i 

8ce25a89dd84fd3ad77b414ec81b1757a77e02d330d54fdbd00183908576fab3

2005-11-29T00:00:00Z

0a04ddd3-2ff0-4130-ad2b-b900f9fe41f2

State v. Elley

hawaii

Hawaii Supreme Court

LAW UBRaRY No. 25423 IN THE SUPREME COURT OF THE STATE OF HAWAI'T STATE OF HAWAI'I, Respondent-Plaintiff-Appellee, vs. SHARON C. ELLEY, also known as SHARON BLACK, Petitioner-Defendant-Appel lant CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO, 98-0059(1)) DER FOR WRIT OF CER (By: Nakayama, J., for the court’) Pet itioner-Defendant-Appellant’'s application for writ of certiorari filed on October 31, 2005, is hereby denied. DATED: Honolulu, Hawai's, November 10, 2005. FOR THE COURT: Bie Ceo a {* Associate Justice Phyllis J. Hironaka, for petitioner-defendant- appellant on the writ ae aD oa €0:01MY 01 AUN SON sul HV ronsidered by: Moon, C.J. Levinson, Nakayana, Acobs, and Duffy, oJ. 

f163ae76014432951f13375914f5e1cd898bf246830d5b00549247fa0e1b4e1a

2005-11-10T00:00:00Z

893e50c6-e715-4260-a2c3-86aed71d7fac

State v. Aganon

hawaii

Hawaii Supreme Court

LAW LIBRARY wo, 26187 IN THE SUPREME COURT OF THE STATE OF HAWAI'I —— STATE OF HAWAI'I, Respondent~Appellee 82 AON SOU = EARLILY AGANON, Petitioner-Appellant = i sz 8 CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS = = (FC-CR NO. 99-0021) yO ORDER DENYING APPLICATION FOR WRIT OF CERTIORARI (By: Nakayama, J., for the court") Petitioner-Appellant’s application for writ of certiorari filed on Novenber 14, 2005, is hereby denied. DATED: Honolulu, Hawai'i, November 28, 2005. FOR THE COURT: Sconces CO. Naal ney ere Associate Justice Deborah L. Kim for petitioner-appellant on the writ Aoobs, and Duffy, 99 

9c1c610773e5c4ec2bf237429ba8d985a906a2f2b6d3ab1662beb4e07e5d2e99

2005-11-28T00:00:00Z

dbdc897a-d862-435e-bacb-252a75c9ecbe

State v. Kwon

hawaii

Hawaii Supreme Court

No. 26130 IN THE SUPREME COURT OF THE STATE OF HAWAL'T= 2 8 = aaws Shel STATE OF HAWAI'I, Respondent /Plaintiff-Appel KYUNG JOONG KWON, Petitioner/Defendant-Appellant. OO CERTIORARI TO THE INTERMEDIATE COURT, OF APPEALS (BC-CR. NO. 03-1-1133) prover WRIT OF CERT sR DENY: for the court’) (By: Moon, C.J., Petitioner/Defendant-Appellant Kyung Joong Kwon’s application for writ of certiorari, filed December 8, 2005, is denied. DATED: Honolulu, Hawai'i, December 16, 2005, Mark 8. Kawata and FOR THE COUR’ Sets cnet, eerie - defendant -appellant foot Lr. By 2 J Considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 23 

4d2d125fe0d66bb634f2318acb4f675004d58055cfa625aeec6586fb9977d202

2005-12-16T00:00:00Z

495ee421-7572-47c6-b9b2-c929ea555a42

State v. Adora

hawaii

Hawaii Supreme Court

LAW LIBRARY: No. 26246 IN THE SUPREME COURT OF THE STATE OF HAWAT‘T STATE OF HAWAI'L, Respondent /Plaintiff-Appellee, Z JOVIE ADORA, Petitioner/Defendant Appellant (NO. "26243; CR. NO. 01-1-2324) 3 STATE OF HAWAI'I, Respondent /Plaintif£-Appellee JOVIE ADORA, Petitioner/Defendant-Appellant (NO. 26244; CR. NO. 01-1-2446) STATE OF HAWAI'I, Respondent /Plaintiff-Appellee, JOVIE ADORA, Petitioner/Defendant~Appel lant (NO. 26245; CR. NO. 02-1-0545) STATE OF HAWAI'I, Respondent /Plaintiff-Appellee, JOVIE ADORA, Petitioner/Defendant-Appellant (NO. 26246; CR. NO. 02-1-0810) CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS DENY! LI FOR -RTTOE (gy: Duffy, J. for the court") Petitioner/Defendant-Appellant’s application for writ of certiorari filed on November 21, 2005, is hereby denied. DATEI Honolulu, Hawai'i, November 30, 2005. FOR THE COURT: Boome, Redbgidr Associate Justice Mary Ann Barnard, for petitioner/defendant- appellant on the writ Considered by: Moon, C-J., Levinson, Nakayama, Acoba, end Duffy, JU. 

ad04e6346e322fd8f34f4dd94e5470965801e261b2c41a6f5c61790f975a3630

2005-11-30T00:00:00Z

abb0294c-0eb9-447b-bf0e-e8a8109fb45e

Supro Corporation v. Hifo

hawaii

Hawaii Supreme Court

No. 27631 IN THE SUPREME COURT OF THE STATE OF HAWAT'T sao 9StNhY eg SUPRO CORPORATION, Petitioner atte THE HONORABLE EDEN ELIZABETH HIFO, Respondént ORIGINAL PROCEEDING ORDER DENYING PETITIONER SUPRO CORPORATION'S SITIONS OF SU! w es (By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.) Upon consideration of the petition for a writ of mandamus filed by Petitioner Supro Corporation, the papers in support, and the records and files herein, it appears tha Petitioner is petitioning this court to review rulings and orders issued by the respondent judge in In xe: Haswaii Abestos Cases Underwood v, Kaiser Gypsum Co., Inc,, Civil No, 04-1-0492; (2) Petitioners will have a remedy by way of appeal from any adverse judgment, and a writ of mandamus is not intended to take the a place of an appeal. Therefore, IT IS HEREBY ORDERED that the petition for a writ of mandamus is denied without prejudice to any remedy Petitioner may have in the pending circuit court proceeding and without prejudice Petitioner may have by way of appeal. DATED: Honolulu, Hawai'i, December 23, 2008. Edvard R. Hugo and Wayne §. Sekanots Te for petitioner on . the writ a Bese ie OE Cran NO Conn €. Dudes Oh 

9bbc498c569988e9f013cf5fc890eae9451d5a51cfce25c55569e0dcf4e2e8d4

2005-12-23T00:00:00Z

bbf2be1c-fbb7-4712-936f-8f43fb919e11

Mauna Kea Agribusiness Co., Inc. v. Nakaikuana

hawaii

Hawaii Supreme Court

No. 26120 IN THE SUPREME COURT OF THE STATE OF HAWAT'Z MAUNA KEA AGRIBUSINESS CO., INC., Respondent-Appejlee UE 18 &- 35050 Oss NAKAIKUAANA(k), et al., Respondents-Defendants and SUSAN N, BROWN, Petitioner-Appellant ~” CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS (CIV. No. 03-1-0067) TION (By: Nakayama, J., for the court") Petitioner-Appellant’s application for writ of 2005, is hereby denied. Decesber 5, FOR THE COURT: Pretn Cornea ore. Associate Justice certiorari filed on November 25, 2008. Honolulu, Hawai"t, DATEL Susan N. Brown Petitioner-Appellant pro se on the writ Acoba, and Duffy, 33. Moon, C.d., Levinson, Nakayam: ‘considered by: 

154a962424f3e9cc05d0602e0d412f5f0ec26822a81b86d77621984fe52be3ab

2005-12-05T00:00:00Z

720cf19f-b8f4-4f16-a2d7-1de0f3dcf53d

Volage v. Ray Jen Corporation

hawaii

Hawaii Supreme Court

LAW LIBRARY *** NOT FOR PUBLICATION *** é No. 27376 i 8-230 say IN THE SUPREME COURT OF THE STATE OF HAWAI'I > — LAEL L. VOLAGE, Claimant-Appellant 3) oats RAYJEN CORPORATION dba INTERNATIONAL HAIR & SKIN CLINICS, and HAWAII EMPLOYERS’ MUTUAL INSURANCE COMPANY, Employer/Insurance Carrier-Appellee APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS’ APPEALS BOARD (CASE NO. AB 2004-139 (2-01-13486)) (By: Nakayama, J., for the court!) Upon review of the record, it appears that (1) the Supreme Court Clerk's Office informed Appellant, by letter dated September 2, 2005, that the record on appeal cannot be filed without payment of the filing fee pursuant to Rule 3(f) of the Hawai'i Rules of Appellate Procedure (HRAP) or an executed motion to proceed in forms pauperis pursuant to WRAP Rule 24 and that the matter would be called to the attention of the court for such action as the court deemed proper pursuant to HRAP Rule 11(a), including dismissal of the appeal; and (2) Appellant failed to Pay the filing fee or submit a motion to proceed in forma pauperis; therefore, IT IS HEREBY ORDERED that the appeal is dismissed. DATED: Honolulu, Hawai'i, December 8, 2005. FOR THE COUR’ Resetes Cuan} Associate Justice ‘Considered by: Mocn, C.J., Levinson, Nakayama, Accbs, and Duffy, 0 

ec3042706add041a0c679266d54d65c536399b90e427c9b4d582cc1560e70345

2005-12-08T00:00:00Z

e20a9204-6b9e-4863-84dc-1272d7391a24

Silva v. County of Hawaii

hawaii

Hawaii Supreme Court

No. 24102 WY 82 AoW sine aatas IN THE SUPREME COURT OF THE STATE OF HAWAI'I WILLIAM STLVA; DANIEL MLAKAR; MICHAEL DUBBERSTERR RICHARD CANN; ERNEST CORREIA; HENRY J. SILVA; THOMAS C.S. HING, JR.; GLENN NOJIRI; JAMES KELLY, JULIAN SHIROMA? ERROL ISHIMINE; JERRY COLOMA; BRADLEY BALLESTEROS; ARLEN BENTO; MORTON CARTER: DENNIS CORREA; LODYBESY GLORY; EARL HATADA; and BURTON YAMAGUCHI, Plaintiffs-Counter- Defendants-Appellees, Cross-Appellants and Cross~Appellees Plaintiffs and Counter~ RODNEY AURELLO and WILLIAM LYMAN, Defendants COUNTY OF HAWAI'I, and COUNTY OF HAWAT'T POLICE DEPARTMENT, VICTOR VIERRA, individually and in his official capacity as Chief of Police for County of Hawaii; Defendants-Appellants and Cross- Appellees and WAYNE CARVALHO, individually end in his official capacity as ‘Deputy Chief of Police and Chief of Police of the County of Hawai'i, FRANCIS DEMORALES, individually and in his official capacity as Assistant Chief of Police of the County of Hawai'i, Defendant s/Cross-Claimants /Cross~Defendants/Counterclaimants- Cross-Appellant and Cross-Appellees and VICTOR VIERRA, individually and in his official capacity as Chief of Police of the County of Hawai'i, Defendant /Cross-Defendant /Counterclaimant/Cross-Claimant and WAYNE CARVALHO, individually and in his official capacity as Deputy Chief of Police and Chief of Police of the County of Hewai'i and VICTOR VIERRA, individually and in his official capacity as Chief of Police of the County of Hawai'i, Third-Party Plaintiffs and Counter-Defendants vs. GUY PAUL, individually and in his official capacity as Chief of Police of the County of Hawai'i, ‘Third-Party Defendant and Counterclaimant and STATE OF HAWAT'T ORGANIZATION OF POLICE OFFICERS, ‘Third-Party Defendant APPEAL FROM THE THIRD CIRCUIT COURT (CIV. NO. 97-622) (By: Moon, C.J. Levinson, Nakayama, Acoba, and Duffy, 3J.) Upon consideration of the motion to dismiss appeal filed by Defendant/Cross-Defendant/Appellant the County of Hawai'i, the papers in support, the objections to said motion by Defendant /Appellant Carvalho, and the records and files herein, it appears that: (1) settlement has been reached between all remaining plaintiffs and the County, the terms of which require the complete withdrawal of all claims by plaintiffs against all defendants and entail no admission of liability by the defendants; (2) the county has completed the payments required under the terms of the settlement; and (3) there are no other claims pending that constitute an adverse interest sufficient to render the appeal justiciable. Consequently, the pending appeals are moot. Therefore, IT IS HEREBY ORDERED that the County of Hawai'i’s motion to dismiss is granted, and this appeal is dismissed. IT IS FURTHER ORDERED that attorney Gale L.F. Ching’s motions in connection with this court’s order to show cause as to why the motion to dismiss should not be granted are denied as moot. Honolulu, Hawai'i, November 28, 2005. 

8c7698f41efcbbbd7620072e90d84be4a5de99e0b4f9a089413ec728806c978d

2005-11-28T00:00:00Z

c8d22cb1-db31-4313-9e79-e9b71116e12e

Association of Apartment Owners of Ahuimanu Gardens v. Flint

hawaii

Hawaii Supreme Court

*** NOTFOR PUBLICATION *** No, 26826 IN THE SUPREME COURT OF THE STATE OF HAWAT'T ASSOCIATION OF APARTMENT OWNERS OF AHUIMANU GARDENS, by its Board of Directors, Plaintiff-Appellee, vs. 2 8 ELIZABETH N, FLINT, Defendant-Appellant. APPEAL FROM THE FIRST CIRCUIT COURT 2 (CIV. NO. 04-1-0100) SUMMARY DISPOSITION ORDER 3S (By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.) Defendant-Appellant Elizabeth N. Flint appeals from the Circust Court of the First Circuit's August 19, 2004 final judgment.! Flint contends that the circuit court erred in granting summary judgment to Plaintiff-Appellee, Association of Apartment Owners of Ahuimanu Gardens (the Association), by its Board of Directors (the Board). Flint asserts that her right to exclusive ownership and possession of her condominium unit under Hawai'i Revised Statutes (HRS) § 514A-5 (1993) (repealed 2004)? trumps the Board's power to treat termite infestation in the common elements by tent fumigation of the building in which her unit is located. The sole issue on appeal is whether the circuit court was correct in finding no genuine issues of material fact and that the Board was entitled to judgment as a matter of law ‘The Honorable Sert I. Ayabe presided over this matter + HRS § 5148-8 provides, in zelevant part: “The apartment omer is entitled to the exclusive omership and possession of the apartment.” ase *** NOTFOR PUBLICATION *** because the Board has the authority to treat termite infestation in the common elements of the condominium building by tent fumigation. See Coon v, City and County of Honolulu, 98 Hawas't : 233, 244-45, 47 P.3d 348, 359-60 (2002) (“We review the circuit court’s grant or denial of sunmary judgment de novo.” upon carefully reviewing the record and the briefs submitted by the parties, and having given due consideration to the arguments advocated and the issue raised, we:hold: (2) The Bylaws are determinative of whether the Board has the authority to contract for tent fumigation services as a method of termite treatment of the connon elements in this condominium building. See HRS § 514A-81 (1993) (repealed 2004) (“The operation of the property shall be governed by the bylaws."); HRS § 5140-3 (1993) (repealed 2004) (**Operation of the property’ means and includes . . . the maintenance [and] repair . . . [of] the connon elenents.”); (2) The Board’s power and duty to maintain the common elements, in the interest of the Association, outweighs Flint’s Fight to exclusive ownership and possession, and Flint must therefore comply with the decision of the Board. See The Bylaws, Article IV, § 2 (the Board of Directors shall have the following powers and duties: (a) To manage, operate, care and maintain the property of this condominium property regime, the connon elements Ass'n of ow f Kukui Plaza and Limited common elements.” *** NOTFOR PUBLICATION *** vy. City and County of Honolulu, 7 Haw. App. 60, 74, 742 P.2d 974, 983 (1967) ("The uniqueness of the condominium concept of ownership has caused the law to recognize that each unit owner must give up sone degree of freedom of choice he might otherwise enjoy in separate, privately owned property.”) (Quotation marks omitted); River Terrace Condo. Ass‘n v. Levis, 514 N.E.2d 732, 735-36 (Ohio Ct. App. 1986) (*[WJhile the owner of @ unit has exclusive ownership of and responsibility for his unit, . . . the owner's freedom of action is of necessity limited by the fact that the unit is one of many units . . . ."); The Declaration, Part I. ("[E]ach owner, tenant, or occupant of a family unit shall comply with the provisions of this Declaration, the Bylaws, the decisions and resolutions of the Association or its ntative . 6. .")F (3) Despite its lack of express authority in the Bylaws, the Board’s broad authority to do all things necessary for the operation of the Association includ the authority to require Flint to temporarily vacate her unit so that termite Anfestation in the conmon elements may be treated by tent fumigation of the building in which she owns and occupies a unit. The Bylaws state: the Board of Directors have were and du SSE fine may do ali-such acte-and things as ar© not by law or by these Bylaws Girected to be exercised and done By the own *** NOTFOR PUBLICATION *** foreaoing, the Board of Directors shall have the following Powers and duties... ‘The Bylaws, Article IV, § 2 (emphases added). Thus, the absence of any provision explicitly authorizing the Board to require a condominium unit owner to temporarily vacate her unit is not fatal to the Board's right to do sc. See Beachwood Villas Condo. ve Poor, 448 So. 2d 1143, 1245 (Fla. App. 1984) (“It would be impossible to list all restrictive uses in a declaration of condominium.”); O"Buck v, Cottonwood Village Condo, Ass’n. Inca, 750 P.24 813, 816 (Alaska 1988) (quoting same); (4) The Board’s decision to treat termite infestation in the common elements by tent fumigation is reasonable and made in good faith, and thus, should be upheld. See McNamee v. Bishop Trust Cou, Ltda, 62 Haw. 397, 407, 616 P.2d 205, 211 (1980) (holding that the decision of @ managing conmittee of a community association will be upheld as long as the decision is “reasonable and in good faith[.]"). Therefore, IT IS HEREBY ORDERED that the circuit court's August 19, 2004 final judgment granting summary judgment against Flint is affirmed. DATED: Honolulu, Hawai'i, December 2, 2005. on the briefs: Gor John A. Morris and Shes hor nae Mi Yung C. Park (of Ashford & Wriston) Dsus Cr eerleeyanee for plaintiff-appellee Association of Apartment Owners of Ahuimanu Gardens &, Dabls e *** NOTFOR PUBLICATION *** Corey ¥.8. Park and Pamela S. Bunn (of Paul Johnson Park & Niles) for defendant-appellant Elizabeth N, Flint 

573c2b27474e8e334591c0782681aaf3fb46884b029ff0410bd36d952d0b9ead

2005-12-02T00:00:00Z

c63157a0-9855-46db-967f-5d172b38cd30

Jacobs v. Lenox Healthcare of Kailua-Kona, L.P.

hawaii

Hawaii Supreme Court

LAW UBRARY NOT FOR PUBLICATION *** No. 24632 . IN THE SUPREME COURT OF THE STATE: OF HAWAI'T SHARRI JACOBS, Claimant-Appellant, LENOX HEALTHCARE OF KAILUA-KONA, L.P., Employer-Appellee, and aad RSKCO, fka Alexsis Risk Management, Insurance Carrier~Appellee. ei 6 Wy 9 930 S000 APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD (Case No. AB 99-268(WH) (9-97-00802)) ‘SUMMARY DISPOSITION ORDER (By: Moon, C.J., Levinson, Nakayama, Acoba and Duffy, JJ.) ‘The claimant-appellant Sharri L. Jacobs appeals from the decision and order, filed on September 20, 2001, of the Labor and Industrial Relations Appeals Board (LIRAB). On appeal, Jacobs contends that the LIRAB erred in: (2) disregarding “(t]he MRI(s] of [her] (clervical [s]pine . . . [and) of {her} right wrist”; (2) considering the opinion of Dr. Rowlin L. Lichter, who did not “me[e]t [Jacobs], let alone examine [her],” and disregarding the opinion of Dr. Harvey Wieseltier, “who examine[d] [her] extensively”, “br. (3) considering [Wade] Fae(r]ber[’s] report” despite his not having examined her extensively; and (4) not mentioning “the Post Hearing Memorandum (Jacobs) put together.” upon carefully reviewing the record and the briefs submitted by the parties and having given due consideration to  + NOT FOR PUBLICATION +#* the arguments advanced and the issues raised, we affirm the September 20, 2001 decision and order of the LIRAB for the following reasons: Notwithstanding the fact that, of the physicians who provided evidence to the LIRAB, some had studied Jacobs's case more than others, the LIRAB’s decision shows that (1) it weighed the credibility of the various reports and testimony, and (2) its findings of fact were not “(c]learly erroneous in view of the reliable, probative, and substantial evidence én the whole record.” See Hawai" Revised Statutes § 91-14(9) (Supp. 2004), quoted in Konno v, County of Hawai'i, @5 Hawai'i 61, 77, 937 P.2d 397, 413 (1997). Therefore, IT IS HEREBY ORDERED that the decision and order from which the appeal is taken is affirmed. DATED: Honolulu, Hawai"i, December 6, 2005. on the briefs: yr She’ Clatnene eppelient Sharri L. Jacobs, pro se Seca J. Thomas Weber, of ‘Ayabe, Chong, Nishimoto, a are Sia s Nakamura, for the Pawnee ‘employer-appellee Lenox Healthcare of Kailua-Kona, L.P., and the insurance carrier-appellee RSKCO, fka Alexsis Risk Management Cons. Dati th « 

be7c1cc4e914ee646f74f280f2b99f0f59f2f15f2ae5805819d88ecba10ba927

2005-12-06T00:00:00Z

83ae06c4-cfd5-40b0-8c02-32c3d644ac9a

Child Support Enforcement Agency v. Doe.

109 Haw. 240

hawaii

Hawaii Supreme Court

Law ISRARY *#* FOR PUBLICATION *** IN THE SUPREME COURT OF THE STATE OF HAWAI'T 00" Oe CHILD SUPPORT ENFORCEMENT AGENCY, STATE OF HAWAI', Plaintiff-Appellee JOHN DOE, Defendant-Appellant and 60:2 Hd 42930 c0N JANE DOE, Defendant-Appellee ee wo, 24457 APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-P NO. 00-1-0581) DECEMBER 27, 2005 MOON, C.J., LEVINSON, AND NAKAYAMA, JJ. INTERMEDIATE COURT OF APPEALS JUDGE LIM, IN PLACE OF ACOBA, J., UNAVAILABLE, AND CIRCUIT JUDGE NAKAMURA, ASSIGNED BY REASON OF VACANCY OPINION OF THE COURT BY NAKAYAMA, J. Defendant-appellant John Doe (hereinafter “the father”) appeals from the July 6, 2001 order, findings of fact, and conclusions of law of the Family Court of the First Circuit, the Honorable John C. Bryant, Jr. presiding, establishing John Doe as the father of the child in question, ordering the father to pay child support, arrearages, and birth-related expenses, and 1 expenses allocating expenses for the child’s future medi equally between the parents. on appeal, the father argues that (1) the Hawai'i (HUPA), Hawai'i Revised Statutes (HRS) Uniform Parentage Act  #+* FOR PUBLICATION FOR PUBLICATION 988 chapter 564, is unconstitutional because it violates the father’s rights to privacy and equal protection under the Hawai'i constitution and the United States Constitution (a) by violating the father's right to procreational autonomy and (b) by creating an improper gender-based classification; and (2) insofar as the father is an unemployed student, the family court violated the father’s right to be free from compulsory service when it ordered him to pay child support in the amount of fifty dollars per month, because the father would be forced to get a part-time job. Each of the father’s argunents is manifestly and palpebly without merit, First, the father failed to raise the question of equal protection at trial or in his pretrial legal memoranda; consequently, the issue is waived. Second, the father is entitled only to a “rational basis” review of HUPA because: (1) BUPA does not implicate the father’s fundamental privacy right to procreational autonomy, but rather his economic interest in not supporting his child; and (2) even if the father hada’t waived his equal protection argument, his standing to raise the challenge would be based on a non-suspect classification, iseu the biological relationship of fathers to their children. Recause HUPA bears a rational relation to the public welfare, it survives our rational-basis review, and the father’s procreational autonomy arguments (as well as his waived equal protection argunents) fail. Finally, an obligation to financially support one’s child and to become employed if necessary to meet the obligation is in no way comparable to peonage or slavery. It is well-settled that child support is an *** FOR PUBLICATION *** obligation that may be compelled, even by imprisonment, without violating the right to be free from involuntary servitude; ipso facto, the family court did not exceed its authority by ordering the father to pay the minimum amount of child support allowed by the then-applicable guidelines. For the reasons that follow, we affirm the family court's order, findings of fact, and conclusions of law. We also notify the parties that the appeal was frivolous and request briefing with regard to damages and costs to be awarded to CSEA as authorized by Hawai'i Rules of Appellate Procedure (HRAP) Rule 38. A. Factual Background! ‘The mother and father met while they were both in high school; they dated intermittently for approximately fourteen months. During the course of their relationship, the couple agreed to always engage in “safe sex” and did not intend to procreate. The trial court found that it was reasonably foreseeable by both parties that an unwanted pregnancy could occur if the parties relied on the use of condoms as a method of birth control. The mother became pregnant due to a failure in either the construction or use of a condom; this pregnancy was not planned. After the mother became pregnant, the prospective : ‘The mother and father stipulated to facts for the April 4, 2001 trial precedent ‘to the order from which this appeal ie taken. sxcept ds Otherwise indicates, the factual background ie drawn directly from the Stipulated facts, a9 modified and expandad by the trial court’s findings of fact in the order from which this appeal is raken. 3  '* FOR PUBLICATION *** parents discussed and considered the possibility that the mother might undergo an abortion or seek an adoptive placement for the child with the father’s consent and cooperation. However, the trial court found that the parties never entered into an express agreement that the mother would have an abortion or place the child up for adoption. Ultimately, after discussing the pregnancy with her family and despite the child’s father’s objection, the mother decided to raise the child with her family’s help. The father strongly opposed the mother’s decision to keep the child because he believed that he and the mother were unable to support @ child emotionally or financially and because he believed that they were too young to care for a child. The parents! sexual relationship continued through the sixth month of the pregnancy, ‘The mother gave birth to the child at issue in these proceedings (hereinafter “child”) on March 22, 2000. The Department of Human Services (DHS) paid $878.13 for medical expenses related to the birth of the child. At the time of the trial, DHS had paid $6,203 in cash assistance to the mother for the benefit of the child. B. Procedural History On July 10, 2000, the Child Support Enforcement Agency (CSEA) filed an amended complaint for establishment of paternity pursuant to HRS § 584-6, In connection with that complaint, the mother and father stipulated to genetic testing. The test HRS § 584-6 (1993) provides in relevant part: “(T]he child support enforcement agency may bring an action for declaring the existence oF Ronexistence of the father and child relationship... -” 4  FOR PUBLICATION *** results indicated a 99.99% probability that the party referred to here as “the father” is the biological father of the child. In light of the test results, the father did not contest that he is the biological father of the child, but nevertheless objected to being named as the child’s legal father and to being ordered to provide any past or future support for the minor child Pursuant to HRS § 346-37.1,? OHS, through CSEA, sought, inter alia, reimbursement of certain public assistance monies paid for the benefit of the child and such other relief as might be appropriate. Specifically, CSEA sought ongoing child support payments, child support arrearages, and $439.07 for birth-related expenses from the father.‘ On December 21, 2000, 2 pretrial conference was held before the Honorable John C. Bryant. Following this conference, a judgment of paternity was entered. Sole physical and legal custody of the child was awarded to the mother. The court reserved judgment with respect to allocation of birth expe! child support, and arrearages. A hearing on the reserved issues was set for February 7, 2001. On February 5, 2001, the father filed a pre-hearing legal menorandum in which he alleged that the mother had promised he would not be subject to financial responsibility for the child and asserted that his fundamental * as § 346-37.1 (Supp. 2000) provides in relevant part: “Any payment of public assistance meney made to or for the benefit of any dependent Child creates a debt due and owing to (OHS) by the natural or adoptive parent or parents so” «Because the father was ¢ student at the tine these proceedings were initiated, no incone was inputed to him in calculating his child support Obligation. Consequently, his obligaticn amounted to 550 per month under the Guidelines then in effect *** FOR PUBLICATION *** right to decide whether to have a child would be violated if he were required to accept financial responsibility for the child: ‘The Boe case, of course, specifically dealt with moman’2 Fight co procreate. However, the Supreme Court in Hig slo recognized that the state has an interest in Fegulating decisions (such as abortion) if such an interest is compelling.” “Eoelz. Hagel, 410 0.3. at 155, if the State has such an interest, surely the natural father also has an interest ‘simply put, ££ 2 woman hag @ Constitutional right to procreater #0 should s man.” Te Ae completely unfair and Enjust for a woman €o force a nan to nave a child against his will and then force him to provide financial and other Support for that child. That is exactly what happened in the instant case. Gotidusly, [the father] could not force [the mother) co have an abortion or give the child up for adoption. That mould siclete her Constitutional rights. However, (the Rother! should sot be allowed to force [the father] to take Upa role and responsibilities he clearly did not want and hich she promised him he would not have to bear, That, Gould vioiste is conseitutionat Fights. ‘The father also asserted that, because he was a full- time university student, he “simply [couldn’t) afford to take care of a child.” Consequently, any imposition of 2 financial obligation to support his child would be tantamount to slavery and unconstitutional: ‘The Thirteenth Amendment to the United States constitution provides that involuntary servitude shall not Grist in the United States and gives Congress the power to Enforce the article by appropriate legisiation. In 1867, Congress enacted the Antipeonage Acts ss fa Interpreting this Act, the United States supra court has held that “congress has put it beyond debate that he indebtedness werranta a right te be free from suspension Of compulsory service.” Imposing even a minimun financial Pequirenent on [the father] in this case would be violative of his rignt to be free from compulsory service and therefore tantanount to involuntary. servitude. ewes [ehe mothe:’s] choice to nave this child. She chose to do so over [the father's) objections and wniie assuring him that she (and her parents) would raise the Child themselves with no help of any kind from him. [The mother] broke ner agreenent with [the father) and, as @ Tesult, the State of Hawai'i is now attempting to require {the father] to accept financial responsibility for the child, This is Unfair, unjust, and unconstitutional 6  _——______*** FOR PUBLICATION *** At the February 7, 2001 hearing, Judge Bryant scheduled a short trial for April 4, 2001 and ordered the parties to prepare a list of stipulated facts. Following the trial, the court granted the relief requested by CSEA’s amended complaint. In the trial court’s findings of facts and conclusions of law, in addition to the stipulated facts, the court found, inter alia, that “[i]t was reasonably foreseeable by both parties that an unwanted pregnancy could occur through the use of a condom,” and that the parties never had a abortion and adoption and therefore there was no explicit agreement that [the mother] would have an abortion or place the child up for adoption.” The court concluded, inter alia: (1) that the father had no inherent or constitutional right of privacy to denounce, repudiate, or rescind his duties as the natural father of the child; (2) that Roe v, Wade, 410 U.S. 113, 152 (1973), does not apply to a father’s right to choose whether or not to procreate; and (3) that fathers have a right to be free from procreation when they choose not to engage in sexual intercourse. In the July 6, 2001 order from which this appeal is taken, the trial court determined, inter alia, that the father was the natural father of the subject child, that the father was Liable for child support in the amount of $50 per month, that the father was liable for child support arrearages in the amount of $600, that the father was liable for birth-related expenses in the amount of $439.07, that medical expenses for the child would be shared equally by the mother and father on an ongoing basis, that all prior orders not inconsistent with the final order would  FOR PUBLICATION remain in full force and effect, and that there would be no stay of the order pending appeal. ‘The father timely appealed. The father also moved for a stay of the trial court's order and findings of fact and conclusions of law pending appeal, on the grounds that: (the father had) raised an issue of first impression An Hawai'i, For this reason, it is difficult to predict the Lfkelinood of his success om the merits (although [che Esther] firnly believes that he will be successful on appeal). However, it dg clear that irreparable injury to (the father! will result if he is forces te mest his court Grdered obiigations. (The father) is a student at the University of Hawai'i at Manoa majoring in sauaiian studies and minoring in Business. when (the father) is not in School or studying, ne ageists community organizations on Several conmunity service projects. isacaute] “no indebtedness warrancs a suspension of the right to be free from compulsory servicel,]" [i]mposing | minimum financial requiresent on. (the father] would be Gsolative of his right to be free from compulsory service. Ig the stay is not granted and. (the father] prevails on appeal, the State would have already violated [the father's) Gonatitutional rights by forcing him to enter the work force in srder to meet his support obsigations «= Moreover, a stay doesn’t inpose a hardship on [the mother]. Corrently, [the father's) child support obligation for the subject child is $50.00 per month, secause this Amount ig nominel the ispacton the subject child's standard Of Living will not be affected. In fact, (the mother] is enployed and earns $502.00 per month. . Sowever, if a stay 1s not granted and [the father) prevails on appeal, he gill suffer a great hardship. As Roted above, [the mother] and the Stave would have forced (the father] to enter the work force in order to mest his Support obligations fo the subject child thereby vislating his constitutional right to be free from compulsory service Tn addition, forcing (the father! to enter the work force will inpede his educational gosis and delay his career. As Such, [the father] will suffer unnecessary and irreparable harm In an order dated October 8, 2001, we denied the motion and ordered counsel for the father to show cause as to why he should not be sanctioned for filing a frivolous motion. *** FOR PUBLICATION *** During the spring of 2003, the mother and father agreed to various settlement terms, contingent upon the dismissal of the instant appeal. Among other things, the father agreed to pay the mother $25,000 upon the adoption of the child by the mother’s present husband. On April 16, 2003, the father filed a motion to dismiss the instant appeal. In an affidavit filed with the motion, father's counsel noted, anong other things, that “(t]he Litigation over the Minor Child has drained both parties financially, emotionally, and psychologically. While the effect fon the Minor Child has been difficult to m sure, to be sure, it had [sic] not been positive.” The motion to dismiss was supported by the mother but ‘opposed by CSEA, the Plaintiff-Appellee. CSEA noted that its reasons for opposing dismissal included the agency’s “strong and vested interest” in resolving a constitutional challenge to the HUPA, In the instant case, in which briefing had been complete for nearly a year when the father filed the motion to dismiss, CSEA asserted that its attorney’s fees and costs in defending the appeal exceeded the money due CSER under the order from which this appeal was taken; if the challenge to the HUPA was not resolved in this appeal, CSEA would be forced to duplicate its efforts in a subsequent case. Further, CSEA asserted that “to dismiss this appeal would be rewarding Mr. Doe for misleading this court and the appellees, by the filing of an apparently frivolous appeal and subjecting both appellees to usage of time and resources without allowing the case to cone to its natural conclusion.”  FOR PUBLICATION *** In an order dated May 19, 2003, we denied the motion to dismiss.* IX, STANDARD OF REVIEW ‘The constitutionality of a statute is a question of law that we review under the right/wrong standard. State v. Lee, 75 Haw. 80, 90, 856 P.2d 1246, 1253 (1993). “(W]e have long held that: (1) legislative enactments are ‘presumptively constitutional;’ (2) ‘a party challenging a statutory scheme has the burden of showing uncongtitutionality beyond a reasonable doubt:’ and (3) the constitutional defect must be ‘clear, manifest, and unmistakable.’” Convention Ctr, Auth, v. Anzai, 78 Hawai'i 157, 162, 890 P.2d 1197, 1202 (1995) (quoting Bray ye Judicial Selection Comm'n, 75 Haw. 333, 340, 861 P.24 723, 727 (1993) (quoting av. tru a loves Retirement Sys., 74 Haw. 181, 191, 840 P.2d 367, 371 (1992) (quoting Blair vs Cavetano, 73 Haw. 536, 542, 836 P.2d 1066, 1069) (brackets in original and citations omitted))). However, this presumption of statutory constitutionality does not apply to laws which classify on the basis of suspect categories or impinge on fundamental rights expressly or impliedly granted by the constitution. Nelson v. Mima, 56 Haw. 601, 605, 546 P.2d 1005, ie note that our decision ie not advisory; rather, it pertains to an actual, justicisble controversy. The father did not argue that. settlenent ited disputes between the defendantwappellant father and defendant jee nother would Fender the instant appeal moct, nor did he subsequently Geidence regarding payment of the contemplated settlenent amount to for, successful adoption of the child by the mother’s present husband, Gr paysent of the past-due child support and cther amounts payable to CSER Under the fansly court's order. Nevertheless, we discuss the motion to Gionies ane related circumstances in sone Getsil because they factor into eur Shalysis with respect to whether the instant appeal was frivolous. 10  *** FOR PUBLICATION *** FOR PUBLICATION *** 1008, n.4 (1976). Such laws are presumed to be unconstitutional unless the state shows compelling state interests which justify such classifications, and that the laws are narrowly drawn to avoid unnecessary abridgments of constitutional rights. Bashy vw. Lewin, 74 Haw. 530, 571-72, 852 P.2d 44, 63-64 (1993). See also san 2 ich, Dist. v. Rodriquez, 411 U.S. 1, 60-61 (1973) (Stewart, J., concurring). III, DIscussrow a the father did not raise the issue of equal protection at trial or in his pre-hearing legal memorandum; the issue is therefore not preserved for appeal. the father did not raise the issue of equal protection at trial or in his pre-hearing legai memorandum, An issue which was not raised in the lower court will not be considered on appeal. Kernan vs Tanaka, 75 Haw. 1, 35, 856 P.2d 1207, 1224 (1993), cert, denied, 510 0.8. 1119 (1994). ‘The father argues that he preserved the question of equal protection by stating, in the context of a hearing in which he argued that HUPA violated the father’s rights to procreational autonomy and to be free from involuntary servitude, “[fJirst, I'd Like to say with respect to the laws and statutes of the State of Hawai‘i cited by [counsel for CSEA] we concede that those are the existing statutes, but our argument and position is that they are fundamentally unfair and unconstitutional if you will.” This argument is palpably without merit. The father’s general assertion is not sufficient to preserve the father’s equal protection arguments. here a litigant changes to a new theory on appeal that falls under the same general category as an u *** FOR PUBLICATION *** argument presented at trial or presents a theory that was raised in a vague and ambiguous way, the theory will not be considered. lwons_v. Jefferson Bank & Trust, 994 F.2d 716, 721-22 (10th Cir. 1993). ‘There are sound reasons for the rule. Tt {s unfair to the trial court to reverse on @ ground that no one even Suggested aight be error, “It 1s unfair to the opposing Party, who might have et the argunent not made below. Finaliys it dees not comport with the concept of an orderly Gnd efficient method of adzinistration of justice, Ki Farms v. United A , 86 Hawai'i 214, 248, 948 P.2d 1055, 1089 (1997) (quoting Ellis v. State, 821 S.W.2d 56, 57 (ark.App. 1991). ‘Although We have held that we will not hear a question regarding the constitutionality of a statute unless it is raised in the trial court, we have made exceptions in cases where the constitutionality of the statute raised a question of great public import and justice required that we consider the issue. State v. Ildefonso, 72 Haw. 573, 584-85, 827 P.2d 648, 655 (1992). In the instant case, the analysis is similar to the due process analysis this court must perform in conjunction with the procreational autonomy claim, the issues have been fully briefed, disposition of the issue may lessen the burden imposed on families, taxpayers, and the courts by future frivolous constitutional challenges to chapter 584, and, though the answer is so obvious as to suggest bad faith on the part of the pleader, the question is of substantial public importance. Consequently, we offer our equal protection analysis in section III.8.2, infra. 12 **% FOR PUBLICATION *** FOR PUBLICATION 997 HUPA does not violate the father’s rights to privacy and equal protection. he father argues that HRS chapter 584 is unconstitutional because it violates the father’s rights to privacy and equal protection under article I, sections S* and 6” of the Hawai'i Constitution and the fourteenth amendment to the United states Constitution’ by violating the father’s right to procreational autonomy and by creating an improper gender-based classification. The father’s arguments are manifestly without merit. The father is entitled only to a “rational basis” review of HUPA because: (1) HUPA does not implicate the father’s fundamental privacy right to procreational autonomy, but rather his economic interest in not supporting his childs and (2) although the father has standing to raise an equal protection challenge to HUPA, that standing is based on a non-suspect classification, ise., the biological relationship of fathers to © Article 1, section § of the Hawai'i Constitution provides that {alo person shall be deprived of life, liberty or property without due seesee SE lau nor be denied the equal protection of the laws, nor be denied Ele enjoyment of the person's civil rights or be discriminated against in the Ghareiae thereot because of race, religion, sex or ancestry.” Agticle I, section 6 of the Hawal's Constitution provides that sityhe right cf the people to privacy is recognized and shail not be infringed hdthoue the showing of a compelling state interest. The legislature shall take Uegirmscive stepe co implement this right.” + The fourteenth amendment to the United States Constitution provides in pertinent part: (elo State’ shall make or enforce any law which shall abridge the privileges or inmunities of citizens of the United States; nor anall any State deprive any person of life, Uiberty, "or property, witheut due process of law; nor deny to any person within its Juriedietion the equal protection of the Is 13 *** FOR PUBLICATION *** their children. Because HUPA bears a rational relation to the public welfare, the statute survives our rational-basis review, ‘and the father’s privacy and equal protection arguments fail. 1. The father's fundamental right to procreational support his child. the father argues that HUPA violates his right to avoid procreation, which is an elenent of his fundamental right to privacy, However, no state action impaired the father’s exercise of his right net to beget a child. Rather, the state, under the authority of HUPA, verified the empirical fact that the father failed to exercise his right not to begets having verified the father’s relationship to the child, the state, acting under authority of HUPA, imposed certain legal obligations resulting from that relationship. Because the father’s alleged injury is not to his fundamental right to privacy but rather to his economic interests, he is entitled only to @ rational-basis review of HUPA. qo state a claim under the fourteenth amendment, @ Litigant must assert that some state action has deprived the litigant of a constitutionally protected “liberty” or “property” interest, See, €.d., State vs Guidry, 105 Hawai'i 222, 227, 96 p.3d 242, 247 (2004); State vs Bowe, 77 Hawai'i 51, 59, 681 P.2d 538, 546 (1994). “In determining whether a statute conflicts with the Due Process Clause, we have applied two tests. If 6 fundamental right is implicated, the statute is subject to strict scrutiny, If, however, @ fundamental right is not implicated, 4 + FOR PUBLICATION *** FOR PUBLICATION °°" the statute is subject to the rational basis test.” State wv. Mallan, 86 Hawai‘ 440, 451, 950 P.24 178, 189 (1998). under rational-basis review, a statute must “rationally further @ legitimate state interest.” Id, A state interest is “iegitimate” if it involves the public health, safety, or welfare. Mallan, 86 Hawai'i at 451-52, 950 P.2d at 189-90. In other words, under minimun-rationality due process analysis, a statute must be rationally related to the public health, safety, or welfare. Mallan, 86 Hawai'i at 452, 950 P.2d at 190. In applying the raticnal-basis test, courts in modern times have given great deference to legislative enactments, Id, Statutes are subject to a presumption of constitutionality and the burden of denonstrating that the statute lacks any rational basis lies with the challenger. Ide he father complains that state actions teken under the statutes thet permit the establishnent of paternity and the imposition and enforcement of child support obligations violated his fundamental constitutional right to avoid procreation. However, he fails to identify any state action that impacted in any way his choice to father a child. He does not argue that the state required him to engage in the sexual activity that resulted in the conception of his child, Nor has he identified any means by which the state interfered in any way with his choice to use or not to use adequate contraceptive methods during sexual activity to avoid his sexual partner’s resulting pregnancy. wwhile it is true that after conception a woman has more control than @ man over the decision whether to bear a child 1s  *** FOR PUBLICATION FOR PUBLICATION *°7 ‘and may unilaterally refuse to obtain an abortion, those facts were known to the father at the time of conception.” Ince ¥. fates, 55€ P.2¢ 1253, 1254 (Or.App. 1977) (noting that the choice yests in the wonan because she must carry the child and undergo the risks attendant to childbirth or abortion, and holding that a child support obligation could constitutionally be imposed on @ father who requested that the mother obtain an abortion or place the child up for adoption) (citing Planned Parentheod v, Danforth, 426 v.S. 52 (1976)), cert. denied and appeal dismissed, 434 U.S. 806 (2977). The father elected a course of conduct inconsistent with the exercise of his right not to beget @ child. The reproductive consequences of his actions were imposed by the operation of nature, not statute. insofar as HUPA does not implicate the father’s right to procreationa! sutonomy, the sole “liberty” or “property” interest at issue implicating state action 1s his de minimis child support obligation. A “putative father has no legitimate right and certainly no liberty interest in avoiding financial obligations to his natural child that are validly imposed by state law.” Rivera vs Minnich, 483 U.S. $74, 580 (1967). In other words, HUPA does not implicate the father’s fundamental rights, but rather the father’s economic interest. Where economic interests are concerned, the rational basis test is the proper standard. Maeda v. Anemiva, 60 Haw. 662, 669, S94 P.24 136, 141 (1979). 16 ** FOR PUBLICATION *** FOR PUBLICATION P78 2. The rts onl le eau: te shallense-to-cheater sit 1s bee Dicleaical The father argues that HUPA deprives him of his right to equal protection by creating an improper gender-based classification.’ The father cites some language from chapter S84 in support of his argument, but when the chapter is read as a whole, it is clear that the cited language statute makes no improper distinction between men and women, ‘To the extent that the father receives disparate treatment under the statute, it is on the basis of his relationship to his child legal classifications based on the biological relationship of fathers to their children are not subject to an elevated level of scrutiny. As we explained in State v. Miller: the guarantee of equel protection of the laws under Howai'l and thited States Constitutions requires that Hovadns similarly situated with respect to the legitimate Perpore of the law receive like trestment. However, equal peeeCetion does not Eequire that ail persons be dealt with Peeheisarly, tut it dees require that'a distinction made have sone relevance to the porpose for which the Efuseifieation ss made. Miller, 64 Hawai'i 269, 276, 933 P.2d 606, 613 (1997) (internal citations and quotation marks omitted). “Whenever a denial of equal protection of the laws is been whether the alleged, as a rule our initial inquiry hi legislation in question should be subjected to ‘strict scrutiny’ or to a ‘rational basis’ test.” Bach v. Lewin, 74 Haw. $30, + as noted above, this argument Ls deoned to be waived. vv *** FOR PUBLICATION *** 571, 852 P.2d 44, 63 (1993) (quotations and citations omitted) . ie have applied strict scrutiny analysis to laws classifying on the basis of suspect categories or impinging upon fundamental rights expressly or impliedly granted by the constitution, in which case the laws are presumed to be unconstitutional unless the state shows compelling state interests which justify such classifications, and that the laws are narrowly drawn to avoid unnecessary abridgnents of constitutional rights. Baehr, 74 Haw. at 571-72, 852 P.2d at 63-64 (internal citations and quotetion marks omitted) By contrast, where suspect classifications or fundamental rights are not at issue, this court has traditionally employed the rational basis test. Baehr, 74 Haw. at $72, 982 P.2d at 64 ("Under the rational basis test, we inguire as to whether a statute rationally furthers a legitimate state interest. Our inguiry seeks only to determine whether any reasonable justification can be found for the legislative enactment.” (Citations and quotation marks omitted.)) WAS chapter 584, Hawai'i’s Uniform Parentage Act, provides for a variety of procedures relating to the establishment of the parent-child relationship and the enforcement of duties resulting from that relationship. Chapter 584 applies to both mothers and fathers but recognizes that different procedures may be required to establish fatherhood than are required to establish motherhood." Certain sections of as § 584-3, in its entirety, reads How porent and child relationship establishes. (continued, ae  FOR PUBLICATION FOR PUBLICATION 977 chapter $64 differentiate between mothers and fathers. To the extent that these differences are related to fundamental differences in the way fathers and mothers are situated with respect to proof of parenthood, it is beyond doubt that these sections pass constitutional muster. As the United States supreme Court observed in Tuan Anh Nowven v. 1.N.S.# sin the cese of the mother, the relation is verifiable from the birth itself, The mother's status is docurented in bce instances by the birth certificate or hospital records Gna the witnesses who attest to her having given birth. Tn'the case of the father, the uncontestable fact is that he need net be present at the birth. If he is present, furthermore, that circumstance is not incontrovertible proot oe fatherhood: Fathers and mothers are not similarly Steuated with regard to the proof of biological parenthood, fae Imposition cf 2 difterent set of rules for making that [oe Geterninetion with respect to fathers and mothers is Aefther surprising nor troublesome from a constitutional perspective.” ‘Quan Anh Nouven v. L.N.S., $33 U.S. 53, 62-63 (2001) (rejecting an equal protection challenge to @ statute providing different procedures for establishing @ father-child relationship than for the mother-child relationship); see also Miller v. Albricht, 523 U.S. 420 (1998) (same). However, the father directs our attention to various clauses in § 584-15(c) and (d) that specifically pertain to fathers, yet bear no apparent relationship to any biological (,- continued? ‘Phe parent and child relationship between 2 child and: {iy The natural nother may be established by proof of her Aatang given bireh to the child, or under this chapters (2) The natural father say be established under this chapters (Sivan adoptive parent may be established by proof of adoption. 19 ** FOR PUBLICATION *** difference between mothers and fathers." The cited language, if read in isolation from the remainder of chapter 584, suggests 4 gender-based classification; classifications on the basis of gender are suspect, and therefore subject to strict scrutiny. Bachr, 74 Haw. at 580, 852 P.2d at 67. we may not read statutory language out of context. As this court explained in State v. Savitz: When construing 4 statute, our forencst obligation is to ascertain aad give effect to the intention of the [Sglsiscure, amich is to be obtained primarily from the [Sagasge conteined in the statute itself. And we must read Rinkussey language in the context of the entire statute and SSaserue st in a manner consistent with its purpose 97 Hawai'i 440, 443, 39 P34 567, 570 (2002). HRS § 564-15 4s one of a series of sections (§ 584-6 through § 584-20) that provide procedures to be followed in an RS _§ 984-15 provides in relevant part: $'S04-15 Dudgnent or order. [é) The judgaent or order may contain any other provision directed agsinet the appropriate party to the ErSteeding, concerning the duty of suppert, the custody and Eosralaneeip of the enild, visitation privileges with the EniTG, the furnishing of Sond or ther security for the Eayment of the juagment, or any other matter in the best Gnkerest of the child. Upon neglect or refusal to give this fecurity, or upon default of she father or the fasher's SSec5Ys Chap!ionce with the terms of the judgment, eRe Eohrt may order the forfeiture of any such security Fonte and profits of appoint a receiver thereof, and may cau Petgonal estave, including any salaries, wages, commissions, eerSther eoneys’ owed to han and the rents and profits of big feal estate, to be applied toward the meeting Of the terms Sethe judgment, to the extent that the court, from tine to fine, deene Just snd reasonable. (a) Support judgment oF orders Ordinarily shall be for periodic payments whieh may vary in amount... . The court Rey lime the ather's Liability for past support of the Calia to the proportion of the expenses already incurred Ghat the court deems Sust. 20  FOR PUBLICATION FOR PUBLICATION *7" action to determine the father and child relationship. The section immediately following this series, § 584-21, titled vaction to declare mother and child relationship,” provides that: wany interested party may bring an action to determine the existence or nonexistence of a mother and child relationship. tnsofar as practicable, the provisions of this chapter applicable to the father and child relationship shall apply.” when thus understood in the context of the broader statutory scheme, the language cited by the father does not create an improper gender-based classification. Rather, the legislature has ensured that mothers will be subject to the sane enforcement procedures and statutory privileges applied to fathers, The equal protection clause requires no more than that “[ilneofar as practicable, the provisions . . . applicable to” a man apply when the same kind of action is brought against To the extent that the father has alleged an equal protection injury, it flows not from any gender-based distinction, but rather from the statute’s classification of parties as fathers based on their biological relationship to their children.” Insofar as “{cJourts have never found that Ag the United States Court of Appeals for the Sixth Circuit noted in NB. y. Nedagg, In unich the court addressed siniler procreational autonomy and equal protection arguments: Trinere are ne judiciel decisions recogaizing a constitutional right Sf aman to terminate his cuties of support under state lew for @ Enid chet he has fathered, no metter how removed he may be enotionslly Slon the child. chile support has long been a tex ave had eo Hyun tiestern civilization: For reasons of child welfare and social Eelaltyr if act for moral reasons, the biological relationship between father snd his offepring--even if unwanted and unacknowledged--renains Veontinued...) ar  FOR PUBLICATION *** FOR PUBLICATION °° ____ jegal classifications based on (the) biological relationship of fathers and their children were subject to a high level of scrutiny,” NB. vs Hedges, 391 F.3d 632, 635 (6th Cir 2004) (citing Parham vs Hushes, 441 U.S. 347, 355-57 (19791), cert, denied, __ U.S. __ (Oct. 17, 2005) (emphasis added), our equal protection inquiry seeks only to determine whether any reasonable justification can be found for chapter 584. 3 ter 504 rationally furthers srinate interest. We have described the task faced by a litigant whose claim is subject to a rational-basis review: onder this {roticnal-bseis] standard, to prevail, = party Oneiienging the constitutionality of « statutory CHUSTI2E8 Shon cgual protection grounds has the burden of CRETE Sep convincing! clarity. that the classification is snoreng, tally relaced vo tne svatucory purpose, oF that the Bebaienged classification does net rest Upon some ground of SUELSIREE Gating a teir and substantiel Feletion fo the Soject of the legislation, and is therefore not arbitrary Sed capricious. ndy Be: a v 1 70 Haw. 362, 380, 773 p.2d 250, 262 (1989) (citations omitted). The father concedes that “Hawai'i certainly has an interest in protecting the welfare of a minor and the conservation of the State’s public assistance fund.” The father has not demonstrated that HUPA’s classification of parties as fathers bears no rational relationship to this objective or to some other legitimate state interest. Rather, it is beyond doubt that child support laws, 8(...continved) BGGEIEELERSTly sugeicient to support paternity tests and chiié support Cequirenents. « « . Reproduction and child support requirenents occur see eee egard to the Rale's wishes of his emotional attachment to his offepring 391 F.5d 852, 836 (2004) (Anternal citations omitted) 22 4+ FOR PUBLICATION *** FOR PUBLICATION *7* imposed by all fifty states and supported by a variety of federal enactments, are rationally related to the public welfare and that the imposition of support obligations on fathers rather than non- fathers is not arbitrary or capricious. Our due process and equal protection inguiries are therefore concluded. Chapter 884 is constitutional. c. the family court did not violate the father’s right to be free from compulsory service. he father argues that the family court violated the father's fundamental right to be free from compulsory service when it ordered him to pay monthly child support for the subject child. In other words, he argues that the statute violates the prohibition against slavery or the prohibition against peonage: Specifically, the father argues that “the Family Court does not have the authority to force @ natural father to interrupt his educational pursuits to obtain employment in order to satisty monetary obligations imposed on him without his consent.”"? The father’s arguments are so palpably lacking in merit as to suggest bad faith on the part of the pleader. The court may, without running afoul of either the thirteenth amendment or the prohibition against imprisonment for failure to pay @ debt, imprison a party for failure to pay child support. See, @.d., nited States v. Ballek, 170 F.3d 871 (9th. Cir. 1999), certs denied, 528 U.S. 583 (1999). Ipso facto, it is certainly within > tm the instant case, the cbligation alleged to be the moral equivalent of hunen Bondage amounts to 850 per sonth 23  FOR PUBLICATION the court's power to impose the de minimis support obligations at issue in this case, despite the father's preference not to pay. ‘the thirteenth amendment abolished slavery and involuntary servitude, except as punishment for 2 crime, and gave congress the authority to enforce the amendment by appropriate ‘The Antipeonage Act of 1867, 42 United States legislation. code (USC) § 1994, was enacted under this authority. Under some circumstances, the amendent and the aforementioned act prohibit imprisonment for failure to pay a debt. See, au, Pollock v. Williams, 322 U.S. 4 (1944). In Ballek, the Ninth Circuit addressed @ thirteenth amendnent challenge to the Child Support Recovery Act, noting that not all forced employment is constitutionally prohibited and concluding that enforcement of child-support awards, which had been enforced by imprisonment prior to the adoption of the Mae thirteenth amendnent to the United States Constitution reads, sn ite entirety: Sekiion 1. Neither slavery nor involuntary servitude, except BSc Punishment for crime whereof the party shall have been Ship Ecnvicted, shall exist within the United States, oF any place subject to their jurisdiction. Bittion 2) Congress shall have power to enforce this article by eppropriate lesisiation. 42 USC § 1996 reads, in its entirety: He notding of any person to service or labor under the Tystes known as peohage is abelished and forever prohibited ik gny Testitory or State of the United States; and all acto, Laws, resolutions, orders, regulations, or usages of sy derritory or state, which Adve heretofore esteblisned, falntsines, or enforces, of by virtue of which any attempt Ghali hereafter be mace to establish, maintain, or enforce, SNtecely cr indirectiy, the voluntery or involuntary service Sr'isbok Sf any persons ae peans, in Liquidation of any debt SE obligation, of otherwise, are Geclared null and void. 24  '*% FOR PUBLICATION *** FOR PUBLICATION W77 thirteenth amendnent, ig constitutionally permissible." 170 F.3d at 871, 874. This analysis is in accord with that of the M The BaLlek court offered further analysis: Hiatkonclude that chile-cupport awards 211 within that narrow class of obligation® that may be enforced by means of URprisonnent without violating the constitutional AREEiEltion againet slavery. He start with the self-evident Bbeervation that the relationship between parent and child $e omach nore than the ordinary relationship between debtor isatitediter. The perent io responsible for bringing the AnSus"ineo the world and in so doing assumes a poral Sbligacion to provide the child with the necessities of SEze*ea"ee ensure the chile’ s welfare until it is Ghancipated and able to provide for itself, When parents SOgNecE ther chi laren, this Yaises more than « private [efeivcispute. Ie is a’matter of vital importance to the Aegeinicys and every state now enforces, by means of EGiEina!’ Senctiens, the parent's obligation to support Children within hie custody. UMrperience teaches that the natural bonds, which nornabiy ensure thet children are cared for, are sonetines Beenened when the aifinsty between the parents comes to an Mea The cupervisien--and coercive power--of the court is SBeen Wavoked to proape the non-custodial parent to continue eeeSlaing support: The non-custodial parent's obligation to Bay child support is thus derivative of the obligation to pee ide supeert in s custodial setting, and such awerds are Poocinely enforced by iaprisonnent. The state also has an yetereseYan’proeecting the public fise by ensuring thet the Ghildren not become wards of the state, Cf. Butleriz, Fersyls 240 Urs. (228,).333 ((1916)] (Utne Thirteenth FizERkeat] certainly wae not intended to interdict Bhrorcenent of s+. duties whieh individuals owe £0 the Staten") At ioast one state Suprene Court hes rejected the azgunent that. inprisonent for failure to work in order [oreds encugh money to make child support payments violates State and federal prohibitions against slavery. See Moss te Shestadectsee, 17%car. den 396, 71 Cal.aptr. 2d 219, 227, 950 P.24 58, 66 (1998) tere ve to hold. . . that enforcing child support obligetions by threat of saprisonment violates the Ghireeenth Anendnent, we would undermine the Uelitestapitened practices in the state courts for policing Compliance with child support obligations» Me vould, Sffbceively; pur children on the same footing as unsecured Exeditors. we decline to interpret the Thirteenth Anendnent ins wey that would ao drastically interfere with one of the bet Important and seneitive exercises of the police power setnauring that persons too young to take care of thenselves can Count en beth their parents for material suppor allek, 170 F.3d at 674-75. (some citations onitted) « 25 *** FOR PUBLICATION *** California Supreme Court. See Mose vs Superior Court, 950 P.2d 59 (Cal. 1998). In Moss, the court noted that “[t]he obligation of a parent to support a child . . . is among the most fundamental obligations recognized by modern society” and “to become employed if that is necessary to meet the obligation, is in no way comparable or akin to peonage or slavery.” Id. at 67, The court distinguished the child support obligation from involuntary servitude on the grounds that the oblige is free to choose his ‘employment and employer: hen, as here, however, the person claiming Anvoluntary servitude is simply expected to seek and accept ecploynent, if available, and is free to choose the type of smbiGyment’ and the enployer, end is also free to resign that Exbloyment if the conditions are unsatisfactory of to acest Sther employment, none of the aspects of “involuntary Servieade” which invoke the need to apply 2 contextual Spproach to Thirteenth Anendnent analysis are present. There {ehh Sservitude” since the worker is not bound te any particular employer and hae no restrictions on his freedom Ether than the need to comply with a lawful order to support S*thlid. Working £0 eszn money to support 2 child is not Involuntary servitude any nore than working in order to pay tines, Failure to do either may subject one to civil and Eximinal penalties, bot that compulsion or incentive to {Eber does net create a condition of involuntary servitude, Id, at 72. The court held that the obligation to comply with a child support order and to work if necessary to do so does not constitute involuntary servitude. Moss, 950 P.2d at 73. Ina footnote, the court emphasized the overarching neture of the ebligation The state's interest in and public policy mandating perental support of children ie so. strong that jurisdictions Paced with che question held that it extends even to javenile fathers who were the victins of statutory rape by Adult women. See m a P.2d 1273 (Kan. 1993); Tp Ze JGa, 580 N-P.2¢ 257 (111 Bop 1390); 3 Sate Nee. 24 1155 (Mase. 1983) aa es bebe #42 NaW.20 273 (Wis. 1369) Mose, 980 Pad et 61 nO 26 e* FOR PUBLICATION *** FOR PUBLICATION 887 Other courts that have addressed thirt nth amendment challenges to court-imposed family support obligations have reached the same conclusion. See, S.da, McKenna v. Steen, 422 s0.2d 615 (ba-App. 1982) (allegations that child support order imposed on a law student amounted to an imposition of involuntary servitude by forcing him to continue in his previous occupation ‘go ludicrous that they hardly dignify a response”); Hicks ve Hicks, 387 So.2d 207 (Ala.Civ.App. 1980) (holding that an alimony order does not impose involuntary servitude); and Freeman v Freeman, 397 A.2d 554 (D.C. 1979) (party’s contention that child support order directing him to thirteenth amendment held to be without merit). In light of the k gainful employment violated unanimous weight of well-settled precedent contrary to the father’s contention, we conclude that the father has not demonstrated beyond a reasonable doubt that HUPA suffers from 2 clear, manifest, and unmistakable constitutional defect. The family court did not violate the father’s right to be free from involuntary servitude by ordering him to pay $50 per month to support his child, despite the father’s preference to remain unemployed. Insofar as the father has not demonstrated beyond a reasonable doubt that HUPA is unconstitutional, and insofar as the father’s rights to privacy, equal protection, and involuntary servitude have not been violated, we affirm the family court’s order, findings of fact, and conclusions of law. 20  FOR PUBLICATION *** c tthe appeal is entirely frivolous. Pursuant to HRAP Rule 38 (2004), “[i]f a Hawai't appellate court determines that an appeal decided by it was frivolous, it may, after a separately filed motion or notice from the appellate court and reasonable opportunity to respond, award damages, including reasonable attorneys’ fees and costs, to the appellee.” This court has explained that: (ulnder HRAP Rule 26, the court may award sanctions in cone of two ways, The court can, soa sponte, determine an BBheb! to'ee Frivolous; give nctice to the parties and allow ZPin the cpportunity to respond; and if the court decides is Soetoprieces award yanctions, Alternatively, « party may ete For senctions by way of @ separately filed motion, Jiving the opposing side the opportunity to respond. The Setee! Gpen reviewing the arguments of the parties, ‘can then Gecide the issue cf frivelousness and award sanctions Stcoraingly Rhoads v. Okamura, 98 Hawai" 407, 413, 49 P.3d 373, 379 (2002). In Rhoads, we articulated the standard by which we determine whether an appeal is frivolous: For an assignment of error to be frivolous it must be manifestly and palpably without merit. This court has Betines c frivoteve clzin 98 one so manifestly and palpably, SfEneue merit aa to indicate bad faith on the pleader's part EEN hat areutent. to the court was not required. RAP Rule Se tancticne have been imposed in past cases where the Rpeliane hes engaged in'a pattern of frivolous and ‘Hkaticus litigation or where appellant has continued to Einowledge controlling authority contrary to her Rhoads, 98 Hawai'i at 414, 49 P.3d at 380 (citations, quotation marks, and ellipsis omitted). In determining whether en appeal is frivolous, this court may consider whether other state courts have determined similar claims to be frivolous. See Rhoads, 98 Hawai'l at 415, 49 P.3d at 361, This court may also look to the 28 *** FOR PUBLICATION *** FOR PUBLICATION "98 federal courts’ application of their equivalent Rule 38 for guidance. See Rhoads, 98 Hawai'i at 414, 49 P.3d at 380. The father argued that HUPA is unconstitutional because it violates his rights to privacy, equal protection, and his right to be free from compulsory service. Each of these contentions has been demonstrated to be palpably without merit and long ago put to rest by well-settled precedent. Furthermore, each of these contentions has been determined to be frivolous oF manifestly without merit by other courts, See, Ssds, Hedges, 391 F.3d at 836! (upholding an award of attorney's fees for frivolous ‘procreational autonomy’ and equal protection challenge to child support order); Steen, 422 So.2d at 618 (allegation that child support order amounts to involuntary servitude “so Knight v. ludicrous that [it) hardly dignif[ies] a response”) Mercer Island, 70 Fed.Appx. 413, 415 (9th. Cir. 2003) (unpublished; on appeal from an unsuccessful involuntary servitude challenge to @ child support order, affirming the district court’s entry of a litigation bar preventing appellant tn an equel protection and ‘procrestional autonomy’ challenge to @ child support orders the Sixth Circuit upheld an award of fees for frivolous the plaintif£ presents simply a novel legal theory, @ theory that would invalidate the paternity and child support Inve of the Fifty states and the federal acts on child Eupport. ‘The theory is that unwed fathers, as a matter of Feciprocity, should aiso be given the choice to financial responaibility for the child's existence: theory 20 foreign to our legal tradition that it hes no Mfoundaticn,”" no chance of success. We cannot imagine that any federe! court mould agree mith plaintiff's principle thle the concept of "procreative privacy” should be Stretched to include the constitutional right for a father fo receive the constitutional equivalent of the termination Of the mother's pregnancy by allowing him the right to deny paternity and deny the duty of financiel support, disdaee, 381 Fe3dat 636 29  te" FOR PUBLICATION *** from filing any further frivolous filings); Exeeman, 397 A.2d at 57 (involuntary servitude challenge to child support order so jacking in merit as to be addressed in a conclusory fashion in a footnote). The father also attempted to advance arguments on appeal that were not raised in the trial court, without providing any nonfrivolous basis as to why this court should nevertheless consider them. This court is not obliged to “suffer in silence the filing of baseless, insupportable appeals presenting no colorable claims of error and designed only to delay, obstruct, oF Ancapacitate the operations of the courts or any other governmental authority. . . . The government should not have been put to the trouble of responding to such spurious argunents, nor this court to the trouble of ‘adjudicating’ this meritless appeal.” Rhoads, 9@ Hawai'i at 414, 49 P.3d at 380 (quoting Crain ve C.I.R,, 737 F.2d 1417, 1418 (Sth Cir. 1984)). The father's arguments are “manifestly and palpably without merit” and thus his appeal is “frivolous” in the context of HRAP 38. ‘This court has articulated the policies behind awarding attorney's fees: wards of ettorneyt, (S*duarender"as not burden the {hnocent They also protect the courts--and gerivatively porties in other cases--fron impositions on their tine, thas on interest in the orderly conduct of Fan interest independent of the (opposing Rhoads, 98 Hawai'i at 414, 49 P.3d at 380 (quoting Abastillas v, Kekona, 87 Hawai'i 446, 449, 958 P.2d 1136, 1139 (1998) (citation omitted). ‘The allegedly penurious father, unable to afford $50 30 #* FOR PUBLICATION *** FOR PUBLICATION P97 per month to support his child, conmanded his attorney to doggedly pursue an appeal with no chance of success, file numerous pointless motions, and force the state to expend large amounts of taxpayers’ money to defend the child support regime from meritless attacks. An award of fees as provided for by HRAP Rule 38 may be justified in this case. IV, CONCLUSION For the foregoing reasons, we affirm the family court's order, findings of fact, and conclusions of law. We hereby give notice to the parties that the appeal was frivolous and request briefing with regard to damages end costs to be awarded to CSEA as authorized by HRAP Rule 38. Briefs by appellees shall be submitted within 15 days of the date of this opinion and appellant’s responses thereto shall be submitted within 15 days thereafter. on the brief: Steven L. Hartley and GY Jen-L. W. Lyman of . Stirling « Kleintop Whole ace — for defendant-appellant John Doe Seosetes 6 awe) are Huilin Dong for defendant-appellee Jane Doe Rosemary McShane and hie ( ‘Trina Yamada, Deputies Corporation Counsel, for plaintiff-appellee Child Support Enforcement Agency, State of Hawai'i 

