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9055a27c-e43d-43c2-8591-45c307e561ad

State v. Allison

hawaii

Hawaii Supreme Court

No. 26848 IN THE SUPREME COURT OF THE STATE OF HAWAI‘T STATE OF HAWAI'I, Plaintiff-Appellee-Respondent, 4 Hd 02 700 wuz PETER M. ALLISON, ° Defendant-Appellant-Petitioner. 3} CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (Cr. No. 1P102-13357) (HPD Rep. No. 02488390) (By: Levinson, J., for the court) upon consideration of the application for a writ of on June 15, 2007, by the defendant-appellant- certiorari filed petitioner Feter M. Allison, the application is hereby rejected Honolulu, Hawai'i, July 20, 2007. FOR THE COURT: & a STEVEN H. LevisoBEAL Associate Just Be oc DATED: Q Stephen M. Shaw for the defendant appellant-petitioner fon the application Considered by: Moon, C.J., Levinson, Nekayame, Acoba, and Duffy, JV. 

3183b71bf21bd9063d1f0e3f9265c105c556b40e7c1f698bc74015a695eb93a7

2007-07-20T00:00:00Z

2ca3fc84-a110-42ab-9c44-f2acd6b201ee

State v. MacArthur

hawaii

Hawaii Supreme Court

LAW LIBRARY No. 27706 STATE OF HAWAI'T, Plaintife-Appellee-Respondediis Soy Bale ny — vs. Bie om mn 38 2 m KEVIN ROGER MACARTHUR, Defendant~Appellant-Petitéfner. wp O CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (case No. CTB1 (MPD Rep. Nos. 00523854, 0523854AM) ) wt (By: Levinson, J., for the court’) Upon consideration of the application for a writ of certiorari filed on May 31, 2007 by the defendant-appellant- petitioner Kevin Roger MacArthur, the application is hereby rejected. Honolulu, Hawai'i, July 2, 2007. FOR THE COURT: DATED: Matthew S. Kohm, for the defendant- appellant-petitioner Kevin Roger MacArthur, fon the application considered by: Moon, C.J., Levinton, Nakayama, Aecbs, and ouffy, 93. 

b28b50fa9ef7b5f1f34315125a665a35537b41f94f06707fec0cb59a3dafce28

2007-07-02T00:00:00Z

8d5075a2-2610-42c3-9e2d-0cb2d8fc656a

State v. Manewa

hawaii

Hawaii Supreme Court

No. 27554 se GUERENE coURT OF nH rae oF nawnsielS STATE OF HAWAI'I, Respondent /Plaintiff-Appel1&| 9E «1 Rd | L~ SAW L002 ve. a ISAAC K. MANEWA, JR., Petitioner/Defendant-Appellant. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO. 04=1-0304) (ORAL ARGUMENT AND CANCELLING ORAL ARGUMENT (By: Acoba, J., for the court’) upon consideration of the Second Motion for Postponement of Oral Argument filed by Respondent/Plaintiff- Appellee State of Hawai ; the declaration attached thereto, the record herein, and considering this court's oral argunent scheduling calendar, IT IS HERESY ORDERED that the motion is denied. If IS FURTHER ORDERED that oral argument shall be cancelled and this matter shall be decided on the submissions of the parties. DATED: Honolulu, Hawai'i, August 7, 2007. FOR THE COUR Rssociate Justice Loren J. Thonas, Deputy Prosecuting Attorney, City and County of Honolulu, on the motion for respondent /plaintiff-appellee. ) considered by: Moon, C.J., Levinson, Nakayama, Acobe, and Duffy, JJ. a3us 

996af94e59e62cef5a4bdb4ea09dfcead58d1177c88274d2348031f2179a8afc

2007-08-07T00:00:00Z

b7b9f143-b470-4e73-982b-c9267fd1accd

The Bank of New York, as Trustee of Amresco Residential Securities Corporation Loan Trust 1997-3 v. Dejos

hawaii

Hawaii Supreme Court

LAW LISRARY Wo. 26534 IN THE SUPREME COURT OF THE STATE OF HAWAI'I BANK OF NEW YORK, AS TRUSTEE FOR AMRESCO RESIDENTIAL SECURITIES CORPORATION LOAN TRUST 1 , Respondent /Plaintif£-Appellee ass vs. fi *e Td S2 woe cage ROSA B. DEJOS; JOHN S. ESPANOL; and JUDITH D. E! Petitioners/Defendants-Appellants ROSA E. DEJOS; JOHN $. ESPANOL: and JUDITH D. ESPANOL, Petitioners/Counterclaimants-Appellants BANK OF NEW YORK, AS TRUSTEE FOR AMRESCO RESIDENTIAL SECURITIES CORPORATION LOAN TRUST 1997-3, Respondent /Counterclaim Defendant