a455d6e0154eea50d79a73c94fc22eb414bcb3527b4e03cb9a9cfbaec3735387

2005-12-27T00:00:00Z

9bca508e-b333-4dc3-bd20-0e992c018779

State v. Kim

hawaii

Hawaii Supreme Court

No. 26546 IN THE SUPREME COURT OF THE STATE OF HAWAT'T ue no 26 wy g STATE OF HAWAI'I, Respondent /Plaintiff-Appellee JASON KIN, Petitioner /Defendant-Appellant CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS (CR. NO. 3-1-0092) oo! (By: Acoba, J., for the court!) The Application for Writ of Certiorari filed on Novenber 25, 2005 by Petitioner/Defendant-Appellant Jason Kim is hereby denied. Honolulu, Hawai'i, December 5, 2005. DATED: FOR THE COURT: Associate Justice Deborah L. Kim, Deputy Public Defender, on the writ. 1 considered by Moon, C.J., Levinson, Nekayama, Acobs, and Dufty, ov, 

eb5c611ef8d8b98d4c76e667c2453f2ae097ae4511bce493d0fdf042b29d7035

2005-12-05T00:00:00Z

63fe5aa7-c4b6-459c-a57b-6d4bad52bd2f

In re Tax Appeal of Alford v. City and County of Honolulu

hawaii

Hawaii Supreme Court

LAWLIPRAR IN THE SUPREME COURT OF THE STATE OF HAWAI‘T = = Rd $2 AON soe ---000" IN THE MATTER OF THE TAX APPEAL oF SURVIVOR’ S TRUST, JERALD V. KENNETH & SOPHIA ALFORD, NOBUYUKT TSHIMA, MCPROUD DUNLAP, SEVERN STARZYNSKT, FAMILY TRUST, HHBW FAMILY LTD. PARTNERSHIP, RICHARD C. & JOAN ELLIOTT, BRADLEY W. BRIXON REVOCABLE TRUST, TED & KAREN L. SIMON, THOMAS KHOY FONG WONG, WESLEY N. & JANICE M. CALLAHAN, JEFFERY J. & ELISA V. RUMMEL, ADLOPH & ERICA LAEPPLE, WAYLAND S. DUDLEY, GRACE KAE, CAROL A. LAECHELT, HUGH C. & BARBARA J. PAPE, RUSSELL ANDERSON, DAVID J. & CAROL L. NOVICK, ERNEST W. & PAMELA TUTTLE, JOHN H. COLEMAN, WALTER S. & TERRY A. LEONG, HAROLD L. PREEMAN, WILLIAM KOWALSKI, HENRI P. § RYOKO KOSTERMANS, RICHARD'A. MOODY, GERTRUD EBERWEIN, BRUCE F, CONNELL, ERNESTO V. CASTRO, ET AL., PEARL R. GROVES, GLENN H. MEYER, LEO A. & JEANNETTE M. YOUNG, GLENN R. & CYNTHIA R. OAKES, PETER & TERRY T. CHAN, ALFONSO J. & FUJIKO BAEZ, ALMA V. BROSIO, TRUSTEE, KAREN K. SCHUMANN, AMERICAN TRUST CO. OF HAWAII, HARRIETTE W. RHODES, JOSEPH MICHAEL MANKVITZ, JAMES W. WITT, WILLIS EDGAR III 6 LENA CHUNG HOWARD, BLACK PEARL VENTURES, INC., BETTY JUNE CAULO, FRANK M. NOWOESHA, MARSHA E. LEWIS, BERNARD J. GAINEY, FRANK J. HATA, YOUNG FAMILY TRUST, KENDRICK WONG, RUSSELL & MAXINE ANDERSON, YANG JA WANG, DENISE BAILEY EVANS, LEWIS G. WALDO, JAMES J. SULLIVAN, LELAND M. GARRISON, SANG TEA BOBAY, HENRI PETRUS ‘& RYOKO KOSTERMANS, PATRICIA RUDY, HERBERT Y.K. WONG, PAUL N. ET AL., LOUIS W. & ALICIA Y. CROMPTON, DONALD S. BEST, ROBERTSON, ROY D. & MARILYN A. GUSTAFSON, CARL OLSON, DOROTHY G. HOWARD, EDWARD RANDOLPH BROOKS & ARLENE SAYEKO KISHI, H. & DORA M. ‘KANO, HARRY MUEGGENBURG, VELMA JEAN BRIXON, JANES H. AUGUSTUS TAGLIAFERRI, JACK M. & MARIE A. FELIZ, YOLO TRUST, JUDY L. MOORE, PAUL R. & HELEN C. OLSON, WILLIAM C. WARREN, GEORGE K. & SHARON D. IGI, MARY P. BERG, BRUCE HOLLIDAY, ALBERT W. & BEVERLY A. FINK, PETER & MYUNG CHOI, SALISBURY RESTAURANT ENTERPRISE, JAMES R. II & SANDRA R. JOHNSTON, MECHAM FAMILY LIMITED PARTNERSHIP, MATTHEW H. @ MARY F. WITTEMAN, DANIEL W. & SANDRA R. MOORMAN, RICHARD & KRISTINE BOSSELMANN, RONALD J. SMERLING, FRANK & VIRGINIA REES, ANNE-MARIE VOLK, FRANKLIN M. TOKIOKA, BARRY D. BERQUIST, WILLIAM R. KOWALSKI, JEANETTE M. YOUNG, ERNESTO V, & NILA M. CASTRO, GAINEY TRUST, WILLIS E. 112 & LENA C. HOWARD, JOSEPH M. & DOROTHY M. MANKVITZ, NEALE FAMILY TRUST, JOHN & NANCY COLEMAN, TRUSTEES JACK H. COLEMAN LIFETIME ‘TRUST, AMNW TRUST A, UNIVERSITY OF NORTH DAKOTA FOUNDATION, aque BARL STRINDEN TRUSTEE, PAPE REVOCABLE TRUST, ADOLPH & TRAUDE (ERICA) LAEPPLE, MARGARET BEAQUIST, MATTHEW & MARY WITTEMAN TRUST, LELAND M, GARRISON TRUST, HELFAND TRUST, PETER C. 6 MYUNG CHO, HAROLD & BETTE L. PREEMAN, HOLLIDAY ASSOCIATES, INC., KAREN’ TAGGART, GEORGE K. & SHARON D. IGI, JUDY L. MOORE 4G’ PATRICIA HANSON, RICHARD K. RUDY, JAMES & MARGARET K. SULLIVAN, DENISE B. ‘EVANS, WHITE SAND VENTURES, INC., ATILLA (TED) & KAREN L. SIMON, BRADLEY BRIXON, TRUSTEE, DOROTHY MILLER, SEVERN & GLORIA M. STARZYNSKI, CATHERINE GUIRING, TRUSTEE, Appellants-Appellants CITY AND COUNTY OF HONOLULU, Appellee-Appellee No. 25275 MOTION FOR RECONSIDERATION (TAX APPEAL CASE NOS. 00-0084 THROUGH 00-0104, 00-0106, (00-0107, 00-0109, 00-0110, 00-0112 THROUGH 00-0169, 00-0171 THROUGH’ 00-0201, 01-0025, 01-0027 THROUGH 01-0115, 01-0117 THROUGH’ 01-0141) NOVEMBER 25, 2005 ma RAT (By: Moon, C.J., Levinson, Nakayama, ‘Acoba, and Duffy, JJ.) Appellants-Appellants’ motion for reconsideration filed on November 18, 2005, requesting that this court review its opinion filed on November 10, 2005, affirming the tax appeal court’s July 23, 2002 order granting in part and denying in part Appellants’ motion for summary judgment, is hereby denied. DATED: Honolulu, Hawai’ Roger S. Moseley (Moseley Yow~ Biehl Teugawa Law & Mizzi), for appellants-appellants, ADR Gare on the notion and Supplenental menorandun. Peete Ci Ncameed are Gmc Ase + 

d551fb21cd6db847f8b3f45162ea1453e3b555c74ab103aaa246117b906b1c62

2005-11-25T00:00:00Z

2bc960ee-f21e-43ac-ac7a-dac8b6c5920d

Nakapalau v. Koller

109 Haw. 33

hawaii

Hawaii Supreme Court

*** NOTFOR PUBLICATION ** No. 26103 IN THE SUPREME COURT OF THE STATE OF HAWAT'T LINDA HATTIE NAKAPALAU and SOLOMON HARRY NAKAPALAU, Appellant s~Appel lees, LILLIAN KOLLER, State of Hawai'i, Department of Human Services, Appellee-Appellant, and CANDACE PARK, Appellant. Le-OHY €2 AONSHUZ APPEAL FROM THE THIRD CIRCUIT COURT (CIV. NO. O1-1-0114K) SUMMARY DISPOSITION ORDER (By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy JJ.) Appellee-appellant Lillian Koller, State of Hawai"s, Department of Human Services (hereinafter, DHS) and appellant Candace Park (hereinafter collectively, Appellants) appeal from the Circuit Court of the First Circuit's September 9, 2003 final Judgment? and order imposing sanctions against “the state's attorney” pursuant to Hawai'i Rules of Civil Procedure (HRCP) Rule 11 (2000)? for filing a third-party complaint without leave ‘the Honorable Ronald Ibarra presided over this matter. SHIRCP Rule 11(c}, entitled “Sanctions,” provides: (c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that subdivision () has been violated, the court may, subject to the conditions stated Below, impose an sppropriate sanction upon the attorneys, 1a firms, of parties that have violated subd:vision (b) oF are responsible for the viclation (continued...) nate *** NOT FOR PUBLICATION *** of court and ordering payment of $6,327.72 in attorney's fees and 9107.34 in costs to appellants-appellees Linda Hattie Nakapalau and Solomon Harry Nakapalau {hereinafter collectively, the Nakapalaus]. As points of error, Appellants contend that, in (.sscontinved) (2) ow surzares. (A) By Motion, A motion for sanctions under this rule shall bbe made separately fron other notions of requests and shall) Gescribe the specific conduct alleged to violate subdivision (b) St'shall be served as provided in Rule S, but shall not be filed ith or presented to the court unless, within 21 days after Service Of the motion (or such other period as the court may Prescribe], the challenged paper, claim, defense, contenticn, Bliegation, or denial is not withdrawn or appropriately corrected, Ie warranted, the court may auard to the party prevailing on the notion the reasoneble expenses and attorney's fees incurred in Presenting or opposing the motion. Absent exceptional Eizcunstances, a law firm shall be held jointly responsible for Gielations committed by its partners, associates, and employees. (8) On Court's Initsacive, On ite own initiative, the court nay enter Sn order describing the specific conduct chat appears to Violate subdivision (b) and directing an attorney, law firm, oF Party to show cause why it has not violated subdivision (b) with Feapect thereto. (2) Marne oF eatcrion tsmamrions. A sanction imposed for violation of this rule shall be limited to what 1a sufficient to Geter repetition of such conduct or comparable conduct by others Similarly situates. Subject to the limitations in subparagraphs (a) and (8), the sanction may consist of, or include, directives OF a ponmonetary nature, an order to psy'a penslty into court, or, TE Inposea on adtion and warranted for affective deterrence, an order directing payment to the movant of some or all of the Peasonable attorneys’ fees and other expenses incurred ase direct Eeeult of the violation: (A) Monetary sanctions may not be awarded against a represented party for a violation of subdivision (b) (2) (B) Monetary sanctions may not be awarded on the court's Anitiative unless the court 1esues its order to show cause before a voluntary dismissal or sett lenent of the clains nade by or Sgainse the party which Ls, or whose attorneys are, to be Sanctioned. (3) onoee. When imposing sanctions, the court shal descrive the conduct determined to constitute a violation of this fule and explain the besit for the sanction imposed. 2 *** NOT FOR PUBLICATION *** Amposing HRCP Rule 11 sanctions against “the State’s attorney for filing a Third-Party Complaint without leave of the court and without legal authority,” the circuit court abused its discretion when it: (1) failed to follow the procedures set out in HRCP 11 (c) requiring (a) that the sanctioned party be given notice and lan opportunity to respond, (b) that the court issue a preliminary order to show cause, (c) that attorney's fees be awarded only pursuant to motion, (d) that the court enter an order explaining the basis for the sanction imposed; and (2) imposed penalties for a non-frivolous pleading that was filed in a good-faith attempt to comply with a previous oral contempt order of the circuit court. The Nakapalaus counter that: (1) the instant appeal should be dismissed because (a) “the State’s attorney,” Park, did not file a timely notice of appeal, (b) Appellants waived their arguments on appeal by failing to preserve them below, (c) Appellants failed to append and quote the allegedly erroneous order of the circuit court in their Opening Brief as required by Hawai'i Rules of Appellate Procedure (HRAP) Rule 28; and (2) the circuit court did not abuse its discretion when it imposed sanctions for the filing of the third-party complaint. Upon carefully reviewing the record and briefs submitted, we resolve the parties’ contentions and hold as follows: *** NOT FOR PUBLICATION *** (1) This court has appellate jurisdiction because the circuit court's statement at the October 20, 2003 post judgment hearing that the September 9, 2003 sanctions order against the “State’s attorney” was against Park constituted a clarification of the order extending the time for appeal. See TSA Int] Ltd. v. Shimizu Corp., 92 Hawai'i 243, 265, 990 P.2d 713, 735 (1999) (circuit court retains jurisdiction even after filing of notice of appeal “to determine matters collateral or incidental to the judgment, and . . . act in aid of the appeal”); see also HRCP Fule 60(a) (errors of oversight or omission may be corrected by the court at any time prior to docketing of the appeal in the supreme court). A-HRCP Rule 11 sanctions order is a directly appealable collateral order. Fuiimoto v. Au, 95 Hawai'i 116, 126 n.8, 19 P.3d 699, 709 n.8 (2001). Consequently, Appellants’ November 3, 2003 motion to substitute party on appeal, or in the alternative, for leave to file an amended notice of appeal naming Park as a party preserved appellate jurisdiction because it was filed within thirty days of October 20, 2003. HRAP Rule 4(a) (1). Accordingly, this court in its February 6, *** NOT FOR PUBLICATION *** 2004 order had good cause to, and did, add Park as a party to the appeal pursuant to HRAP Rule 43(b) + (2) Appellants did not waive their arguments on appeal because they raised them in the trial court at the October 20, 2003 post~judgment hearing at which the sanctions order was clarified. See Association of Apartment Owners of the Wailea Elua v, Wailea Resort Cou, Ltd, 100 Hawai'i 97, 107-08, 58 P.3d 608, 618-19 (2002) (Legal issues raised in the trial court not waived on appeal) (citation omitted); (3) Procedural deficiencies in Appellants’ opening brief are not such as to warrant dismissal of the appeal in the exercise of this court’s discretion under HRAP 30 because it is clear from Appellants’ brief that they are challenging the sanctions order, the relevant portion of the order is quoted in full, and thus neither this court nor the Nakapalaus were unduly burdened or prejudiced by any technical deficiencies in the brief. See Schefke v. Reliable Collection Agenc: > WRAP Rule 43(b), entitled “Substitution for other causes,” provid “1g substitution of @ party in the Sawai'l appellate courts is necessary for any Feason other than Seath, subsestution shall be effected in accordance with the procedure prescribed in’ subsection (a)”" Under the HRAP, this court had the discretion to simply add Park as 2 party rather than require the formality of an amended notice. See HRAP Rule 2 ("in the interest of expediting @ Secision, of for other goed cause shown, either Hawaii appellate court may Suspend the requlrenents of provisions of any of these rules in a particular cae on application of @ party or on its own motion and may order proceedings In accordance with ies airection.”)~ «@ *** NOT FOR PUBLICATION *** Ltd., 96 Hawai'i 408, 420, 32 P.3d 52, 64 (2001) (This court has “consistently adhered to the policy of affording litigants the opportunity to have their cases heard on the merits, where possible[.]") (internal quotation marks and citation omitted); Housing Finance and Development Cor. v, Ferguson, 91 Hawai'i 61, 85, 979 P.24 1107, 1111 (1999) (appeal should be dismissed only where noncompliance with HRAP Rule 28 burdens parties and appellate court); ‘The circuit court abused its discretion by entering the ua sponte FRCP Rule 11 sanctions order against Park because (a) it failed to enter a show cause order giving Park notice and an opportunity to respond; and (b) HRCP Rule 11 does not authorize an award of attorney's fees and costs pursuant to @ sua sponte order. 'HRCP Rule 11(c); HRCP Rule 11(c) (2) (B); HRCP Rule 11(c) (2); see also Gap v, Puna Geothermal Venture, 106 Hawai'i 325, 341-43, 104 P.34 922, 928-30 (2004) (even when awarded on motion, an award of attorney's fees under HRCP Rule 11 constitutes abuse of discretion where the lover court does not make a determination that it is necessary for deterrence of future *** NOTFOR PUBLICATION *** misconduct by the sanctioned attorney or similarly situated attorneys)‘; (5) The sanctions order cannot be sustained as an exercise of the circuit court’s inherent powers because (a) the order does not contain factual findings with a high degree of specificity demonstrating clear and convincing evidence of Park's bad faith in filing the third-party complaint; and (b) we find no exceptional circumstances such as to retroactively justify a sanctions order as an exercise of the court’s inherent power when the order is defective under HRCP Rule 11 because to do so would be to effectively circumvent the requirements of HRCP Rule 11. See Bank of Hawai'i vi Kunimoto, 91 Hawai'i 372, 391, 984 P.2d 1198, 1217 (1999) (“on appeal this court has declined to uphold awards under the bad-faith exception absent both clear and convincing evidence that the challenged actions are entirely without color, and are taken for reasons of harassment or delay or for other improper purposes and a jeares cific: ot of the lower courts.”) (internal citations, indentation, and quotation signals omitted) (emphases added); State “mis court in Gap also strongly suggested that the attorney's ability to pay be considered inorder to ensure that the sanction is not unduly harsh Or punitive. dd. st 342-43, 104 P.3d at 929-30. 7 *** NOTFOR PUBLICATION *** v. Pattioay, 78 Hawai'i 455, 468 n.28, 896 P.24 911, 924-35 n.28 (1995) (“the court's inherent powers must be exercised with restraint and discretion and only in exceptional circumstances”) (internal citation and quotation marks omitted). Therefore, IT 1S HEREBY ORDERED that the circuit court’s sanctions order, entered on September 9, 2003 and clarified on October 20, 2003, is vacated and the matter is remanded for further proceedings consistent with this opinion on the sole issue of sanctions. The circuit court is instructed that if, after conducting @ hearing and upon entry of factual findings, it chooses to impose @ monetary sanction under HACP Rule 11, the award “shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated” and may not be an award of attorney's fees or costs. In all other respects, the Septenber 9, 2003 final judgment of the circuit court is affirmed. DATED: Honolulu, Hawai", November 23, 2005. on the briefs: Benjamin 7. Roberts, D Deputy Attorney General, ss . for appellee-appellant Sle WM Eonio~ Lillian Koller, State of Hawai'i, Department. of Rcaate Lr aataeyerrie Hunan Services, and appellant Candace Park ene Oe *** NOT FOR PUBLICATION *** Elizabeth B. Croom for appellants-appellees Linda Hattie Nakapalau and Solomon Harry Nakapalau 

338637af8858864a60600950fcc89e99e85a67f71356bccde7c166bb0068dcac

2005-11-23T00:00:00Z

77c4fa26-cc7b-4d51-8c38-e34869014def

In re The Lock Revocable Living Trust. Concurring Opinion by J. G. Nakamura [pdf].

109 Haw. 146

hawaii

Hawaii Supreme Court

*** FOR PUBLICATION *** IN THE SUPREME COURT OF THE STATE OF HAWAT'T z 00 3 3 IN THE MATTER OF & THE ANNIE QUON ANN LOCK REVOCABLE LIVING TRYST No. 25214 APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (T. NO, 01-1-0030 (GWBC)) DECEMBER 9, 2005 C.d., LEVINSON, NAKAYAMA, AND DUFFY, JJ.; AND Moon, 5., RECUSED, CIRCUIT JUDGE NAKAMURA, IN PLACE OF ACOBA, ‘CONCURRING SEPARATELY OPINION OF THE COURT BY MOON, C.s Beneficiaries-appellants Katie Lock Tamashiro, Philia Lau, Jacalyn Lock, Ranceford Lock, Gaylynne Sakuda, Natalie vrata, Verna Cancino, and Carol Lock (hereinafter, collectively, Appellants] appeal from the First Circuit Court’s* July 2, 2002 final judgment granting the Petition of Successor Trustee for Determination of Beneficiaries and Distribution of Estate (the petition). The trial court essentially adopted petitioner- interpretation of the Annie appellee Lena L. Wong’s (Lena Wong! s \ the Honorable Gary W.8. Chang presided over the underlying proceeainge *** FOR PUBLICATION *** Quon Ann Lock (Annie Lock) Revocable Living Trust Agreement (the Trust) as mandating distribution of the Trust assets in equal shares to Annie Lock’s two surviving siblings, beneficiaries- appellees Lena Wong? and Mah Tim Lock. on appeal, Appellants challenge the trial court's July 2, 2002 findings of fact (FOFs), conclusions of law (Cols), and order granting the petition. Appellants essentially contend that the plain and unambiguous language of the Trust dictates a per stipes distribution, discussed infra, and, thus, the trial court erred in (1) concluding that the language of the Trust was ambiguous and (2) considering extrinsic evidence of Annie Lock’s intent. For the reasons discussed below, we hold that Appellants’ contentions lack merit. Accordingly, we affirm the trial court’s final judgment. 1. BACKGROUND On March 22, 1993, Annie Lock, as settlor and trustee, executed the Trust, wherein all her assets are now held. At the time, Annie Lock’s parents were deceased, and, of Annie Lock’s eight siblings, three were deceased. Article IV of the Trust provides in pertinent part Agof the date of my death, . . . the trustee shall Giscribate the remaining ruse principal (including property to which the trustee nay be entitled under my will or from any other source), per stirpes, tomy then living brothers As stated infia, tena wong is the sister of Annie Lock and, therefore, a beneficiary under the Trust- Lena Wong ie also the named buccessor trustee. Ar uch, she essentially wears ‘two hats” in thie case. Thus, for purposes of clarity, Lena Wong 1 referred to as Petitioner Lena ong in her capacity as successor trustee and as Beneficiary Lena wong in her Capacity se one of the beneficiaries under the Trust *** FOR PUBLICATION *** an © ania foregoing persons shall teil ce survive me, and cull leave S descendant oF descendants Tiving at the tine of my death, jen descendants shall represent their ancestors and take Such ancestor's share, per stirpes, otherwise the share of such decedent shall top cut, thereby increasing the share Of the others of eaid foregoing persons or their Gescendants, as the case my be. B. Despite the preceding provisions of this instrunent, the trustee may elect to withhold any property otherwise Gistributable under paragraph A of this Article toa beneficiary who has not reached the age of twenty-five years and may retain the property for that beneficiary in 3 Separate trust naned for the beneficiary, co be distributed fo the beneficiary when he or she reaches the age of cvanty- five years, oF before then if the trustee so elects ‘The Trust named Annie Lock's sister, Lena Wong, as successor trustee Annie Lock passed away on June 23, 1999. Annie Lock had never been married and had no children born to or adopted by her. Thus, Annie Lock had no surviving spouse and no surviving issue at the tine of her death. Annie Lock was survived by two siblings, sister Lena Wong and brother Wah Tim Lock, nunerous nieces and nephews, and several grandnieces and grandnephews.’ on March 2, 2001, Petitioner Lena Wong, as successor trustee of the Trust, filed the petition. The petition sought a judicial determination of the Trust beneficiaries and distribution of the Trust assets.‘ Petitioner Lena Wong maintained that the Trust estate should be distributed, in equal shares, to herself and her brother, Wah Tim Lock. > Annie Lock’s six predeceased siblings had a total of eighteen children, Of these eighteen children, one predeceased Annie Lock. That Child, Francie Lock, ‘was survived by tix chiléren, Annie Lock's grandniect fand grandnephews + as of guly 2, 2002, the Trust assets had a gross value of approximately $850,000 and an eatinated net value of $750,000. *** FOR PUBLICATION *** on April 25, 2002, Virginia Naomi Shimada, Annie Lock’s niece, on behalf of herself and other Lock descendants, filed a memorandum in opposition, arguing that the language of Article IV of the Trust unambiguously provided for the distribution of the Trust's assets to all of Annie Lock’s siblings, “per stirpes. under a per stirpes distribution, as advocated by Shimada, each of Annie Lock's eight siblings would receive a one-eighth share, with the surviving childzen of any predeceased sibling taking the share of the deceased parent in equal shares. on May 9, 2001, dudge Colleen K. Hirai appointed Rhonda L, Griswold, Beg. (the Master), to serve as the Master to review, analyze, and provide recomendations regarding the interpretation of the Trust. In her report of June 1, 2001, the Master concluded that: Although the [Successor] Trustee [Lena wong] contends that the clause “per atimpes, to my then living Brothe: sisters in equal shares’ i ambiguous, Paragraphe A and B of heticle iv when read in thelr entirety are Felatively clear’ the Eruet estate is to be distributed co Annie Lock's burviving brothert and sisters in equ: Sibling doea not survive her, that predeceased eibling’s Share ie to be distributed to his or her then Living Gescendante, per stirpen, If the descendant 1a not yet age 25, the descendant’s share shell be Kept in trust until he OF she reaches age 25. ‘The Master recommended that the Trust assets be distributed to all of Annie Lock’s siblings per stirpes. Pursuant to a hearing held on June 8, 2003, the petition was deemed a contested matter and was assigned to the Honorable Gary W.B. Chang. On July 9, 2001, Shimada filed a motion for summary judgment, contending that the Trust provided *** FOR PUBLICATION *** for a per stirpes distribution of the Trust assets. On July 27, 2001, Beneficiaries Lena Wong and Wah Tim Lock filed a memorandum in opposition to Shimada’ motion for summary judgment (vemorandum in opposition), arguing that the Trust assets should be equally divided between them as the only two surviving siblings of Annie Lock. Petitioner Lena Wong joined in the memorandum in opposition on July 31, 2001. On September 13, 2001, the trial court issued an order denying shimada’s motion for sunmary judgment, finding that there was an ambiguity in the rust. On Novenber 28, 2001, Shimada filed a notice of withdrawal from active participation in the proceedings. A jury-waived trial was scheduled for the week of February 11, 2002. However, at a status conference held on ganuary 28, 2002, trial was taken off the civil calender. Instead, the trial court directed Petitioner Lena Wong and Beneficiaries Lena Wong and Wah Tim Lock (hereinafter, collectively, Appellees} to file a stipulation of facts and proposed FOFs, COLe, and order in connection with the petition, to be served upon all parties in interest, together with a non- hearing notice stating that, unless a party in interest files a the trial written objection within ten days from such servic court would grant the relief sought in the petition. on May 28, 2002, Appellees filed a stipulation of facts, and, on May 30, 2002, Appellees filed a notice of the proposed ruling based upon the stipulated facts.  ** FOR PUBLICATION *** fon June 10, 2002, Appellants, conprising eight of annie Lock's nieces and nephews, filed their objections to the stipulation of facts and the notice of the proposed ruling, on the ground that Annie Lock’s intent to distribute her Trust assets “to her siblings, per stirpes, is clear and unambiguous based on a reading of the Trust as a whole.” Despite Appellants’ objections, the trial court entered its FOFs, Cous, and order granting the petition on July 2, 2002. The trial court's Fore and CoLs state in pertinent part: Pindinge of Fact: ie!" inzien reapect to the beneficiaries and distribution Of the estate, Paragraph A cf Article IV of the Trust fi, hereinafter "Paragraph A," provides that Annie Lotk's estate shall be distributed “per stizpes, £0 sy then living brothere and alsters in equal shares." is. in describing the beneficiaries of the Trust, Paragraph A is ambiguous because the provision “per Stizpes, to ay then living brothers and sisters in ‘equal shares" is susceptible, on its face, to t™ (2) plausible, yet conflicting, interpretations 20. Gn the one hand, "per starpes" means that an estate is fo be divided into as many equal al ‘there are Siblings. whether eurviving or deceased, Of Gecedent. “iad Annie Lock wished to have her estate Gistribsted "per stizpes,” her estate would be divided Snto eight. (6) shares, one for each sibling; the children of @ deceased sibling would then share their parent's portion: a1. Hence, ‘per stirpes" {@ in conflict with the remainder Of the provision, that directs Annie Lock’s estate ¢: be distributed "to my then living brothers and siate; En equal shares," to those siblings who are living a= the time of Annie Leck's death conclusions of Law: i. Ratnough ehe phrase ~per stirpes* standing alone has 2 Singie meaning, an vanbiguity” arises from Paragraph A of the Trust Agreenent wien read as a whole, for fea document nay still be ambiguous dathougn Se contains no words Or phrases Anbiguous in themselves. The ambiguity in the document may arive solely from the unusual use therein of otherwise Unambiguous words or phrases. An anbiguity say arise from vorde plain in *** FOR PUBLICATION *** themselves but uncertain when applied to the subject matter of the instrument, Hokana-v. Reline com, $7 Haw. 470, at 474-75, E35 pad 27s at 262 (1977) (citations omitted) 5. in the ingtant proceeding, this court further had Uncontroverted avorn statements regarding Annie Lock’s Shtent ions regarding the disposition of her astate, and was authorized to consider auch extrinaie Gvidence, ae the david Supreme Court has: oot “dope (ed) the View allowing extrinsic, evidence, ies, all evidence outside of the Writing including parol evidence, co be CSnsidered by the court to determine the true Gheent of the parties if there is any doubt or enbodying the:¥ bargain. (] (ompnasie added). Iikanal, 57 Naw. at 476, 559 9.26 6. This Court is empowered to reform the subject Trust, Zven in the absence of any anbiguity; according ©o Sogert, Zrust# and Trustees (Revised Second Edition, ious) § 391 fe, due to a mistake in the drafting of a trust Instrument, {t does not contain the terns of the trast as intended by the settlor and trustee, the settlor or other interested party may. aintain a euit in equity to bave the instrument Teformed co that it will contain the terns hich vere actually agreed upon. 7. 1 thi Court had entertained any Goubt regarding its Authority to consider extrinsic evidence in the instant Ease, the issue se to be resolved in favor of Petitioner. G8 Haw. 236, 244, 639 7.26 400, ioe tigen 8. This Court properly admitted evidence of (annie Eberle inteat, Because “it ig clear that there was a Controversy before the probate court and the Hokana Fule should apply.” See In-re Estate of Tkuta, 6¢ Baw, at 24a, 699 9.24 at 408. Tn'tavaii, intestacy is not favored, and this Court If divectea to apply legal doctrines in order to preserve or effectuate 2 trust. See In re Estate of P52 Haw. 40, 469 P24 183 (1970) huts, ce Hew. at 245, 639 P.2d at 406 ("the law Sonora intestacy and presumes against it"). io. Were Annie Lock’s estate to be distributed “per stirpes the result would be az though [Annie Lock] had died Githoue a trust of will. See Sectien 560:2-109, Hawari Rev[ssed) Stat (utes). Given the number of persons and the growing remoteness of their familial connection to fannie teck!, Ehis could hardly have been [Annie Lock] invention. an, Invaccordance with the intentions of (Annie tock! , the Estate of Annie Quon Ann Lock shall be distributed in equal shares to Seneficiaries Lena L. Wong and wan Tim ESek, whe are the only siblings of Annie Quon Ann Lock who survived her’ *** FOR PUBLICATION *** ‘The trial court also entered numerous findings with respect to the extrinsic evidence it relied upon in determining Annie Lock’s intent. The trial court relied on (1) the affidavit of Richard Ing, Annie Lock’s former attorney who had prepared the Trust, which essentially provides that Ing made a mistake in drafting the Trust and (2) the affidavit of Mary Lock, a widow of one of Annie Lock's predeceased brothers, which tends to corroborate Ing’s sworn statenents. Both affidavits indicate that Annie Lock intended her assets to be distributed only to her siblings who are living at the time of her death. on July 2, 2002, final judgment was entered in favor of Appellees. Appellants timely appealed on July 16, 2002. II. STANDARDS OF REVIEW A. Construction of a Trust “The construction of a trust is a question of law which this court reviews de nove.” In re Medeiros Testamentary Trust and Life Ins. Trust, 105 Hawai'i 24, 288, 96 P.3d 1098, 1102 (2004) (citations onitted) . B. Conclusions of Law ‘This court reviews the trial court’s Cole de novo. Bremer v. Weeks, 104 Hawai'i 43, 51, 85 P.3d 150, 158 (2004). “A COL is not binding upon an appellate court and is freely reviewable for its correctness." te vy, , 105 Hawai‘ 445, 453, 99 P.34 96, 104 (2004) (citations omitted). Moreover, “[a] COL that is supported by the trial court’s (F0Fs] *** FOR PUBLICATION *** and that reflects an application of the correct rule of law will not be overturned.* Id. (citations omitted) . qII. S81 AL .¢ Trial Court’ hat wv Ambiguous Appellants maintain on appeal that Paragraph A, Article IV of the Trust (Paragraph A) is not ambiguous, and, therefore, the trial court erred by considering extrinsic evidence to deternine Annie Lock’s intentions with respect to the distribution of her Trust assets. Specifically, Appellants challenge COL Nos. 4, 5, and @ and argue that the use of the words “per stixpes" and “descendants” throughout Article IV of the Trust “together make it clear that a pex stixpes distribution was intended." (Emphasis in original.) Furthermore, Appellants state that the Trust “goes on to explain the nature of a per stimmes distribution in eight (8) subsequent paragraphs of the trust." (Smphasis in original.) ‘Thus, Appellants submit that annie Lock “intended her trust estate to be distributed to her siblings per stirpes, namely, that each of the eight siblings and/or their respective families would take a share, with the surviving children of any predeceased sibling taking the share of their deceased parent in equal shares.” In response, Appellees urge that the language of Paragraph A is anbiguous on its face. Appellees emphasize that the first sentence of Paragraph A, which appears to provide that only a surviving brother or sister qualifies as a beneficiary *** FOR PUBLICATION *** under the Trust, conflicts with the second sentence of Paragraph A, which suggests that the children of a non-surviving brother or sister of Annie Lock may also qualify as beneficiaries. Appellees maintain that thie conflict creates an ambiguity and that, therefore, the trial court properly admitted and considered extrinsic evidence of Annie Lock’s intent. When construing a trust, this court is guided by principles relating to the interpretation of trusts as well as those relating to the interpretation of wills. Trust Created Under the Will of Damon, 76 Hawai'i 120, 124, 869 P.2d 1339, 1343, (2994). *A fundamental rule when construing trusts is that the Intention of the settlor as expressed in a trust instrument shall prevail unless inconsistent with some positive rule of law." Id. (internal brackets, quotation marks, and citation omitted). Additionally, “in construing a trust document to determine the ettior’s intent, the inetrusent must be read as a whole, not in fragments.” Id. (internal quotation marks omitted) (citing Inxe Lopez, 64 Haw. 44, 49, 636 P.24 731, 735 (2981)). Simitarly, (this court has held] that when interpreting Wille, a0 single word of an ambiguous clause should be Yiceratly interpreted se though standing alone. Zach word, phrase, Clause and sentence of the paragraph should be Considered in relation to each other and the paragraph {feelf construed ae a part of the will as a whole, Id. (internal brackete and quotation marks omitted) (citing Queen's Hosp. v. Hite, 38 Haw. 494, 505 (1950)). In determining whether an ambiguity exists, under the parel evidence rule, the test lies not necessarily Un the presence of particular ambiguous words or phrases but rather invehe purport of the document itaeif, whether or not -10- *** FOR PUBLICATION *** particular words or phrases in thenselves be uncertain or Eoabtfel in meaning. In other words, a document may still cre henselae ‘snbiauis ma Unsnbiauous words or phrases. An embiguity may arise from Merde plain in thesseives Bat uncertain when applied to the Dubject matter of the instrument. In shore, auch an gublasity arises from the use of words of doubtful or Sneertain seaming oF application: Hokama v. Reline Corp,, 57 Haw. 470, 474-75, 559 P.2d 279, 202 (2977) (citing Midkiff v. Castle & Cooke, Inc., 45 Haw. 409, 422, 368 P.2d 887, 894 (1962) (citations omitted) (emphases added)). Applying these principles, we hold that the language of Article IV of the Trust is ambiguous on its face. As previously stated, the disputed language of Paragraph A provides: A. Agot the date of av death, . . . the trustee shall fo which the trustee may be entitled under my will or from any other source), per stizpes. omy then Living brothers: andoisters in ecial shares. PBestolns Sersone shall fai] to survive ne, and shall Teave S descendant or descendants Tiving at the Such descendants shall represent their ancestors and take Such ancestor's share, per stizpes, otherwise the share of Such decedent shall drop out, thereby increasing the share Of the others of said foregoing persons or their Gescendante, as the case may be. (some enphases in original.) (Some emphases added.) Although the phrases “per stirpes" and “to my then living brothers and aisters* in the first sentence of Paragraph A are unambiguous when separately considered, they are inconsistent with one another when Paragraph A is read as a whole. As this court has previously stated, “it is well-established that ‘per stixpes’ means ‘by or according to root,’ ‘according to or by stock,’ oF ‘py right of representation,’ i.e., that the descendants are to -u- *** FOR PUBLICATION *** take through or as representatives of a parent.*? First Hawaiian kv. K i Un xe ate of 1, 80 Hawai'i 233, 235, 909 P.2d S61, 563 (1995) (citing Restatement (Second) Property (Donative Transfers) §§ 25.9 and 28.2 (1986). Moreover, “[ilmplicit in the phrase is the concept that the sroot’ or ‘stock’ begins with the ancestors of those who are to take and not with the takers thenselves." Id; see also Heller ve Sokol, 316 A.2d 193 (Md. 1974) (stating that “per stirpes means taking the share of one’s ancestors). In the present case, a per stizpes distribution of the Trust assets would result in each of Annie Lock’s eight siblings taking a one-eighth share, with the surviving children of any predeceased sibling taking the share of their deceased parent in equai shares. Under a per stirpes distribution, it is irrelevant whether any of Annie Lock’s eight siblings survive her at the time of her death; as long as her siblings leave a living descendant, then such descendant is entitled to “take through or ae representatives of a parent." However, the firet sentence of Paragraph A aleo provides that the Trust assets are to be § We nove that, in 2996, the legislature enacted Hawai'i Revis Statutes {iRS) # 560:2-709. Seq 1996 Haw. Sees. L. Ret 288, § 1 at 63. Bection 560:2-709(c) provides « definition of “per stirpes": (c) Per stixpes. If 2 governing instruent executed after January 1. 1987 calle for property to be distributed “per Stirpes," the property is divided into as many equal share ae there are: {dy Surviving children of the designated ancestor; and (2) Deceased children who left surviving descendante cuted in 1993, (Bnphesis added.) inasmuch az Annie Lock’s Trust was « Section 5€0;2°709(c) ie not applicable in this case w12- *** FOR PUBLICATION *** distributed to Annie Lock’s “then Living brothers and sisters.” (smphasis added.) Inasmuch as part of the first sentence xequixes the sibling to be alive at the time of Annie Lock’s death, the first sentence is clearly inconsistent with a per stixpes distribution, which does not require the sibling to be alive at the tine of Annie Lock’s death. Moreover, the second sentence of Paragraph A also conflicts with the requirenent in the first sentence that a sibling be alive at the time of Annie Lock’s death in order for him or her to take under the Trust. As stated in the Trust, the second sentence of Paragraph A provides an explanation of how to Gistribute the Trust assets “[i]n the event that any of said foregoing persons{,]" ise, Annie Lock’s living brothers and sisters at the time of her death, “shall fail to survive [annie Lock.]* Clearly, on sta face, Article IV is susceptible to two contradictory interpretations: (1) a distribution of the Trust assets among Annie Lock's brothers and sisters that are alive at the time of her death or (2) a per stirpes distribution of the trust assets, resulting in each of Annie Lock’s eight siblings receiving a one-eighth share of the Trust assets. Based on the foregoing, the ambiguity in Article IV of the Trust arises fron the unusual use therein of otherwise unambiguous words and phrases. Accordingly, we hold that the trial court correctly concluded that an ambiguity existe in Article IV of the Trust. -13- *** FOR PUBLICATION *** ‘The Trial Court's Conclusion that Extrinsic Evidence is Adnissible to Determine Annie Locks intent 1. The Trial Court's Application of the “Hokama Rule” Appellants next argue that the trial court incorrectly applied the ‘Hokama rule’ with respect to the admission of extrinsic evidence in the context of this case because the Hokama rule involved a disputed contract, not a disputed trust Moreover, Appellants allege that the trial court “ignored Hawai'i trust law that specifically prohibits extrinsic evidence absent the finding of an ‘ambiguity’ in the trust language In Hokama, this court adopted the view allowing extrinsic evidence, i.e., all evidence Suteide of the writing including pa Considered by che court to determine che ies if there 1a any doubt ox controversy as to the ning of the language embodying cheir bargain. Hokama, 57 Haw. at 476, 559 P.2d at 263. Hokama also eliminated the common law distinction between “patent” and “latent” ambiguities and permitted "parol evidence of the surrounding circumstances in the making of a contract to aid the trial court * where the in its determination of the intention of the parti contracts at isaue presented an ambiguity on their face, i.e., a patent ambiguity. Id. Thie court applied the Hokama rule in Graham v. Washington Univ., S@ Haw. 370, $69 P.2d 896 (1977), and in In-re Estate of Ikuta, 64 Haw. 236, 639 P.2d 400 (1981), wherein each case involved ambiguous language used in the context of a trust. The court in Graham applied the Hokama rule and held that the trial court should have admitted extrinsic evidence to oe  * FOR PUBLICATK ascertain the settlor’s intent with respect to his trust. Graham, 56 Haw. at 375-76, 569 P.24 at 899-900. In applying the Hokama rule in Ikuta, this court held that the trial court properly considered extrinsic evidence to determine the settlor’s intent with respect to his trust. Ikuta, 64 Haw. at 244-45, 639 P.2d at 405-06. Both Graham and Ikuta essentially stand for the proposition that, where there is “any doubt or controversy[,]” ue., an ambiguity, “as to the meaning of the language” used in a trust, extrinsic evidence may be considered by the court to determine the true intent of the settlor. Finally, although ndeg by (Appellante] that [the settlor’s] TE possible from the trust ie is equally true that it Le true as cont Gheene mist be gat instrument iteele, the trust and the sectlor’s Conception of any ambiguous words, employed by her] in the trust instrument, say be received and considered for the purpose of a‘éing the court in construing the instrument to Serermine (her) intent. Graham, 58 Haw. at 375-76, 569 P.2d at 900 (quoting In xe Trust ata jett, 38 Haw. 407, 409-20 (1949)). Thus, inasmuch as there is doubt or controversy, i.e., an ambiguity, as to the meaning of the language used in the Trust, Appellants’ contentions are wholly without merit. Accordingly, we hold that the trial court properly admitted extrinsic evidence of Annie Lock’s intent under the Hokama rule. 2. The Trial Court’s Findings and Conclusion with respect to Annie Lock’s Intent Appellants further allege that, assuming arguendo the language of the Trust is ambiguous, COL No. 11 is wrong because, “{a]ithough not artfully stated, the Trust language repeatedly w35s- *** FOR PUBLICATION *** and specifically states Annie [] Lock’s intent that the Trust [assets] be distributed per stirpes.** In response, Appellees counter that none of the other articles of the Trust support a per stirpes interpretation. In this case, the trial court’s findings with respect to the evidence of Annie Lock’s intent focus solely on the two affidavits proffered by Appellees, i.e., the affidavits of Richard Ing and Mary Lock. Inasmuch as Appellants do not object to the trial court’s findings with respect to the subject affidavits, these findings are undisputed. See Hawai'i Rules of Appellate Procedure (HRAP) Rule 28(b) (4) (C) (2003)"; Okada ‘Trucking Co. v, Bd. of Water Supply, 97 Hawai'i 450, 458, 40 P.3d 73, @1 (noting that FOPs not challenged on appeal are binding on the appellate court), reconsideration denied, 101 Hawai'i 233, 65 « cou No, 12 states, in ite entirety: in accordance with the intentions of the settler, the Estate of Annie {] Lock shall be distributed in equal sha Reneficlaries Lena i. wong and Nah Tim Lock, who Siblings of Annie (J Lock who survived her > under HRAP Rule 28(D) (4) (C), appellants are required to provide, Anter alia, the followin (4) A concise statement of the points of error set forth in Separately mumered paragraphs. Zach point shall stat (i) the aliegee error committed by the court or agency; (ii) where inthe record the alleged error occurred; and (it) Gihere in the Fecord the alleged error was objected to or the tanner in which the alleged error wae brought to the Retention of the court or agency. “where applicable, each point shall also include the following jci ncn the point involves a finding or conclusion of the court of ageney, & quotation of the finding or conclusion Srged ae error: Joints not presented in accordance with this section with be disregarded, except that the appellate court, at ite option, may notice a plain error not presented. -16- *** FOR PUBLICATION *** eee P.3d 10 (2002); Kawamata Farms, Inc. v. United Ari Prod., 26 Hawai'i 214, 252, 948 P.24 1055, 1093 (1997) (“Tf a finding is not properly attacked, it is binding; and any conclusion which follows from it and is a correct statement of law is valid.) (Citation omitted.); Leibert v. Fin. Factors, Ltd., 71 Haw. 265, 288, 788 P.24 833, 835 (1990) (FOFs not specified as error on appeal pursuant to HRAP Rule 28(b) (4) (C) are treated as unchallenged on appeal); cf. Amfac, Inc. v, Waikiki Beachcomber Inv. Cos, 74 Haw. 85, 125, 839 P.2d 10, 32 (conclusion of law not challenged on appeal is treated as binding on the appellate courts), reconsideration denied, 74 Haw. 650, 843 P.2d 144 (a9s2). As previously mentioned and according to his affidavit, ing was Annie Lock’s former attorney who prepared the Trust. In 0 doing, Ing borrowed a standard form template from the Will and Trust form book published by Hawaiian Trust Company (the template). Ing readily admits that he “forget” to remove the term “per etirpes” and the “explanatory provision” from the template when he drafted Annie Lock's Trust.* Article IV of the template provides in relevant part: A, Ae of the date of my death, . . - the trustee shall Qlertibure the remaining trust principal (including property Co'thich the trustee nay be entitled under my will or from any other source), per atizpes, to my then living Gescendants + ang’s affidavit ie unclear ae to what he means by “explanatory provision,” ius, whether he is referring to the second sentence in Paragraph Proven ie aor pert of the template language, or whether it refers to Birdorsph 8, waich eorcesponds £0 Paragraph B of the templat 17 *** FOR PUBLICATION *** B. Despite the preceding provisions of this instrument, the Efustes may elect to withheld any property otherwise Glstributable under paragraph A of this Article toa beneficiary who has not reached the age of twenty-five years and may Fetain the property for that beneficiary in a Separae trust naned for the beneficiary, to be distributed forthe beneficiary when he or she reaches the age of twenty- Hive years, of before then If the trustee so elects. . (emphases in original.) With respect to the circumstances surrounding the creation of Annie Lock’s Trust, Ing avers that 5. Affiant agrees that the language of Paragraph A Le Confusing as fo who are the beneficiaries of the Estate Secause the term "per atirpee” could refer to ail eight (8) brothers end sisters of Annie Lock and their descendants or fo only the five (5) brothers and sisters of Annie Lock who Were iiving at the tine Annie Lock nade and entered into the Trust Agreement and their descendants, white the phrase "to fy thea living brothers and sisters” refers to only the tro (2) brothers and sisters of Annie Lock who vere Living at the tine of her death. Gr" Before preparing the Trust agreement, Affiant met with Aanie tock and her Brother, Wah Sing Lock, ("] whom Affiant had known for-almost thirey (30) years, so discuss the estate plas of Annie Lock se *Xe Phe weering, Wan Ging Lock completed a confidential Questionnaire for Annie Lock, on which Wah Sing ueck listed Eily the five (5) brothers and sisters of Annie Leck who Gere living st the tine of the meeting. Bo ae a result, Affienc was unaware at the tine of the meeting that three (3) brothers and sisters of Annie Lock had alfeacy died prior to the necting 5. At the meeting, the distribution of the Eetate was Glecussed and considered, including, but not limited to, the Gistribution of the Betate to the five (5) brothers and Sitters of Annie Leck who were Living at the tine of the eeting and their descendants, Tor However, Nlah Sing Lock suggested that the Eetate be Giseribuces to only the brothers and sisters of {] Annie flock who are idving at the tine of her death. {S0* Xinie Lock agrees wits che suggestion of wah Sing Lock, thereby deciding to distribute the Hutate to only the Brothers and sisters of {) Annie Lock who are living at the Cine of her death 2)" Therefore, i¢ vas Affiant’s intention to prepare Paragraph A to reflect the decision of Annie Lock to Glseribute the Estate to oaly che brothers and isters of (] Basie Lock who are Living at the time of her death. ids. In preparing Paragraph A, Affiant used a standard fore in’ the Will and trust form bock published by Hawaiian Trust Company, which contained the language "per stirpes to sy then 1iving descendants in equal shares," as well as an explanatory provision. + Wah Sing Lock passed away prior to Annie Lock -18- *** FOR PUBLICATION *** eee 14. Walle Aftiant changed the word “descendants” to Serothere and sisters,” Affiant forgot to remove the term Sper seirpes,* as well ae the explanatory provision. TES" Aécorsingiy, the language "per stirpes, to my then }iving brothers and sistera in equal shares" as set forth in Paragraph A should have read "to my then living brothers and Sisters in equal shares,” and the explanatory provision Should have Been resoved. Despite Ing’s sworn statement that the template contained the language “per stirpes to my then living descendants in equal shares,” the template does not contain the phrase “in equal shares.” (Emphasis added.) However, Appellants do not challenge FOP No. 22, which states, in its entirety: im dvafting Paragraph A, Richard Ing used as his template a Elendard form set forth in the Will and Trust form book Published by Wawaiian Trust Company, and this standard form Boatains the language “per stizpes to my then living Getcendante in equal shares", as well as an explanatory provision: Notwithstanding this finding, a comparison of the template and the Trust indicates that the template language, “per stirpes, to my then living descendants,’ was altered to “per stirpes, to ny then living brothers and sisters in equal shares." Although FOF No. 22 may be erroneous, it would not affect the outcome of the trial court’s decision. See Torres v. Torres, 100 Hawai'i 397, 412, 60 P.34 798, 619 (2002) (noting that in order for a court's erroneous finding to constitute reversible error, appellant must indicate how the erroneous finding affected the outcome of the trial court's decision). The only relevant inquiry in this case is whether the affidavit evinces the intent of the settlor, Annie lock. Here, Ing clearly avers that it was Annie Lock’s intent to distribute her estate to her siblings who are alive at the tine of her death -19- **® FOR PUBLICATION *** Further, the affidavit of Mary Lock, Wah Sing Lock’s widow, corroborates Ing’s sworn statements regarding Annie Lock’s intent: 1. Affiant is the widow of Sonny Lock, who was also known as Wah Sing tock, who wae the brother of Annie Lock, and who died prior fo the death of Annie Lock 3° “tn early 2993, Sony Lock took Annie Lock to meet with Richard ng, who is an attorney, to discuss and decide who her estate would be left to wnen she died and to have her Fevocable Living trust prepared. so'°dter in 2982, Annie Lock cold Affiant that at that necting with Richard Ing, Sonny Lock had advised her to Teave her estate only co her surviving brothers and sisters, asd that is what Annie Lock had decided to do, i° Ghovely betore her death in mid-1999 at. St. Francis fiospital, Annie Lock again told Affiant that she was leaving her estate only to her surviving brothers and sisters, Specifically sentioning Lena Nong and Wah Tim Lock, who were tke only surviving brothers and sisters of Annie Lock at thse cine! 5. Affient has no interest in the estate of Annie Lock as a beneficiary or in any other capacity. 2. “Graig Lock and Claire Asam ave the children of Sonsy Lock and Affiant, are the nephew and niece of Annie Leck, Sei are potential beneficiaries of the estate of Annie Lock the trial court expressly found that Mary Lock's sworn statements were contrary to the interests of Mary Lock's children. As the trial court found in its undisputed findings, the affidavits proffered by Appellees make it clear that Annie Lock intended distribution of the Trust assets among her siblings who survived her. Thus, inasmuch as COL No. 11 is supported by the trial court’s undisputed FOFs, and reflects an application of the correct rule of law, COL No. 11 is correct. Accordingly, we hold that the trial court did not err in distributing the Trust asset in equal shares to Lena Wong and Wah Tim Leck, the only eiblings that survived Annie Lock at the time of her death." \ gppellants algo raise on appeal that the trial court incorrectly concluded that it "is empowered to reform the subject Trust, even in the (continued...) -20- +** FOR PUBLICATION *** IV. CONCLUSION Based on the foregoing, we affirm the trial court’s guly 2, 2002 final judgment in favor of Appellees. on the briefs: L for Jame 8, 1. Kosbib Or Neal. acu, and Keith K. Hayashi (of ih nmto— Beet eee, pagent Bosses OM rcuateed appellants Katie Lock ne Zamaghtzo, Pee a ene Dat Or pace tee, Manes Patrick ¥. Taomae, for petitioner-appellee Lena L. Wong in her capacity ae successor trustee Gaylora G. Tom, for beneficiaries-appellee Lena L. Wong and Wah Tim Lock (. , ,continued) absence of ambiguity." Although the trial court concluded that the Trust was SREGESSuot GPvateo hele, “alternatively, that even if the Trust was not SENRCus, 1f had the power to reform che Trust "(4]f, due to a mistake in the seeeieeece'S Tilet inctronene, it does not contain the terns of the trust ae GEeended by the wettlor and trustee(.J" COL No. € (quoting Bogert, § 991 FESrSSnd’cruscees (Revised Second Zaition, 1963)).. Inasmuch as we hold that The Trust ie anbiguous, we need not reach this issue. -21- 

e367094eb998bbe4a2a52d13494f06f0a731c1c85a2b9bd09bbdd8a2309f0387

2005-12-09T00:00:00Z

95f1ca73-cc53-491a-a6fd-d6eca0890639

UFJ Bank Limited v. Ieda.

109 Haw. 137

hawaii

Hawaii Supreme Court

**©* FOR PUBLICATION *** IN THE SUPREME COURT OF THE STATE OF HANAT'I --= 000 UPJ BANK LIMITED, a Japan corporation, Plaintiff-appellant, OSAMU TEDA and LOTS WAKO, INC., a Hawai'i corporation, Defendants-Appellees. No. 25549 : APPEAL FROM THE FIRST CIRCUIT COURT (CIV. NO. 02-21-1308) nne:8 HY 8 930 Sok DECEMBER 8, 2005 MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ. OPINION OF THE COURT BY MOON, C.J. Plaintiff-appellant UPI Bank Limited (UFJ), a Japanese bank, filed suit in the Circuit Court of the First Circuit," seeking to collect a debt owed by Kabushiki Kaisha Lote Wako (kxtM), a Japanese company and a non-party to this action. UFJ sued defendanta-appellees Osami Teda, who personally guaranteed KKLW’s loan, and Lots Wako, Inc. (LWT) [hereinafter, collectively, the defendante], a wholly-owned subsidiary of KKLW that was incorporated in the state of Hawai'i. UFJ apps @ from ‘The Honorable Sabrina §. McKenna wae the presiding judge in this aa «©* POR PUBLICATION *** The Decenber 10, 2002 final judgnent entered in favor of the defendants pursuant to the August 26, 2002 order granting the defendants’ notion to dismiss and denying UFZ’s motion for partial munmary judgnent. UFJ also challenges the e+rowit court's Novenber 19, 2002 order granting the defendants’ motion for attorneys’ fees on appeal, UFZ contends that the circuit court erred in denying ita motion for partial summary judgment and dteniesing jte verified complaint based upon (a) UFU‘s failure te join GH das an indiepensable party under Hawai'i Rules of Civil Procedure (uncp) Rule 19(b) (2002), quoted infxa, and (b) forum nen conveniena grounds. URI aleo contends that, inssmich ag VP's complaint was diemiased “without prejudice,” the circuit court erred in awarding attorneys’ fees to the defendants. For the reasons discussed herein, we hold that: (2) the civeuit court erred in finding that KKLM is an the recoré is unclear indispensable party: and, (2) inasmuch fas to whether an available alternative forum existed for VEY Fo prosecute its clains against LNZ, we remand thie case for such determination, Accordingly, we vacate the Decenber 10, 2002 fina) judgnent, including the November 19, 2002 award of attorneys’ fees, and remand this case to the circuit court for further proceedings. *** FOR PUBLICATION *** T. BACKGROUND A. Factual Backoround Pa is a corporation organized under the laws of Japan, with its principal place of business in Japan. On March 22, 1991, UFJ* entered into an “Agreement on Banking Transactions" (the Agreement)? in which it loaned an aggregate principal amount of approximately 769,700,000 yen to KKLW. According to the Agreement, KKLW was obligated to, inter alia: (1) repay the lean; (2) pay damages at the rate of fourteen percent per annum in the event of a default, pursuant to Article 3(2) of the Agreement ;* and (3) provide additional security, if demanded by UFZ, pursuant to Article 4(1) of the Agreement.’ 2 URS was formerly known ae Sanwa Bank, Limited, having changed ite name in January 2002. > ae should be noted that all of the loan documents entered into between UFZ and KELW and Teda were translated fron Japanese into English for purposes of this Litigation + Article 3(2) of the Agreenent provides: Tn the event that (KKLM) fail{s] to perform on any of (its) Obligations with respect to Sanwa Bank [(UP2)}, [KKH] ‘shall pay (UPJ) Samages st the rate of 14¥ per annum for any ‘Mnounts due and payable. in euch case, damages shall be calculated on s per dien based on 2 365-day year, * Article 4(2) of the agreenent provides: In cases in which reasonable cause necessitates the preservation of (UPs]'s righte, (KKLW) shall, upon demand, forthwich furnish to [UFJ] such security or additional security, or such guarantors or additional guarantors, ae may be approved by [UPd] - aaE—"—_ a+ FOR PUBLICATION +e areicle 14 of the Agreenent fram) aareel® having Barwa Bank aeary to Ustigare 12 ne Nb, court Bt Othe head office Of Syoiarench of (FI serior to the execution oF on March 397 ye director of enw, executed > under the agreement zo guarantees present and Agreement on september 29, 2009 xan executed @ BrOMSSOEY note in the face amount of 7¢9,700,000 yer (the NOES)” cme entire balance oF the Note became aue and PAY apie to UAT on ganuazy 30+ miber 20, 2002, KKLW py ite terms, the NOES matured. on SE apiegedly made & payment of 502,302,236 YER according to URI, KKM and Tea owed tne curseandind amount of 1/527/532/274 Yes ox approximately $1 992,037.94 U-S. goo2. uFa also contends that, since gorlars, a8 of APE! 2002, interest hae continued to accrue at & TASS of april 15) ge, 125 yen per ave OF approximately $2, 704-5° y.s. dollars Per une agreement. ns of SuLY O gay, as provided 3° article 3(2) 002, an aaaitsons 40,634,500 yen altegediy ad acerued, and HE that date was covet amount owed by KI and eda to UPD *** FOR PUBLICATION *** a on May 23, 2002, UFZ notified KKLM, Ieda, and LWT that it was exercising its right of subrogation with respect to an “vInter-Company Debt,” pursuant to Article 423 of the Japan Civil code, which provides a right of subrogation,‘ and demanded payment of UFJ’s loan, According to UFJ, the Inter-Company Debt was a loan extended by KKLW to LI (of which Ieda is president and director) in the principal amount of 1,364,109,632 yen. UPJ had obtained information regarding the inter-company loan from Kkun’s financial statenents for the fiscal year ending May 31, 2000, the most recent statements available to URJ. In their answer to the verified complaint, the defendants neither admitted nor denied the existence of the inter-company loan, stating only that ‘what ie described in [UFJ’s verified complaint] as ‘Inter- company Debt’ involved funds that were used to acquire the sehold interest in an office building located at 345 Queen Street, Honolulu, Hawai'i" (the Queen Street Property). The defendants also conceded that LWI owns the single-family «In an affidavit attached to UPS's ax parte motion for prejudgment writ of attachnent, Bkihito Katayama, an attorney duly Licensed to practice in Yosin’facteate chat, under Japanese law, the creditor/obligee has a right of HEogetion in acestdance with Article 423. Specificelly, Xatayana avers that Article 423 (*0bLigee’s eubrogation for protection of an Obligatory right") provides as follows (2) order to protect his obligatory right, an obligs may exercise the Fights belonging to the obligor; however, Tala shall not apply £0 such Fighte a= are personal to the obligor. 12) [so long as the obligatory right is not yet due, the Gbliges may not exereise the Fights referred to in the Preceding paragraph except by judicial subrogation, however, Eile shall not apply to an act of preservation, *** FOR PUBLICATION *** residence located at 1610 Ihiloa Loop, Honolulu, Hawa: Jeda resides. The defendants did not respond to UPJ’s May 23, 2002 demand for payment. Procedural Backaround on May 28, 2002, UFJ filed the instant suit in the First Circuit Court against Ieda and WI. UF's verified complaint contained three clains for relief: (1) Count I sought recovery directly from Jeda for the amount of KKLW’s purported indebtedness pursuant to the Guaranty; (2) Count II alleged UFY's entitlement to additional security from Ieda as guarantor; and (3) Count 121 asserted a right of subrogation against NI for the amount of the “Inter-Company Debt” and any other obligations that LWI may have to KKLW pursuant to Japanese law and its civil code Simultaneously with its filing of the complaint, UFJ filed an ex parte notion for prejudgnent writ of attachment, seeking to attach the Queen Street Property. On June 4, 2002, the circuit court granted UPJ’s motion without a hearing. The writ of attachment was issued on June 5, 2002. On June 6, 2002, the defendants filed an ex parte motion, seeking reconsideration of the circuit court's order granting UFJ’s motion for writ of attachment. The circuit court granted the defendants’ motion for reconsideration on June 13, 2002 and ordered, anong other things, that the writ of attachment against the Queen Street Property be released. Thereafter, on June 18, 2002, the defendants filed their anawer to the verified complaint  FOR PUBLICATION * on duly 29, 2002, UPJ filed a motion for partial summary judgment as to Count I against Teda. UFJ argued that it was entitled to summary judgnent, as a matter of law, because there was no genuine dispute as to any material fact that (2) teda had given a valid Guaranty of KKLW’s obligations to UFZ and (2) KKLM was now in default on those obligations. om the same date, July 19, 2002, the defendants filed a motion to dismiss UPJ's verified complaint, pursuant to, inter alia, HRCP Rules 12 and 19, quoted infra. The defendants contended that (1) the mandatory forum selection clause in the Agreenent, i.e., Article 14, along with the Guaranty’s xequirement that “the Guarantor shall abide by all of the terms and conditions contained in [the] Agreement [,]" required diemissal because any action against Ieda must be taken in Japan and (2) the alleged right of subrogation against LHI could not be exercised in the absence of KXLW ae a party pursuant to HRCP Rule as. Both motions were set for hearing on August 6, 2002. At the hearing, the circuit court invited the parties to file additional memoranda on the issue of choice of law with respect to the forum selection clause and continued the hearing until Auguat 19, 2002. on August 9, 2002, the defendants and UFJ filed their respective supplenental menoranda pursuant to the court's instruction. The defendants argued for the first time that the *** FOR PUBLICATION *** circuit court should not preside over UFJ’s action under the doctrine of forum non convenieng. UF countered that the because they did defendants had waived such affirmative defe: not assert it in their answer. The defendants, however, responded that the forum non conveniens defense was merely a subset of an improper venue defense, which was asserted in the defendants’ answer to the verified complaint. After a further hearing on both motions on August 26, 2002, the circuit court entered an order granting the defendants’ motion to dismiss and denying URJ's motion for partial summary judgment. In its written order, the circuit court stated the grounds for granting the defendants’ motion to dismiss as follows: (2) based on RCP Rule 19(8), under the circumstances of Including the claine and defenses raised, (RKLX] So an inglepensabie party without which the court cannot in Squity and good conscience proceed based on the factors Smr ized Sa eeia weer sule 15(b)7 and (2) based on forum non Sonveniens grounds. pursuant co, (Hawai'i Reviced statute: {ins}] Section 603-29-5. ((2993)"] and the various factor Gutlined in lesser v. Boughey, @6 Haw(aii] 260, (1 262- Gal, 965 F-26802, 608-06) (3990). The order further stated that “dismissal is, of course, without prejudice to any claims [UFJ] may bring against [the defendants] after their claims have been reduced to dudgnent in Japan.” ERS $ 603-37.5 provides in relevant part: “(a) The circuit court of a circuit in which is comenced a civil case laying venue in the wrong circuit Snell transfer the case, upon or without terns and conditions as the court iis reper, co any cifeule in whieh st could have been brought, or if it is {nthe interest of Justice dieniss the case.” *** FOR PUBLICATION *** Ee on September 17, 2002, the defendants moved for an award of attorneys’ fees, pursuant to HRS § 607-14 (1993)," and submitted a bill of coste. The defendants, although recognizing that the matter had not been determined “on the merits,” argued that they were entitled to attorneys’ fees and costs because the determination of a “prevailing party* in an action in assumpsit does not require ‘a judgment on the merits,” relying upon Blair vi Ing, 96 Hawai'i 327, 231, 31 P.3d 164, 288 (2001) (stating that *a defendant who succeeds in obtaining a judgment of dismissal is a prevailing party for the purpose of fees under HRS § 607-14"). UPI objected, contending that an award of attorneys’ fees is premature and inappropriate because the defendants cannot be considered the “prevailing party” where the dismissal of the action was expressly ‘without prejudice.” Rt the October 7, 2002 hearing on the motion, the circuit court expressed its concern “whether Hawai'i law would apply or whether it should be Japan law . . . and [that it was] not sufficiently familiar with Japan law on this issue [regarding + section 607-14 provides in relevant pert: Im ali the courts, in all actions in the nature of assumpait and in ali actions on a promissory note or other contract in Wricing that provides for an attorney's fee, there shall be (ixed ae attorneys" fees, to be paid by the losing party and Eo'be included in the sum for which execution may ienue, @ Eee that the court determines to be reasonable; provided that the attorney representing the prevailing party shall submit fo the court an affidavit stating the anount of tine the attorney spent on the action and the anount of tine the attorney ie Likely €0 spend to obtain a final written juagmest, wy Sue" court shall then tax attorneys” Ieelnunich the Court determines to be reasonable, to be paid by the losing party; provided that thie snoust shall Rot exceed twenty-five per cent of the judgment.  FOR PUBLICATION *** the award of attorneys’ fees]." The circuit court, therefore, requested further briefing. Subsequently, on October 14, and October 21, 2002, the defendants and UFJ filed their respective supplemental memoranda. At the second hearing on October 28, 2002, the circuit court granted the defendants’ motion for attorneys’ fees and costs “based on the law cited by the [defendants,]" ie., Blair and HRS § 607-14. The court’s written order, awarding the defendants attorneys’ fees in the amount of $75,000, was filed on November 19, 2002. Therein, the court stated: ‘The motion is GRANTED to the extent the court $75,000 as reasonable attorneys’ fees in favor of the Defendante and ageinst (UPJ]. The motion extent it requests aeditional attorney’ extent it requeste coste, for which no substant lation wal provided, On December 10, 2002, the circuit court entered final judgment in favor of the defendants and against UFJ. On December 20, 2002, UFJ filed a timely notice of appeal.’ II. STANDARDS OF REVIEW A. Motion to Diemiss 1. Forum Non Conveniens “This court has long recognized that it ie inappropriate to disturb a [circuit] court’s order granting a motion to dismiss the complaint on the grounds of forum non + Since the filing of thie appeal, UPJ hae obtained a judgnent against Kew from a Japanese court. As @ result, there is now pending in the Piree Circuit Court a special proceeding, filed pursuant to the provisions of HRS chapter 658C, the Uniform Foreign soney-Judgnents Recognition Act, with Feapect to said Sudgnent -10- *** FOR PUBLICATION *** sonveniens unless the trial judge committed an abuse of discretion." Lesser, 88 Hawai'i at 262, 965 P.2d at 804 (citing Territory v. Gay, 32 Haw. 404, 414 (1932); Harbrecht v, Harrison, 38 Haw. 206, 209 (1948)). “The [circuit] court abuses its discretion if it bases ite ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence." Ranger Ins. Co, v. Hinshaw, 103 Hawai'i 26, 30, 79 P.3d 129, 123 (2003) (citation omitted). Stated differently, an abuse of discretion occurs where “the [circuit] court has clearly exceeded the bounds of reason or has disregarded rules or principles of law or practice to the substantial detriment of a party litigant.~ Roxas ¥. Marcos, 89 Hawai'i 91, 115, 969 P.2d 1209, 1233 (1998) (citation omitted) . 2. Failure to Join an Indispensable Party We review the circuit court’s decision to dismiss for failure to join an indispensable party for abuse of discretion. ‘Takabuki v, Ching, 67 Haw. S15, 529, 695 P.2d 319, 328 (1985); yip Lan vy, Abulii, 23 Haw. 307, 312 (1926); gee also Washington v. Daley, 173 F.3d 1258, 1165 (9th Cir. 1999) ("We review dismissals pursuant to Rule 19 for an abuse of discretion. (Citation omitted.)); Walsh v. Centeio, 692 F.2d 1239, 1243 (sth cir, 1982) (holding that “the determination whether the action should proceed without the absentee, and therefore, the determination of indiepensability itself under [HRCP] Rule -u- *** FOR PUBLICATION *** 19(b) [‘s federal counterpart], remains in the sound discretion of the trial judge"). B. Attorneve’ Fees We review the circuit court’s grant or denial of attorney's fees under the abuse of discretion standard. Price v. AIG Hawai'i Ins. Co., Inc., 107 Hawai" 106, 210, 111 P.3d.1, 5, reconsideration denied, 107 Hawai'i 106, 111 P.3d 2 (2005); Age'n 0 Wailea Elua v. rt Co., 100 Hawai'i 97, 120, 58 P.3d 608, 632 (2002) (citations omitted). IIT. DISCUSSION A. Motion to Dismiss As previously stated, UFZ contends that the circuit court erroneously dismissed ite claims against the defendants on the grounds of failure to join an indispensable party and forum non conveniens. We address each of UFJ’s contentions in turn. 1, Indispensable Party UFJ argues that KKLW is not a “party to be joined if feasible’ (or a “necessary" party) pursuant to HRCP Rule 19(a) because (1) the principal obligor, KKLM, is not an indispensable sda, of a debt, and party in an action against the guarantor, (2) @ subrogor [(in this case, KKLW)] is not an indispensable party te a subrogee’s [(UFJ’s)] action against the subrogor’s debtor [(LWz)] n12- *** FOR PUBLICATION *** HRCP Rule 19 provides in relevant part SOINDER OF PERSONS NEEDED FOR JUST ADJUDICATION. (a) Persone to be joined if feasible. A porcon who is subject to service of process shall be joined as a party in the action if (1) in the person's absence complete relict Cannot be accorded anong those already parties, or (2) the person claims an interest relating to the subject of the Retion and is so eituated that the disposition of the action {nthe pereon'e absence may (A) as a practical matter impair of impede the person's ability to protect that interest or Wve any O¢ the persona already parties subject to @ (tial Fisk of incurring double, sultiple, oF otherwise ‘stent obligations by reason of the claimed interest. {f'the person hap not been so Joined, the coure shall ort that the person be made a party Dismissal pursuant to HRCP Rule 19 involves a two-part analysis. See Kescoli v. Babbitt, 101 F.3d 1304, 1309 (9th Cir. 1996) (applying HRCP Rule 19's federal counterpart Rule 19). Initially, the circuit court must determine whether the absent party is a “necessary” party and, if 90, “the court shall order that [the person] be made a party." HRCP Rule 19(a). “Where Joinder is feasible, the court need not proceed under Rule 19(b) for lack of an to determine whether to proceed or dismis: indispensable party." Lauv, Bautiata, 61 Haw. 144, 154-55, 598 P.2d 161, 168 (1979). Although the circuit court did not ‘ly make the initial determination that KKuW is a nece expres lary party under HRCP Rule 19(a), we believe that such determination can be logically inferred from its ultimate ruling that "KKM is an indispensable party without which the court cannot in equity and good conscience proceed based on the factors outlined in said HRCP Rule 19(b) (.)* -33- *** FOR PUBLICATION *** Under HRCP Rule 19(b): If 4 person as described in gubdivieion (a) (2) -(2) hereot cannot be made a party, the court shall determine whether in equity and good conseience the action should proceed anong the parties before it, or should be disniesed, Ehe absent person being this regarded as indispeneable, The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence tight be prejudicial to the person or those already parties; fecond, the extent to which, by protective provisions in the Sudgrent, by 0 feliet, oF other meaures, the prejudice can be lessened or svoided; third, whether Sudgnent rendered in the person's absence will be adequate; fourth, whether the plaintiff will have sn adequate renedy ff the action ie dismiseed for nonjosnder~ Because UFJ based its subrogation action against LWZ solely on Article 423 of the Civil Code of Japan, our determination as to whether KKLW is a necessary and indispensable party to the subrogation claim involves the examination of the substantive law of Japan. “The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Hawai'i Rules of Evidence. The court's deternination shall be treated as a ruling on a question of law.’ HRCP Rule 44.1 (2002). Ae previously noted, Article 423 of the Civil Code of Japan provides: (2) _Im order to protect his obligatory right, an obliges may exercise the Fights belonging to the obligor; however, This shall not apply to euch righte ae are personal to the obligor. (2) "80 long as the obligatory right is not yet due, the obligee may not exercise the Fights referred to in the Preceding paragraph except by judicial subrogation, however, Ehis hal? not apply to an act of preservation. -14- *** FOR PUBLICATION *** tn his book regarding the general rules of the Japanese law of obligations, Professor Hiroshi Oda? explains that the concept of subrogation was imported into the Civil Code of Japan from civit jaw countries and was based, in part, on the French concept of action subrosatoire. Hiroshi Oda, Japanese Law: General Rules o! the Law of Obligations, 277-78 (24 ed., Oxford Univ. Press 1999) - He further states that {s)n an action subrosatoire, the obligee may exercise & EUR Aa SERRE, age to the cbligor in order to ensure igibomence of a monetary obligation by the latter (Art Pee terreac a). For example, A lent one sillion yen to B and $22) Pat enent 1s dues By in curs, pad Lent halt a million SRE E5P2'Tone years ago, but failed to remind 6) since be YEE $O,C ORE Yoace he Feceived the money from C, he would wae UNE ply it to A, f does not have any other assets. have to repey it Shay exercise B's right against C, and thus prevent preseription: ‘the action subxoaatoire was designed to be # state preceding Zee gecion eibtne, but today, by substicuticn, the Sane Ey eeec TTT attachment can be achieved in’ sone cases. sttece Move exasple, obliges A has two alternative: FRAS io°may"eue Band obtain an enforcement judgment Tirtcae'S,aveach B's right against C, and then demand Dayent fron C.. Secondly, wubetieate Siaiepamene-dacect ie tig 6 insia Sadana af che ie girecty tron the th inthis exaepl a (smphaaie added.) According to Katayama’s affidavit, see supra note 6: ‘there have been numerous cases in which Japanese courte nave Biysorted tne cbligee's exercise of ite right to Siitogerion. Por example, in The Country of Jananv., gubrogatiguprene Court, June 24, 1966 (2) Manama 1979). @ doshine, Sipe country of Japan, bad sales credite from an Greaitere Gebtor chat was owed capital contributions by its jnseivetarors, The eresiter exercised its rights of inereerion with respect to the debtor's right to the SUubrOgH ehevibutions. The Supreme Court of Japan, based on crite Gon oe the civil code of Japan, held that @ creditor AEtiCle tae ee ene right of ene debtor to paynent from s —_— w firoshi Oda 1s an attorney at law duly Licensed in Japan and = professor of Japanese Law at the University of London and College 4°Rurope -1s- *** FOR PUBLICATION *** third party, up to the amount the debtor over co the creditor. in addition, in Senri Kabus ob. Geaka Wigh Court, July’ 21, 1999 (Wanreljino 1698-142), the (Ceska High Court allowed & bankruptcy cresitor to exercise its subrogation right with respect to the bankrupt debtor corporation's right to compensation of its damages against fee directors, Because Japan law permits UFJ to “step into the shoes” of KKLW and demand payment directly from LWI, it cannot be said that KKLW is a necessary party inasmuch as complete relief can be accorded among those already parties to the action, i.e., UFJ, Jeda, and LWI. Accordingly, we hold that the circuit court a abused its discretion in dismissing the verified complaint ba upon UFU’s failure to join KKLW as a necessary and indispensable party in the subrogation action against LWI. 2, Doctrine of Forum Non Conveniens selying on HRCP Rule 12(h) (1), UFJ argues that the defendants waived their right to assert forum non conveniens because they failed to specifically raise it in their answer to the verified complaint or in their motion to dismiss, as required by HRCP Rule 12. HRCP Rule 12(b) provides in pertinent part: very defense, in law of fact, to a claim for relief in any nesding Thereto ‘skcebt that the following 7 Ehereto 42 one ie requifed, ‘notion: Sefer ay ibject matter, (2) 1ack of jurisdiction over the 3) improper venue, (4) insufficiency of process, (3) ineutficiency of service ef process, (6) failure to state 2 claim upon which relief can be granted, (7) failure to join a party under Rule 19. A otion making any of these defenses shall be made before Pleading if a further pleading is permitted. (Snphases added.) HRCP Rule 12(h) (1) provides that -16- *** FOR PUBLICATION *** venue, iene, es__oF insult TA) if omitted from a motion {Pthe circumstances describea in subdivision (g) [1 or (B) if it is neither made by motion under this rule [ae prescribed in #ule 12(b)] nor included in a responsive Pieading or anendnent thereof permitted by Rule 15(a) to be ade aa a satter of cour (emphasis added.) As is evident from an examination of Rule 22(h) (2) above, “forum non conveniens” ie not one of the specifically enumerated “defenses” that may be deemed waived for failure to raise it in a responsive pleading or Rule 12(b) motion. However, as previously indicated, the defendants maintain that forum non conveniens is a subset of an imprope: venue defense. We, therefore, examine the defendants’ characterization. Generally, the doctrine of forum non conveniens may only apply in cases where “the court in which the action was brought has both subject matter and personal jurisdiction and is a proper venue." 15 C. Wright, A. Miller & BE. Cooper, Federal Practice and Procedure: Jurisdiction and ase also Am. ec ov , 510 U.S. 443, 448-49 (1994) (indicating Related Matters § 3828, at 287 (2d ed. 1986 that, for the doctrine to apply, venue must already be proper) ; Subdivision (g) of Rule 22 provides in relevant part: If a party makes # notion under this rule but omits therefrom any defense or objection then available to the party which this rule permite £0 be raised by motion pursuant to Rule 12(bi], the party ehall not thereafter make 2 motion based on the defense or objection so omitted, except a motion ae provided in subdivision (h) (2) hereof relating to the defense of failure to state « claim upon which relief can be granted] on any of the grounds there seated oa *** FOR PUBLICATION *** 549 F.2d 597, 616 (9th Cir. 1976), led by et: er grounds, McGlinchy v, Shell Chem, Co., 845 P.2d a02 (9th cir. 1988) (noting that in applying doctrine of forum non conveniens, proper venue is assumed). Consequently, forum non conveniens cannot be said to fall within the scope of the defense of improper venue. Moreover, as stated supra, forum non conveniens is not one of the defenses enumerated in Rule 12(h) (1) that may be deemed waived for failure to raise it in the responsive pleading or Rule 12(b) motion.* b. the convenient forum As previously stated, the circuit court dismissed UFJ’s complaint based upon, inter alia, “forum non conveniens grounds, pursuant to. . . the various factors as outlined in Lesser[.1” UFJ contends that the circuit court abused its discretion by not enumerating which of the “various factors” it relied upon or how it applied those factors in reaching its conclusion. % we note that, in dismissing UPJ's complaint, the circuit court also relied upon HRS § 603-37.5, which provides the mechanism by which civil cases “Iaying Venue in the wrong eircuic® can be transferred, oF in the interest of justice, allows the circust court to dianies the case. See guora note 7. Although on its face, HRS § 603-37.5 appeare Snapplicable to the present Situation, UFZ does hot challenge the court's reliance on the subject statute nd, thus, we need not address it. Havai'i Rules of Appellate Procedure Mule 2e(b) (7). (2002) Age'n of Apartment Owners of Maalaea fai. Inc. v. -Stiliscn, ios Hawai'i 2, 16, 116 P34 ces, 658 (2005); Bele Defense Fund v, Paty, 72 613, @37 P.2d 3247, 1268 (1992), ‘cart, denied, $07 U3. 916 (1983) (*rosues not properly raised on appeal wiil be deenea to be waived.” (citations onitted.)). -18-  FOR PUBLICATION * In Lesser, this court described the doctrine of forum before it may be more appropriately tried elsewhere. For the doctrine to apply, therefore, an alternative forus must alsermative forum Lesser, 88 Hawai'i at 262, 965 P.2d at 804 (emphasis added) see also (citations and internal quotation marke omitted) Restatement (Second) Conflict of Laws § 64 (1971) (*A state will not exercise juriediction if it ie a seriously inconvenient forum for the trial of the action provided that a more appropriate forum ie available to the plaintiff."). Me, therefore, first assess whether an adequate alternative forum is available to UPI for litigating this action against Ieda and LWI. See Lesa Hawai'i at 262, 965 P.2d at 804; Piper Aircraft Co. v. Revno, 454 U.S. 235, 254 n.22 (1961), reh’a denied, 455 U.S. 928 (1982). An alternative forum ordinarily existe when all defendants are amenable to service of process in the foreign forum. See Lueck v. Sundstrand Corp., 236 F.3d 1137, 1143 (9th Cir. 2002) (holding that alternative forum was available because all defendants had indicated that they would be amenable to service of process in New Zealand); Alpine View Co, Ltd. v. Atlas Copco AB, 205 F.3d 208, 221 (Sth Cir. 2000) (*A foreign forum is available when the entire case and all parties can come within the juriediction of that forum." (Emphasis added.)). A defendant's agreement to submit to personal jurisdiction of the -19-  *** FOR PUBLICATIO! foreign country satisfies thie requirement. Lockman Found. v. Evangelical Alliance Migsion, 930 F.2d 764, 768 (9th Cir. 2991) (citation omitted) In the inetant cage, it is unclear from the record whether Japan, the proposed alternative forum, has jurisdiction over all of the defendants. However, with respect to teda, he is a citizen of Japan as UFJ asserted in its complaint. As the guarantor of KKLW’s obligations under the Agreement, Teda specifically consented to the jurisdiction and venue of the wcourt having jurisdiction in the locale of the head office of* FU or any of ite branches, Agreement, Art. 14, when he executed the Guaranty, agreeing to “abide by all of the terms and conditions contained in said Agreement {.]* Further, at the hearing on the motion to dismiss, Ieda’s counsel stated that “(teda} is considered a Hawai'i resident because he spends so many days a year here, but he spends roughly the same amount of {time in Japan. We don’t anticipate that they would have any trouble serving him with process . . . ." (Emphasis added.) Therefore, because Ieda is anenable to service of process in Japan, an alternative forum for the dispute existed in Japan. However, dismissal of UFJ’s complaint based on forum hon conveniens grounds would be inappropriate if the only other defendant in thie case, IMT, ie not amenable to suit in Japan. We cannot determine from the recoré whether Japan could be an alternative forum for UPJ’s claim against LI. Because that -20- *** FOR PUBLICATION *** determination involve a factual finding that is not contained in the record before us, we are compelled to hold that the circuit court abused ite discretion in dismissing UFJ’s complaint on forum non conveniens grounds.” B. ee Rem: ntions In Light of our holding today, we need not address UFI’s contention that the circuit court erroneously denied its motion for partial summary judgnent. Our holding today also dictates that we vacate the Novenber 19, 2002 order granting the defendants’ motion for attorneys’ fees as premature. IV. CONCLUSION Based on the foregoing, we vacate the First Circuit Court's Decenber 10, 2002 final judgment and the November 19, 2002 award of attorneys’ fees and remand this case to the circuit court for further proceedings consistent with this opinion. on the briefs: Andrew V. Beaman and Leroy E. Colombe (of Chun, Kerr, Dodd, Beaman & Wong), for plaintiff-appellant Nadine ¥. Ando and Phillip W. Miyoshi (of McCorriston Miller Mukai MacKinnon LLP), for defendants-appellees ® Although the parties dispute whether the forum selection clause in Article 14 of the Agreenent ie tundatory or permissive, we need not address Chis matter because the circuit court aid not rely upen this basis in @lenieeing UPS's complaint -21- 

0b1f3b04ca4727c29d85b711f57bd673f84b78921d4fd08153cbb906ad6b8b6f

2005-12-08T00:00:00Z

8a81b812-ae8e-40dc-9e17-db35a06b4592

Lum v. City and County of Honolulu

hawaii

Hawaii Supreme Court

Lawuie: No. 27193 IN THE SUPREME COURT OF THE STATE OF HAWAT'T ons Plaintiff-Appellant SUZTE LUM, CITY AND COUNTY OF HONOLULU, a government entity, Defendant~Appellee and JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS, CORPORATIONS and/or OTHER ENTITIES 1-10, Defendants and CITY AND COUNTY OF HONOLULU, Defendant and Third-Party Plaintiff-Appellee VERIZON HAWAII, INC. and STANDARD ELECTRIC, Third-party Defendants APPEAL FROM THE FIRST CIRCUIT COURT (CIV. NO, 02-1-1047) INC., ORDER (By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.) Upon consideration of Defendant-Appellee City and county of Honolulu's motion to dismiss the appeal of Plaintift- Appellant Suzie Lum due to Appellant's failure to file an opening brief, the papers in support, and the records and files herein, it appears Appellant failed to file an opening brief as required by HRAP Rule 28(b). Therefore, IT IS HEREBY ORDERED that the motion to dismiss is granted, and this appeal is dismissed pursuant to HRAP Rule 30. ‘The parties shall bear their own appellate fees and costs. DATED: Honolulu, Hawai'i, November 25, 2005. Richard D, Lewatlen, Deputy Corporation Counsel, G for. defendent appellee én the notion 2iDhcteriae— Deseates Lille frr0. - ene east 

42bc52540095f9324e976d8dc0acbced1bc085e4bf981a21d393b8d8dd92d0f7

2005-11-25T00:00:00Z

624de4c9-c3c8-4e3a-a82c-645f006896a4

T.D. v. J.H.

hawaii

Hawaii Supreme Court

LAW LIBRARY *** NOT FOR PUBLICATION No. 27163 IN THE SUPREME COURT OF THE STATE OF HAWAI'I 1T.D., Petitioner-Appellant J.H., Defendant-Appellee as and 1O-O1nw L2 1905002 CHILD SUPPORT ENFORCEMENT AGENCY, Defendang| APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-P NO. 0-1-0404) for the court!) (By: Upon review of the record, 2008 order is not an appealable final order under it appears that the February 24, HRS §§ 571-54 and 641-1(a) because the order left for further determination the matter of attorney's fees and costs that has See Casumpana v. ILWU, Local 142, $1 Hawai's yet to be decided (1999) (an order is final and 425, 426, 984 P.2¢ 1251, 1252 appealable when it ends the litigation by fully deciding all rights and liabilities of the parties, leaving nothing further to we lack jurisdiction. Therefore, be adjudicated). Thus, IT IS HEREBY ORDERED that this appeal is dismissed for lack of appellate jurisdiction. DATED: Honolulu, Hawai'i, October 27, 2005. FOR THE COURT: Dscste be uate lrtbe Associate Justice 

3bd740a40f25ee511fb2c079fbae8260f22755f2e15228e8d92a5fa11a361286

2005-10-27T00:00:00Z

a8aa19b8-3ffb-4130-9d39-fa1af8ac2ce1

Mateo v. Mateo

hawaii

Hawaii Supreme Court

No. 27341 sia IN THE SUPREME COURT OF THE STATE OF HAWAT" T ——— EMERSON B.M, MATEO, Petitioner-Appellee TRICIA M. MATEO, Respondent-Appeliant APPEAL FROM THE FIRST CIRCUIT COURT (FC-DA No. 05-1-0605) ‘ORDER (By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.) Upon consideration of Respondent-Appellant Tricia Mateo’s motion to dismiss her appeal, the papers in support, and the records and files herein, I IS HEREBY ORDERED that the motion to dismiss is granted, and this appeal is dismissed. DATED: Honolulu, Hawai'i, November 9, 2005. Frank M. Fernandez for respondent-appel lant on the motion Races CAM eae mee Ao Binns, Drei by aaa 

dbe50afb6c088a93b92193115dc216a92445154701d206f2ab5e44d03e30363e

2005-11-09T00:00:00Z

501c16dc-8f1b-4a49-a96c-ff7d0e000be6

Yee Hop Realty, Ltd. v. Moi

hawaii

Hawaii Supreme Court

No. 25796 IN THE SUPREME COURT OF THE STATE OF HAWAI'T eS YEE HOP REALTY, LTD., a Hawaii corporation, Respondent /Plaintif£-appellee, vs. s TSE TAY Sh MOT, ska ta saw sorte, BE Setendant appellant, SE 22 & and Sos HERMAN B. K. LEE, Petitioner/Defendant-Appellant, © ana a Hawaii corporation, TING YIN CHOP SUEY, INC. Defendant. SS CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIV. NO. 12C02-1-6462) DENYING APPLI FOR F 0 (By: Moon, C.J., for the court!) Petitioner/defendant-appellant Herman B. K. Lee's application for writ of certiorari, filed November 14, 2005, is hereby denied. DATED: Honolulu, Hawai'i, November 25, 2005. Philip J. Leas (of Cades FOR THE COURT: Schutte LLP), for petitioner/ eS defendant-appellant Herman OME By on the writ /- e Ade sustice(= anny ® 5. K. Lee, Considered by: Mocn, C.J., Levingon, Nakayama, Accba, and Dutty, av. 

6c9264aa63f6265770722dee7020f9cb46b1a8119967ee7845f587030abed257

2005-11-25T00:00:00Z

c64330d5-7c04-4c8d-8df1-79d242a666a1

State v. Dickens

hawaii

Hawaii Supreme Court

no. 26819 . ray THE SUPREME COURT oF THE staTE oF mawar'f| — B STATE OF HAWAII, Plaintiff-Appellee-Respondent, aamd MELVIN DICKENS, pefendant-Appellant-Petitioner. a CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS (CR. NO. KOCO3-231) ORDER DENYING APPLICATION WRIT OF CERTIOI (By? Levinson, Acting C.J., for the court") upon consideration of the application for a writ of certiorari filed on November 10, 2005, by the defendant- appellant-petitioner Melvin Dickens, the same is hereby denied. DATED: Honolulu, Hawai'i, November 21, 2005. FOR THE COURT: BGR STEVEN H. LEVINSON / Acting Chief Justice| Taryn R. Tomasa, Deputy Public Defender, for Melvin Dickens on the writ + Considered by: Levinson, Acting C.J., Nakayama, Acoba, and Duffy, 3., and cireuit Judge Town in place of Moon, C.J. recused. 

2ae404c82f4c4d36cdd4451ac28a7d0798b0b4ba497ecff97f2362d67507692b

2005-11-21T00:00:00Z

458e6c72-b790-4dbb-a268-4c1a7abcbe79

State v. Kahale

hawaii

Hawaii Supreme Court

No. 25792 IN THE SUPREME COURT OF THE STATE OF HAWAT'T STATE OF HAWAI'I, Plainti£#-Appellee-Respondent, WL AON sone oad VuvA'T VHRON TANIA KAHALE, aka Tania Kahale-Taylor, Defendant-Appellant-Petitioner. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (Heo Traffic Nos. 5316567M0; $378118M0; 5378219MO; 5378120M0) a1 (By: Levinson, J., for the court") upon consideration of the application for a writ of certiorari filed on October 28, 2005, by the defendant-appellant petitioner Tania Kahale, the same is hereby denied. Honolulu, Hawai'L, Novenber 7, 2005. FoR THE couRT: gE RR DATE! ‘STEVEN H. LEVINSON Associate Justice Stephen M. Shaw, for the defendant-appellant-petitioner Tania Kahale, on the writ considered by: Noon, C.J., Levingon, Nakayama, Accba, and Duffy, 37 

8910babd6d429e274db5dcb39e5a152f44876513404675d33e3ce3f8a874ae97

2005-11-07T00:00:00Z

c9d7af4a-20fd-4901-947f-41ef3db85392

Meridian Mortgage, Inc. v. First Hawaiian Bank

hawaii

Hawaii Supreme Court

LAW LIBRARY No, 25799 IN THE SUPREME COURT OF THE STATE OF HAWAI'I MERIDIAN MORTGAGE, INC., 3 Petitioner/Plaintiff-Appellant, . z 3 3 wa. 22 2 FIRST HAWAIIAN BANK, a Hawai's Corporation,."|g 2 © Respondent /Defendant-Appeliee, 2 = and 2 JOHN AND JANE DOES 1-10; DOE BUSINESS ENTITIES 1-10; AND DOE GOVERNMENTAL ENTITIES 1-10, Defendants. ee CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIV. NO. 01-1-3060) OER DENYING APPL: n_FO! F cr (By: Duffy, J. for the court") Petitioner /Plaintiff-Appellant’s application for writ of certiorari filed on Novenber 10, 2005, is hereby denied. DATED: Honolulu, Hawai'i, November 21, 2005. Se FOR THE COURT: (%X Yor e Dusy ih |. SEAL Rasociate Justice James J. Bickerton and David &. Paulson (of Bickerton Saunders Dang & Sullivan) for petitioner/plaintift- appellant on the writ » con: dered by: Moon, C.J.) Levinson, Nakayema, Acoba, and Duffy, 20. 

f46a78564e7a62adb0733a2e1ce9bb8477bcdfb240c35904bc0c7c0d4fc43007

2005-11-21T00:00:00Z

f4ba6714-9acf-4ec9-8836-6f4844d48ee3

State v. Machado

hawaii

Hawaii Supreme Court

LAWUBRARY No. 26396 IN THE SUPREME COURT OF THE STATE OF HAWAI'I oo STATE OF HAWAI'I, Respondent /Plaintift-Appellee DENNIS MACHADO, Petitioner/Defendant-Appel lant OO CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO, 01-1-0566) ORDER GRANTING APPLICATION FOR WRIT OF CERTIORARI (By: Acoba, J. for the court") upon consideration of the application for a writ of certiorari filed on November 2, 2005 by Petitioner/Defendant- Appellant Dennis Machado, the same is hereby granted. DATED: Honolulu, Hawai'i, November 9, 2005. FOR THE COURT: ‘pSaociate Justice Josette Anne Wallace (warner & Wallace), for petitioner/defendant- appellant, on the writ. Gheh Hd 6 AON SIME aqais \ the court: Moon, C.J., Levinson, Nakayama, Acoba, and Ouffy, JJ, 

731abef153fabf520d2d5c911b641b82ae221ed4cdc4c05eaf50d3d120045aaa

2005-11-09T00:00:00Z

02518358-835b-419b-a86b-a3beabcd07f9

State v. Rodrigues

hawaii

Hawaii Supreme Court

LAW Liban *** NOT FOR PUBLICATION *** NO. 26874 IN THE SUPRENE COURT OF THE STATE OF HAWAT‘T STATE OF HAWAI'I, Plaintiff-Appellee, ve L930 sue SHAUN C. RODRIGUES, Defendant-Appellant.-=/> aad APPEAL FROM THE FIRST CIRCUIT COURT (CR. NO. 00-21-1515) s 0 ‘ORDER (By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.) Defendant-appellant Shaun C. Rodrigues appeals from the judgment, filed on September 10, 2004, by the First Circuit Court, the Honorable Virginia L. Crandall presiding, denying hie Motion for Stay of Judgment to Either Allow the Gathering of Additional Evidence and a Reopening of the Trial in this Matter or for a New Trial (hereinafter, Motion to Reopen], and challenges the December 23, 2003 Findings of Fact (FOF), Conclusions of aw (COL), and Decision, adjudicating him guilty fon the following five counts: Count I, Burglary in the First Degree, in violation of Hawai'i Revised Statutes (HRS) § 708-810(2) (c) (1993) ;* Counts It and III, Robbery in the First + HRS § 708-810(1) states, in pertinent part, thal (2) A person conits the offense of burglary in the first degree if the person intentionally enters oF remains unlawfully in @ building, with intent to commit therein a erine against = person or against property rights, and: ied Degree, in violation of HRS § 708-840(2) (b) (ii) (1993 & Supp. 2004) ;? and Counts IV and V, Kidnapping, in violation of ERS § 707-720(2) (e) (1993).? On appeal, Rodrigues contends that: (2) the trial court’s December 23, 2002 Findings of Fact (FOFs), Conclusions of Law (Cols), and Decision were not supported by substantial evidence because (a) they were based on unreliable eyewitness identifications and (b) the evidence as a whole was insufficient to convict him; and (2) the trial court abused its discretion in denying his Motion to Reopen where he had newly discovered evidence that could have exonerated him and implicated another. OB at 17, 33. Upon carefully reviewing the record and the briefs submitted and having given due consideration to the arguments advanced and the issues raised by the parties, we hold: (1) there was sufficient evidence to support Rodrigues’ 21. continued) building ie the dwelling of another, and the building fe euch a dwelling: 2 HRS § 708-840(1) states, in relevant part, that: (2) A person commit the offense of robbery in the iret Gegree if, in ehe course of committing theft: ib} ‘The person is armed with a dangerous instrument ands isis" tne person threatens the iminent use of force against the person of anyone who is present with intent to compel acquiescence fo the taking of oF eacsping with the property, > mas § 707-720(2) (e) states, in relevant part, that (2) A person commits the offense of kidnapping if the person intentionally or knowingly restrains ancther person with intent tor ie] Fetrorize that person or a third person{.) “ae conviction where (a) the eyewitness identifications were sufficiently reliable under the five factors enunciated by the United States Supreme Court in Neil v. Bicaers, 409 U.S. 188 (1972), and adopted by this court in State v. Padilla, 57 Haw. 150, 552 P.2d 387 (1976), and (b) the evidence as a whole was sufficient to support the conviction when viewed in the light most favorable to the prosecution, see State v, Batson, 73 Haw. 236, 248-45, 631 P.24 924, 931 (citations omitted), reconsideration denied, 73 Haw. 625, 834 P.2d 1315 (1992); and (2) the Motion to Reopen was properly denied where the evidence submitted did not meet the standard of being “relevant, admissible, technically adequate, and helpful to the [trier of fact) in ascertaining [the defendant’s] guilt or innocence.” State v. Christian, 88 Hawai'i 407, 426, 967 P.2d 239, 258 (1998) (quoting United states v. Walker, 772 F.2d 1172, 1177 (sth cir. 1985). Accordingly, IT IS HEREBY ORDERED that the trial court’s September 10, 2004 judgment of convictions and sentence are affirmed DATED: Honolulu, Hawai'i, December 7, 2005. on the briefe: oS wittian A. Harrison; ro Miensel to BSEESIO2’ coe onar , taetsto anal oon’ e Snisol Seba see actendane epee lace Nu Onuanan James M. Anderson, e Deputy Prosecuting Attorney, for plaintiff-appellee [Pe rN Weve «. Boeri. 

656301f03a990127a8ad2bda55ed228e8d243e81b97a1c70e6ae6945e5d92107

2005-12-07T00:00:00Z

760f1f0d-de6c-4e8f-9772-b371ba255ff9

Leslie v. Fresch

hawaii

Hawaii Supreme Court

IN THE SUPREME COURT OF THE STATE OF HAWAT'ES| Z]Hd 82 AON SBO2 === 000 a3 HOWARD K. LESLIE, JR., Plaintiff-Appeliant, 3] @ and LEIMOMI LESLIE FRESCH, individually, and as next friend for HOARD K. LESLIE, 9R., and HOWARD K. LESLIE, SR., Plaintiffs-Appellees, vs. ‘THE ESTATE OF JAMIE K. TAVARES, Deceased, Defendant-Appellee, and JOHN DOES 1-107 JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; and DOE ENTITIES 1-10, Defendants STATE OF HAWAI'I, DEPARTMENT OF HUMAN SERVICES, Lien Holder-Appeliee, and JOSEPH L. WILDMAN and SIBILLA & WILDMAN, Intervenors-Appellees (Civ. No. 97-0448) HOWARD K. LESLIE, JR., MEGAN LESLIE and MALYSSA LESLIE, minors, ‘through their Guardian Ad Litem MARLENE L. ANDUHA, Plaintiffe-Appellants, JEFFREY K. KANUI, personal representative of THE ESTATE OF JAMIE K. TAVARES, Defendant-Appellee, and JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; and DOE ENTITIES 1-10, Defendants JEFFREY K. KANUI, personal representative of THE ESTATE OF ‘AMIE K. TAVARES, Third-Party Plaintiff qa LEIMOMI L, FRESCH and HOWARD K, LESLIE, SR., Third-Party Defendants (Civ. No. 98-5468) No. 24553, APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (Civ. Nos. 97-0448 & 98-5468) NOVEMBER 28, 2005 MOTION FOR RECONSIDERATION MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ. Upon consideration of the motion for reconsideration filed by the plaintiffs-appellants Howard K. Lesiie, Jr., Megan Leslie, and Malyssa Lesiie, on Novenber 18, 2005, requesting that this court review its opinion, filed on Novenber 10, 2005, IT IS HEREBY ORDERED that the motion for reconsideration is granted in part as follows: Footnote 4 at page 8 is deleted. IT IS FURTHER ORDERED that the motion for reconsideration is denied in all other respects. ‘The Clerk of the Court is directed to incorporate the foregoing changes into the original opinion. On the motion: Frederick W. Rohlfing, for the plaintiff-appellant Howard K. Leslie, Jr. Lye Salon naan cynthia A. Farias, for the plaintiffs-appellants Due 0. raneramen Megan Leslie and Malyssa Leslie 7 C Yon 6 Beste 

f034d5992aa64edd3057c00c28aafe5f41c499eb41bc3a0d7bae8ec68e843f88

2005-11-28T00:00:00Z

2f5480a2-4134-4d37-9fa2-706457d90cdb

State v. Aiwohi. Concurring Opinion by J. Levinson, with whom C.J. Moon joins [pdf]. Concurring Opinion by J. Acoba [pdf]. S.Ct. Order of Correction, filed 12/12/2005 [pdf].

109 Haw. 115

hawaii

Hawaii Supreme Court

LAW LIBRARY ** FOR PUBLICATION *** IN THE SUPREME COURT OF THE STATE OF HAWAI'I =--000--- see STATE OF HAWAI'I, Plaintiff-Appellee TAYSHEA AIWOHI, Defendant-Appellant Oe No. 26838 APPEAL FROM THE FIRST CIRCUIT COURT (EC-CR. NO. 03-1-0036) NOVEMBER 29, 2005 osm MOON, C.J., LEVINSON, NAKAYAMA, AND DUFFY, JJ.y LEVINSON, J., CONCURRING SEPARATELY, WITH WHOM MOON, C.J., JOINS, a AND ACOBA, J., CONCURRING SEPARATELY S2:O)HY 62 AONSUNE OPINION OF THE COURT BY NAKAYAMA, J. Defendant-Appellant Tayshea Aiwohi (hereinafter vaiwohi") appeals from the First Circuit Court's October 4, 2004 judgment of conviction for manslaughter, in violation of Hawai'i Revised Statutes (hereinafter “HRS”) § 707-702(1) (a) (1993), Judge Michael A. Town presiding. Riwohi gave birth to Treyson Aiwohi on July 15, 2001. Tragically, Teeyson died two days later on July 17, 2001. Susan Siu, the Chief Investigator for the Department of the Medical Examiner, testified at the grand jury proceeding that Aiwohi admitted to smoking cxystal methamphetamine on July 12, 13, 14, and 15. Dr, William Goodhue, First Deputy Medical Examiner of the city and County of Honolulu, testified at the grand jury proceeding that the cause of Treyson’s death was the toxic  '* FOR PUBLICATION, effects of methamphetamine. Aiwohi was thus indicted for manslaughter on October 9, 2003, for recklessly causing the death of her newborn son, Treyson Aiwohi- on March 2, 2004, Aiwohi filed the following three motions with the circuit court: (1) "Motion to Dismiss Indictment Based on Insufficient and/or Impermissible Evidence Presented at the Grand Jury Proceedings”; (2) “Motion to Dismiss Based on the unconstitutionally Vague and/or Overbroad Nature of the prosecution as Applied to the Defendant and/or the unconstitutional Failure te Provide Fair Notice to the Defendant”; and (3) “Motion to Dismiss Indictment Based on Violation of the Defendant’s Constitutional Right to Privacy.” The circuit court denied all three motions. Aiwohi subsequently negotiated a conditional plea agreement with the State of Hawai'i he prosecution”) under which she entered a no (hereinafter contest plea to the charged offense, but reserved the right to appeal the denial of the foregoing motions. on appeal, Aiwohi raises the following six issues: (1) whether Aivohi’s prosecution for manslaughter is within the plain meaning of HRS § 707-702(1) (a)? (2) whether HRS § 707-702(1) (a), as applied to Aiwohi, fails to provide fair notice and is therefore unconstituticnally vague in violation of article I, section § of the Hawai'i Constitution; (3) whether HRS § 707- 702(1) (a), a8 appiied to Aiwohi, fails to provide fair notice and Sa therefore unconstitutionally vague in violation of the fourteenth amendment to the United States Constitution; (4) whether Aivohi’s prosecution for manslaughter interferes with an 2  FOR PUBLICATION expectant mother’s fundamental right to procreate, in violation of article I, section 6 of the Hawai'i Constitution; (5) whether Aiwohi’s prosecution for manslaughter is an unconstitutional, retroactive expansion of HRS § 707-702(1) (a), in violation of the fourteenth amendment to the United States Constitutions and (6) whether Aiwohi was denied her right to present a defense, in violation of the sixth and fourteenth amendments to the United States Constitution, when the circuit court rejected Aiwohi’s common law defense of immunity for an expectant mother’s prenatal conduct. 1. BACKGROUND In the present case, Aiwohi pled no contest pursuant to a conditional plea agreement, and therefore there was no trial. As a result, there are no findings of fact. Accordingly, the following factual background will rely on the testimony provided by witnesses at the grand jury proceeding, as well as factual allegations made by the parties in their briefs found in the record on appeal. At the time of the incident in question, Aiwohi was already the mother of four children. Aiwohi gave birth to her fifth child, Treyson, on July 18, 2001. At the time of Treyson’s birth, Aiwohi already had a long-standing and well-documented history of substance abuse for which she had received treatment from various programs. Although Aiwohi was tested for substance abuse in various intervals, it appears that she was not tested in the weeks just prior to Treyson’s delivery. After delivery, Aiwoh{ was allowed to breast f d the baby several times on 3  FOR PUBLICATION FOR PUBLICATION P87 guly 15 and 16. The hospital discharged Aiwohi and Treyson on guly 16, 2001 at approximately 7:00 p.m., and Aiwohi reported breast feeding the baby again at approximately 1:30 a.m. ‘The family subsequently went to sleep. Aivohi subsequently reported thet her husband woke her up and teld her that Treyson wasn’t breathing and that they needed to cell 911. An ambulance then arrived, taking Treyson to the hospital. That morning, July 17, 2001, at approximately 6:32 asm., Treyson AiwohS was pronounced dead at Castle Medical center. ‘the completed autopsy report revealed that the baby's death was caused by drugs. The autopsy report was prepared by the First Deputy Medical Examiner of the City and County of Honolulu, Dr. William Goodhue, who testified that the level of methamphetamine and amphetamine in Treyson’s body was consistent with exclusive prenatal exposure through the mother. Dr. Goodhue also testified that there was no evidence of disease or disorder, or any evidence of accidental death by suffocation caused by an adult sleeping in the sane bed as the baby. Subsequently, on August 23, 2001, the Chief Investigator for the Department of the Medical Examiner contacted Aiwohi by phone. ‘The chief investigator specifically asked Aiwohi if she used crystel methamphetamine during her pregnancy, ‘at which point Aivohi began to cry and adnitted to such use. specifically, Aivohi admitted to smoking crystal methamphetamine on duly 12, 13, and 14, ag well as one “hit” on July 15, the morning of the baby’s birth. Following presentation of the case  *** FOR PUBLICATION *** to the O'ahu Grand Jury on October 9, 2003, Aiwohi was indicted for the offense of manslaughter, in violation of HRS § 707- 70242) (a) « on March 2, 2004, Aiwohi filed the following three motions with the Firet Circuit Court: (1) “Motion to Dismiss Indictment Based on Insufficient and/or Impermissible Evidence Presented at the Grand Jury Proceedings”; (2) “Motion to Dismiss the Indictment Based on the Unconstitutionally Vague and/or overbroad Nature of the prosecution as Applied to the Defendant and/or the Unconstitutional Failure to Provide Fair Notice to the Defendant”; and (3) “Motion to Dismiss Indictment Based on Violation of the Defendant's Constitutional Right to Privacy.” ‘The prosecution filed its memorandum in opposition on May 20, 2004. on May 25, 2004, @ hearing on Aiwohi’s motions to dismiss was held. The circuit court considered the arguments presented by each counsel, and, on June 3, 2004, orally denied Aiwohi's three motions to dismiss the indictment. The circuit court also filed a written decision on June 3, 2004. on gune 17, 2004, pursuant to a conditional plea agreement, Aiwohi entered a plea of no contest to the charged offense of manslaughter. As part of the plea agreement, Aiwohi reserved the right to appeal the circuit court’s denial of her three motions to dismiss the indictment. on August 25, 2004, the circuit court adjudged Aiwohi guilty as charged and sentenced her to a ten-year term of probation without incarceration. on September 23, 2004, Aiwohi filed a timely notice of 5 ** FOR PUBLICATION *** appeal. Subsequently, on October 4, 2004, the court filed an “amended Judgment Guilty Conviction and Probation Sentence.” On october 5, 2004, Aiwohi filed a timely amended notice of appeal. IX, STANDARD OF REVIEW In the present case, this court is faced with a question of statutory interpretation and questions of constitutional law. However, inasmuch as the plain language of the Hawai'i Penal Code (hereinafter “HPC”) is dispositive, the only applicable standard of review is that with respect to questions of statutory interpretation. In State v. Arceo, 04 Hawai'i 1, 10, 928 P.2d 843, 852 (1996) (citations omitted), this court stated that “the interpretation of a statute... isa question of law reviewable de novo.” III. DISCUSSION A. Whether Aiwohi’s Prosecution for Manslaughter is Consistent With the Plain Meaning of HRS § 707-702(1) (a) 1. Summary of Aivohi's axaument on appeal, Aiwchi argues that her manslaughter prosecution contravenes the plain meaning of HRS § 707-702(1) (a). First, Aiwohi contends that her alleged prenatal conduct was directed at her fetus, which is not 2 “person” as required by the statute. For support, Aiwohi points to @ decision of the Intermediate Court of Appeals (hereinafter “ICA”) in State v. ine, 101 Hawai't 3, 61 P.3d $14 (App. 2002), in which the ICA evaluated a defendant's invocation of the defense of others with respect to an unborn child. The ICA stated that “unborn children are not ‘natural persons’ who can be victims of ‘ *** FOR PUBLICATION *** a crime unless the legislature expressly included them within the applicable definition.” Jardine, 101 Hawai'i at 9-10, €1 P.3d at 519-520. Second, Aiwohi contends that both the proscribed conduct and the proscribed result of conduct must occur when the object of that conduct and its result is presently a “person.” Aiwohi argues that the circuit court improperly focused solely on the result of conduct element, “thereby ensnar{ing) conduct that 4s not perpetrated on a person.” For support, Aiwohi cites to Colline v. State, #90 S.W.2d 893 (Tex. Ct. App. 1994), a decision by the Texas Court of Appeals. The Collins court stated that “the Penal Code does not proscribe any conduct with respect to 4 fetus, and the Legislature, by its definitions of ‘child,’ sperson,’ and ‘individual,’ has specifically limited the application of [Texas’] penal laws to conduct committed against @ human being who has been born and is alive.” Id. at 897-898 (emphasis in original). ‘Third, Aiwohi contends that the HPC emphasizes the principles of strict statutory construction and the rule of lenity. Aiwohi contends that her prosecution for and conviction of manslaughter amounts to the creation of new criminal offenses perpetrated against the unborn. In light of the foregoing, Aiwohi urges us to vacate the “Amended Judgment Guilty Conviction and Probation Sentence” filed on October 4, 2004, vacate the circuit court's decision and order denying Aiwohi's motions, and remand for dismissal of the indictment. ‘#** FOR PUBLICATION *** 2. Summary of the prosecution's argument in response, the prosecution argues that there is no violation of the plain language of the manslaughter statute. First, the prosecution contends that although Aiwohi engaged in the proscribed conduct when Treyson was prenatal, there is no doubt that Tzeyson was born alive and was therefore indisputably 2 “person” at the time of his death. The prosecution thus argues that Treyson was a “person” within the definition supplied by the manslaughter statute and that the only remaining issue was Aiwohi’s state of mind -- an issue for the trier of fact at trial. Second, the prosecution contends that Aiwohi is wrong in her assertion that she cannot be held criminally liable for ‘treyson's death merely because her alleged culpable conduct occurred prior to Treyson’s birth. For support, the prosecution cites to another decision of the Texas Court of Appeals, Cusllar va State, 957 $.W.2d 134 (Tex. Ct. App. 1997). The Cuellar court assessed a third party's liability for manslaughter when the defendant's car collided with another car driven by a mother who was seven and one-half months pregnant. Cuellar, 957 S.W.2d at 137. The fetus was born alive, but subsequently died due to injuries caused by the car accident. Id. The Cuellar court stated that “[ilt 1s axiomatic that a homicide conviction, requiring the death of the victim as an element of the offense, may stand even though the victin’s death is not instantaneous with the defendant’s conduct but results from that conduct at a later time.” Id. at 139. *** FOR PUBLICATION *** —** FOR PUBLICATION *98 ‘Thus, the prosecution urges us to affirm the circuit court’s decision and order denying Aivohi’s respective motions to dismiss the indictment. 3. The manslaucht. cutis a mothe: renal orn alive is sister the -anin the HEC. ‘The prosecution essentially contends that Treyson was born alive and therefore qualifies as a “person” under HRS § 707- 700 (1993), that Aiwohi’s alleged voluntary ingestion of crystal methamphetamine while pregnant caused Treyson’s death, and that, therefore, prosecution of Aivohi for manslaughter is clearly consistent with the plain language of the statute. Although facially appealing, the prosecution’s argument must fail because it does not fully account for the three material elements of the manslaughter offense. a. Requisite elements of manslaughter HRS § 707-702(1) (a) states that “[a] person commits the offense of manslaughter if . . . (ble recklessly causes the death of another person.” HRS § 707-702(1) (2). The HEC generally Gefines “person” as “any natural person.” HRS § 701-116(7) (1993). Furthermore, for the purposes of HRS chapter 707, HRS § 707-700 defines “person” as “a human being who has been born and is alive.” HRS § 707-700. As a general rule, the essential elements of an offense are “such (1) conduct, (2) attendant circumstances, and (3) results of conduct, as . ajre specified by the definition of HRS § 702- the offense, and. . . [nJegative a defense . 9 ‘*** FOR PUBLICATION *** 205 (1993). Consequently, in order to satisfy the state of mind requirement, a person must act “intentionally, knowingly, recklessly, or negligently, as the law specifies, with respect to each element of the offense.” HRS § 702-204 (1993). In the present case, the offense is manslaughter. Thus, the requisite state of mind is “recklessly.” HRS § 707-702(1) (a). HRS § 702- 206(3) (1993) defines the term “recklessly” as follows: (a) A.person acts recklessly with respect to his conduct then he consciously disfegards « substantial and Unjustifiable risk that the person's conduct Se of the specified nature, (e) A person acts recklessly with respect to attendant CiFeunscance when he consciously disregards Satstentiel and unjustifiable risk that such circumstances exis (c) A person acts recklessly with respect to a result of fit conduct when he consciously disregards a Substantial and unjustifiable risk that his conduct Will cause such a result. HRS § 702-206(3) (2)~(c). bt spect 2_pr: ion " when the. 's bes nal ve. An overwhelming majority of the jurisdictions confronted with the prosecution of a mother for her own prenatal conduct, causing harm te the subsequently born child, refuse to permit such prosecutions. See People v, Morabito, 580 N.¥.S.2d 843, 847 (N.Y, Crim, Ct. 1992) (holding that the defendant mother could not be charged with endangering the welfare of a child based upon prenatal acts endangering an unborn child); State v Grav, 584 N.E.2d 710, 713 (Ondo 1992) (holding that a parent may not be prosecuted for child endangerment for prenatal substance 10 e* FOR PUBLICATION *** FOR PUBLICATION 978 abuse); Collins, 890 S.W.2d at 898 (holding that the defendant mother did not have notice that her voluntary, prenatal ingestion of cocaine could subject her to prosecution under the Texas injury te child statute); Reinesto v. Superior Court of the State of Arizona, 894 P.2d 733, 738 (Ariz. Ct. App. 1995) (holding that defendant mother could not be prosecuted under the child abuse statute for prenatal conduct that resulted in harm to the subsequently born child); State v. Dunn, 916 F.2d 952, 956 (Wash. Ce. App. 1996) (dismissing the second degree criminal mistreatment of a child charge, holding that fetus was not a child within the meaning of the criminal mistreatment statute) ‘State v. Ashley, 701 So.2d 338, 342 (Fla. 1997) (stating that to allow the manslaughter prosecution of @ mother for prenatal conduct “would require that this Court extend the ‘born alive’ doctrine in a manner that has been rejected by every other court to consider it”); State v. Deborah Jiz., 596 N.W.2d 490, 496 (Wis. Ct. App. 1999) (holding that defendant mother's fetus was not a human being for the purposes of the attempted first degree intentional homicide and first degree reckless injury statutes); carol Jean Sovinski, iz Mati bs! ‘Abuse: A Quick Fix to a Complex Problem, 25 Perr. L. Rev. 107, 126-127 (1997) (summarizing Mother Charged After Her Baby Dies of cocaine, N.Y. Times, May 10, 1989, at AL® (reporting that the county grand Jury refused to indict defendant mother for involuntary manslaughter on the ground that the legislature did not intend for the manslaughter statute to impose criminal liability on women for prenatal conduct that caused the death of u  FOR PUBLICATION her subsequently born, two-day-old daughter)). The various analyses in these jurisdictions either expressly or impliedly rely upon the proposition that the conduct must be committed against 2 “person” or “child” as defined by the relevant statute. In Morabito, a pregnant mother smoked cocaine, thereby causing her child to be born premature and with cocaine circulating in its blood system. Morabito, S80 N.¥.S.2d at 844. ‘he mother was subsequently charged with the offense of endangering the welfare of a child, by “knowingly act[ing] in a manner likely to be injurious to the physical, mental, or moral welfare of a child... .” Id. The court stated that, in New York, there is no rule that a penal statute must be strictly construed against the accused, and that therefore the provisions wmust be construed according to the fair import of their terms to promote justice and effect the objects of the law.” Id, at 845. ‘The court reasoned that the intent of the legislature was clear from the language of the statute and that the term “child” necessarily excluded unborn children. Id, at @46. Therefore, in accordance with the fair import of the words, as well as legislative intent, the court held that the endangering the welfare of @ child statute did not apply to the case at bar. Id. at 847. Implicit in the Morabito court's ruling was the proposition that the relevant proscribed conduct must be directed against a child who has already been born and is already aliv In Gray, the defendant mother was charged with one 12  FOR PUBLICATION count of child endangerment! for ingesting cocaine in her third trimester of pregnancy, which resulted in physical harm to the subsequently born child. Gray, $84 .N.E.2d at 710. The trial court granted the mother’s motion to dismiss, and the Court of Appeals for Lucas County affirmed. Id, On review, the Ohio Supreme Court began its analysis by stating that “(i]t is well recognized that the criminal statutes of the Revised Code are to be strictly construed against the state and liberally construed in favor of the accused.” Jd, at 711. The court subsequently concluded that a “review of the terms ‘parent’ and ‘child’ within their common usage supports the conclusion that R.C. 2919.22(A) does not proscribe the conduct at issue.” Id. According to the court's reasoning, the mother “did not become a parent until the birth of the child. Furthermore, the child did not become a ‘child’ within the contemplation of the statute until she was born.” id, at 711. Thus, the fundamental concept implicit in the court’s reasoning was that it was the victim's status at the time of the defendant's proscribed conduct that was determinative. In Collins, the defendant mother smoked cocaine while pregnant, and her subsequently born child suffered pain from ‘The Ohio Suprene Court stated that the Revised Code of Ohio, section 2819,22(A), provides in relevant No person, who 12 the parent, gua having euttody or control, of child under eighteen yeare of Shysica!ly handscopped child under twenty-one Years of age, Shall create a substantial risk to the health or safety of the child, by violating @ duty of care, protection, or ‘dian, custodian, person fon in loco parentis of 2 of a mentally oF suppers. Guay, 5048 Ev2d ae 712 3 ** FOR PUBLICATION *** cocaine withdrawal. Collins, 890 S.W.2d at 995. Although the original indictment alleged injury to @ child, id. at 896 n.2, the prosecution proceeded on the lesser included offense of recklessly causing injury toa child. Id. at 896. The mother pled no contest, and the trial court convicted her of the charged offense. Id. On review, the Texas Court of Appeals, found it significant that “the Penal Code does not proseribe any conduct with respect to a fetus, and the Legislature, by its definitions of ‘child, ‘person,’ and ‘individual,’ has specifically limited the application of [Texas’] penal laws to conduct committed against @ human being whe has been born and is alive.” Id. at 897-898. Furthermore, the court stated that: under the State's interpretation of Section 22.04, Appellant Se subject to prosecution, even though her conduct was not an offense at the time it'was committed, because the result Of her conduct did not occur until after the child was porn Ghd’ became a person under Texas law, Mhile the State's Gttempe te Bring Appellant’ s conduct within the reach of Section 22.04 s2 creative, it ignores the fact that Appellant's conduct was net a crime when committed. Under Texas lau, the elenents of a criminal offense are: (1) the forbidden’ conduct, (2) the required culpability, (3) any Fequised result, and (4) the negation of any exception to the offense. it ie the stated purpose of the Penal Code to proseribe certain types of hareful conduct, not simply the Fesulta of conduct. “While injury to a child is a “result of Eiiduct” cr “opecific result” offense, [1] this dees not mean that the actor ie prosecuted for the result of the conduct, Father than the conduct itself. Instesd, this means that the conduct mist be done with the required culpability to eifect the result the Legislature has specified, #0 that the Sulpable mental state relates to the result of the Gefencant's conduct, ond not the nature of the conduct Ida at 898 (emphases in original), The court subsequently held that the statute was impermissibly vague as applied to the complex than this. See + our anslysis of the HPC ‘s somewhat m nia section IITA.3-3 4 9% FOR PUBLICATION *** mother’s conduct. Id, Thus, the Texas Court of Appeals, explicitly recognized the concept that the conduct must be perpetrated against @ human being who has been born and is alive. In Reinesto, the defendant mother ingested heroin during pregnancy and subsequently gave birth to a heroin-addicted child. Reinesto, 894 P.2d at 734. The indictment alleged that the mother knowingly caused injury to a child by ingesting heroin during pregnancy, in violation of Arizona Revised Statutes Annotated section 13-3623.B.1. Id, The mother filed a motion to dismiss or to remand for a redetermination of probable cause, contending that the term “child” was not adequately defined for the grand jury. Id, The mother also alleged that the legislature did not intend to encompass fetuses within the definition of “chile” and that she did not receive fair warning that the statute applied to her conduct. Id, The trial court denied the mother's motions, but the mother filed a special action with the Arizona Court of Appeals and was granted review. Id, The court stated that the plain language of the statute does not support the mother’s prosecution, reasoning that: the legislature intended to proseribe conauct by any sezson that gases phyticas beam fo saad: WMPUACY tute tetere te Conduct that directly endangers a child, not to activity that Gifects a fetus and thereby ultimately harms the resulting child. Id, at 735 (emphases in original). Based on the foregoing, the court dismissed the indictment against the defendant mother. Ids at 738, Thus, the Arizona Court of Appeals explicitly endorsed the concept that the relevant proscribed conduct must be committed against a child who has been born and is alive. 15  s** FOR PUBLICATION *** In Dunn, the defendant mother ingested cocaine during her pregnancy, and the newborn child tested positive for cocaine. Dunn, 916 P.2d at 953. The state subsequently charged the mother with second degree criminal mistreatment? of her viable unborn child, alleging that the mother “did recklessly create an imminent and substantial risk of death or great bodily harm by taking cocaine during pregnancy after being warned by the doctor that it was harmful to the unborn child.” Id. at 953, The trial court dismissed the charge, and the state appealed. Id. The Washington Court of Appeals held that the state “failed to name a victim that came within the protection of the criminal mistreatment statute and failed to allege or prove an essential elenent of the crime.” Id, at 956. The court reasoned that no Washington criminal case had ever interpreted the term “person” to include an unborn child or fetus. id, at 955. The court further stated that “{cJonsidering the Legislature's broad, almost plenary, authority to define crimes, the fact that it did not specifically define ‘child’ in RCW 9A.42.010(3) to include a fetus indicates it did not intend to depart from the typical definition of a child as a person from the time of birth to age 18.” Id. Here, again, the concept that the conduct must be committed against a “child” was foundational to the court's logic ‘The state alleged that the mother’s conduct viclated the Revised code of Rashington section 9A.42-030(1), which states that “[a] parent of Gaile or the person entrusted with the physical custody of @ child or Sepencent person is guilty of criminal istreatment in the second degree if he OiPehe recklessly either (a) creates an imuinent and substantiel risk of death Gr great bodily harm, or (B) causes substantial bodily harm by withholding eny Of the basic necessities of Life.” Dunn, 916 F.2d at 953 n.3 16  *** FOR PUBLICATION *** and holding. It was not enough that the mother’s alleged ingestion of cocaine created @ substantial risk of death or great bodily harm te the subsequently born child. It was necessary that the mother’s conduct be directed against 2 person who had been born and was under the age of 18. See discussion supra. In Deborah J.2., the defendant mother was drinking at a local tavern, while pregnant, one week before her expected due date. Deborah J.2., $96 N.W.2d at 491. While at the tavern, the mother thought she was about to give birth and was taken to the hospital. Id, she allegedly told a nurse at the hospital that “if you don’t keep me here, I’m just going to go home and keep drinking and drink myself to death and I'm going to kill this thing because I don't want it anyways.” Id. After speaking with a physician, the mother consented to a caesarean section and gave birth to a baby girl. Id. The baby girl wi nted fetal alcohol defects. Id. at 491-492. The state extremely small and pre! subsequently charged the mother with attempted first degree intentional homicide and first degree reckless injury. Id. at 492, ‘The mother subsequently filed a motion to dismiss, which the trial court denied, and she then filed a petition to review the non-final order denying her motion. Id. On appeal, the mother argued that: the legislature did not Intend to include the actions of a Under Wisconsin law, (1 first degree intentional homicide is eetined az “caus ling) Geath of another human being with intent to kill Pe jegree reckless injury is sefined 2s “caus{ing] great bouiay hare to another hikan being under circumstances which show utter Gisregard for human Life,” and (3) the term "human being” is defined ae “one (me has been born alive,” Deborah J.2., $96 N.W.2d at 492-493. v7  FOR PUBLICATION pregnant woman vis-d-vis her unborn child under either Efatuce because they epply only to one who causes death or Enjury to another human being who has been born alive. Any intent or indifference that abe may have manifested by her Continued dependence on, snd abuse of, alcohol Bregnancy was directed toward her own’ body and the unborn ERiYo"ohe Carried within her, not toward another human eine. Idk at 493. ‘The Wisconsin Court of Appeals accepted the mother’s argument, stating thai according to the plain language of the first-degree Ententional. homicide and faret=degree reckless injury statutes, the Legislature did not intend for these statutes The SGylSiature clearly intended to excluge_an unborn child when if iiaite the definition of = "husan being” to include only None uho has been born alive,” Ida (emphasis added) (citation omitted). Accordingly, the court concluded that probable cause did not exist to charge the nother with the crimes of attempted first degree intentional homicide and first degree reckless injury. Id, at 496. The court subsequently reversed the trial court’s denial of the mother’s motion to dismiss. Id. Thus, the Wisconsin Court of Appeals recognized the concept that the relevant proscribed conduct must be committed against a human being “who has been born alive.” Id. at 493. The one case cited by the parties that affirmed a mother's conviction for prenatal conduct that harmed her subsequently born child is Whitner v. State, 492 $.£.2d 777 (S.C. 1997). In Whitner, the mother was charged with, and pled guilty to, the offense of criminal child neglect* for ingesting cocaine ' Section 20-780 of the South Carolina Code Annotated provides shat Ialny person having the legal custody of any child or 38  FOR PUBLICATION during her third trimester of pregnancy, thus causing the baby to be born with cocaine in its system. Id, at 778-779, The mother was convicted by the trial court, and she did not appeal her conviction. Id, Rather, the mother filed a petition for post conviction relief, contending, among other things, that the circuit court lacked subject matter jurisdiction to accept a guilty plea to a nonexistent offense. Id. at 779. The trial court granted the mother’s petition for post-conviction relief, put the South Carolina Supreme Court reversed, holding that the word “child” as used in the relevant statute included viable fetuses. Id. at 778-779. The court first looked to the plain language of the statute and South Carolina’s policy concerning children, set forth in section 20-7-20(C) of the South Carolina code, Annotated, as follows: on the wrt shall be the policy of this State to concentra prevention of children’s ercblens 2s the most smportant Ree eter Be planned and implemented on behalf of sriigect tnd their families," ‘The abuse or neglect of a SRHG'se gay tune during childhood can exact. profound toll Sethe child herself ae well as on society as a whole. Rowever, ‘the consequences of abuse or neglect which takes Hitec steer birch sften pale in comparison to those Peluicing fren abuse suffered by the viable fetus before EfEch "als policy of prevention supports a reading of the word sperson* to include viable fetuses. ‘Jd. at 780 (emphasis in original). The court reasoned that the plain language, when coupled with the foregoing policy, evidenced helpless person, who shall, without lowful excuse, refuse oF pepiete ee provide, as defined in § 20-7490, the proper Eare and steention for such ghild or helpless person, ‘so {hie ine life, heelth of comfort of such child or helpless ferton is endongered of Af likely to be endangered, shall be Pitty of a micceneaner and ehsli be punished within the Efscration of the circuit court, wetener, 492°8:£.20 60 179 (emphases in original) « 19  FOR PUBLICATION a clear legislative intent to include viable fetuses within the definition of “person.” Id, at at 781. The court further reasoned that “South Carolina law has long recognized that viable fetuses are persons holding certain legal rights and privileges.” Id. at 779. The court subsequently concluded that “it would be absurd to recognize the viable fetus as a person for purposes of homicide laws and wrongful death statutes but not for purposes of statutes proscribing child abuse.” Id, at 780. The court distinguished other similar cases from other jurisdictions by simply stating that “the states in which these cases were decided have entirely different bodies of case law from South Carolina.” Id. at 782. Accordingly, the South Carolina Supreme Court reversed the trial court’s grant of the mother’s petition for post-conviction relief. Id, at 786. Although Whitner appears to contradict the trend of decisions issued by other jurisdictions, the dissenting justices in Wdhitner made compelling arguments that the majority's analysis was strained. Chief Justice Finney contended that “it is apparent from 2 reading of the entire statute that the word child in § 20-7-50 means a child in being and not @ fetus.” Id. (Finney, C.J, dissenting). The chief justice continued by arguing that the majority's analysis, at best, merely raised ambiguity as to whether viable fetuses were included within the term “child,” and that “[e]ven if these wrongful death, conmon law, and Children’s Code decisions [were] sufficient to render the term child in § 20-7-50 ambiguous, it is axiomatic that the ambiguity must be resolved in respondent's favor.” Id, at 187 20  FOR PUBLICATION *** (Finney, C.J., dissenting). Justice Moore concurred with Chief gustice Finney's dissent, but wrote separately to point out that the legislative history contained persuasive evidence that the child abuse and neglect statute was not intended to apply. Id. (Wore, J., dissenting). Specifically, Justice Moore contended that the legislature repeatedly tried and failed to pass proposed bills addressing the problem of drug use during pregnancy and that such failure was sufficient evidence that the legislature did not intend that the child abuse and neglect statute be used to prosecute mothers for prenatal conduct. Id. Thus, in summary, other jurisdictions overwhelmingly refuse to permit a mother’s prosecution for prenatal conduct that causes harm to her newborn child, because the mother’s conduct is not conmitted at a tine when the child is born and is alive. most durisdictions do not require that conduct be ae nai a isalive.’ on the other hand, an overwhelming majority of the jurisdictions confronted with the prosecution of a third party for conduct perpetrated against a pregnant mother, causing the death of the subsequently born child, uphold the convictions of the third parties. See State v, Hammett, 384 9.8.24 220, 221 (Ga, 1989) (holding that defendant who injured a pregnant woman such that her fetus, though born alive, subsequently died could be charged with the offense of vehicular homicide); People v Hall, 557 N.¥.8.26 679, 685 (App. Div. 1990) (holding that the evidence established that the infant was born alive and thus was 2  **% FOR PUBLICATION *** a “person” within the meaning of the homicide statute, and that defendant's manslaughter conviction for the death of the infant did not violate either due process or equal protection); Cuellar, 957 $.W.2d at 141 (affirming defendant’s conviction for intoxication manslaughter for injuries suffered by a fetus, who was born alive and subsequently died as a result of the accident injuries); State v. Cotton, 5 P.3d 918, 925 (Ariz. Ct. App. 2000) (holding that the homicide statutes apply to the killing of a child who is born alive, even if the death results from injuries inflicted before birth). In Hammett, the defendant lost control of her car and collided with @ vehicle in which a woman, thirty-five weeks pregnant, was a passenger. Hammett, 384 S.E.2d at 220. The expectant mother was immediately transported to the hospital and underwent an emergency caesarean section. Id. The newborn child lived for eleven hours before dying from the injuries received from the accident. Id, The defendant was charged with vehicular homicide,® but the trial court ruled that the baby was 2 fetus at the time of the accident (the time of the conduct) and that therefore the state failed to charge the defendant with @ cognizable offense. Id, The state appealed the trial court's judgment, and the Georgia Court of Appeals reversed. Id. The court referred to the opinion of Sir Edward Coke in an old «the relevant vehicular homicide statute in Georgia states that sta}ny person who covses the death of another person, without an intention to Go ae, by viclating any provision of thie title other than [certain code Sections snapplicable here) commits the offense of homicide by vehicle in the Secone degree when euch violation is the cause of said death.” Official Code feorgis Annotated § 40-60393(b) (2974) 22  FOR PUBLICATION FOR PUBLICATION #97 English common law case discussing the common law status of an unborn child, which states the followin [i1E 6 woman be quick with childe, and by © potion ox Sthernise kitieth it in her wonbe, oF if a man beat hery Ghereby the childe dyeth in her body, and she 1s delivered Dis dead childe, this s9 6 great misprision, end no murders Bae sf’ the chide be born alive and dyeth of the potion, Patcery, or other cause, this is murder: for in law it is Decsunted'« reasonable creature, 4p rerum patura, when it is born alive Id, at 221 (citations omitted). The court thus concluded that the victin’s status at the time of death determines the crine, and not the victim’s status at the time of the injury. id. The court subsequently stated that “{nJothing in the OCGA § 40-6- 393(b) limits consideration of the status of the victim to the moment at which the injury is inflicted, since the statute explicitly states that second degree vehicular homicide is comitted when 2 person ‘causes the death of another person.’ Id. (emphasis in original). The court found it persuasive that “there are many instances where an adult victim has died some considerable tine after the infliction of the fatal blow or wound. If the victim recovers and survives, whether by reason of medical or surgical treatment, or otherwise, there is no homicide; yet if he dies from such wounds, it is murder.” Id. (citing State v. Anderson, 343 A.2d 505, 508 (N.J. 1975). Accordingly, the Georgia Court of Appeals reversed the judoment of the trial court. Ide In Hall, the defendant got into an altercation with another customer at the grocery store. Hall, 587 N.Y.8.2d at 880. The defendant subsequently procured a gun and returned to the scene of the altercation. Id. When his target emerged, the 23 »** FOR PUBLICATION *** defendant opened fire from across the street. 1g, Although the defendant missed his target, two bullets struck a nearby pregnant mother in the arm and abdomen. Id. The mother underwent an emergency caesarean section, and her newborn baby lived for approximately thirty-six hours before it eventually died. Id. The defendant was charged with the murder, among other things, of the newborn infant. Id, Initially, a mistrial was declared because the jury was unable to reach a verdict, but in the second trial the defendant was found guilty of second degree manslaughter. Id, at 880-881. On appeal, the New York Supreme Court, Appellate Division, relied on the case law of other jurisdictions to support its conclusion that an individual can be convicted of homicide for injuries inflicted on a fetus that led to the death of the child subsequently born alive. Id, at @84- 885, The court also rejected defendant's claim that the existing penal scheme did not give him fair notice in violation of his right to due process, stating that “[i]t is axiomatic that a perpetrator of illegal conduct takes his victims as he finds them, so it is entirely irrelevant whether defendant actually knew or should have know that @ pregnant women was in the vicinity and that her fetus could be wounded as a result of his actions.” Id, at 885. Accordingly, the court affirmed the conviction. Id. at 886. In Cuellar, the defendant, while drunk, drove his car into ancther car being driven by a woman who was seven and one~ half months pregnant. Cuellar, 957 8.W.2d at 196. The mother subsequently underwent an emergency caesarean section and gave 24  * FOR PUBLICATION birth to a baby girl. Id, Although the baby was born alive, she eventually died as a result of the injuries suffered from the car accident, surviving for only forty-three hours after birth. Id. The defendant was subsequently charged with and convicted of the offense of intoxication manslaughter.’ Id, The Texas Court of Appeals began by stating that the definition of the term “individual” as one who “has been born and is alive” is ambiguous as to what point in time the individual needs to have been born and be alive. Id, at 137. The court then stated that it was free to examine the common law in order to resolve the ambiguity. Id. Like the Georgia Court of Appeals in Hammett, the Texes court of Appeals found the language of Sir Edward Coke" instructive. Cuellar, 957 $.W.2d at 137-138. The court was also persuaded by the analyses in Hammett and Hall.” Id. at 136. Accordingly, applying the statutory definition of “individual” to the facts, the court expressly held that the newborn infant was an “individual” under Texas criminal law. Id, at 140. The court thus rejected defendant's contention that the victim of the offense was a fetus at the time he engaged in his culpable conduct and was therefore not an “individual” within the meaning of the intoxication manslaughter statute. 1 Despite the holding in Cuellar, its reasoning is the court charact erized the elenents of intoxication manslaughter as follows: "iti person (2) operating # moter vehicle ina public place (3) who iDUNGkicatees ana (4) by reason of that intoxication causes the death of another." Ida at 140 + See discussion supra. see discussion gupee for the reasoning in Hammett and Hall. 25  FOR PUBLICATION questionable. To that effect, Justice Rodriguez wrote @ cogent dissent, criticizing the “judicial activism” of the majority. ‘Id. at 141-143 (Rodriguez, J., dissenting). Justice Rodriguez asserted that “[t]he penal code has not proscribed any conduct with respect to a fetus, and the legislature, by its definitions of “another,” “person,” and “individual” has specifically limited the application of [Texas] penal laws to conduct committed against @ human being who has been born and is alive.” Ida at 142 (Rodriguez, J., dissenting). Consequently, guided by the previous Texas Court of Appeals’ decision in Collins, he concluded that “the legislature intended that any conduct proscribed by the penal code must occur against a victim who ‘has been born and is alive’ at the time the conduct occurs." Id. (citations omitted). Finally, in Cotton, the defendant accidentally shot his girlfriend, who was eight and om alf months pregnant, in the back of the head. Cotton, 5 P.3d at 920, Although hi girlfriend died, the baby was born alive. Id, However, the baby died one day later due to the lack of blood caused by the fatal injury to its mother. Id. The state charged defendant with two counts of reckless second degree murder, but the jury found defendant guilty of two counts of the lesser included offenses of reckless manslaughter. Id. On appeal, defendant argued, among other things, that the injury was inflicted on a fetus and therefore the victin was not a “person” within the meaning of the homicide statutes. Id, The Arizona Court of Appeals stated that [t]he flaw in Cotton's reasoning is that Cotton caused the death 26 '* FOR PUBLICATION *** not of a fetus, but of a child who had been born.” Id, at 921. ‘the court acknowledged the language in Reineste and Collins, but distinguished those cases on the basis that they “focus{ed) on voluntary acts or choices by the mother that relate[d] to her health or well-being.” Id, at 922. Thus, the court rejected defendant’ s argument and ultimately affirmed his conviction of reckless manslaughter. Id. at 925. the foregoing cases illustrate a modern trend in other jurisdictions supporting the proposition that a third party may be prosecuted for conduct perpetrated against a pregnant mother that causes the death of the child subsequently born alive. these jurisdictions all focus on the victin’s status at the time of death, as opposed to the victim’s status at the time of the injury initially inflicted as a result of the defendant’s conduct. See discussion supra at Part III.A.3.c. Consequently, there appear to be two analytical approaches developing in other jurisdictions -- one with respect to the prosecution of pregnant mothers for their own prenatal conduct, see discussion supra at Part IIT.A.3.b, and the other with respect to the prosecution of third parties for conduct perpetrated against pregnant mothers. See discussion supra at part ITI.A.3.c. The difficulty lies in the fact that the logic cf the two lines of cases are mutually exclusive. On the one hand, courts rejecting the prosecution of pregnant mothers hold that the conduct must be committed against a person who has been born and is alive. See discussion supra at Part T1I.A.3.b. On the other hand, courts upholding the prosecution of third parties 27  FOR PUBLICATION *** hold that the conduct need not be directed against a person who has been born and is alive, so long as the result of the conduct (death) occurs with respect to a person who has been born and is alive. See discussion supra at Part III.A.3.c. The two propositions cannot logically coexist. Thus, it is difficult to reconcile the decisions of jurisdictions such as Arizona! and Texas,” that adopt both lines of reasoning. Nevertheless, we are convinced that the jurisdictions requiring that conduct must be committed against a person who has been born and is alive state the more cogent rule. These jurisdictions sll rely on the concept that the defendant's conduct must occur at a time when the victim is within the class contemplated by the legislature. Although these decisions do not expressly articulate the underlying rationale for the aforementioned proposition, the Model Penal Code and its supporting commentary provide the missing link. d. Zhe Model Pena) Code requires that the defendant's 01 ‘ocean when the: i within the class contemplated by the leaislature, Other jurisdictions addressing the present issue focus entirely on the “conduct” and “result” elements of the specific offense. An examination of the Model Penal Code and its commentary, however, suggests that it is more logically consistent to focus on the element of attendant circumstances. See discussion sunra cf Ksinesto; but see discussion supre of Seg discussion aunra of Collins; bub ate discussion aumza of 28  *** FOR PUBLICATION Initially, we note that neither party referred in their briefing to the Model Penal Code or its conmentary. However, the Hawai'i Penal Code and the Model Penal Code both state that conduct, attendant circumstances, and result of conduct, are the three material elements of any criminal offense." The Hawai's Penal Code is substantially derived from the Model Penal Code." Accordingly, it is appropriate to look to the Model Penal Code and its commentary for guidance. Comment 3 to section 2.02 of the Model Penal code initially points out that “[t]he distinction between conduct and attendant circumstance or result is not always a bright one, so the attempt to draw a line involves difficult and unnecessary problems of drafting or interpretation.” Movet Pena Cove § 2.02 ont. at 3 (1962). ‘Thus, the commentary indicates that it is often difficult and unnecessary to distinguish among the three elements. Nevertheless, the commentary provides the following two examples to illustrate how the three elements are generally classified: % Section 1.13(9) of the Model Penal Code states that the term cvelenent of an offense” means (1) such conduct or (14) such attendant Circumstances cr (2i1) such o result of conduct as (a) 18 included in the Gescripticn of the forbidsen conduct in the definition of the offense; or (b) establishes the required kind of culpability) or (c) negatives an excuse or Sostifieation for such conduct; or (@) negatives a defense under the statute BF iiaitetiones or te) establishes Juriadiction oF venue.” MoceL Prsat Coot § 2.1315) (1962) ' phe commentary te section 2.02 of the Model Penal Code states that many jurisdictions have accepted the Model, Penal Code’s formulation of Teckiassness, end subsequently Lists Hawal't among those jurisdiction in a Eootnste. Wooe Primi Coop § 2.02 cat. at 3 n.18 (1962). Furthermore, this ESurt nas acknowledged that “che Model Penal Code (MPC), as adopted at the $362 enna! meering of The Anerican Law Institute, was ‘used by the Judicial Counei! of (Hawai':] ag the guide for the (HPC).’* "Stare x Gavlosd, 78 fowal'i 129, 340 n.22, 890 P.2e 1167, 1160 m.22 (2998) (citations omitted) 29  ** FOR PUBLICATION FOR PUBLICATION P87 1h senate Judiciary Committee Report gives some examples as Pohow offense elements are classified, not ail of which ere cbvious. It says section 171¢ provides that 2 person is guilty of an offense “if, with intent to obtain Glansportation, he secretes himself aboard . a vessel or aircraft thet is the property of insther and 12 aboard when it Leaves the point SPenbarketion.” The culpability level for the Conaucts ies, eeereting oneself aboard a vessel Co'Nretaft, de *knowing"? the culpability level teaching to the existing circunstances that the Jesse! or aizeraft is the property of another Gna thet the actor is aboard at the time of its Geparture 1s, By contrast, set at, the lower fevel of “reckless”. The’ phrase “with intent to Obtain transportation” does not describe a General state of mind, But rather a specific Purpose for which the conduct is done. Sen, oudiciary Comm. Report 53 (S. 1, 1975) (footnote onitveal- It snalyzes @ second crime in the following may: 28 U.8.c. 112 makes Gngaged in the performance of his duties a felony. In the past the courte hi the question whether it is neces: that a person charged under this section knew thet the person he was assaulting wes a Federal officer... Instead, the stendara would be Feckless becase the element, "e Federal Gfficer,” se an ettendant circumstance. walt on @ Federal officer Hd, (at) 59-60. Moon Pena Coot § 2.02 omt. at 3m. 22. In the first example, the attendant circumstances are that the vessel or aircraft is the property of ancther and that the actor is aboard at the time of departure. In the second example, the attendant circunstance is that the person as: ulted ie a federal officer. Although the Model Penal Code does not define the term “attendant circumstance,” it has been proposed that an attendant circumstance is essentially 2 circumstance that “exist (s] 30 #** FOR PUBLICATION *** independently of the (actor's conduct]." Audrey Rogers, New si Operation: at Liability, 38 U. RicH. L. Rev, 477, 485 (2004) (citing R.A. Duff, ‘The Circumstances of an Attempt, 50 Camsnupce L.J. 100, 104 (1991). ‘The ICA also applied a similar definition in State v Moser, 107 Hawai'i 159, 172, 111 P.3d 54, 67 (2005), stating that “[alny circumstances defined in an offense that are neither conduct nor the results of conduct would, by default, constitute attendant circumstances elements of the offense.” Id. In the present case, a person is guilty of the offense of mansleughter if that person “recklessly causes the death of another person.” HRS § 707-702(1) (2). Thus, applying the aforenentioned definition of an “attendant circumstance,” the conduct is any voluntary act or omission, the result is death, and the attendant circumstance is “of another person.” HRS § 707-7021) (a) (emphasis added). Cf. State v. Jenkins, 93 Hawai'i 87, 112-113, 997 P.2d 13, 38-39 (2000) ("{Flor the purposes of HRS § 134-6(e) [(1993 & Supp. 1999), ie., “Carrying or use of firearm in the commission of a separate felony,”] ‘carry’ must be analyzed employing @ two-pronged analysis: (1) the volustary act of ‘carrying’ an object is, by way of HRS § 702-202, established when an individual acte knowingly with respect to thet conduct. and (2) the circumstances attendant to ‘carrying’ that cbject, due, the object's par at! a criminal offense =~ i ca 4 == is, by way of HRS § 702-204 established by proof of a reckless state of mind.” (Emphases added)); State v, Valentine, 93 3  we FOR PUBLICATION *** Hawai'i 199, 207, 998 P.2d 479, 487 (2000) (“Pursuant to HRS § 702-205 (1993), ‘{t]he elements of an offense are such (1) conduct, (2) attendant circumstances, and (3) results of conduct [] as. - . [a]ze specified by the [statutory] definition of the offense.’ For purposes of HRS § 134-7(b) ((1993 & Supp. 1997), isee, “ownership or possession prohibited, when,”} as it pertains to the present matter, is comprised of the following elements: (1) that a person convicted of a felony (attendant circumstance); (2) possesses or controls an object (conduct); (3) sxbibiting the attributes of a firearm (attendant circumstance) [+ and} (4) that the person does so intentionally, knowingly, or recklessly.” (Some brackets added and sone in original) (Ellipses points in original) (Emphases added)). As a result of this classification, Aiwohi did not have the requisite state of mind. In order to be guilty of manslaughter, Aiwohi muet have “acted . . . recklessly . . . with respect to each element of the offense.” HRS § 702-204. with respect to the attendant circumstance element, HRS § 702- 206(3) (b) states that “{a] person acts recklessly . . . when he consciously disregards a substantial and unjustifiable risk that (enphasis added). In the present such circumstances exist.” L case Aiwohi simply could not have disregarded a substantial and unjustifiable risk that the requisite circumstance existed, because the requisite circumstance did not exist at the time she engaged in what the prosecution claims was culpable conduct. More specifically, there was no other “person” at the relevant time because a fetus is not a “person” within the plain meaning 32  '* FOR PUBLICATION *** of the statute, as discussed infra. The mere fact that the fetus would later be Treyson, another person, does not alter the conclusion. The plain language of the statute clearly requires that the actor disregard 2 substantial and unjustifiable risk that such circumstances presently exist, not that such circumstances miaht later exist. Consequently, 6 king in terms of attendant circumstances, we hold, in the context of offenses against persons set forth in HRS chapter 707, that the defendant’ s proscribed conduct must be committed at a time when the victim is within the class contemplated by the legislature because the specified class is an attendant circumstance. As applied to reckless manslaughter, the actor must disregard @ substantial and unjustifiable risk that the attendant circumstance exists, and therefore, a fortiori, the attendant circumstance must exist at the time of the conduct’s commission. Accordingly, in the present case, the proscribed conduct must have been committed at a time when Treyson qualified as a “person,” defined by the ie note that in ite appellate brief, and also et oral argument, the prosecution mentioned chat there may be an igsue as to whether the Senslaaghter offence, 22 codified in HRS § 707-702(4) (a), actually contains an megadade circumstance elenent. For support, the prosecution relied on our 2eSi°Stdeenent in Stake v--Aaanon, 97 Hawai'i 299, 303, 36 P.3¢ 1263, 1273 PEool), thar “the two elements of second degree murder in this case are sreeecer TS Sng resuls.'® However, ae noted by Justice Levinson in his CSncurfing opshion, Agangn does not properly stand for the proposition that we Soprubciish the attenaant cireunstance elenent from the offense of reckless Rekelaagheer, an clement expressly required by the plein language of the HEC. weet 2e%tesinsen’s concurring opinion, slip op. at 4,6. Rather, inasmuch as Seke Cloneseal status of tpersonnced’* waz not at issue in Adanon, we felled Cevadequetely extract st from the conduct and result of conduct elements of the offense of second degree mr Nevertheles#, a8 Justice [evinesn candidly suggests, we now have eccasion to redeem our prior ‘Sealyeicsl sin.” Idy at 4 33 *** FOR PUBLICATION *** Hawai'i Penal Code as alive.” HRS § 707-700." e. According te the plain lancuace of the HEC, a fetus is not included within the definition of “person.” human being who has been born and is Having established that the offense of reckless manslaughter contains a conduct element and that the conduct must be directed against a “person,” the final sub-issue is whether the HEC's definition of “person” includes a fetus. We hold that it does not. According to HRS § 701-104 (1993), “[t)he provisions of [the HPC) cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of the words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” AS § 701-104 (emphasis added). Furthermore, this court has declared that @ criminal statute “must be strictly construed and that it cannot be extended beyond the plain meaning of the terns found therein.” State v. Johnson, 50 Haw. 525, 526, 445 P.2d 36, 37 (1968) (citing Territory v, Balarosa, 34 Haw. 662, 665-666 (1938). That declaration is consistent with the legislature's % me Logical implication is that third party conduct that occurs jainst 8 pregnant worsn, cousing the death of her child subsequently born Jive: aise cannct De prosecuted under the manslaughter statute, inasmuch as the iégisiature has not included fetuses within the definsticn of the term ferton,” To conclude otherwise would require us to subvert the plain meaning of the statute ang render an inconsistent holding in order to produce = Gesired Fesult. However, we need not delve any deeper into this sesue as Senet before us today. 34  we* FOR PUBLICATION * statement that “definitions of crimes are to be strictly construed.” Sen. Conf. Comm. Rep. No. 1-72, in 1972 Senate Journal, at 734. Thus, in the present case, we interpret the relevant provisions of the HPC in accordance with the foregoing maxims of statutory construction. According to the “fair import of the words, taken in their usual sense," HRS § 701-104, @ fetus is clearly not one vwho has been born and is alive.” HRS § 707-700, The plain Language of the statute is clear and unambiguous, and therefore we need not go any further. See State v. Haugen, 104 Hawai'i 72, 76, 85 P.3d 178, 183 (2004) (stating that “[iJt is a cardinal rule of statutory interpretation that, where the terms of 2 statute are plain, unambiguous and explicit, we are not at Liberty to look beyond that language for a different meaning”). Even if, arguendo, the statutory language were perceived to be ambiguous, the term “person” may not be construed s0 as to include fetuses, where statutory language is ambiguous, HRS § 1-15 (1993) directs this court to look to “{t}he reason and spirit of the law, and the cause which induced the legislature to enact it... ." HRS § 1-15. in the present case, there is nothing in the legislative history indicating thet the legislature intended to include fetuses within the definition of the term “person.” In the absence of clear statutory languags and with no legislative guidance vis-a-vis legislative history, the applicable doctrine is the rule of lenity. See State w Shimabukure, 100 Hawai'i 324, 327, 60 P.3d 274, 277 (2002) (stating that “[w)here a criminal statute is ambiguous, it is to 35  +** FOR PUBLICATION be interpreted according to the rule of lenity"); State ve Kaakimaka, 64 Hawas'i 280, 292, 933 P.2d 617, 629 (1997) (stating that “[almbiguity concerning the ambit of criminal statutes should be resolved in favor of lenity”) (citations omitted). consequently, even if the language were viewed as ambiguous, the statute would still have to be strictly construed in favor of Aiwohi and against the prosecution. Finally, it is important to clarify thet we are dealing strictly with an issue of statutory interpretation in the present appeal. Although we recognize that there may be significant policy inplications and social ramifications surrounding the present issue, it is well established that the legislature is best suited to assess such considerations. See State Farm Mut. auto. Ins. Co. vs Gepava, 103 Hawai'i 142, 192, 80 P.3d 321, 331 (2003) (stating that “such policy decisions are expressly within the constitutional purview of the legislature”); Jardine, 101 Hawai'i 3, 10, €1 P.3d 514, $21 (observing that “[w]hile there may be sound policy reasons to allow a choice of evils justification defense for the protection of unborn children, the adoption of such 2 public policy is best left to the state Legislature”); In Re Water Use Permit Applications, 94 Hawai'i 97, 192, 9 F.3d 409, 504 (2000) (stating that “the ‘how’ or the public policy making function was properly reserved for the legislature”); Lee v. Correcedore, #3 Hawai'i 154, 171, 925 P.3d 324, 341 (1996) (stating that broad policy decisions are “best left to the branch of governnent vested with the authority and fact finding ability to make such broad public policy decisions, namely the Hawai'i 36 ** FOR PUBLICATION *** FOR PUBLICATION 778 Legislature” ‘Therefore, we hold that, according to the plain language of the HPC, a fetus is not included within the definition of the term “person B. Resolution of the First Is: of the Case Dispe Although Aivohi advances several other arguments challenging the constitutionality of her prosecution under HRS § 707-702(1) (a), we need not address them in this opinion. specifically, as we have noted, Aivohi contends that: (1) BRS § 707-702 (1} (a) fails to provide fair notice and/or is unconstitutionally vague in violation of article I, section § of the Hawai'l Constitution; (2) HRS § 707-702(1) (a) fails to provide fair notice and/or is unconstitutionally vague in violation of the fourteenth amendment to the United States constitution; (3) Aiwohi's prosecution for manslaughter interferes with an expectant mother’s fundamental right to procreate, in violation of article I, section 6 of the Hawai'i Constitution; (4) Aiwohi’s prosecution for manslaughter is an unconstitutional, retroactive expansion of HRS § 707-702(1) (al, in violation of the fourteenth amendment to the United States constitution; and (5) Aiwohi was denied her right to present a defense, in violation of the sixth and fourteenth amendments to the United States Constitution, when the circuit court rejected Aiwohi’s common law defense of immunity for an expectant mother’s prenatal conduct. Inasmuch as our holding -- that Aiwohi’s prosecution for the offense of manslaughter is unsupported by the plain 37  ##* FOR PUBLICATION *! language of the HPC -- is dispositive, it is unnecessary to address Aiwohi’s remaining constitutional arguments. Iv. CONCLUSION Based on the foregoing analysis we hold that a mother’s prosecution for her own prenatal conduct, which causes the death of the baby subsequently born alive, is not within the plain meaning of HRS § 707-702(1) (a), in conjunction with the general provisions of penal liability found in the HPC. Therefore the circuit court erred when it denied Aiwohi’s “Motion to Dismiss Indictment Based on Insufficient and/or Impermissible Evidence presented at the Grand Jury Proceedings." Accordingly, we reverse the “Amended Judgment Guilty Conviction and Probation RH Rinnae—— Glenn J. Kim, Deputy Prosecuting Attorney, for plaintiff-appellee Peccetee Co Naty State of Hawai's Gon c, Rueo Ors 

5ae58e764a04f23844b9c961080380911851b18dc981122f6f70bec581094852

2005-11-29T00:00:00Z

18593f1a-198a-494a-afb1-1424e60368e8

State v. Puha

hawaii

Hawaii Supreme Court

5 No. 26326 IN THE SUPREME COURT OF THE STATE OF HAWAI'I HY 82 AON sone a3 | STATE OF HAWAI'I, Respondent/Plaintiff-Appellee DELANEO K. FUHA, Petitioner/Defendant-Appelant oe CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO, 02-31-0796) o oF (By: Acoba, J., for the court’) The Application for Writ of Certiorari filed on Novenber 18, 2005 by Petitioner/Defendant-Appellant Delaneo K. Puha is hereby denied. DATED: Honolulu, November 28, 2005. Hawai'i, FOR THE COURT: Ge Shawn A. Luis, on the writ for petitioner /defendant- appellant. oon, C.J-» Levinson, Nel considered by: betty, 09 

fbe790b477d4a4579e9fa86fe7b24124a5c771dea22298012a896f27b9f426e9

2005-11-28T00:00:00Z

e9b70be4-7da0-4c10-ae31-0e375c1de2f2

J.H. v. E.C.

hawaii

Hawaii Supreme Court

wo, 27249 IN THE SUPREME COURT OF THE STATE OF HAWAT‘T J.H., Petitioner-Appellant g aawd E.C., Respondent-Appellee and CHILD SUPPORT ENFORCEMENT AGENCY, STATE OF HAWAI'I, Respondent APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-P NO, 03-1-1209) ‘ORDER (By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.) Upon consideration of Petitioner-Appellant’s motion to dismiss the appeal, the papers in support, and the records and files herein, IT IS HEREBY ORDERED that the motion is granted, © their own and this appeal is dismissed. The parties shall b appellate fees and costs. DATED: Honolulu, Hawai"i, December 29, 2005. cheryl R. Brawley for petitioner-appellant fon the motion Neetee Leet ore oma SN Yor © Deets tr 

0fefceccfdcc70cf9f26d2ec7f093733f2c2eaf69a5db0786b9c86a48d8054a4

2005-12-29T00:00:00Z

59cec1d0-583d-416d-bf0c-275248736842

State v. Castillo

hawaii

Hawaii Supreme Court

* NOT FOR PUBLICATION *** Wo. 27334 ~ 930 sie IN THE SUPREME COURT OF THE STATE'OF HAWAI'I . tS STATE OF WANAL'T, Plaintiff-appelies, 6 2 © BARRY CASTILLO, Defendant-Appellant. APPEAL FROM THE DISTRICT COURT OF THE PIRST CIRCUIT (CASE NOS. TRISAKP, TRI4AKP, TRIGAKP, TRISAKP of May 6, 2005; REPORT/TAG NOS. 5705647HO, 5705648M0, 570S650MO, 5116032) Miss: (By: Nakayama, J., for the court") Upon review of the record, it appears that (1) the Supreme Court Clerk's Office informed Appellant, by letter dated September 20, 2005, that the record on appeal cannot be filed without payment of the filing fee pursuant to Rule 3(f) of the Hawai'i Rules of Appellate Procedure (HRAP) or an executed motion to proceed in forma pauperis pursuant to HRAP Rule 24 and that the matter would be called to the attention of the court for such action as the court deemed proper pursuant to HRAP Rule 11(a), including dismissal of the appeal; and (2) Appellant failed to pay the filing fee or submit a motion to proceed in forma pauperis; therefore, IT IS HEREBY ORDERED that the appeal is dismissed. DATED: Honolulu, Hawai'i, December 8, 2005. FOR THE COURT: bcc 6 naeapane Associate Justice Moen, C.J., Levinson, Nakayama, Acobe, and Duffy, 9. fed by: 

5ab92efe3cddf4085042182eab2ffb10e736bb96b42e80bea5fad20c00d1a6ce

2005-12-08T00:00:00Z

84c69993-1a8d-42c4-be46-575cb1acc773

Maise v.Lee

hawaii

Hawaii Supreme Court

LAW LIBRARY *** NOT FOR PUBLICATION *** No. 27378 IN THE SUPREME COURT OF THE STATE OF HAWAI‘T PHILIP B. MAISE, Plaintiff-Appellee/Counterclaim Defendant CECIL LORAN LEE, Defendant-Appellant/Counterclainant ng and z 8 MICHAEL BOYD, Defendant 28 2 t= 8 APPEAL FROM THE THIRD CIRCUIT CouRT “S/F (cIv. NO. 01-1-0444) al S pisMissine (ay: Nakayama, J., for the court?) Upon review of the record, it appears that ell claims against all the parties have been resolved in Civil No. 01-1- 0444, but @ judgment resolving all claims has not been entered pursuant to HRCP 98. sv. Ci Flemis Height, 76 Hawai'i 115, 119-120, 869 P.2d 1334, 1339-39 (1994) (In ) an appeal. a multiple claim, multiple party circuit court ca! may be taken after entry of 2 judgment that, on its face, resolves 211 cleims against all the parties.). The September 30, 2004 judgment resolved only the plaintiffs claims against defendant Lee. The judgment did not resolve the plaintiff's claims against defendant Boyd and purported to, but did not resolve defendant Lee’s counterclaim. Thus, this appeal is risdiction. Therefore, premature and we lack Der Levingon, Nekayana, Acobe *** NOT FOR PUBLICATION *** Gr 15 HBREEY ORDERED that thie'appeal As donissed for rack of appellate jurisdiction. bATeD: Honotute, Howe's, ceteber 27, 2008, ron ie count: |G Penn ONRae nay aere Associate Justice 8. 

f7828776aadda691106088857086c4c9fd8061fa70760f45b83f2fa53617b0d6

2005-10-27T00:00:00Z

7be2fe45-0897-4978-b9ea-f75a46842341

State v. Gordon

hawaii

Hawaii Supreme Court

LAW LIBRARY ** NOT FOR PUBLICATION *** No. 27340 IN THE SUPREME COURT OF THE STATE OF HAWAI'I STATE OF HAWAI'I, Plaintiff-Appellee vs. Hd @- AON sea| oad EUGENE P. GORDON, Defendant-Appellant APPEAL FROM THE FIRST CIRCUIT COURT “I (CR. NO. 98-2082) ORDER DISMISSING APPEAL : Nakayama, J. for the court?) upon review of the record, it appears that the circuit court's April 5, 2005 order denying appellant's HRPP Rule 35 motion for correction of sentence was appealable by notice of appeal filed with the circuit court within thirty days after the order was entered. See HRAP 4(b) (1). Appellant!'s notice of appeal was filed with the circuit court on June 7, 2005, sixty- three days after entry of the April 5, 2005 order and was untimely. Our recognized exceptions to the requirement that notices of appeal be tinely filed do not apply in this case. Thus, we lack jurisdiction. See Grattafiori v. State, 79 Hawai'i 10, 13, 897 P.2d 937, 940 (1995) ("[Clompliance with the requirement of the timely filing of a notice of appeal is jurisdictional, and we must dismiss an appeal on our own motion if we lack jurisdiction.”). Therefore, jana, Acoba, and Duffy, 3d. ‘considered by: Moon, C.J.» Levinson, Nal +** NOT FOR PUBLICATION *** IT IS HEREBY ORDERED that this appeal is dismissed for lack of appellate jurisdiction. oN DATED: Honolulu, Hawai‘i, November 8, 2005. ff 2 FOR THE COURT: SEA! Associate Justice 

42e0ce9b6ca25b6b3a306798f758d3d9d53181fdcf8c9058b53a62c1acc28bde

2005-11-08T00:00:00Z

7b5f3d0e-a53b-406e-88fc-199fa0cb457c

Office of Disciplinary Counsel v. Duru

hawaii

Hawaii Supreme Court

No. 27356 IN THE SUPREME COURT OF THE STATE OF HAWAI'I OFFICE OF DISCIPLINARY COUNSEL, Petitioner 5 3 2 IKE EMMANUEL DURU, Respondent. (ope 05-031-8183) ORDER OF OISBARMENT aa.) (py: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, Upon consideration of the Office of Disciplinary counsel's ex parte petition for issuance of reciprocal discipline notice to Respondent Ike Inmanuel Duru, pursuant to Rule 2.15(b) of the Rules of the Supreme Court of the State of Hawai'i (ORSCH”), the memorandum, affidavits, and exhibits thereto, Respondent Duru’s response to our July 6, 2005 notice and order, and the record, it appears that: (2) on May 30, 2000, the Supreme Court of Georgia issued a per curiam decision that accepted Duru’s petition for voluntary surrender of his license to practice law in Georgia (2) under Georgia State Bar Rule 4-110(f), the voluntary surrender of license is tantamount to disbarment: (3) the voluntary surrender of license in Georgia is “identical” to an attorney's resignation in lieu of discipline in Hawai'i, pursuant to RSCH 2.14; and (4) a similar discipline is warranted in this jurisdiction, pursuant to RSCH 2.15(c). See Office of Disciplinary Counsel v. Hurley, 71 Haw. 254, 787 P.2d 688 (1990). Therefore, o3us IT IS HEREBY ORDERED that, pursuant to RSCH 2.15(c), Respondent Ike Emmanuel Duru is disbarred from the practice of law in the State of Hawai'i. Respondent Duru’s disbarment shall be effective upon entry of this order. 17 IS FURTHER ORDERED that (1) the Clerk shall remove the name of Ike Emmanuel Duru from the roll of attorneys licensed to practice law in this State, and (2) within ten (10) days after the entry of this order, Respondent Ouru shall deposit with the Clerk of this court the original certificate evidencing his License to practice law in this state. IT IS FINALLY ORDERED that Respondent Duru’s reinstatement shall be conditioned (1) upon payment of all costs of this proceeding, (2) compliance with the conditions imposed by the Supreme Court of Georgia, and (3) Respondent buru’s reinstatement in Georgia. DATED: Honolulu, Hawal's, Novenber 10, 2008. Resets 6 umedeeryaume (oe Gane Ratigs be 

66f04499f81219d8c0e3cde3a854aee8a3734cfe54f8d3e82957489b8d83c122

2005-11-10T00:00:00Z

d398a627-9c2e-4e05-9832-f31209ea2293

State v. Birano

109 Haw. 182

hawaii

Hawaii Supreme Court

iDRARY NO. 25699 IN THE SUPREME COURT OF THE STATE OF HAWAI'T f STATE OF HAAAT'Z, Respondent -Appellee, 3 ‘ f vs 2 8 fF oz Et oF ARTHUR BIRANO, Petitioner-appellant. ©/# a ate S a = CERTIORARI TO THE INTERMEDIATE COURT OF APP! (CR. NO. 01-21-1154) APP! (By: Levinson, J., for the court’) Petitioner-appellant Arthur Birano’s application for writ of certiorari, filed October 24, 2005, is granted. Honolulu, Hawai'i, November 1, 2005. FOR THE COUR’ DATED: Jeffrey A. Hawk (of Hawk, Sing & Ignacio) for petitioner-appellant, on the writ considered by: Levinson, Wakayama, Acoba, and Duffy, JJ. Moon, C29 

9704a6d6a412803e78f2da12652014a27894acc08bbf81efba4c19af61c1d5eb

2005-11-01T00:00:00Z

76b70deb-4eb8-487b-bebf-d520d76b43d0

Office of Disciplinary Counsel v. Yonemori

hawaii

Hawaii Supreme Court

No. 27578 IN THE SUPREME COURT OF THE STATE OF HAWAT'T OFFICE OF DISCIPLINARY COUNSEL, Petitioner CARRIE YONEMORI, Respondent (ope 05-153-8305) ‘ORDER DENYING PETITION (By: Moon, C.J., Levinson, Nakayama, ‘Acoba, and Duffy, JJ.) upon consideration of the petition filed by Petitioner office of Disciplinary Counsel (Petitioner OC) for the immediate suspension of Respondent Carrie Yonenori (Respondent Yonemori) fron the practice of law pursuant to RSCH 2.12A, Respondent Yonemori’s responses to Petitioner O0C, and Petitioner ODC’s supplemental memorandum, it appears that Respondent Yonenori is the subject of a disciplinary investigation and that while she has not responded to each of Petitioner ODC’s attempts to investigate the disciplinary matter, Respondent Yonenori has responded to each of the orievant’s allegations in DC 05-153- 8305. Although this court could conclude that Respondent Yonenori is guilty of @ failure to cooperate with Petitioner O0c's investigation or disciplinary proceeding because of Respondent Yonemori’s failure to respond timely and to appear in response to a subpoena, Respondent Yonenori's untimely letter (received September 29, 2005) addresses each of her client's oats grievances and provides sufficient information for Petitioner oDc to proceed. Therefore, immediate suspension would not be appropriate at this time. Respondent Yonenori is admonished to respond quickly and timely to Petitioner ODC in the future. Respondent Yonemori is admonished that this court will not be so lenient with regard to any other failure to cooperate with Petitioner DC. Accordingly, IT 1S HEREBY ORDERED that the Office of Disciplinary Counsel's petition for the immediate suspension of Respondent Carrie Yonenori is denied without prejudice, and this case is remanded to the Office of Disciplinary Counsel for such further proceedings as are appropriate. DATED: Honolulu, Hawai'i, November 23, 2005. LiePonnae~ cease Octo ro ooooelN Kane etage be 

af6ff9a4432da8e8800ae767b051f7fa46232925c9e51dd76d464a22f868646c

2005-11-23T00:00:00Z

4a0dce47-8429-472c-b2d0-a0ee5dc8847d

City and County of Honolulu v. Hsiung. S.Ct. Order of Correction, filed 03/23/2006 [pdf].

109 Haw. 159

hawaii

Hawaii Supreme Court

«© * FOR PUBLICATION *** InN THE SUPREME COURT OF THE STATE OF HAWAT'r 3 <- 000 === 3 e F c on JO. _03-1-0361 2 ° crty ano cowry oF HONOLGEY, a minicipal corporatign Of che seate of Hawai's, Plaineife-Appellee/cross! = & Appellant /Cross-Appellee, KATHLEEN HSTUNG; JAMES 2, SHAW, Trustee under that certain James B. Shaw Revocable Living Trust Agreement ‘dated June 4, 1990; RUTH G, RAND, Trustee under that certain unrecorded Ruth G. Rand Revocable Trust Agreement dated May 30, 1986; DEBORAH DARLENE DUPIRS- NELSON; ROBERT LEE DUPIRE-NELSON; IRA NAGEL and DOROTHY NAGEL, Trustees of the Dorothy Nagel Revocable Living ‘Trust under that certain unrecorded Trust Agreenent dated November 28, 1989; BARBARA WEI LAU; JENNIFER HWEI-MAY LAU; DAN H. DEVANEY, III, Trustee of the Dan H. Devaney, IIT Revocable Living Trust dated October 7, 1993; CEDRIC CHOI; PATRICIA CHOI; MARY ILMA COSTIGAN ANDERSON, Trustee under Declaration of Trust dated May 25, 1984; EDWARD BURNETT KEYES, JR.; KATHARINE ROGERS RANDALL, Successor Trustee of the Kennedy Randall, Jr ‘Trust, under that certain unrecorded Trust Agreement dated August 6, 1985; GERALD HENRY CUTTER; MILDRED P. AULT, Trustee under the Mildred P. Ault Revocable Trust dated July 23, 1987, as amended in full by First Amendment dated March 28, 1990; MARY H. SHELTON, ‘trustee under that certain unrecorded Charles 0. shelton, dr. and Mary H. Shelton Joint Living Trust Agreement dated September 20, 1993; WALLACE DAVID 100; MARJORIE ANNE LOO; LOLA GEBAUER, Successor Trustee of the Paul W. Gebauer, unrecorded Paul W. Gebauer Revocable Trust Agreement dated April 28, 1980, and subsequently amended in ite entirety by an Amendment Gated December 8, 1982, and a Second Amendment dated December 26, 1997; LOLA GEBAUER, as Trustee under an unrecorded Lola Gebauer Revocable Trust Agreenent dated ‘April 28, 1980, and subsequently amended in its entirety by an Amendment dated December 8, 1982, and a ‘Second Amendment dated December 26, 1997; WILLIAM C. DIXON, JR. AND PATRICIA DIXON, as Trustees under certain unrecorded Dixon 1996 Trust dated November 21, 996; BRUCE D. DUGSTAD, Successor Trustee under that certain Revocable Living Trust Agreement dated August +** FOR PUBLICATION *** a 27, 1980; JEAN MARIE MOREL; JEANNETTE J. WARREN, as ‘Trustee under unrecorded Revocable Living Trust Agreement dated August 19, 1987, as amended; MARGUERITS ELIZABETH GONSALVES; HARRISON CLIFFORD GONSALVES; DANIEL YOUNG LEE; JULIET OK LEE; STEVEN JON BERMAN; HEIDI YUEN BERMAN; GEORGE EDWARD ISAACS; SHIRLEY MAE ISAACS; NORMA ANN STILWELL ;FIRST HAWAIIAN BANK, PAUL €.T. 400, and VIOLET S.W. 100, Co-Trustees of the John Sdseph’ Ryan and Marie Ryan Revocable Living Trust, established by that certain unrecorded Trust Agreement Gated August 6, 1991, as amended and restated by instrument dated February 16, 1993, and as further amended by instruments dated Novenber 10, 1993, October Ta, 1996 and March 30, 1999; DEREK MICHAEL POAG; ERIK STERLING; ETHEL H. BIRD, widow, as Trustee under an unrecorded Revocable Trust Agreement dated September 3, 1987; GEORGE WM. SMITH and JULIA SMITH, as Co-Trustees unde the Geroge and Julia Smith Revocable Trust, dated March 10, 1987, Defendants-Appellants/Cross-Appellees, and JAMES DOUGLAS KEAUHOU ING, CONSTANCE HEE LAU, CHARLES NAINOA THOMPSON, DIANE JOYCE PLOTTS, and ROBERT KALANT UICHT KIHUVE, Trustees under the Will and of the Estate ‘Of Bernice Pauahi Bishop, deceased, Defendants- Appellees /Cross-Appellees/Cross-Appellants, and GERMAINE HOPE BRENNAN, Trustee under that certain unrecorded Revocable Trust of Germaine Hope Brennan ‘dated August 28, 1981, as amended; GERMAINE HOPE BRENNAN, Successor of Trustee under that certain unrecorded Revocable Trust of Edward Brennan dated August 28, 1981, as amended; HENRY PAUL WEBER, Trustee under unrecorded Revocable Living Trust Agreement dated January 12, 1979, as amended, and CHARLES COOK SPAULDING, as Trustee under that certain unrecorded instrument known as The Spaulding 1993 Revocable Trust; SAKIKO KISHINOTO, Truatee under that certain unrecorded ‘Trust Agreement known as The Sakiko Kishimoto Trust dated January 12, 1989; JOHN DOES 1-200, MARY DOE 1- 200; DOE PARTNERSHIP 1-100; DOE CORPORATION 1-100; DOB NON-PROFIT CORPORATION 1-100; and DOE ENTITY 1-100, Defendants. *** FOR PUBLICATION *** cI. NO. 2-1-2955 JAMES DOUGLAS KEAUHOU ING, CONSTANCE HEE LAU, CHARLES NAINOA THOMPSON, DIANE JOYCE PLOTTS, and ROBERT KALANT UICHI KIHUNE, in their capacity as Trustees under the Will and of the Estate of Bernice Pauahi Bishop, deceased, and not in their individual capacitie: Plaintiffs-appellants, CITY AND COUNTY OF HONOLULU; DEPARTMENT OF COMMUNITY SERVICES, CITY AND COUNTY OF HONOLULU, Defendants-Appellees, and JOHN DOES 1-30; MARY DOES 1-30; DOE PARTNERSHIPS 1-30; ‘and CORPORATIONS AND OTHER ENTITIES 1-20, Defendants. 2). No. 26544 APPEAL FROM FIRST CIRCUIT COURT (CIV. Nos. 03-1-0361 and 02-1-2955) DECEMBER 8, 2005 MOON, C.J., LEVINSON, ACOBA, AND DUFFY, J3.; ‘AND CIRCUIT JUDGE PERKINS, IN PLACE OF NAKAYAMA, J., RECUSED OPINION OF THE COURT BY MOON, ¢.9. ‘The instant appeale involve a condennation action initiated by the City and County of Honolulu (the City) and a related declaratory judgment action initiated by the trustees under the will and of the estate of Bernice Pauahi Bishop (hereinafter, the Trustees]. The condemnation action was initiated by the City to acquire the fee interest in the Kahala *** FOR PUBLICATION *** Beach residential condominium development (The Kahala Beach) in order to convey fee simple title to various owners of leasehold interests in The Kahala Beach [hereinafter, the Applicants or lessees]. The Trustees brought the declaratory judgment action seeking, inter alia, an injunction prohibiting the City from exercising ite power of eminent domain over The Kahala Beach and a judgment declaring that, as applied to The Kahala Beach, Revised Ordinances of Honolulu (ROH) chapter 38 and the City’s condemnation efforts were illegal and unconstitutional on appeal, the City and the Applicants (hereinafter, collectively, Appellants] claim that the Circuit Court of the First Circuit, the Honorable Béen Elizabeth Hifo presiding, erred in granting summary judgment in favor of the Trustees in the condemnation action. Generally, Appellants argue that the court erred in ruling that the City did not have the requisite twenty- five qualified applicants necessary to initiate and maintain the condemnation proceedings. The Trustees cross-appeal, claiming that, although the circuit court ruled in their favor, the court erred in its interpretatione of ROH chapter 38. With respect to contend that the the declaratory judgment action, the Trust circuit court erred in dismissing their claims as moot. For the following reasons, we affirm the judgments of the circuit court. However, we remand the instant case for findings of fact and conclusions of law on the award of attorneys’ fees. *** FOR PUBLICATION *** SSS I. BACKGROUND ‘The Condemation Action 1. The City’s Initial and amended Complaints On February 14, 2003, the City filed a complaint in the Circuit Court of the First Circuit againet the Trustees to condemn certain leased fee interests in Kahala Seach pursuant to Hawai'i Revised Statutes (HRS) § 101-13 (1993). The City filed an amended complaint on March 5, 2003. On October 10, 2003, the City filed a motion to amend its amended complaint and, subsequently, filed an amended motion to amend on October 31, 2003. In its amended motion, the city requested leave to add additional applicants to the condemnation proceeding, specifically, Ethel H. Bird (Unit 252) and George WM. and Julia Smith (Unit 346). ‘The City’s amended motion was heard on November 19, 2003, With respect to Bird and the Smiths, the court ruled: 50, T grant the Motion to Amend by adding wird and the Smiths. "r can see no reason at all to leave them outs Ze doesn’t make any sense to ne that the City... could find people who would be eligible either under the ‘condominium or Ehet the State of houselote and then say ob, well, T got to wait until I get another 25 of you to bring it. ‘That is erazy and certainly inconsistent with the purpose of the law Which was C0 put fee simple property in the hands of such ‘But, Z do not chink that those people can be used against of in the condemnation to constitute the minimin unber that had to be there and remain throughout, I could imagine a situation where the duprene Court would say, certainly not the facts, that if you hag 30 and all 30 are qualitied and you filed the complaine and then you added five sore, you had 35, and, then something happened and after you had 35 qualities, you fell below the 28." Maybe then they would count the added. But, that's net the facts here. So, I don't need to speculate as to whats what that =~ whecher ir wae -- that that would Reppen or *** FOR PUBLICATION *** A221 tm saying 48 I'm granting the motion to add ‘and Julla smith and the Bird applicant with the Gnderscanding that they cannot be used to constitute the Sinmun 25 chat under (ious, Pin, & Dev. Corp. v. Takabuki, 2 Havas 172, 921 P.2d 92 (2996),] has to resain throughout. ‘And, further, {t dosen't make sense to ne that the fact that this case even if 1 were wrong and you could adé then as of today, if, as of yesterday, they weren't 25 then Gnder Takabuks the aithority has to terminate proceeding Teiel cn December 22, 2003, the Applicants filed a motion for reconsideration arguing, inter alia: (1) this court’s opinion in Takabuki did not require that the City maintain the minimum number of applicants solely out of the group of lessees whose unite were originally designated; (2) a liberal construction of ROH chapter 38 indicates that additional qualified applicants should be counted toward the required statutory minimum; and, (3) based on the language of Rules for Residential Condominium cooperative and Planned Development Leasehold Conversion (hereinafter, DCs Rules] § 2-11(d) (1) (2000), Bird and the Smiths should be considered part of the original designation. The City joined in this motion. After a hearing on January 9, 2004, the circuit court ruled that “this Court, after reconsideration and upon further deliberation, adheres to its earlier ruling that Applicants Bird and Smith [c]annot [cJount [t]oward the [rlequired [sJtatutory [m)inimum [t]wenty-[flive [alpplicante for [lease-to-{£]ee [clonversion in [p]laintiff City and County of Honolulu’s Amended Motion to Amend filed on October 31, 2003.* *** FOR PUBLICATION *** 2. The City’s Motion for Partial Summary Judgment on October 3, 2003, the City moved for partial sunmary judgment, arguing, inter alia: The City has properly designated the Kahala Beach and determined that the Applicants] have satisfied © qualifications for purchase of thelr respective leased fee interest purcuant to 20H Chapter 38 and the Amended Rules for Residential Condominium, Cooperative and Planned Development Leasehold Conversion ("DCS Rules) - Furthermore, under ROH § 38-2-4/(c) and DCS Rulon $5 2-2, 5, a-7, 1-8, 4-3, 2-3, 2-4, 2-5, 210, 2-13, and 2-18, the City has determined that the owner-occupant applicants have satiefied the qualifications for purchase of their Fespective percentage in the leased fee interest under ROH $°36-2.4 and oc8 Rules 6 2-4 ‘The Applicants joined in the City’s motion.' After a hearing on October 22, 2003, the circuit court denied the city’s motion, finding, inter alia: 2. The Court finda, upon the record presently before the court, that the following Défendant Lessees are qualified under tthe requirements set forth in ROM Ch. 38: (1) Mary Tima Cost Anderson, Unit 432; (2) Steven and Heidi Berman, Unit 172) (3), Germaine H. Brennan, Unit 211; (4) Cedric and Patricia choy, Unit 427; (5) Gerald H. Cutter, Unit 153) (6) Dan Devany, 111, Unie 228) (7) Lola Gebaver, Unit 345; (8) Harrigon c. and Marguerite Gonsalves, Unit 164; (9) Rathieen Hedung, Unit 303; (10) George B. and Shirley M. Isaacs, Unit 272; (11) Edward B. Keyes, Jr., Unit 442; (12) Sakiko Kishinoto, Unit 448; (13) Barbare and Jennifer Lau, Unit 224; (14) Wallace and Marjorie Loo, Unit 250;, (25) Margaret L. Nontgonery, Usit 450; (16) Jean ¥. Morrell, Unit 451; (27) Dorothy and Ira Nagel, Unit 11) (18) Ruch G. Rand, Unie 305; (23) Marie Ryan, Unit 372;'(20) Janes shaw, Unit 304; (21) Mary H Shelton, Unit 248) and. (22) Norma seiliweli, Unit 266 3." The Court finds that Mildred P.‘ault (Unit 242) ie not qualified, because she owned fee simple property, suitable for residential purposes within the City and County Of Honoluls that she quitclaimed for no consideration £0 Felatives at the tine she applied. 4. Tee Court finds that Willian C. Dixon, Jr., and Patricia Dixon (Unit 441) are not qualified, because they owned fee simple property suitable for residential purposes within the city and County of Honoluls that they quiteraimed for no consideration to relatives shortly before the tine they applied. Te should be noted chat the Trustees algo filed motions for partial summary Judgment on October 3, 2003. fog section T-A.3. intys 7 *** FOR PUBLICATION *** ee 5. The Court finds that there is a genuine issue of material fact a Dupire-Nelson, also known 255) Scet che qualification requirements of ROH chapter 3 G. he Court finds that Daniel Y. and Juliet Le (unis 165) are not qualified, because they did not meet the one-year residency Fequirenent under FOH § 36-1.2 7, “tne Coure finds that Derek Poag (Unit 470) ie not qualified becsuse he and nis wife om fee sinple Feoidential property within the City and County of Nonolutu, Go The Court finds that fatherine R. Randall (Unit 148) is not qualified Because she has rented out her unit 2nd thus hae not complied with the requirenent under ROH $301.2 that the applicant retain complete possessory Eontrei of the premises during the period pending legal proceedings to acquire the fee 3. o the court finde that Charles Spalding (Unit 432) has sold bie unit and therefore no longer meets the qualification requirenente of chapter 38 io. The Court finde that Jeannette J. Warren (Unit 4453) io not qualified because she has rented out her unit $a’ chue nae not complied with the requirement under ROH E'get,2 chat che applicant retain complete possessory, fontroi of the premises during the period pending legal proceedings to acquire the fee. Tic The Court finds that Menry Paul Weber (Unit 230) has sold his une to Erik sterling, and that Brik Sterling may substitute for Henry Paul Weber if he otherwise meets ChE qualification requiresents of Chapter 38 on Decenber 22, 2003, the Applicants filed motions requesting that the circuit court reconsider its findings that Ault, the Dixons, the Lees, Poag, Randall, and Warren were not qualified to participate in the condennation proceedings. The Applicants argued: (1) the Lees were qualified to participate in the condemnation proceedings based on DCS Rules § 2-14 (2000) (2) the disqualification of Ault, the Dixons, and Poag was inconsistent with the language and purpose of ROH chapter 38; and (3) Randall and Warren were qualified to participate in the condemnation proceedings based on DCS Rules § 1-2 (2000), allowing exceptions to the residency requirenent for serious + cived in futi, intra. *** FOR PUBLICATION *** illness, employment requirements, military obligations, and educational sabbatical. The City joined in these motions. Following a hearing on January 3, 2004, the circuit court granted in part and denied in part the Applicants’ motions for reconsideration. The motion was granted in part “in that [the court] reconsidered ite earlier ruling[s]” on the City’s motions for partial sunmary judgment. However, ‘after reconsideration and upon further deliberation,” the court adhered to its earlier rulings disqualifying Ault, the Dixons, the Lees, Poag, Randall, and Warren. The Trustees’ October 3, 2003 Motions for Partial Summary Judgment As previously noted, the Trustees filed three motions for partial sumary judgment on October 3, 2003. The Trustees argued that they were entitled to summary judgment because: (a) the Des Rules § 2-14, which allows the practice of “tacking,” was inconsistent with ROH chapter 36; (2) lessees Henry Paul Weber and Charles Cooke Spalding were not qualified to participate in the condemation proceedings; (3) the administrative rule allowing exceptions to the owner-occupant requirements was inconsistent with ROH chapter 38; and (4) there were fewer than 25 qualified applicants. The Trustees’ three motions were heard on October 22, 2003, along with the city’s motions for partial summary judgment.  *** FOR PUBLICATION *** he stacking” pes Rules § 2-14 provides in full: Any peraon who acquires the lease of an applicant may be Substituted for the withdrawing applicant, provided that the tubstituted applicant neets all the applicable requirements Sf chapter 28, ROH and these rules, except the requirenent that che substituted applicant be a resident of the condoninsum unit for a continuous and uninterrupted period of one year prior to the application. If the substitution Secure After the conmencenent of the condennation action, it Shall require the consent of the court. The director shall Sllow a substituted applicant a reasonable tine to meet all the requirements for final approval. In the event there is ho application for substitution within 60 days following & Withdrawal, the director shall request the corporation Counsel to dienise the withdrawing applicant ase party to the condemnation act ice ‘The Trustees argued that DCS Rules § 2-14 “allows an applicant who has satisfied the requirements to sell their position in the Litigation to someone who would not otherwise meet the requirements of being an ‘owner occupant.‘ Thus, the Trustees claimed that DCS Rules § 2-14 directly conflicted with ROH chapter 38. The Trustees further explained: ruling: ‘This rule, in effect, sanctions “tacking on* to the previous Gmner-oceupant without having lived in the unit for the feguisite time period co become an owner-occupant under (ROH Here, a number of che litigants are people who jacked on.! “they have not met the requirements of ROM f38-2.2, and in sone cases, they aid not even live in "Cae the tine they applied. " motion, orally The circuit court denied the Trust And ven I look at the ordinance, it’s silent on tacking. To that extent, it’s not clear. It’s ambiguous. ‘Rhen { look at the rule, we're talking rule 2-14, the court understands the rule to'mean, because it says I thine Clearly by ite plain words, and i'm quoting it ae follows, ny pereon who acquires the lease of an applicant may be fubetituted for the withdrawing applicant provided that the Substituted applicant meets all the applicable requiresents Of chapter 30 FOR in these cules, except for the requirement that the substituted applicant be a resident of the condorinivn for a continuous and uninterrupted period of one year prior to the application. -10- *** FOR PUBLICATION *** So to me thet means, obviously, that if the person who was the applicant wae an Omner-occupant and had resided there continuously for one year before the date of the application, and thereafter sells the condominium, then the peraon who can be substituted, who obviously couldn't posaibly have lived there for one year Before the date of bubseieution because they're just purchasing, gete the benefit of the tame that the original applicant hed been there. ‘That does not mean that a person can be an applicant and have lived there only two sohths and get the benefit of the 10 or 20 yeare that the person they bought it from was there, unless the person they Bought it from was the original applicant’ for the applicable condemnation proceeding. Go what Z am saying is that 1 do not think the rule ie inconsistent with the ordinance, and that x do think the rule ig narrow. And, therefore, you can only tack if you Eske after the peraon who lived there, for at least one, year, had alveatly nade an application. And as to the argument that it sakes a substantive digterence, the Court finds that the rule does not create 2 Substantive difference. Because when you look at whether there were 25, it’s 25 at the date of the filing of the condensation proceeding, ie 25, I ought say, and the date of determination. ‘Shu. so you look at 25, and sf you -- always still have to have 25. And if it happene that you make 25, and then one of those 25 later selia, ‘the person to whom they sold Gets the benefit of the original 25. But I don't see how Ghat isa substantive difference to the landlord, because the landlord ae the fee omer can always dispute that the original applicant wasn’t there for the 12 year period. 0 this notion is denied. But the Court will apply Ate interpretation to the undisputed facts later. The court's written order was filed on December 5, 2003, stating in pertinent part that, “als [DCS] Rules § 2-14 allows tacking Af the substituted applicant substitutes in for a withdrawing original applicant for the applicable condemnation proceeding who has lived in the unit for at least one year, the Court finds that the rule is narrow and not inconsistent with ROH Chapter 39,” b. lessees Webs adie The Trustees moved for partial summary judgment against lessees Keber and Spalding and for the dismissal of their units from the condemnation proceeding because both applicants had sold wane *** FOR PUBLICATION *** their interests in The Kahala Beach. The circuit court granted the Trustees’ motion as to the individual lessees and denied the motion as te the two units. The court essentially ruled that the named applicants were no longer part of the proceedings and could not be counted towarde the minimum number of applicants necessary to proceed, but that their units could remain in the condemnation action subject to subsequent application of its ruling on the issue of tacking. The court’s ruling was expressly made “without prejudice to hear[ing] the City’s pending Motion to Amend the First Amended Complaint consistent with the Court's interpretation regarding tacking.” ©. exceptions to the owner-occupant requirements Both ROH § 38-1.2 and DCS Rules § 1-2 define “owner- of qualifying to participate in occupant” for purpo! condemnation proceedings under ROH chapter 38. The definition contained in the administrative rule allows the Department of Housing and Community Development (hereinafter, the department] , nee ROH § 38-1.2; DCS Rules § 1-2 (2000), to consider exceptions to the occupancy requirements for participation in condemnation argued that the definition of ‘owner- proceedings. ‘The Truste occupant” in DCS Rules § 1-2 conflicted with ROH § 38-1.2. ‘The circuit court orally ruled: Again, the Court is compelled wherever possible to reconcile the rule with the ordinance, apd T believe that thie part of the rule which deals with exceptions modifies the principal place of residence language of the ordinance. ‘And, @= Mr. smith has argued, 1 (alo not believe, for an example, If you're in the hospital, surgery, or Ina bed Accident, or you're in the hospital and then you're w12- *** FORPUBLICATION *** transferred to Retab Hospital of the Pacific, or something {Ike thats that that would deprive you of claiming that your shold condominium i8 your principal place of residence, Nor dot believe, ag Mr. Smith has argued, that if you're assigned to Iraq that that means your principal place Teicl is ia iraq, or wherever elee the military E do'noe think that those aforesaid exceptions contained in the rule nodify che omner-pare of the owner- Scoupant definition and do not in any way create an Shception for or controvert the ordinance which makes it lear that you have to have complete possessory control and That you donot have complate possessory control of the preniges if the individual vents, leases, or assigns the Rremises for any period of time to any other perecn in whose ame legal title is not held. ‘and that is ow f reconcile the rule with the statute. ‘merefore, a motion for partial summary judgnent on the [eaue of ad hoe exceptions i denied in pare, and co the entent that it wae argued that the exceptions could be uced ES'fbvalidate che ordinance and the rule's own language that you have to have complete possessory control end you do not YP'you rent, lease, or assign, it is granted. ‘me court's written order was filed on December 5, 2003 and stated in pertinent part: 2. ‘the Department of Community Services may grant ceptions to Revised Ordinances of Honolulu (2990) (“ROH”) Section 38-3.2°8 cecupancy requirenent for serious i1iness, Ceployment requirenents, milizary obligations, and SGucavional sabbatical, ae provided under mule 1-2 of the Rules for Residential Congominium, Cooperative and Planned Development Leasehold Conversion, as amended ("Rules"). The Getinitions of "owmer-cecupane” Contained in Rule 1-2 and Roe g 382.2 can be veconciled. Rule 1-2's exception fodifies the principal piace of residence language of ROH Pe. 2. Applicants granted an exception to the occupan requizenent Leder Rule 1-2 Of the Rules must still comply With the other qualification requirenente of Revised Ordinances of Honoluly {18 38-1-2, and may not rent, 1 Sr assign their unit for any period of tite to any other person in shove name legal title is net held. December 1, 2003 Motion for Summary on Decenber 1, 2003, the Trustees moved for summary judgment, arguing that there were “qualified lessee applicants for less than 25 units.” -13- *** FOR PUBLICATION *** on December 19, 2003, the Trustees filed a supplement to their motion for summary judgment. The Trustees (1) indicated that lessees Brennan and Kishimoto had withdrawn from the condennation proceeding? an (2) argued that sterling was not qualified to participate in the condemation proceeding because his Kahala Beach unit was not his principal place of residence and he was not a bona fide resident of the City and County of Honolulu, as required by ROH §§ 38-1.2 and 38-2.4, respectively. ‘The Trustees submitted a copy of the assignnent of lease from the unit’s prior owner to Sterling, which indicated that it was executed by Sterling in California, and other documents in support of their contention that Sterling was a resident of Los Angeles. The city argued that the record denonstrated that Sterling was a qualified lease applicant, citing, inter alia, sterling’s application to participate in the condemnation proceedinge and supporting affidavit, which both indicate that Sterling was “a bona fide resident of the State of Hawai'i, whose principal residence is [Unit 230]." The City also argued that the documents submitted by the Trustees did not demonstrate that Sterling was not a resident of the City and County of Honolulu. A hearing was held on January 9, 2004, during which counsel for the City argued, inter alia, that the timing of when applicants dropped out or were added to the condemnation > a atipulation to diemiee Kishimoto and Brennan was filed on Decenter 32, 2003. -a4- +** FOR PUBLICATION *** a proceedings affected the analysis of whether there were 25 applicants at the time the condemnation action was: initiated and whether the minimum number wae maintained throughout the proceedings. The court indicated that it dened Brennan not to have been qualified from the beginning. At the conclusion of the hearing, the circuit court granted the Trustees’ motion for eunmary judgment, The court's March 4, 2004 written order includes the following: 1. The Court finds that the following Defendant S tico wits Ault, the Dixons, the Lees, Poag, Randell, Spalding, and Warren)) are not qualified for the Rasone ‘previously stated in the Court's Order Denying Biaineie? city and County of Honolulu’s Motion for Partial Euanaty Judgment Filed on October 3, 2003, filed on December 5, 2003: Tiche order incorporates nearly verbatim Paragraphs 3, 4, 7, S,°5S Sna'io of the Decenber §, 2003 order, quoted supra)! ght 10.86 court finds that Defendant Lessee Erik sterling (unit 230) ie not qualified because he did not live {S*hls Unie as hie peincipal place of residence continuously afer ne applied, and bectuse he was not a bona fide eldent ofthe City and county of Nonolulu at the tine he applied and afterward. 3. Defendant Lessee Gernain Hope Brennan (Unit 222) has, by stipulation of the parties, withdrawn from the Uehdemiation. For purposes of this motion, the Court must ftke as undioputed the following facts set forth in the Declaration of Paul §. Aoki, dated Novenber 14, 2003, Because Mrs. Brennan did not provide the discovery ordered By this Court within the tise frame set by the Court in its Older Granting in Part and Denying in Part Defendant Yanheceha Schools’ Motion to Dismiss Defendant Germaine Hope Brennan ae a Party in Civil No. 03-1-0361-02 Piled on October 29,2003, filed on December 26, 2003: on the basis of these undisputed facts, the Court finds that Seeendant Lessee Oernaine Hope Brennan is not qualified Decause she has not lived sm her unit as her principal Fesidence continously after she applied, and because she is Hot a bona fide resident of the City and County of Honolulu. 3°" “Defendant Lessee Sakiko Kishimoto (Unit 445) has, by stipulation of the parties, withdraw from the UShdendation, “For purposes of this motion, the Court cannot Sind that Defendant Lessee Saxiko Kishimoto is qualified, Because she did not provide the discovery ordered by thie Court in ies Order Denying Defendant Lessees’ Motion for Frotective Order Filed On August 21, 2003, filed on October te, 2003. -15- *** FOR PUBLICATION *** 5. the Court finds that trom and after october 11, 2002, the date of designation, there have not cont invous Been qualified lessees for at Least 25 unite ‘6. The Court holds, in light of Housing Finance and Development Corporation v. Takabuki, 82 Hawas 172, 922 P.2a 92 (2996), coon v. Clty and County of Honolulu, 38 Hawat'l 233, 47 P.3d 348 (2002), and City and County of Honolulu v. Zag, 100 Hawai'i 162, 58 P.34 1225 (2002), that. there must be qualified lessees for at least 25 unite Continuously ehvoughout the legal proceedings to acquire the Fee. If the class of qualified leseee spplicante whose unite have been designated fails below the statucory sinimun nunber of 25 units, for shatever reason, che proceedings: Sune be terminated: 7." “hecordingly, the court holds that this condennation action mst be terminated, and (the Trust {e"encitied co summary judgment 5. The Trustee’s Motion for an Award of Damages on March 9, 2004, the Trustees filed a “Motion for an order Determining Amount of Danages Incurred by Movants Pursuant to [HRS § 101-27]. The Trustees asserted that they were 2 from the City in accordance with entitled to recover “$506,121. the Summary Judgment Order for the period through and including January 31, 2004, and additional anounts thereafter pursuant to a supplemental filing,” pursuant to HRS § 101-27 (1993), quoted infza. In opposition to the Trustess’s motion for an award of damages, the City argued that, under HRS § 101-27, the Trustees were entitled only to reasonable fees and costs and that the Trustees failed to establish the reasonableness of their requested award. The Lessees joined in the City’s opposition. After a hearing on April 7, 2004, the circuit court granted in part and denied in part the Trustee’s motion, ruling: -16- *** FOR PUBLICATION *** ‘The Court partially denies the Notion and ‘a matter of law the following cost and expen: (a) Bepert witnes Sn the amount of S65, 198.70. (b) Computer research fees in the anount of $045.05. (c) Hearing exhibits in che anount of $548.43. 2. the Court partially granta the Notion as it applies ‘to the renaining amounts requested by [the Trustees], and roles that (the Trustees] shall be entitled fo reiabursenent of the following: (s) Attorneys’ fees and general excise tax in The amount Of $440,069.06 () Goste and expenses’ in the ancunt of 519,030-49. Final Judgment Final judgment in favor of the Trustees was filed on April 28, 2004. The Applicants and the City timely appealed. The Trustees filed a timely notice of cross-appeal. Bo 3 on December 18, 2002, the Trustees filed a complaint in first cizcuit court against the City and the department. The Trustees sought the following relief: (1) an injunction prohibiting the City from exercising its power of eminent domain in regard to The Kahala Beach; (2) entry of judgment declaring that the City's efforte to condemn The Kahala Beach were unconstitutional and illegal; (3) entry of judgment declaring that ROH chapter 38 ie illegal and unconstitutional as applied to ‘The Kahala Beach; (4) reimbursement for actual expenses incurred by the Trustees as a result of the City’s designation of The Kehala Beach for condemnation; (5) an award of damages in an amount proven at trial; (6) an award of attorneys’ fees and costs; and (7) any further relief deemed just and equitable by -17- *** FOR PUBLICATION *** the court. On dune 4, 2003 the declaratory judgment action was consolidated with the condemnation action. on January 22, 2004, following the award of summary judgment in favor of the Trustees in the condemnation action, the City moved to dismies the Trustees’ claims in the declaratory judgment action as moot or, in the alternative for judgment on the pleadinge in favor of the City. The Trustees did not expressly oppose the City’s motion, but filed a *Memorandun in Response,” incorporating by reference the evidence submitted and arguments made in prior motions filed in the condemnation case. During a hearing on January 30, 2004, the court accepted a stipulation by the parties that, for the purpose of the consolidated actions, the following was deemed proved: 2. the transcript of excerpts of the Honolulu council regular Council meeting held on Decenber 4, 2002, Sttached ag Sxnibit "3" to (the Trustee’) ation for Partial surmary Judgment on Counts 1-111 of [the Trustees] Complaint and supporting papers, filed herein on October 3, S003, ip an accurate transcription of what was said. 20 “" the newspaper article attached as Exhibit °5* to [the trustees'] Motion to Conpel Discovery of “Privileged” Gomuniestions fron Plaintiff Clty and County of Honolulu Sud Defendant Leseces, filed herein on Septerber 18, 2003, Sccurately reflects what Corporation Counsel David Arakawa, Beg. said vo the press 3. As Corporation Counsel, David ar aurhority co make the statements co the press awa, Beq. had ‘The court subsequently granted the City’s motion. A written order was filed on February 10, 2004. A final judgment indicating that all claims and prayers for relief in the declaratory judgment action had been resolved or dismissed as moot was filed on April 28, 2004. The Trustees timely appealed. -18-  FOR PUBLICATION *** 1. sARDS VIEW AL Award mary Ji E “We review the circuit court’s grant or denial of sunmary judgment de novo.” Simmons v. Puu, 105 Hawai'i 112, 117, 94 P.3d 667, 672 (2004) (quoting Hawai‘i Cmty. Fed. Credit Union wKeka, 94 Hawai'i 213, 221, 11 P.3d 1, 9 (2000). B. Awards of Fees and Costs ~This court reviews the circuit court's denial and granting of attorney's fees under the abuse of discretion standard." Price v, AIG Hawai'i Ins. Co., inc., 107 Hawai'i 106, 310, 111 P.34 1, 5 (2005) (citation omitted) cC. Statutory Interpretation “We review the circuit court’s interpretation of a statute de nove.” City and County of Honolulu v. Ing, 100 Hawai'i 182, 189, 58 P.3d 1229, 1236 (2002) (citation omitted). HT. ISCUSSION ‘A. The Condemnation Action Appellants argue that the circuit court erred in ruling that there had not continuously been qualified lessees for at least 25 units to support the condemnation action because: (2) genuine issues of material fact existed regarding Sterling's principal place of residence; (2) Ault and the Dixons should not have been disqualified based on their transfer of fee simple property prior to applying for condemnation under ROH chapter 36; (3) Poag’s fee simple property ownership did not disqualify hin -19- *** FOR PUBLICATION *** because the property in question was not habitable or suitable for residential purposes; (4) ROH chapter 38 does not require that the minim number of qualified applicants come from those originally designated; (5) the court erroneously applied Des Rules § 2-14, which allows "tacking"; and (6) the court erroneously applied the exceptions to the occupancy requirenents articulated in DCS Rules § 1-2. The City additionally clains that the cizcuit court erred in awarding the Trustees’ requested attorneys’ fees, In their cross-appeal, the Trustees contend that the circuit court erred in determining that: (1) the definition of ‘owner-cecupant” contained in DCS Rules § 1-2 could be reconciled with the definition of “owner-occupant” contained in ROH § 38-1.2; (2) the City may allow subsequent lessees to “tack ont to the previous applicant's tine of residency for purposes of fulfilling the twelve-month residency requirenent under ROH § 38-1.2; (3) units 230 (formerly Weber’s) and 412 (formerly Spalding’s) remained subject to condemnation despite the fact that the former applicants had sold their units and were no longer qualified to participate in condemnation proceedings; and (5) the (4) the City could amend its first amended complaint; Trustees could not recover expert witness fee! 1. Ault and the Dixons -- Units 242 and 441, ‘The circuit court ruled that applicants Ault and the Dixons were not qualified because they owned fee simple property -20- *** FOR PUBLICATION *** suitable for residential purposes within the City and County of Honolulu that was quitelaimed for no consideration to relatives shortly before or at the time they applied to participate in the condemnation proceedings. The circuit court explained that it did not believe Ault and the Dixons were qualified because the property that they had quitelained in order to qualify for the condemmation proceedings could be quitclaimed back to them. Appellants contend that the circuit court’s ruling that Ault and the Dixons were not qualified is not supported by the plain language of ROH § 28-2.4, The Trustees argue that the cirouit court was correct because the transactions by Ault and the Dixons were similar to the creation of “false poverty" to becone eligible for government assistance prograns or fraudulent conveyances. ‘he clear and unambiguous Language of ROH § 38-2.4 provides that applicants are not eligible to participate in condemnation proceedings under ROH chapter 38 unles they *[dlo not own property in fee simple lands suitable for residential purposes within the City and County of Honolulu or have pending . an unrefused application to lease or purchase residential real property for dwelling unit purposes." In the instant case, it is undisputed that, at the time they applied and throughout the condemnation proceedings, neither Ault nor the Dixons owned fee simple property suitable for residential purposes within the city and County of Honolulu or had a pending, unrefused -aa- *** FOR PUBLICATION *** application to lease or purchase residential real property for dwelling unit purposes. Based on the plain language of the ordinance, we hold that the circuit court erred in ruling that Ault and the Dixons were not qualified to participate in condemnation proceedings under ROH chapter 38. 2. Poag Appellants contend that the circuit court erred in ruling that lessee Poag (Unit 470) was not qualified to participate in the condemnation action because he and his wife owned fee simple property within the City and County of Honolulu. Appellants argue (1) Poag owned the property to secure financing as part of his business of buying, renovating, and selling residential and commercial property and (2) the property was not habitable during the time Poag owned it due to plumbing, electrical, structural, and security deficiencies. Thus, Appellants appear to contend that the circuit court should not have ruled that Poag was not qualified because of (1) the reason he owned the property in question and (2) the state of the structure atop such property. ROH § 38-2.4 provides in pertinent part: (a) Mo gale of any condominium land within « development shall be made unless the lessees: isi” pones roperty in fee simple lands suitabl Sounty of Honolulu or having pending before the state Housing finsnee and developnent Corporation, oF the city department of housing nd. community developrent an unrefused application to lease or purchase ragidential well ine x Person is dened to own iands, for the purpote -22- *** FOR PUBLICATION *** of this paragraph, if che person, che person's Or both the person and the person’s jeparated and Living apart under e'gecree of a court of competent jurisdiction) Owns lands, including any interest, in a land trust in the City and County of Hosolulu; Based on the language ‘property in fee simple lands suitable for residential purposes” and “residential real property for dwelling unit purposes,” the relevant inguiry under ROH § 38-2.4 centers around the character of the land itself -- whether the property can be used for residential purposes or dwelling unit purposes. under the plain language of the ordinance, the habitability of any structures atop land suitable for residential purposes is not relevant. In the inetant case, Poag aduitted during his deposition that the fee simple land he owned at 1248 Inna Place (hereinafter, the Makiki Property] was residential property, and it 4s undisputed that the Makiki Property is within the City and County of Honolulu, Poag algo explained that the following work was done on the Makiki Property: Ke gutted the entire residence. By that I mean we core out ali the deywail, tore off the roof, tore cut sl) the plumbing, reconfigured many of the interior wails, put Ie'ai"Rew plusbing, all-new drywall, all new roofing, added iis00 square feet, including a detaches garage and a guest Gottage above the garage, resurfaced all the floors, put in granite and marble throughout, all new eppliances, re~ Yandecaped the entire project ite. it was an extensive renovation. Poag's statements demonstrate that the Makiki Property was residential property and that the land had been used as such Thus, the record supports the circuit court’s determination that -23- *** FOR PUBLICATION *** Poag owned fee sinple residential property within the City and county of Honolulu. Appellants argue that Poag should not have been disqualified because he owned the property for business purposes. However, the plain language of ROH § 38-2.4 is both unqualified and unambiguous: *No sale of condominium land within a Geveloprent shall be made unless the lessees . . . [do not own property in fee simple lands suitable for residential purposes.” There being no ambiguity in the ordinance, this court is not at Liberty to look beyond ite plain language. See Ing, 100 Hawai'i at 189-90, 58 P.3 at 1236-37 (citations omitted). Therefore, we hold that the circuit court did not err in ruling that Poag was not qualified to participate in condemnation proceedings under ROH chapter 38. 3. The Tesue of Tacking Appellants and Trustees contend that the circuit court erred in its rulings regarding DCS Rules § 2-14, which allows a subsequent applicant to “tack on* to the time a withdrawing applicant resided in the unit to eatisfy the one-year residency requirement for participation in condemnation proceeding Appellants contend that the circuit court erred in finding that “Daniel and Juliet Lee (Unit 165) are not qualified because they did not meet the one-year residency requirement under [ROH] § 38-1.2" The Trustees contend that the circuit court erred in -24- *** FOR PUBLICATION *** a ruling that DCS Rules § 2-14 “is narrow and not inconsistent with ROH chapter 38.° ‘The Trustees contend that DCS Rules § 2-14 conflicts with ROH chapter 38 because the administrative rule “allows an applicant who has satisfied the requirements to sell their position in the litigation to someone who would not otherwise meet the requirements of being an ‘owner-occupant.‘* Appellants argue that the definition of “lessee” in ROH chapter 38 specifically contemplates the situation where an applicant sells or otherwise conveys his or her interest to another person. *[W]hen interpreting municipal ordinances, we apply the same rules of construction that we apply to statutes.” Coon v. City and County of Honolulu, 98 Hawai‘i 233, 245, 47 P.3d 348, 360 (2002) (quoting Weinberg v. City and County of Honolulu, 62 Hawai'i 317, 322, 922 P.24 371, 377 (1996)). “While an administrative agency’ interpretation of the ordinance that it As responsible for implementing is normally accorded great weight, no deference ie required when the agency's interpretation conflicts with or contradicts the manifest purpose of the ordinance it seeks to implement.” Id. at 251, 47 P.3d at 366 (citations omitted). Additionally, we have noted that strict construction merely precludes “doubtful inferences" and mandates that the grant of the power of eminent donain Be tound in the ordinance, “either expressly or by necessary [splication." The exprese pursose of the ordinance promulgated by the city Council must, in turn, be effected Povthe fullest extent possible through interpretation of its Teoguage and the resolution of ambiguities in accordance with ese ‘liberal construction" rule. -25- *** FOR PUBLICATION *** Id. at 247 2.18, 47 P.3d at 362 0.18 HOH § 38-1.2 defines a lessee as “any person to whom land is leased or subleased, including the person’ s heirs successors, lecal representatives, and assigns and who is the owner-occupant of the residential condominium unit, residential condominium unit, residential cooperative housing unit or residential planned developnent unit." (Emphasis added.) The definition of “lessee” refers to an “owner-occupant,” which is separately defined in ROK § 38-1.2. However, the definition of “lessee" is ambiguous as to whether the owner-occupant requirement applies to only “any person to whom land is leased or subleased” or to ‘the heirs, successors, legal representatives, and assigns" as well. Appellants argue that the former reading resolves the arbiguity in the ordinance in accordance with the rule of liberal construction and gives greater effect to the intent of the legislature. Assuming but not deciding that the owner-occupant requirement applies only to the “persons to whom land is leased or subleased” and not “the person’s heirs, successors, legal representatives, and assigns, it does not resolve the question of whether DCS Rules § 2-14 conflicts with ROH chapter 36. Although ROH § 38-1.2 defines various terms used in ROH chapter 38 including “lessee,” the eligibility requirements for participation in condemnation proceedings are set forth in ROH § 38-2.4, which provides, inter alia, that “[nlo sale of any -26- *** FOR PUBLICATION *** condominium land within a development shall be made unless the lessees . . . [a]re at least 18 years of age and are owner occupants of their condominium unite(.]” (Emphases added.) This court has noted that “‘our rules of statutory construction requires us to reject an interpretation of a statute or an ordinance that renders any part of the statutory language a nullity.’" Coon, 98 Hawai'i at 250, 47 P.3d at 365 (citations and brackets omitted). Thus, although the definition of “lessee in ROH § 36-1.2 may be interpreted to include individuals who do not thenselves meet the owner-occupant requirements, the plain language of ROH § 38-2.4 separately requires that lessees be owner-occupants in order to participate in condemnation proceedings under ROH chapter 38. An owner-occupant is any individual in whose nane sole or joint legal title se hela'in s residential condominium one, residential Gcoperstive apartment nit or residential planned Sevelopment unit which, simultaneous to the individual's omership, serves a8 the individual's orincipal place of Hor 20 appl conv durina the period pendina 1ecal_nroceedinaa to acauite the tee; Provided, that the individual shall resin complete ossessory control of the premises of the residential unit Suring these periods. ‘An individual shall not be dened to have complete possessory control of the premises if the individual renee, igns the prenises for any period of time £0 an Bin wot {e not held. Proof of residency and posi shall be ‘name legal title ROH § 38-1.2 (emphasis added). Read together, ROH §§ 38-2.4 and 38-1.2 indicate that no sale of condominium land within a development shall be made unless the lessee’s condominium unit, simultaneous with hie or her ownership of it, serves as the -27- *** FOR PUBLICATION *** individual's principal place of residence for a period of at least one year inmediately prior to applying to participate in condennation proceedings under ROH chapter 38. Des Rules § 2-14 provides in pertinent part: Any person who acquires the lease of an applicant may be Substituted for the withdrawing applicant, provided that the Eituted applicant neeta all the applicable regairenente OF Chapter 38, ROH and these rules, except the requirenent Chat the substituted applicant be a resident of the condominium for a continuous snd uninterrupted period of one year prior to the application ‘The administrative rule allows the sale of condominium property under ROH chapter 38 to a lessee who does not satisfy the requirement that the unit serve as the lessee’s principal place of residence of one yt x inmediately prior to application for conversion, as well as during the period pending legal proceedings to acquire the fee. Thus, on its face, the administrative rule appears to conflict with the plain language of ROH § 38-2.4. ROH § 38-1.2 provides that “proof of residency and possessory control shall be as established by rules adopted by the department.* Based on this language, the Applicants argue that DCS Rules § 2-14 constitutes @ special rule for proof of residency and possessory control that establishes an othervise qualified applicant is deemed to have constructively met the twelve-month residency requizement by substituting for a withdrawing applicant who was previously qualified. However, the language of DCS Rules § 2-14 does not support the Applicants’ argument. This court has previously noted that DCS Rules § 1-9 -28- *** FOR PUBLICATION *** ee articulates the rules governing the manner in which applicants must prove their residency and possessory control. Ing, 100 Hawai'i at 194, 58 P.3d at 1241. DCS Rules § 1-9 (2000) provides: ‘a of proof; cathe: affidavits. the party having the burden of proof of any fact or event shall make such proof by competent and credible evidence and testirony Rcceptable and satisfactory to the director or his Gceignated agent. Evidence at any hearing may be required to be given under cath or by sworn written material. An application may be required to be affirmed under oath, else cethe and afficavite shal constitute perjury and a (tion of wec+730-2060, HRS. viol pes Rules § 1-9 clearly establishes the type and amount of evidence necessary to satisfy the applicable burden of proof. In contrast, DCS Rules § 2-14 provides that a person may be substituted for a withdrawing applicant need not “meet” the requirement “that the substituted applicant be a resident of the condominium for a continuous and uninterrupted period of one year prior to the application.’ Thus, rather than establishing the ary for a substituted applicant type and amount of evidence nece: to satisfy his or her burden of demonstrating residency and possessory control, DCS Rules § 2-14 states that no evidence of the aforementioned residency requirement is necessary. The rule is plainly inconsistent with ROH § 38-2.4, Therefore, we hold that the circuit court erred in holding that DCS Rules § 2-14 “is narrow and not inconsistent with ROH chapter 38.* Because (1) Des Rules § 2-14 is inconsistent with and contradicts the manifest purpose of ROH § 36-2.4 and is, therefore, held to be invalid and (2) it is undisputed that the Lees, absent the -28- *** FOR PUBLICATION *** invalid rule allowing “tacking,” did not satisfy the requirements of ROH § 36-2.4, we also hold that the circuit court did not err in ruling that the Lees were not qualified. 4. Sterling Appellants contend that the circuit court erred in finding that Sterling was “not qualified because he did not live in hie unit as his principal residence continuously after he applied, and because he was not a bona fide resident of the City and County of Honolulu at the time he applied and afterward.” specifically, Appellants argue that Sterling's application to to fee conversion and his supporting participate in le: affidavit, considered in the light most favorable to the nonmoving party, demonstrates that there waa a genuine issue of material fact regarding whether Sterling was qualified to participate in the proceedings. ‘This court has noted that sunmary judgnent ie appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there ig no genuine iasue as to any material fact and that the moving party is entitled to judgment as a satter of lav. A fact ia material {f proof of that fact would have the effect of establishing or refuting one of the essential elenents of cause of action or defena evidence mst be viewed in Ron-moving party. in other words, we mst view all of the evidence and the inferences drawn theretron in the Lisht most favorable to the party opposing the motion Simmons, 105 Hawai'i at 117-18, 94 P.36 at 672-73 (quoting Kahale Ms City and County of Honolulu, 104 Hawai'i 341, 344, 90 P.3d 233, 236 (2004). -30- *** FOR PUBLICATION *** a In his application dated April 21, 2003, Sterling indicated that he had occupied Unit 230 for three days and that he is a bona fide resident of the City and County of Honolulu, In his affidavit in support of his application, Sterling states, under penalty of perjury that he is a bona fide resident of the city and County of Honolulu. Thus, although the Trustees may have presented evidence indicating that Sterling did not satisty the residency requirenents, the City clearly presented admissible evidence to the contrary. Given the contradictory evidence adduced by the parties, the circuit court erred in ruling that there were no genuine issues of material fact as to whether Sterling wae a bona fide resident of the City and County of Honolulu. However, it is undisputed that Sterling was nok a resident of his condominium unit for a continuous and uninterrupted period of one year prior to his application and that the department deemed Sterling qualified based on DCS Rules § 2-14, Therefore, based on our holding that DCS Rules § 2-14 is invalid, we also hold that Sterling was not qualified to participate in condemnation proceedings under ROH chapter 38. Accordingly, we hold that the circuit court correctly ruled that sterling was not qualified, albeit for different reasons. See Agsalud v. Lee, 66 Haw. 425, 430, 664 P.24 734, 738 (2983) (stwlhere the decision below is correct it mat be affirmed by the appellate court though the lower tribunal gave the wrong a *** FOR PUBLICATION *** reason for its action" (brackets in original) (citations and internal quotation marks omitted) ). 5. Exceptions to the Requirement that Applicants Retain sory Control Over Their Condominium Appellants and Trustees claim that the circuit court erred in its interpretation of pcs Rules § 1-2. The circuit court concluded that the “exceptions to the occupancy requirement based only on serious illness, employment requirements, military cbligations, and educational sabbatical” listed in 2cS Rules § 1-2 applied to the requirement in ROH § 38-1.2 that the condominium unit serve Yas the [applicant’s) principal place of residence for a period of not less than one year inmediately prior to application for conversion, as well as during the period pending legal proceedings to acquire the fee.” However, the court also ruled that applicants Randall and warren were not qualified to participate in the condemnation proceedings beca they had rented out their units and, therefore, did not comply with the requirement that applicants retain possessory control of the premises during the period pending legal proceedings to acquire the fee. On appeal, it is undisputed that Randall and Warren rented out their unite during the year immediately prior to application for conversion or during the period pending legal proceedings to acquire the fee As noted supra, ROH § 38-2.4 requires lessees to be owner-occupants of their condominium unite in order to be -32- *** FOR PUBLICATION *** a eligible for condemation proceedings under ROH chapter 36. As previously stated, ROH § 38-1.2 defines “owner-occupant” as any individual in whose name sole or joint legal title is Rola tn a residential condosinium unit, residential petGeracive aparcnent unit or residential planned Geveiopnene unis which, simultaneous to the individual's aexeighIp, aerveo ee the individual's principal place of Setidence for s period of not less than one year imediately seri eere* application for conversion, as well as during the Betod pending lege! proceedings to acquire the fees petvided{] that the individual shall retain complete peettesory control of the premises of the residential unit Baring cheee periods s a have complete sassesiory control of the premiess ifthe vidual rents, 12a 35 reniees fOr ee ee root of residency and possessory Control Ag Bente eatabl ished by rules adopted by the departrent. (emphasis added.) DCS Rules § 1-2 defines “owner-cccupant” as any individual in whose nane sole or joint legal or BEY {able eitie ie held ina residential condominium unit or flannea developoent apartment or hone which server Boncurrentiy wich such ownership as the individual's SoiStipal place of residence for a continuous and vretcerupted period ef not less than one year inmediately weiaeging’en application for conversion, ae well as during Pre“{esa) proceedings co acquire the fee simple title. An ShherSSccupane mist retain complete possessory control of Che"Scsdoninius unit or planned development apartment or Boke throughout these periods and shall not be deened to POSE EBipiece poscessory control if the condominium unit or Pitaned Development apartment or hone is rented, leased or Dances tor any period of time to any other person who ie ASE Segal omer, or an equitable owner under an Agreement Beteaiesvof the same condominium. The department nay 2) whe ocoupancy £26 ons piitiche, and educational sabbatical (emphasis added.) a. the Trustees’ arcument the Trustees argue that the circuit court erred in ruling that DCS Rules § 1-2 and ROH § 38-1.2 can be reconciled pecause the administrative rule expands the definition of *owner- cccupant” beyond the plain language of the ordinance, As noted gupra, an adninistrative agency's interpretation of the ordinance -33- *** FOR PUBLICATION *** that it is responsible for implementing is normally accorded great weight. Coon, 98 Hawai'i at 251, 47 P.3d at 366 (citations omitted). Additionally, although the application of strict scrutiny “precludes doubtful inferences and mandates that the grant of the power of eminent domain be found in the ordinance, either expressly or by necessary inplication[,]” “[t]he express purpose of the ordinance promulgated by the City Council mist, in turn, be effected to the fullest extent possible throush interpretation of its language and the resolution of ambiguities in accordance with the liberal construction rule.” Id. at 247 n.18, 47 P.3d at 362 n.18 (internal quotation marke omitted) ROH § 38-1.2 requires, inter alia, that the subject condominium unit serve as the applicant’s “principal place of sidence” and that the applicant retain "complete possessory Des Rules § 1-2 allows the department control” of the premises. to consider exceptions to the “occupancy requirement.” Inasmuch tablish an as neither ROH chapter 38 nor the DCS Rules “occupancy requirement,” it is unclear whether, on their face, the definitions of ‘owner-occupant” in DCS Rules § 1-2 and ROH § 38-1.2 are inconsistent. rly establishes that Because ROH chapter 38 cl applicants mist meet the residency and possessory control requirements articulated in ROH § 36-1.2, the Trustees are correct that DCS Rules § 1-2 cannot be interpreted to create exceptions to these requirements. See Coon, 98 Hawai'l at 251, -34- *** FOR PUBLICATION *** 47 P.3d at 366. However, ROH § 36-1.2 clearly expresses the City Council's intent to allow the department to establish rules as to how applicants prove that their unit served as their principal place of residence and that they retained complete possessory control of their units.‘ Thus, the department may consider occupancy as a factor in determining whether the condominium unit serves as the applicant’s principal place of residence. Additionally, as the circuit court noted, it is reasonable for the department to establish rules for proving residency and possessory control that accommodate for situations where an applicant does not occupy his or her unit for a period of time, ouch as in-patient care in a medical facility or military deployment. Therefore, in giving the effect to the city council's intent to allow the department to establish rules for proof of residency and possessory control to the fullest extent possible, we hold that the language of DCS Rules § 1-2 allowing the department to consider exceptions to the ‘occupancy rious illness, employment requirements, requizement” for military obligations, and educational sabbatical is consistent with ROH § 26-1.2, which allows the department to establish rules of proof of residency and possessory control. Accordingly, we hold that the circuit court did not err in ruling that the “mie court has noted that the terms “principal place of residence” and "possessory control" are not defined in ROH chapter 38. See Ing, 100 Bowails av 195, 58 P.3d at 2242 -35- **® FOR PUBLICATION *** a definitions of “owner-occupant” contained in ROH § 38-1.2 and DCS Rules § 1-2 may be reconciled. b. the Appellants’ aroument Appellants argue that the circuit court erred in excluding applicants Warren and Randall because the exceptions articulated in DCS Rules § 1-2 apply to the requirenent that applicants retain “complete possessory control” of their premises. ROH § 28-1.2 states that an applicant who leases his or her premises during the relevant periods ‘shall not be dened to have complete possessory control.” “The term ‘shall’ is ordinarily used in a mandatory sense. Lingle, 108 Hawai'i 245, 251, 118 P.34 1288, 1194 (2005) (citations omitted) . Thu the plain language of ROH § 38-1.2 mandates that an individual cannot be deemed to have complete possessory control of the premises if they rent their unit for any period of time to fa person in whose name legal title is not held. Applicants ‘who do not maintain complete possessory control of the premises do not meet the definition of an owner-occupant under ROH § 38-1.2 and, based on ROH § 28-2.4, are not eligible to participate in condemnation proceedings under ROH chapter 38. Inasmuch administrative rule cannot contradict or conflict with the ordinance it seeks to implenent, gee Coon, 98 Hawai'i at 252, 47 P.3d at 366 (citations omitted), DCS Rules § 1-2 cannot be interpreted to allow an individual to rent out his or her unit and still meet the reguizement of retaining complete possessory -36- *** FOR PUBLICATION *** a control of the units. Therefore, we hold that the circuit court did not err in concluding that the exceptions in DCS Rules § 1-2 cannot be interpreted to invalidate the mandate in ROH § 36-1.2 that any applicant who rente his or her unit during the relevant periods of time cannot be deened an “owner-occupant.” Accordingly, we also hold that the circuit court did not err in ruling that applicants Randall and Warren were not qualified to participate in condemnation proceedings under ROH chapter 38. 6. Bird and the smiths Both the City and the Applicants contend that the circuit court erred in ruling that applicante Bird and the smithe could not be counted to satisfy the statutory minimum number of applicants required to initiate a condemnation proceeding. The Applicants argue that the circult court erred when it interpreted... (Takabuki, €2 Hawai at 183, 921 P24 at 103) to require thet the statutory ‘sinimm minber of applicente mst cone only from the group of 1 Jainaliy designated, when it probinived the courting of those fully qualified applicants RGged by avendment, and when it thereby dienissed the Subject’ conlemnation action when it erronecusly determined that the number of axiainally designated applicants fell below 25. (capitals in original omitted.) Similarly, the City argues that the circuit court erred because "ROH chapter 38 does not require that the statutory minimum nunber of applicants be maintained only fron the (applicants) originally designated.” (Capitals in original omitted.) Additionally, both the Applicants and the city argue that the circuit court’s amendment of the complaint to o37- *** FOR PUBLICATION *** include Bird and the Smiths relates back to the date of the original complaint contrazy to Appellants argunents, the circuit court did not hold that the required minimum number of unite must be maintained from the group of applicants originally designated. Rather, the court focused on whether the minimum number of qualified units were designated at the tine condemation proceedings were initiated. During the hearing on the Applicants’ motion for reconsideration, the court explained: ell, the point that I chink we are, ig to determine whether, in fact, [the original designation net the Runerosity requitenene when firet designated). And what Z/m faying is, you make that determination without counting [Bird and swith), who are later added. "So you have to lock peant for you to snderstands gone other people drop cut oF past away of shatever. If'you still have 25, 1 could imagine That that would not require the end of it, because at all Eines there vere 25. gut what I's saying ie, you can't use {Bird and the smiths) to cure any lack of 25 at the time, and the Litigation that's challenging whether those 25 were qualified under the lav has to be played ove. ‘And if (Bird and the smiths) weren’t in yet and weren't coning in until after the fli Litigation on the 25, then st would fall Below. So to the extent ehat 1 dian't explain that as well as I hope I have aow, that was my rational (Emphasis added.) Thus, the record demonstrates that the circuit court clearly did not rule that the statutory minimm number of applicants must be maintained only from those originally designated. -38- *** FOR PUBLICATION *** In the instant cage, the circuit court initially ruled that 22 applicants, including Brennan, were qualified. The court's unchallenged ruling that Brennan was dened not to have been qualified from the beginning, and our conclusion that the circuit court erred in ruling that Ault and Dixon were not qualified results in s total of 23 applicants deened qualified at the time condennation proceedings were initiated. Taking into consideration the circuit court's ruling that genuine issues of material fact existed as to the Dupire-Nelsons, the City initiated condemnation proceedings based on a designation that included, at most, 24 qualified applicants. This court has ruled that the failure to receive @ sufficient number of qualified applications prior to initiating ROH chapter 38 proceedings results in an invalid, void, and unenforceable designation becat led its authority pursuant to ROW the department exc §30-2.2. See Ing, 100 Hawai'i at 193, 58 P.3d at 1240 (citing Goon, 98 Hawai‘ at 251, 47 P.3d at 366). The subsequent amendments could not cure proceedings initiated based on a void and invalid designation. Additionally, we note that Hawai‘ Rules of Civil Procedure (HRCP) Rule 15(c) (2000)* offers no * nc Rule 25 (c) provides: on Back of Amendments. An anendnent of = ack £0 the date of the original pleading te) (2). relation back is permitted by the lav that provides the statute of limitations applicable to the Betlon, oF ia)" ne claim or defense asserted in the amended pleading arose out of the conduct, trancaction, or (continee..) -39- *** FOR PUBLICATION *** relief because ‘the rationale of the relation back rule 15(c) is to ameliorate the effect of the statute of limitations.’ Here, there is no limitation of action problem. Thus, Rule 15(c) has Hanalei, BRC Inc. v. Porter, 7 Haw. App. 304, 309-10, 760 P.2d 676, 680 (1988) (citation, brackets, and footnote omitted); see algo Chin Kee v. Kaeleku Sucar Co., 30 Haw. 17, 22 (1927); Farber v. Wards Co., Inc., 825 F.2d 684, 689 (24 Cir. 1987) ("Rule 15(c) governs the ‘relation back’ of no applicability. amended pleadings only for the purpose of the statute of Limitations, which is simply not implicated in this case."); Doe v.O'Bannon, 91 F.R.D. 442, 447 (B.D. Pa. 1981) (**relation back’ only existe for the purpose of ameliorating the effect of statutory bars to relief and not for the purpose of artificially sting plaintiffs to fulfill constitutional prerequisites, such as standing” (citation omitted) ). 7. Fees and costs On appeal, the City contends that the circuit court erred in awarding the Trustees’ requested attorneys’ fees because the request included work that was “duplicative, unproductive, continued) ‘Decurrence set forth or attempted to be original plesding, or (3)" the amendment changes the party or the naming of the party againet won a claim is asserted if the foregoing provision (2) is satisfied and the party to be brought in by anendnent (A) has received such notice of the institution of the action that the party will not be prejudiced in tuaintaining a defense on the merits, and (3) knew or should have known that, but for a mistake Concerning the identity of the proper party, the action would have been brought Sgainee the party © forth in the -40- #** FOR PUBLICATION *** excessive, or unnecessary.” The Trustees claim that the circuit court erred in denying their requested expert witness fees, arguing that such an award was authorized under HRS § 101-27. vordinarily, attorneys’ fees cannot be awarded as Garages or costs unless so provided by statute, stipulation, or agreement.” yhai_Inv inc. v. Alteka Cou, Ltd, 92 Hawai! 492, 502, 999 P.2d 516, 535 (2000) (citations and internal quotation marks omitted), other grow Blaixy. Ing, 96 Hawai'i 327, 31 P.3d 184 (2001). HRS § 101-27 provides: ihenever any proceedings instituted under this part dare abandoned of discontinued before reaching a final Monat, or 12, for any cauge, the property concerned 1s AoC finaly taxen for public use, possession of the property concerned shall Be PisiGefendant entitled thereto. Issues of fact arising in Sotnection with any claim for such damage shall be tried by GRE NESSEE"wdenout 2 jury unless 2 trial by jury Js demanded Brreither party, pursuant co the rules of court, within ten blys fren the Gate of the entry of an order or judgment Silowing ‘the discontinuance of the proceedings, or Uislaclag the proceedings or denying the right of the Glainesfe’co take the property concerned for public use. In Pieitiene judgeent ie entered in favor of the defendant and Sgsinss the plaintiff, any moneys which have been pai, and oy Mauitional. security which hae been furnished, by the piLiteste to the clerk of the court under sections 102~ End 101-29, shail be applied or enforced toward the Steiafaction of the juagnent. In the case of the State or a Semney, if the moneye so peid to the clerk of the court are $Oeaeviciéat, chen the balance of such judgment shall be paid from any soneya available or appropristed for the Pedisition of che property concerned, or if that is fGRiesicient then the same shall be paid from the general fund of the State or county, as the case nay be -41- *** FOR PUBLICATION *** (Bmphasis added.) Additionally, ROH § 38-5.2 provides in pertinent part: If the leased fee interest is not acquired or eminent domain proceedings are not instituted within the 12 month period, the city shall reinburse the feo ovner, the lessor, and the egal and equitable omers of land go destonated for actual CuE-of-pocket expenses they. incurre ial, survey, Snd stcorneys fees as @ result of the de Generally, judges must “specify the grounds for avards of attorneys’ fees and the anounts awarded with respect to each ground. Without such an explanation, we must vacate and renand awards for redetermination and/or clarification." Brice, 107 Hawai'i at 123, 112 P.3d at 8 (citations omitted). In the instant case, the Trustees focused primarily on HRS § 101-27. However, the Trustees also quoted the pertinent language from ROH § 38-5.2 in their memorandum in support of an award for fees Additionally, Appellants argued both that expert witness fees could not be awarded under HRS § 101-27 and that the requested amounts were unreasonable. Although the court’s order notes that the Trustees’ notion was entitled “Defendants James Douglas Keauhou Ing, Constance Hee Lau, Charles Nainoa Thompson, Diane Joyce Plotts and Robert Kalani Uichi Kihune, Trustees under the Will and of the Estate of Bernice Pauahi Bishop, Deceased’s Motion for an Order Determining Amount of Damages Incurred by Movants Pursuant to Haw. Rev. Stat. 101-27," it does not state the statutory basis for its award of fees and costs, and does not indicate whether its denial of the Trustees’ requested expert witness fees was based on a conclusion that such an award had no -42- +** FOR PUBLICATION *** a statutory basis or on a finding that the requested witness fees were unreasonable. Therefore, this court cannot effectively review whether the circuit court abused its discretion in granting in part and denying in part the Trustees’ request for fees and costs. Accordingly, we must remand to the circuit court for clarification 8. The Trustees’ Remaining Claims the Trustees contend that the circuit court erred in allowing (1) the City to amend its first amended complaint and (2) unite 230 and 412 to remain subject to condemnation. As previously indicated, the court had granted the Trustees’ motion for partial sunmary judgnent, dismissing the individual lessees (weber and Spalding), but allowing their units (230 and 412) to remain in the condemnation action “without prejudice to hear{ing] the City’s pending Motion to Amend the First Amended Complaint consistent with the Court’s interpretation regarding tacking.” Hawai'i Rules of Appellate Procedure Rule 28(b) (7) (2003) requires that an opening brief contain an “argument, containing the contentions of the appellant on the points presented and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on. The argunent may be preceded by a concise summary. Points not argued nay be deemed waived." Because the Trustee’s opening brief fails to include an argument on their claim that the circuit court -43- *** FOR PUBLICATION *** erred in granting the City’s motion to amend its first amended complaint, these points of error are deened waived. The Declaratory Judsment Action With respect to the declaratory judgment action, the ‘Trustees contend that the circuit court erred in (1) denying their motion for summary judgment and (2) granting the City’s motion to dismiss the Trustees’ claims as moot or, in the alternative, granting judgment on the pleadings. In their opening brief, the Trustees do not contest that the instant case is moot. Instead, the Trustees argue that the declaratory judgment action falle under an exception to the noctness doctrine for cases that affect the public interest and are capable of repetition yet evading review. This court has held that [a] case is moot where the question to be determined is abstract and does not rest on existing facts or rights. Thus, the nootnese doctrine is properiy invoked where Sevents «shave #0 affected the relations between the parties thit ‘the evo conditions for justiciability relevant On appeal -- adverse interest and effective renedy ~~ have ‘been compromised. CARL Corp. v. State, Dep't, of Educ., 93 Hawai'i 185, 164, 997 P.2d $67, 576 (2000) (citing In xe Application of Thomas, 73 Haw. 223, 226, 832 P.2d 253, 254 (1992)) (ellipsis in original). Nevertheless, ve have repeatedly recognized an exception to the motness doctrine in cases involving Guestions that affect the public interest and are “capable Of repetition yet evading review." "hmong the criteria, Considered in determining the existence of the requisite Segre: of public snterest are the public or private nature of the question presented, the desirability of an Authoritative determination for future guidance of public Officers, and the likelihood of future recurrence of the question, -44- *** FOR PUBLICATION *** a kada Trucking Co., Ltd. v. Bd. of Water |, 99 Hawai'i 191, 196-97, 53 P.34 799, 804-05 (2002) (citing CARL Corp., 93 Hawai'i at 165, 997 P.2d at 577) (other citations omitted) . ‘the phrase, “capable of repetition, yet evading review, meick that ta court will not dismise a case on the grounds Se cootnese where & challenged governmental action would Grade full review Because the passage of tine would prevent Shy single plaintifé from reaaining subject to the Sekeriction complained of for the period necessary to complete the laweuit.” Id, at 197, 53 P.3d at 805 (citing CARL Corp., 93 Hawai'i at 165, 997 P.2d at 577)) We are cognizant of the fact that ROH chapter 38 was repealed on February 9, 2005. ‘The Trustees provide no explanation of: (1) why the current dispute, based on a repealed statutory scheme, should be considered public in nature; (2) why an authoritative determination of ROH chapter 38 is desirable in Light of ite repeal, and (3) the 1ikeliheod of a future ‘Thue, the Trustees fail to recurrence of the issues they raisr address the criteria considered in determining the existence of the requisite degree of public interest. Additionally, the Trustees offer no argunent as to how a condennation action under ROH chapter 38 is capable of repetition or why it would evade review. Therefore, we hold that the Trustees have failed to establish that the circuit court erred in dismissing the declaratory judgment action as moot. HII. CONCLUSION Based on the foregoing, we: (1) affirm the circuit court’s award of summary judgment in favor of the Trustees in the -45- *** FOR PUBLICATION *** condemnation action; (2) remand the issue of the Trustees’ request for fees and costs to the circuit court for clarification; and (3) affirm the circuit court’s dismissal of the declaratory judgment action as moot. On the briefs: Ive- Winston K. Q. Wong, Deputy Corporation Counsel, BecccBlirnner ane Lew Re onath, Ann c. Teranishi, and Jeove W. Schiel (of Kobayashi, Sugita, gG@— E coda) ‘for plaintitt-appelice/ Gross appel lant cross appellee Come Pegi City & County of Honolulu L Q Martin Anderson, Joachim P. Cox, and Robert 'K. Fricke (of Goodsill Anderson Quinn & Stifel), for defendants-appellants/ cross-appellees Kathleen Heuing, et al. James K. Mee, Paul S. Aoki, and Wayne P. Nasser (of Ashford & Wriston), for defendant-appellee/ cross-appellee/cross-appeliant Kamehameha School -46- 

87db34baac1ff01f854405db86aa48484879ea58f94f9bdbe31f0b27d548fb82

2005-12-08T00:00:00Z

6d86039f-0557-4eb1-b633-f43e88e4da48

State v. Maganis

109 Haw. 32

hawaii

Hawaii Supreme Court

No. 25478 IN THE SUPREME COURT OF THE STATE OF HAWAT'T STATE OF HAWAI'I, Reopondent/elaintitt-rgpeliant, BS - gyi a Seis -F SHANELLE MAGANIS, Se\f om Pet itioner/Defendant-Appellee, eas \2 oo EES © and a Sn (2 LEANNE H. CAMBRA, also known as Leanne H. Adams, Defendant. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO. 02-1-1667) (ays butty, de for the court) Petitioner/Defendant-Appellee's application for writ of certiorari filed on October 10, 2005, is hereby granted. DATED: Honolulu, Hawai'i, October 18, 2005. FOR THE COURT: Game, dudgyr tre Associate Justice Brian A. Costa for petitioner/defendant- appellee on the writ uy 

5c6067b252875db48cb5f5994fe8dfc8e6af18cb9aecd9d9194af018279e1c48

2005-10-18T00:00:00Z

73ef7ee1-5b68-4879-a5c7-19ddf14b54e9

Custer v. Administrative Director of the Courts

109 Haw. 277

hawaii

Hawaii Supreme Court

Wo. 26026 IN THE SUPREME COURT OF THE STATE OF HAWAI'I CURTIS C. CUSTER, Fetitioner-Appellant =” ADMINISTRATIVE DIRECTOR OF THE COURTS, STATE OF HAWAI'I, Respondent-Appellee IS] Nd 8~ AGW: APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (CASE NO. JR 03-0010) iy Moon, C.J, Levinson, Nakayama, ‘Roca, and Duffy, J.) The motion for reconsideration filed on October 3, 2005 by Respondent-Appellee Administrative Director of the Courts, State of Hawai'i, requesting that this court review its opinion jled on September 23, 2005, reversing that part of the district court of the first circuit’s judgment relating to an additional three-month revocation period arising from the March 7, 2003 arrest of Petitioner-Appellant Curtis C. Custer, is hereby denied, DATED: Honolulu, Hawai'i, November 8, 2005. Girard D. Lau, Deputy Attorney General, state Of Hawai'i, on the motion for respondent-appellee. hel nse Beene 0 reusdeoey corre ve \ © Datins aad 

4355c0fc442ed5629cd33273d23b24f9cc70733cb0152c747edd39dfebd4e452

2005-11-08T00:00:00Z

1529c1b2-bc9a-44ba-87a4-cd81b9d08dd7

Puuohau v. Allen

hawaii

Hawaii Supreme Court

no. 27263 IN THE SUPREME COURT OF THE STATE OF HAWAI'I a 3 S 8 JARED PUVOHAU, Plaintiff-Appellant PAUL ALLEN, Defendant-Appelle: APPEAL FROM THE FIRST CIRCUIT cour |G (CIV. NO. 05-1-0073) s ORDER (ay: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.) upon consideration of Defendant-Appellee Paul Allen's motion to dismiss the appeal of Plaintiff-Appellant Jared Puuohau, the papers in support, and the records and files herein, it appears that: (1) the circuit court allowed Plaintift- Appellant Jared Puschau to proceed in the underlying case without payment of the filing fee: (2) pursuant to HRAP Rule 24(b), a party who has been permitted to proceed in an action in the circuit court in forma pauperis may proceed on appeal in the sane action in forma pauperis without further authorization, unless the court appealed from certifies that the appeal is not taken in good faith or shall find that the party is not entitled to so proceed: (3) upon entry and service of such certification, the appellant may seek further relief in the supreme court; (4) although the circuit court issued an order certifying the appeal is not being taken in good faith and finding Appellant Puuohau is Oss not entitled to proceed in forma pauperis on appeal, Appellant Puuohau did not comply HRAP Rule 24(c) and seek leave from the appellate court to proceed without payment of the filing fee or comply with HRAP Rule 24(4) and pay the filing fees (5) on August 29, 2005, this court ordered Appellant Puuchau to comply with HRAP Rule 24(c) or pay the filing fe in accordance with HRAP Rule 24(d) and that failure to comply with the order may result in dismissal of the appeal; (6) Appellant Puuchau did not comply with the August 29, 2005 order. Therefore, TT IS HEREBY ORDERED that the motion to dismiss appeal is granted, and this appeal is dismissed due to Appellant’s failure to pay the filing fee. DATED: Honolulu, Hawai'i, November 28, 2005. William C. MeCorriston, David J. Minkin, and Becky T. Chestnut for Z defendant-appellee on the motion Shes Laan 

4f8017c133e4258166906c4a981ef482760e11b290f0e845a1bd5e7445904722

2005-11-28T00:00:00Z

eb82315f-2923-4624-9988-57303e4dea45

State v. Maganis. ICA Opinion, filed 9/8/2005 [pdf], 109 Haw. 89. S.Ct. Order Granting Application for Writ of Certiorari, filed 10/18/2005 [pdf], 109 Haw. 32.

109 Haw. 84

hawaii

Hawaii Supreme Court

LAW LIGaAnt *** FOR PUBLICATION *** IN THE SUPREME COURT OF THE STATE OF HAWAI'T 000- STATE OF HAWAI'I, Respondent/Plaintiff-Appellant, SHANELLE MAGANIS, Petitioner/Defendant-Appellee, and LEANNE H. CAMBRA, also known as Leanne H. Adams, Defendant. wo. 25478 » CERTIORARI TO THE INTERMEDIATE COURT OF APPEAUS = = (CR. NO. 021-1667) : 3 aad NOVEMBER 23, 2005 MOON, C.J., LEVINSON, NAKAYAMA, ACOBR, aND DUFe#! JJ. OPINION OF THE COURT BY DUFFY, J. on October 18, 2002, the Circuit Court of the First Circuit, the Honorable Reynaldo D. Graulty presiding, granted the motion of Petitioner/Defendant~Appellee Shanelle Maganis to dismiss Count II of the Amended Complaint, finding that there vas no probable cause to arrest Maganis for Unauthorized Control of a Propelled Vehicle (UCPV) in violation of Hawai'i Revised Statutes (HRS) § 708-836 (Supp. 2001).! On September 8, 2005, the HRS § 708-836 provides in relevant part: “A person commits the offense of unauthorized control of 2 propelled vehicle if the person Intentionally of knowingly exerts unauthorized control over another's propelled vehicle sy operating the vehicle without the owner's consent or by Changing the identity of the vehicle withour the omner’s consent. *** FOR PUBLICATION *** Intermediate Court of Appeals (ICA) issued a published opinion reversing the circuit court, concluding that probable cause existed. State v. Maganis, No. 25478 (2005 WL 2160077) (Haw. App. September 8, 2005) [hereinafter, ICA’s Opinion]. Maganis subsequently applied for a writ of certiorari to review the ICA's opinion. We granted Maganis’s application for a writ of certiorari for the sole purpose of addressing her contention that the ICA misstated the probable cause standard for arrest in this jurisdiction, and thus erroneously concluded that probable cause existed. With respect to her initial contention, we agree with Maganis: the “watered down” version of the probable cause standard as set forth by the ICA is contrary to this jurisdiction’s viable and controlling precedents, and we reject it. See infra, Section ITI.A, Nevertheless, applying the correct standard to the record presented, we concur with the ICA's conclusion that Sergeant Yomes had probable cause to arrest Maganis, and thus agree that the circuit court erred in granting Maganis’s motion to dismiss. T. BACKGROUND A. Statement of Facts. ‘The essentially undisputed facts, as stated by the ICA, are as follows: At about 9:30 in the morning on July 28, 2002, Honolulu Police Department (HPO) Sergeant Davie Yones (Sergeant 2 *** FOR PUBLICATION *** Youes) was on patrol in the Salt Lake area. As Sergeant Yores drove past a residence on Ala Lehua street, he saw a Block Acura Cer parked in the driveway with its front. facing the street. befendant-Appellee Shanelie Maganis (Maganis or Defendant) was in the passenger seat and Leanne Canbre (Cenbra) was in the driver's seat Sergeant Yenes continued on his patrol toa nearby district park, then cireled back fo Als Lehua Street and drove past the Sane residence. Sergeant ones saw Canbra step out of the Acura appearing to Gry ner hair with s towel valle Maganis resained in the car. Sergeant Yones decided to “run” the front license plate Runber to see 4f the Acura was stolen because “certain Street characters” with prior arrests were kown to frequent the residence where the Acura was parked. A short tine later, Sergeant Yones learned through HPD Gispateh that the Acurs hea been reported stolen. He Feturned to the Als Iehua street residence and parked his Ear, blocking the Acura. After requesting assistance from nearby unite, Sergeant Yones located Maganis end Cenbra, who Were now eitting cn chairs behind the Acura, officers Fesponded to the scene snd Sergeant Yores nad them detain Hagens and Canbra, Both women were cooperative. Sergeant Yomes proceeded to question Dale Nojima (Nojina) , who hed. Just emerged from the house. Sergeant Yones asked Nojima if he knew the two woman. Nojina stated that he knew fone of then, identifying Naganis as the wosan he knew.) Nojine stated that earlier that morning he saw the other woman, Canbra, reversing the Acura into his driveway, Sergeant Yones noticed that efforts had been made to change the car's identity. The front license plate, which had be [Ssued to the Acurs, was aifferent fron the rear plate. Sergeant Yones found the license plate matching the front plate on the flocrboare of the front passenger seat. He Biso discovered that the ignition was “punched,” in that the area “where you put your key to stare the ignition” was Ganaged. Sefgeant Yones subsequently arrested Canbra and waganis Maganis waived her constitutional rights later that evening Sra denied driving the Acura. But the following day, after felting « polygraph examination and again waiving her Fights) Magents gave 2 tapecrecorded statement in which Maganis admitted that she and Canbra took turns driving the eure, knowing thet it had been stolen. Maganis denied any Sovolvenent in stealing the car or in changing the rear ilcense plate. 2 Although the circuit court did not enter any express written findings with respect to Sergeant Yones’¢ testimony regarding his conversation with Nojine prior to arresting Maganis and Cambra, as the record indicates and the Teh notes, Sergeant Youee testified that Nojima told hin that Nojima was acquainted with Maganis, but not Cabra 3 *** FOR PUBLICATION *** B. Procedural Respondent /Plaintiff-Appellant State of Hawai'i (hereinafter, the prosecution] charged Maganis with one count of UCPV in violation of HRS § 708-836. Maganis moved to dismiss on the ground that Sergeant Yones did not have probable cause to arrest her for UCPV. On October 18, 2002, the circuit court granted Maganis’s Motion to Dismiss, finding that Sergeant Yomes lacked probable cause, and that Maganis’s confession must be suppressed as the fruit of the poisonous tree. The prosecution appealed, and the ICA reversed, concluding that Sergeant Yomes had probable cause to arrest Maganis for UCPV and that Maganis’s post-arrest confession was thus admissible. We granted Maganis's Application for Writ of Certiorari, and we now affirm the ICA’s opinion in part and vacate in part. 31, STANDARD OF REVIEW “(T]he determination whether probable cause to arrest exists . . . is reviewed under @ de nove standard on appeal.” State v, Kaleohano, 99 Hawas'i 370, 375, 56 P.3d 138, 143 (2002) (citing State v. Navas, @1 Hawai" 213, 123, 913 P.2d 39, 49 (2996). IT. piscussion Maganis asserts: (1) the ICA’s novel characterization of probable cause diminishes the probable cause standard to nothing more than the standard for reasonable suspicion; and *** FOR PUBLICATION *** (2) Sergeant Yones did not have probable cause to arrest Maganis for UCPV. We hold that although the ICA improperly stated the probable cause standard, it reached the correct result in concluding that Sergeant Yones had probable cause to arrest Maganis. A. The ICA Erred In Characterizing the Probeble Cause Standard. In describing the probable cause standard, the ICA made ‘the following statement: “The probable cause standard . . . is less demanding than . . . proof by a preponderance of the evidence.” This statement improperly characterizes the probable cause determination as set forth by this court, and we therefore reject it. ‘This court, in describing the probable cause determination, has stated: “Probable cause exists when the facts and circumstances within one’s knowledge and of which one has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe that an offense has been committed. This requires more than a mere suspicion put less than a certainty." Carlisle ex rel, State v, Yen Thousand Four Hundred Forty-Seven Dollars in U.S. Currency $10,487.00), 104 Hawai'i 323, 331, 89 P.34 823, 831 (2004) (quoting State v. Detrov, 102 Hawai'i 13, 18, 72 P.3d 485, 490 *** FORPUBLICATION *** (2003)) (emphasis added).’ This standard has two components. ‘The first sentence describes the standard for determining the presence of probable cause. The second sentence describes the quantum of proof necessary to satisfy the standard. 1, The boundaries--mere suspicion and certainty. We have stated that probable cause requires “more than 2 mere suspicion but less than a certainty.” $10,447.00, 104 Hawai'i at 331, 89 P.3d at 831 (quoting Detroy, 102 Hawai'i at 18, 72 P.3d at 490); see also State v. Brighter, 63 Haw. 95, 101, 621 P.2d 374, 379 (1980) (stating that probable cause “requires more than a mere suspicion but less than a certainty”); State we Texeira, $0 Haw. 138, 142, 433 P.24 593, 597 (1967) (“It is clear that the term probable cause, according to its usual acceptation, means less than evidence which would justify condemnation.” (Internal quotation marks omitted.)). “Certainty,” of course, is considerably greater than a mere preponderance of the evidence, which means that the existence of a fact is more likely than not. This court’s formulation of the quantum of proof nece: ry to stablish probable cause is thus more demanding than that suggested by the ICA, which would lower the bar for the presence > Soe alae HRS § 803-5(b) (1993) {*{A] police officer has probable cause to sake an arrest when the facts and circumstances within the officer's knowledge and of which the officer has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that a crine has been or is being conmitted.”)- 6 *** FOR PUBLICATION ***. of probable cause to less than a preponderance of the evidence as @ per se matter. The ICA, in support of its formulation, cites to the plurality opinion in Texas v. Brown, 460 U.S. 730, 742 (1983), which states that probable cause “does not demand any showing that [a belief that a crime has been committed] be correct or more likely true than false.“ While it is helpful to look at United States Supreme Court precedent when interpreting a provision of the Hawai'i Constitution that is parallel to the federal constitution,* this ‘court has emphasized that “federal decisions do not . . . prevent this court from extending greater protection in interpreting the state constitution where we determine it to be appropriate.” Texeira, 50 Haw. at 142, 433 P.2d at 597, This court has also repeatedly insisted that “as the ultimate judicial tribunal with final, unreviewable authority to interpret and enforce the Hawai'i Constitution, we are free to give broader protection under the Hawai"i Constitution than that given by the federal constitution.” State v, Wallace, 80 Hawai'i The ICA also cites to State w Mitchell, 482 N.W.24 36¢ (itis to support its formulation. ‘The Suprene Court of Wisconsin stated that SieJneve must be more than a possibility or suspicion that defendant conitted fan offense, but the evidence need fot reach the level of proof beyond a Teasonable doubt or even that gullt is more Likely than not.” Jd. at 367~% Mitchell, however, 1s not controlling authority and we decline to-fellow it. 5 Probable cause is required for all arrests and searches under the afequards of the fourth anendment to the United States Constitution and eeigie'Y section ) of the Hawai'i Constitution. State v. Navag, 61 Hawai'd 15, isles 913 P.2a 39, €1-42 (2996) *** FOR PUBLICATION *** 382, 398, 910 P.2d 695, 711 n.14 (1996) (quoting State v. Hoey, 77 Hawai'i 17, 36, 881 P.24 504, 523 (1994)). Thus, because this court's interpretation of probable cause affords more expansive protection under the Hawai'i Constitution, to the extent that the plurality holding in Brown is in conflict with this interpretation, we reject it. ‘The ICA also cites Illinois v. Gates, 462 U.S. 213, 235 (1983), for the proposition that the probable cause standard is less demanding than the preponderance of the evidence standard. ‘The ICA, however, misinterprets Gates. The Gates Court said that “[f]inely-tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place” in the probable cause decision. 462 U.S. at 235. Contrary to the ICA’s characterization, this statement does not imply that probable cause is less demanding than proof by a preponderance of the evidence. Rather, it merely states that probable cause is a Jess finely-tuned standard, Gates, therefore, does not address the requisite quantum of proof in the establishment of probable cause; rather, it addresses how the probable cause determination should be made, which will be discussed next. 2. Determining probable cause. We have long held that the standard for determining probable cause is a practical and nontechnical concept, which *** FOR PUBLICATION *** involves a balancing of the citizens’ right to be free from unreasonable interference with privacy and from unfounded charges of crime, and the needs of the community to be protected by law enforcement: [t]he Long-prevailing standards on probable cause: «seek to safeguard citizens from rash and Ungeasonable interferences with privacy and from Unfounded charges of crime. They also seek to Give fair leeway for enforcing the lew in the Eonmunity’s protection. Because many situations Shien confront officers in the course of Gxecuting their duties are more or less Ssbiguovs, room aust be slloved for some Bistakes on their part. But the mistakes must Be those of reasonable men, acting on facts Teading sensibly to their conclusions of probabiiity. The rule of probable cause is a Eractical, nontechnical concaption affording the Best conpronise that has been found for Scconnossting these often opposing interests. Requiring nore would unduly Ramper, lew enforcenent. To allow less would be co Leave Taweabiing citizens at the nercy of the officers’ whim of ceprice, State v. Delmondo, $4 Haw. 952, 555, 512 P.2d 551, 553 (1973) (quoting Brinegar v, United States, 338 U.S. 160, 176 (1949)). See also State v, Texeira, $0 Haw. 138, 143, 433 P.2d 593, 597 (2967) ("the rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests.”). We believe that the probable cause standard of requiring “more than a mere suspicion but less than a certainty” provides the flexibility necessary in determining probable cause, and preserves the necessary balance between the competing interests of law-abiding citizens and law enforcement. The ICA's 9 *** FOR PUBLICATION *** attempt to “water down” the probable cause standard would unreasonably disturb this balance. We expressly reject the ICA's formulation, and reconfirm that probable cause for arrest requires more than a mere suspicion, but less than a certainty. Accordingly, we vacate Section III.A. of the ICA’s Opinion to the extent that it improperly narrows the probable cause standard as expressed by this court. B. The ICA Properly Concluded That the Circuit Court Erred in Although the ICA improperly expressed the probable cause standard, we hold that it correctly concluded that Sergeant Yomes had probable cause to arrest Maganis for UCPV as a principal or as an accomplice to Canbra. A person can commit the UCPV offense as a principal by “intentionally or knowingly . . . operating the vehicle without the owner's consent or by changing the identity of the vehicle without the owners consent” pursuant to HRS § 708-636, or as an accomplice, pursuant to HRS $ 702-221 (2) (ce) (1993). An accomplice is defined to include a person, who, “{wlith the Antention of promoting or facilitating the commission of the + HRS § 702-221 states, in relevant part; (2) A person As Legally accountable for the conduct of another person when! ici He is an accomplice of such other person in the Commission of the offense 10 *** FOR PUBLICATION *** offense, . . . [a}ids or agrees or attempts to aid the other person in planning or committing it[.]" RS § 702-222(1) (b).” The ICA correctly concluded that Sergeant Yones had probable cause to believe Maganis participated in the offense of UCPV as either a principal or an accomplice. Sergeant Yones found that the ignition was damaged and the rear license plate which had been removed and replaced with a different plate, was Located on the floor of the front passenger seat where Maganis had been sitting. Assuming, arquendo, thet this evidence did not establish probable cause to arrest Maganis for the offense of UCPV as a principal, we hold that Sergeant Yomes nevertheless had probable cause to believe Maganis was an accomplice becau: a the plate and ignition were located in such places that would suggest Maganis knew the vehicle was stolen; and (2) Maganis and cambra were parked at a house, the owner of which knew Maganis, but not Cambra, suggesting that Maganis assisted in the decision > HRS § 702-222 states, in its entirety: § 702-222 Liability for conduct of another; complicity. A person ‘s an accomplice of snother person in fhe commission of an offense if: Tl) Rich the intention of promoting or facilitating fhe commission of the sffense, the person: a) Solicits the other person to commit it; or (B) Aids or agrees or attempts to ai the other person in planning or committing ity (e) Having 2 legal duty to prevent the Commissicn ef the offense, fails to make Feasonable effort so to do; oF (2) The person's conduct 1s expressly declared by Ite Eo establish the person's complicity. n *** FOR PUBLICATION *** to park at the house, thereby aiding or attempting to aid Cambra’s commission of a UCPV violation. ‘This evidence, when viewed as a whole, is sufficient to provide more than a mere suspicion (albeit less than @ certainty) to a person of reasonable caution that Maganis committed the offense of UCPV either as a principal or as an accomplice. In finding that there vas probable cause for arrest under the facts of this case, we do not condone a HPD policy testified to by Sergeant Yomes that it was HPD's “policy that everyone in the [stolen] vehicle gets arrested for [UCPV].” Such a policy is plainly contrary to the requirement that probable cause must exist to make an arrest. To the extent that the ICA relied upon the “common enterprise” rationale of Maryland vw. Beingle, 540 U.S. 366 (2003), to circumvent the requirenents of probable cause, we reject such reliance, as “common enterprise” is not substitute for the mandate in our jurisdiction that probable cause based on specific “facts leading sensibly to their conclusions of probability(,]” State v. Delmondo, 54 Haw. 552, 555, 512 P.2d $51, $53 (1973) (quoting Brineaar v. United states, 338 U.S. 160, 176 (1949), must be established in each case. For the reasons set forth above, we agree with the ICA that Sergeant Yomes had probable cause to arrest Maganis for UCPV either as a principal or an accomplice, and Maganis’s post-arrest 12 *** FOR PUBLICATION *** confession was therefore adnissible. Accordingly, the cizcuit court erred in granting Maganis’s motion to disniss. Tv. CONCLUSION Based on the foregoing, we vacate Section IITA. of the XcA’s opinion to the extent that it mischaracterizes the probable cause standard as expressly approved by this court, and affirm the ICK’# opinion in all other respects. Accordingly, we renand tnis case to the elzcuit court for proceedings consistent with this opinion. Brian A. costa, Jom (ot Conta. ¢ Delacy, LLtC) {Gt petitioner /defendane~ appellee Shanelle Maganis Heater nen on the writ 13 

ee2c5f9b7301812dbbffa7adb30710afd06532163e1bc1eb8e9354b5f2face54

2005-11-23T00:00:00Z

fda549ec-35b6-4aeb-bcec-a57f9a575c21

Leslie v. Fresch. S.Ct. Order Granting Motion for Reconsideration, filed 11/28/2005 [pdf], 109 Haw. 423.

109 Haw. 8

hawaii

Hawaii Supreme Court

FoR puBLICArTON + Sees a aS HOWARD K. LESLIE, JR., Plaintiff-Appellant, s > z and z ang LEINOME LESLIE FRESCH, individually, and as next friend £9 HOWARD K. LESLIE, JR., and HOWARD K. LESLIE, SR., Plaintiffs-Appellees, THE ESTATE OF JAMIE K. TAVARES, Deceased, Defendant-Appellee, and JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE ‘CORPORATIONS 1-10; and DOE ENTITIES 1-10, Defendants STATE OF HAWAI'I, DEPARTMENT OF HUMAN SERVICES, Lien Holder-Appellee, and JOSEPH L. WILDMAN and SIBILLA & WILOMAN, Intervenors-Appellees. (civ. No. 97-0448) ee HOWARD K. LESLIE, JR., MEGAN LESLIE and MALYSSA LESLIE, minors, through their Guardian Ad Litem MARLENE L. ANDUHA, Appellants, Plaintiff JEFFREY K, KANUI, personal representative of THE ESTATE OF JAMIE 'K. TAVARES, Defendant-Appellee, and JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-107 and DOE ENTITIES 1-10, Defendants. ‘*** FOR PUBLICATION ##* JEFFREY K. KANUI, personal representative of THE ESTATE OF AMIE K. TAVARES, Third-Party Plaintiff LEIMOMI L. FRESCH and HOWARD K. LESLIE, SR., Third-Party Defendants (Civ. No. 98-5468) No. 24553 APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (Civ. Nos, 97-0448 & 98-5468) NOVEMBER 10, 2005 MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ. OPINION OF THE COURT BY LEVINSON, J. In this consolidated appeal (Nos. 24553 and 24746), the plaintiffs-appellants Howard K. Lesiie, Jr., Megan Leslie, and Nalyssa Leslie (hereinafter, collectively, “the Appellants”) appeal from the following judgment and orders entered by the circuit court of the first circuit, the Honorable Eden Elizabeth Hifo presiding: (1) the Noverber 9, 2001 judgment; (2) the “findings of fact [(FOFs)], conclusions of law [(COLs)], and order” filed August 22, 2001; (3) the February 26, 2001 order granting Leslie, Je.’s January 17, 2001 motion to compel and for conditional sanctions; (4) the circuit court’s January @, 2001 order granting the November 15, 2000 motion to intervene submitted by the intervenor-appellees, attorney Joseph L. Wildman and law firm Sibilla & Wildman (hereinafter, collectively, “the Intervenors”]; and (5) the January 12, 2001 order denying Leslie, Jr.'s November 15, 2000 motion for approval and confirmation of ‘** FOR PUBLICATION *** settlement. fon appeal, the Appellants contend that. the cizeuit court erred in: (1) granting Wildnan and Sibilla & Wildnan leave to intervene in the fairness hearing of February 27 and 28, 2001 (hereinafter, “the fairness hearing"), “because there are no common questions of law or fact between any claimed ‘defense’ of [the] Intervenors and the faizness hearing” and “because that, in ppellee/third-party defendant Leimoni Leslie] Fresch’s burden of proof”; (2) finding effect, allowed them to carry (the plaintiff: that the settlement proceeds were fairly allocated; (3) entering judgment against Leslie, Jr. in favor of parties against whom Leslie, Jr. had no claims and in favor of the defendant-appellee Estate of Jamie K. Tavares, against whom Leslie, Jr.’s claims had not been adjudicated; (4) entering judgnent against Megan and Malyssa inasmuch as their claims in Civ. No. 98-5468 had never been adjudicated; (5) finding that Megan and Malyssa were in foster care when Leslie, Jr. was injured; and (6) finding that Leslie, Jr. controls Megan's and Malyssa’s funds. lie agree with the Appellants insofar as the circuit court's Novenber 9, 2001 judgment prematurely disposed of Civ. Wo, 98-5468. Consequently, we lack jurisdiction to address the remaining points of error at this time. Accordingly, we renand this matter to the circuit court for further proceedings, with instructions to (1) vacate the Novenber 9, 2001 judgment and (2) reinstate Civ. No, 98-468. #8 FOR PUBLICATION 1. BACKGROUND a motor arose ¥ occurred on December 22, 1996, involving Leslie, Jr. and Tavares. ‘The accident killed Tavares and severely injured Leslie, Jr-, placing him in a coma for approximately to months. On February 3, 1997, through the Intervenors, Fresch and the plaintift- appellee/third-party defendant Howard K. Leslie, Sr. (Leslie, Jr./s parents) sued Tavares’s estate for damages. Fresch sued as Leslie, Jr.'s next friend as well as in her Sidividual capacity. on June 2 and 10, and July 8, 1997, after L ie, Jr. regained consciousness, he and his parents signed settlement agreements that provided for payouts totaling $320,000. on July 18, 1997, Fresch and Leslie, Sr. voluntarily dismissed Civ. No. 97-0448 with prejudice. On April 1, 1998, Leslie, Jr. moved to vacate the dismissal, reopen the action, and rescind the settlement, on the grounds, inter alia, that the settlement distribution was unfair to Leslie, Jr. as a ward of the court. on May 13, 1998, the circuit court denied the motion. on duly 10, 1998, Leslie, Jr. timely filed a notice of appeal to this court. In a published opinion filed on August 31, 1999, ve held that [absent an order from the trial court renoving the next friend, the represented party renaine presumptively Anconpatent for purposes of the litigation. Ll ie ds unciear whether [Fresch) meant to [sign ‘and approve the settlement] in her capacity as next friend or merely in her capacity as coplaintié®, Assuming, srauendg, that Freseh did purport co execute the agreenents GEiher copacity es Lesiie’s next friend... her NGutherizetion” as ineufficient to validate’ the agreements with regard to Leelie(, oF.) in the absence of the circuit court’s approval eslie v. Estate of Tavares (hereinafter, “Leslie 1”), 91 Hawai'i 4 ‘** FOR PUBLICATION *#* 394, 401-02, 984 P.2d 1220, 1227-28 (1999) (emphasis in 1 dingly, we 2 ws: [Wie vacate the circuit court's order . . . and remand for Hurther proceedings, consistent with this opinion, Concerning the fairness of the apportionment. Fresch, as Gesiiel, des]’s next friend, will Bear the burden of Genonstzating to the circu:t court that the apportionment was fair to Lesliel, Jr). 91 Hawai'i at 405, 984 P.2d at 1231. On December 22, 1998, while Leslie I was pending on appeal, Leslie, Jr. and his minor daughters Megan and Malyssa, by their guardian ad litem (and mother) Marlene L. Anduha, filed Civ. No. 98-S468, another negligence action arising out of the same automobile accident, against Tavares’ and various unidentified “Doe” parties. on June 27, 2000, on motion by Tavares’s estate, the circuit court consolidated Civ. No. 98-5468 with the recently remanded Civ. No, 97-0448, pursuant to Hawai'i Rules of Civil Procedure (HRCP) Rule 42(a).? The circuit court did not expressly circunscribe the duration or effect of the consolidation. On November 15, 2000, the Intervenors moved to intervene “for the limited purpose of participating in the Fairness Hearing and advocating in favor of the fairness of the + on April 17, 2000, by stipulation among the defendant~appeils Jeffrey K, Kenly who 2 the pertonal representative of Tavares’s estate, and the plaintiffs in Civ. No, 98-5468, Kanal was substituted es the party Gefendant for the decedent Tavares. + Wace Rule 42(2) provides: linen actions dnvolving a connon question of law or fact are pending before the court, it may order a joint hearing or trial of Gny orvell the matters in ieaue in the actions) it may order all Ihe Scelone consolicated: and it aay make such orders concerning proceedings therein as may tend to avoid unnecessary costs or #4 FOR PUBLICATION **4 initial apportionment of the settlement proceeds.” On January 8, 2001, the on February 27 and 28, 2001, the circuit court conducted the fairness hearing. Fresch did not appear. On August 22, 2001, the circuit court (1) entered FOFs and COLs, (2) ordered, pursuant thereto, “[t]hat no reallocation of the settlenent funds is warranted,” and (3) “affirm{ed) the allocation as fair and equitable as to each of the claimants, including . . . Lesiie{,] Jr.” On September 19, 2001, Lesiie, Je. timely filed a notice of appeal, which initiated No. 24553. On Wovenber 9, 2001, the circuit court entered a judgment “in favor of [the] [defendant [-appellee] Jeff{rey K.] Kanui as Personal Representative for the Estate of . . . Tavares{,] [the] Intervenors, . . . Leslie[,] Sr., [and] . . . Fresch; and against ++ + Leslie, Jr., Megan. . . and Malyssa . . . as to all claims asserted in the above-captioned action.” On December 6, 2001, the Appellants timely appealed from that judgment, thereby initiating No. 24746. On February 22, 2002, this court consolidated Nos, 24553 and 24746 under No. 24553. TT, STANDARDS OF REVIEW A. Conclusions of Law’ Hawaii appellate courts review conclusions of law de novo, onder the right/wrong standard. "Under the Fignt/reng standard, this court "examine(s] the facts and anewer{s) the question without Deing required £9 give any Weight to the rial court's answer to ie./* > The “Standards of Review” section of the Appellants’ opening brief oes not comply with Hawai"! Rules of Appellate Procedure Rule 28(b)(5)- The Appellants do not propose any standardis) of review applicable to their points of erser tos, Sand €  FOR PUBLICATION *** Leslie 1, 91 Hawai'i at 399, 984 P.2d at 1225 (quoting Robert's Hawaii Sch. Bus, Inc. Laypahgehoe. Trangp..Cos. 91 Hawai'i 274 239, 982 P.2d 853, 868 (1999)) (internal citations omitted) (brackets in original). 5. durisdiction [xt 42 axiomatic that we are “under an obligation to ensure {hat {we havel Jurisdiction to hear and determine each case ane to dieniss an appeal on [our] own motion where. (we Conclude (we) lack! Jurisdiction.” BIM, inc. v. Sageco, De, 1 Haws 73,23, $49 P-20 1147, 1148 (9TE)~— TWnen we ‘ob Haw. Ses, 363, 714 Pred 956, 937 (i966) Bacon v. Karlin, 68 Haw. 648, 650, 727 P.2d 1127, 1129 (1986). IIT. DISCUSSION iveuii ed ruciam t Fres sre reno: ch. Civ. No, 98-5468 Was Not Adjudicated On The Merits. We will first address the Appellants’ fifth and sixth points of error, because their resolution gives rise toa threshold jurisdictional question. ‘The Appellants argue that the circuit court should not have entered judgment in favor of Kanui, the Intervenors, Leslie, Sr., and Fresch and against Leslie, Jr., Megan, and Malyssa, inasmuch as (1) Leslie, Jr., Leslie, Sr., Fresch, and the Intervenors had never asserted any claims against each other, and (2) the circuit court never adjudicated Lesiie, Jr.'s, Megan's, and Malyssa’s clains on the merits. ‘The Intervenors answer that entry of judgment may have been “procedurally incorrect,” but was no more than harmless ‘44* POR PUBLICATION *#* error. The Intervenors argue that “[a]t most, this (court should vacate andiet and remand with instructions . . . to enter dismissal of Leslie[,] Jr.’s claims against [Kanui].” The Appellants reply that the error was not harmless because it affects the merits of Megan’s and Malyssa’s clains, which “have not yet been adjudicated in any manner.” We agree with the Appellants that the circuit court’s Premature judgment in Civ. No. 98-5468 did not constitute “harmless error.” Leslii Jes, Megan, and Malyssa have the right to have their claims in Civ. No. 98-5468 adjudicated on the merits, Megan and Malyssa participated in the fairness hearing through counsel, but, as the circuit court stated, this was an exercise of their rights as parties to the consolidated case, and Gid not extinguish the children’s own claims. Moreover, Fresch’s and Leslie, Sr.'s preconsolidation dismissal of Civ. No. 97-0448, absent agreement among the parties, did not bar Leslie, Jr.'s later suit from commencing and running its course. In sum, the circuit court’s November 9, 2001 judgment is premature to the extent that it purports to dispose of Civ. No. 98-5468. Accordingly, we renand this matter to the circuit court for further proceedings with instructions to vacate the Novenber 9, 2001 judgment and to reinstate Leslie, Jr.’s, Megan's, and Malyssa’s claims in Civ. No. 98-5468. Furthermore, after the circuit court entered its August 22, 2002 order, a “judgnent™ was’ superfiuous. See Ditto v, McCurdy, 103 Hawat's 153, 165, £0°P.34 976, 980 (2003) (where earlier post-Judguent ‘order definitively sigheled the end’ of the matters raised. - «4 it was unnecessary for the cizcuit court to enter a second document”). é ‘#* FOR PUBLICATION *## Appeal From Civ, No. 97-0448 Is Premature: therefore ‘This Court Lacks Jurisdiction Over The Remaining Issues ‘Urapeeal = Because we vacate the circuit court’s November 9, 2001 judgment and reinstate Civ. No, 98-5468, we lack jurisdiction to decide the remaining issues on appeal from Civ. No. 97-0448. ‘The circuit court’s August 22, 2001 order disposed of one and only one of the two underlying cases that the circuit court consolidated. The circuit court designated neither its August 22, 2001 order nor its November 9, 2001 judgment as final pursuant to HRCP Rule 54(b) (2000).* Consequently, the remaining points of error arise out of a consolidated case that is still pending. Whether these circumstances deprive this court of appellate jurisdiction® constitutes a question of first impression in this state. Put differently, the question is whether consolidation for convenience pursuant to HRCP Rule 42(a) also causes the cases to merge into one for purposes of determining finality of judgment. + HCP Rule S4(b) provides in relevant part: hen more than one claim for relief is presented in an action.” "or when multiple parties are involved, the court may Girect tho entry of a final judgment ae to one or more but fewer then all of the claine or parties only upon en express Setermination that there i# n0 just reason for delay and upon an Gtpress direction for the entry of judgnent. In the absence of Such determination and direction, ony... form of decision Which edjudicates fewer than all the claims or the rights an Uabsicies of fewer then all the parties shail not terminate the action es to any of the clains or parties «s+ + Sag towai's Revised Statutes (HRS) § 641-2(2) (1993), which provides in relevant part that “[elppesis shall be allowed in civil matters Grom ell Zinal. . . erders'.. . of cizeuit . . . courts... . to the suprene court, «+ meexcept as otherwise provided by lai * on duly 26, "2004, the Legislature amended HRS § 64271 Ree 208, §'66, at 943. Effective July 1, 2006, this a upon the present mattar. See id $65, at 946. 8 ##* FOR PUBLICATION **4 Federal Rules of Civil Procedure (FRCP) Rules 42(a) and 54(b) exe facially identice. to their Hawai" counterparts, but the federal circuits are trifurcated in their interpretations of those rules. The United States Courts of Appeals for the Ninth, Tenth, and Federal Circuits have established the bright-line rule that a judgment disposing of fewer than all claims and parties in @ consclidated action is, per se, not appealable without Bule S4(b) certification. Huene v. United States, 743 F.2d 703, 705 (9th Cir, 1984); Zeinity Broad, Corp, v. Eller, 827 F.2d 673, 675 (20th Cir, 1987); Spravtex, Inc. vs DIS &T, 96 F.3d 1377, 1382 (Fed. Cir, 1996); see also Dixon v. AN Gen, Corp., 454 A.2d 1357, 1359-1360 (D.C. 1983); Steck v, Aagaire, 789 P.2d 708, 709 (Utah 1990); State ex rel. Pac. Intermountain Express v. Dist. Court of Second Judicial Dist., 387 P.2d 550, 552 (Wyo. 1963) ("It is conceivable that there would be exceptional circumstances which might influence the trial court to certify that there was no cause for delay in entering the final judgment and thus permit an appeal, but the propriety of such an arrangement can best be determined by the court which tried the case.”). The Huene court reasoned: The [trial] court, in exercising its broad discretion to order consolidation of actions presenting « comon issue of iw or fect under fule 42(a), weighs the saving of time and effort consolidation would produce ageinst any inconvenience, delay, or expense that it would cause. An appeal prior to the conclssion of the entire action could Well frustrate the purpose for which the cases were Sriginally consolidated. Not only could St complicate matters in the (trial) court but it also could cause an unnecessary duplication of efforts in the appellate court. 743 F.2d at 704 (citing 9 Charles Alan Wright & Arthur R. Miller, Federa) Practice and Procedure § 2386 (1983). 10 + FOR PUBLICATION *#* ‘The First and Sixth Circuits permit separate appeals. th Inge Mice, Helicopter Aizlings, Inc, 469 F.74 439 (lat Gir 1972), the United States Court of Appeals for the First Circuit performed a “literal reading of Rule 54(b) in conjunction with [FRCP] Rules 2 and 3."7 Id. at 441. Because the five consolidated actions in that case had all been filed separately, the court held that they retained “separate identities.” Id. ‘The court also stated that its “construction of the [FRCP] is reinforced . . . when the theory behind consolidation of actions is examined. ‘Consolidation is permitted as a matter of convenience and economy in administration, but does not merge the suits into a single cause... .'” Id, (quoting Johnson ve Manhattan Railway Co., 289 U.S. 479, 496-97 (1933)). ‘The Sixth Circuit similarly concluded, in Beil v Lakewood Eng. & Mfc. Co., 15 F.3d 546 (6th Cir. 1994), that “*[{Jnasmuch as the consolidation of both actions below did not merge the suits into @ single cause, it is beyond plerJadventure = that the trial court's decision . . . terminating [plaintife’s) action is a final appealable order not requiring farther certification.’" Id, at 551 (quoting Lundblad vw. Celeste, 874 F.2d 1097, 1103 (6th Cir. 1989), modified on other gxounda, 924 F.2d 627, 629 (6th Cir. 1991)). ‘The remaining federal circuits apply case-by-case tests. Hageman v. City Inv. Co., 851 F.2d 69, 71 (2d Cir. 1988); nited States v. $8,221,877.16 in U.S. Currency, 330 F.3d 141, + FRcp Rule 2 provides: “There shall be one form of action to be known af ‘civil ection.'” FRCP Rule 3 provides: "A civil action is commenced Byelling a conpleint with the court.” “The corresponding Hawai'i rules are fextvally identical n *** FOR PUBLICATION *#* 148 (3d Cir. 2003); Eagers v, Clinchtield Coal co, 11 F.3d 35, 29(ath Cir. 2993}; Bde Sustakiex Siitens v. Cont!) spcinkler, 967 F.2d 145, 152 (Sth Cir. 1992); Brown v. United States, 976 F.2d 1104, 1107 (7th Cir. 1992); Tri-State Hotels, Inc. v. Fed Deposit Ins. Corp., 79 F.3d 707, TIL (Bth Cir. 1996); Lewis Charters, Inc. v. Huckins Yacht Corp., 871 F.2d 1046, 1048-49 (11th Cir, 1989); United States ex rel, Hampton v. Columbia/ICA, 318 F.3d 214, 217 (D.C. Cir. 2003)); see alse Gissell v. Kenmare Tos, 463 N.W.2d 668, 671 (N.D, 1990) ("[We . . . consider the extent and purpose of the consolidation and the relationship of the consolidated actions . . . For the following reasons, we adopt the “per se” rule of the Ninth, Tenth, and Federal Circuits, whereby 2 judgment or order in a consolidated case, disposing of fewer than all clains among all parties, is not appealable in the absence of Rule 54(b) certification, Flaws inherent in the other two approaches are uncertainty for the litigants and the inefficiency of piecemeal review. See Spravtex, Inc., 96 F.3d at 1382. We are persuaded by Huene’s criticism of the case-by-case method: This has the disadvantage of leaving the finelity of the judgment hazy and subject to varying interpretations, In eur opinion, it is essential that the point at which a Sodgrent is’ final be crystal clear because appellate rights Gepens upon it. the opportunity to appeal could be Lost by a mistaken belief that the judgment se not final and a Consequent failure to file timely a notice of appeal.” On the other hand, uncertainty as to the finality of the Judgment could lead to the premature filing of a notice of aepeal with the consequent waste of tine and resources. A jeond disadvantage of this approach is that the right to Gecide whetner an sppeal is appropriate is taken from the [trial] court that made the original Gecision to consolidate. That court is best able to assess the original urpose of the consoligation snd whether an interim appeal Mould frustrate that purpes 743 F.2d at 704. Even as the Third Circuit reaffirmed the case- 12 ‘+ FOR PUBLICATION ### by-case rule in Bergman v. City of Atlantic City, 860 F.2d 560 (Bd Cir, 1988), it observed that “(nlo woll-counseled plaintiff in th{e) circuits (that categorically permit separate appeals) would ever join separate claims in a single complaint; he should instead file a separate complaint for each claim and then have them consolidated.” Id. at 565 1.9. ‘The rule adopted by the First and Sixth Circuits does have the virtue of definitiveness, but a partial appeal under this regime has the potential to unfairly impact ‘the matter(s) remaining below. See generally Joan Steinman, The Effects of Gase Consolidation on the Procedural Rights of Litigants, 42 UCLA L. Rev. 717, 795 nn.252-53, 797 & nn.261-62 (1994-95) ("[Alppellate decisions [under this approach] are likely to have at least stare decisis effect and may have collateral estoppel or xes judicata effects . . . in the remaining consolidated cases.”) (citing Jacqueline Gerson, Comment, The Appealability of Partial Judgments in Consolidated Cases, $7 U. Chi. L. Rev. 169 (1990). Moreover, even the “case-by-case” jurisdictions generally require “certification unless the consolidation was for limited purposes.” Spravtex, Inc., 96 F.3d at 1381; Hageman, @51 F.2d at 71 (“There is a strong presumption that the judgment is not appealable absent Rule 54(b) certification. In highly unusual circumstances, a litigant may be able to overcome this presumption... apparently consolidated the cases for all purposes. Accordingly, we dismiss the present appeal as to the In the present matter, the circuit court Appellants’ remaining points of error for want of appellate jurisdiction. 13 *** FOR PUBLICATION ### In Light of the foregoing analysis, we remand this matter to the circuit court for further proceedings with instructions to vacate the November 9, 2001 judgment and Gre On the briefs: Pharr Plabnce— Frederic W. Rohlfing 211 and Isrrie Lee Stone, Aaa OS ding cones CF Roni fing «stone, for the pleintffeappeliant iioward KY Leslie, Jr- Joe cynthia A. Farias, Tor’ the’ plaints f¢s-appellants Yenc outta: egan' and Melyssa Leslie reinstate Civ. No, 98-5468. Milton S. Tani, ‘of Matsui Ching Sumida & Tsuchiyana, for the defendant- appellee/third-party plaintiff Jeffrey K. Kanui Jeffrey S. Portnoy, of Cades Schutte Fleming & Wright, for the intervenors-appellees Joseph L. Wildman and Sibille & Wildman 4 

5a97163196669301b6cd8d3b42478bc8a9580f35fa6618a7ac2cec7b0b6c217f

2005-11-10T00:00:00Z

117e2ccc-c027-43ea-af27-ba35d559bea9

Jou v. Schmidt

hawaii

Hawaii Supreme Court

Nos. 25902 & 25903 IN THE SUPREME COURT OF THE STATE OF HAWAI'I EMERSON M.F. JOU, M.D., Petitioner/Provider-Appellant J.P. SCHMIDT, Insurance Commissioner, Department of ‘Commerce and Consumer Affairs, State of Hawai'i, Respondent /Appellee-Appellee and ISLAND INSURANCE COMPANY, LTD. , Respondent /Respondent-Appellee a CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIV. NOS. 93-1-0013 & 03-1-0012) ORDER DISMISSING CERTIORARI PROCEEDING C.J, Levinson, (By: Moon, Nakayama, Acoba, and Duffy, JJ.) upon further consideration of the records and files in this case, it appearing that the writ of certiorari herein was improvidentiy granted, IT IS HEREBY ORDERED that this certiorari proceeding is dismissed. Honolulu, Hawai'i, November 10, 2005. DATED: Be Cccrse— Pease cibremmeeee paren 6 Vane, Oni 

8e560cd14ed878a0ccf8c8876d63ee024cb05e64f493fa3f346ed19cd835078a

2005-11-10T00:00:00Z

4707ac43-f3ce-436a-ae8d-7271e3cab052

Kekona v. Abastillas

hawaii

Hawaii Supreme Court

No, 27297 IN THE SUPREME COURT OF THE STATE OF HAWAT' —_——————_—— BENJAMIN PAUL KEKONA and TAMAE M. KEKONA, =| Plaintiffs-Appellants Abo saz arts S91 in gy PAZ FENG ABASTILLAS, also known as Paz A, Richter; ROBERT A. SMITH, personally; ROBERT A. SMITH, Attorney at Law, A Law Corporation, STANDARD MANAGEMENT, INC. , WESTERN SURETY COMPANY, and MICHAEL BORNEMANN, Defendants-Appellees and U.S. BANCORP MORTGAGE COMPANY, an Oregon Company; JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; and DOE ENTITIES 2-10, Defendants APPEAL FROM THE FIRST CIRCUIT COURT (CIV. NO. 93-3974) ORDER Levinson, Nakayama, Acoba, and Duffy, JJ.) (By: Moon, C.d., Upon consideration of Plaintiffs-Appellants’ motion to dismiss the appeal with the parties to bear their respective fees and costs, the papers in support, and the records and files herein, IT IS HEREBY ORDERED that the motion is granted, and the appeal is dismissed. The parties to the appeal shail bear their own attorneys’ fees and costs. DATED: Honolulu, Hawaii, appellants on the motion October 18, 2005. Becees te Contant say caste an Arcos 

b6e683c0224ad38f4345a15310affa562b1913438b093141205c34c01bc432e3

2005-10-18T00:00:00Z

22ffaf63-fbb4-4a22-9eaa-7eed1c406bce

State v. Davis

hawaii

Hawaii Supreme Court

LAWLUBRARY *** NOTFOR PUBLICATION *** no. 26164 3 SHE SHPRE cove oF mi SE wane a STATE OF HAWAT'I, Plaintiff-Appellee, ents COWS oats Lt OY 8) TAMIL, DAVIS, Defendant-Appellant. APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (CASE NO. 1P102-06486; HPD CR. NO. 02240833) ‘SUMMARY DISPOSITION ORDER (By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.) Defehdant-Appellant Tami Lynn Davis appeals from the District Court of the First Circuit’s November 6, 2003 final judgment revoking Davis's probation and resentencing her to thirty days’ incarceration.’ Davis contends that the district court erred by: (1) imposing and refusing to vacate or modify the geographic restriction that prohibited Davis from being on public property within the Waiktkt area, where she allegedly worked and resided, between 6 p.m. and 6 a.m.; and (2) revoking Davis's probation based on a violation of the geographic restriction. Upon carefully reviewing the record and the briefs submitted by the parties, and having given due consideration to the argunents advocated and the issues raised, we hold as follows: + The Honorable Russel Nagate presided over this matter.  *** NOTFOR PUBLICATION ** (2) the district court did not abuse its discretion in imposing and refusing to modify or vacate the geographic restriction condition of probation for violation of Hawai'i Revised Statutes (HRS) § 712- 1207(1) (Supp. 2000). See State v. Yamamoto, 79 Hawai'i 511, 514, 904 P.2d $25, $28 (1995) ("Whether probation should be granted, revoked, or modified lies solely within the discretion of the sentencing court.”). First, the geographic restriction, mandated by HRS § 712-1207(5) (Supp. 2000),? was not overbroad nor unduly restrictive of Davis’s rights, notwithstanding that Davis allegedly lived and worked in the restricted area. See HRS § 712-1207: cat. (“Defendants that live in Waikiki and choose to remain in Waikiki during the prohibited hours are required to stay off the streets and sidewalks during those + was § 712-1207(8) states: (5) Ag an option to the mandatory term of thirty days Anpetsonnent, if the court finds the option 12 warranted bbesed upon the defendant's record, the court may place the Gefendant on probation for « period not to exceed. six rronths, te the ws 2 . jefengant 7 rensin is Sielation of the ions By the deter ediatel z ada Simca Nothing contained in this subsection Shall Ge construed a prohibiting the imposition ef stricter Geographic restrictions under section 706-€24 (2) (h 2 *** NOT FOR PUBLICATION *** hours.”). Furthermore, Davis admitted that she understood end could abide by the restriction. Second, the geographic restriction is reasonably related to the purpose of rehabilitation because it prohibits her from being in an area where she was apprehended for prostitution, during times that the legislature and this court have found are most closely associated with prostitution. See State v. Stanford, 79 Hawai'i 150, 154, 900 P.2d 157, 161 (1995) (*{A]1though the restriction covers a large physical space (the ‘Waikiki area’), [the defendant] is only forbidden to enter this area during the hours most closely associated with the sxime_tor which she was found quilty.”) (Emphasis added); 1998 Haw. Sess. Laws 149 ("The legislature finds that the level of prostitution in Waikiki has become intolerable.” (2) The district court did not abuse its discretion in revoking Davis's probation because Davis understood the conditions of her probation and inexcusably failed to comply with the geographic restriction, which was a substantial requirenent of the probation, prior to the end of her probation period. See HRS § 712-1207(5) (“Upon any violation of the geographic restrictions by the defendant, the court, after hearing, shall revoke *** NOTFOR PUBLICATION *** the defendant's probation and imnediately impose the mandatory thirty-day term of imprisonment."); HRS § 706-625 (Supp. 2000) (“The court shall revoke probation Af the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the order(. Therefore, IT IS HEREBY ORDERED that the district court's November 6, 2003 final judgment revoking probation and resentencing Davis to thirty days incarceration is affirmed. DATED: Honolulu, Hawai'i, October 18, 2005. On the briefs: ore Lesley N. Maloian, Deputy Public Defender, MeL aa for defendant-appellant Tami L. Davis Alexa D.M. Fujise, Deputy Prosecuting Attorney, for plaintiff-appellee ee State of Hawai'i 

53582d4d11db5e962a272ffec92a60e3bc4bf7010f8ea957dd7f1ab295634bb8

2005-10-18T00:00:00Z

444972c4-d8f7-4d6f-a534-16c09a7d03e1

Ochs v. Hawaii Medical Service Association

hawaii

Hawaii Supreme Court

No. 25859 5 8 a. 2 IN THE SUPREME COURT OF THE STATE OF HAWAI'f NICHOLAS J, OCHS, D.M.D., Petitioner-Plaintiff-appellant & vs. HAWAII MEDICAL SERVICE ASSOCIATION, a Hawaii non-profit corporation; 8510 DENTAL MANAGMENT fka HAWAIZ HAWAII FAMILY DENTAL CENTER, a Hawaii non-profit corporation; INTEGRATED SERVICES INCORPORATED dba DENTAL SERVICES MANAGEMENT, Respondente-Defendants-Appellees, and JOHN DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; and DOE ENTITIES 1-10, Defendants CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIV. NO. 01-2-0459(3)) (By: Moon, C.J., Zor the court!) Petitioner-Plaintiff-Appellant Nicholas J. Ochs, D.M.D.'s application for writ of certiorari, filed october 10 2005, is denied. DATED: Honolulu, Hawai'i, October 19, 2005. Arleen D. Jouxson and FOR THE couRT: Rafael G. Del Castillo, (of Jouxson-Meyers & Del Castillo) for petitioner- plaintiff-appellant sf Justice” Levingon, wakayama, Accba, and Duffy, 33. * considered by: Moon, ¢.J., 

79aca7d332d96f8eb92c06be02af50223c1997f735d6fc795e30e9752bb4be06

2005-10-19T00:00:00Z

17306cd0-5cd6-45f3-8f71-a1ec57bfb32e

Wong v. Getz

hawaii

Hawaii Supreme Court

LAW UBRARY *** NOT FOR PUBLICATION *** No. 27391 IN THE SUPREME COURT OF THE STATE OF HAWAI'I DAMIEN WONG and EDMUND WONG, Plaintiffs-Appellants, ROBERT GETZ; SHELL DEVELOPMENT CORP.-LAWAI, a Hawai'i corporation; TURTLE COVE REALTY, a Hawai"! corporation, Defendants-Appellees, and JOHN DOES 1-10; DOE CORPORATIONS 1-10; and DOE PARTNERSHIPS 1-10; DOE ASSOCIATIONS 1-10; and DOE OTHER ENTITIES 1-10, Defendants, and SHELL DEVELOPMENT CORP.-LAWAI, Third-Party Plaintiff, TURTLE COVE REALTY; REAL ESTATE CONSULTANTS OF KONA; and ROES 1-10, Third-Party Defendants. ms ‘sae ue APPEAL FROM THE FIFTH CIRCUIT COURT (CIV. NO. 98-0339) 0380 wi aa ORDER DISMISSING APPEAL (By: Nakayama, J. for the court!) Ale HY EL Upon review of the record, it appears that the circuit court’s June 16, 2005 order granting sunmary judgment as to all defendants was not reduced to a separate judgment, as required by RCP S6. See Jenkins v. Cades Schutte Fleming & wright, 76 Hawai'i 118, 669 P.2d 1334 (1994) (an order that resolves claims in a circuit court civil case is not appealable unless the order is reduced to separate judgment pursuant to HRCP S@ by the time Sconesds 1d by: Moen, C. Levinson, Nakayane, Acobe, and Duffy, J *** NOT FOR PUBLICATION *** the record is filed in the supreme court). Thus, the appeal of the June 16, 2005 order is premature and we lack jurisdiction. Therefore, IT IS HEREBY ORDERED that this appeal is dismissed for lack of appellate jurisdiction. Dated: Honolulu, Hawai'i, FOR THE COURT: Bente Cm Que Associate Justice 

0e0d31523c8c668fc41d2431eca421f36f6d139ca514aa029e3b7baf28ee3e58

2005-10-13T00:00:00Z

984f8066-8b96-42ae-ab49-d174cc045953

State v. Crowe

hawaii

Hawaii Supreme Court

No. 27638 IN THE SUPREME COURT OF THE STATE OF HAWAI'I STATE OF HARAI'I, Plaintiff-Appellee DEVIN E, CROWE, Defendant-Appellant 3 APPEAL FROM THE SECOND CIRCUIT COURT (CR. NO, 05-1-0547) (By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.) upon consideration of Defendant-Appellant Devin E. Crowe's motion to expedite review of the notice of expedited appeal from the order pertaining to bail, the papers in support, and the records and files herein, it appears that: (1) Appellant was charged with offenses in the Circuit Court of the Second Circuit; (2) the cireuit court set bail at $300,000 and later reduced bail to $250,000; (3) Appellant seeks review of the bail order pursuant to HRAP Rule 9(a) (1); (4) HRAP Rule 9(a) (1) governs appeals authorized by law from an order refusing or imposing conditions of release prior to a judgment or conviction: (5) HRS chapter 804 governs the imposition of bail, and there is no appeal authorized by law from an order refusing or imposing conditions of release prior to a judgment of conviction, see also HAS § 641-11 (appeals in criminal cases are authorized only from the judgment of the circuit court, which is the sentence of the court); (6) HRAP Rule 9(a) (2) provides that review of orders oay4 respecting release prior to a judgment of conviction may be obtained by application for an extraordinary writ pursuant to Rule 21 or an application for a writ of habeas corpus, see Polekai v, white, 75 Haw. 357, 861 P.2d 1205 (1993) (defendant filed a petition for writ of mandamus seeking review of family court bail order); Sakamoto v, Chang, 56 Haw. 447, 539 P.2d 1197 (1975) (defendant filed a petition for a writ of habeas corpus seeking review of circuit court bail order). Therefore, IT 1S HEREBY ORDERED that the motion to expedite the appeal is denied, IT 18 FURTHER ORDERED that the appeal from the order pertaining to bail is dismissed without prejudice to a petition for writ of mandamus or a writ of habeas corpus. DATED: Honolulu, Hawai'i, December 30, 2005, Hayden Aluli and Mimi Desjardins for defendant-appellant on the motion 

8c6a267990dfacbd388f18864e6d98506ad0e462c8cd4f52fc1a295e776c3c64

2005-12-30T00:00:00Z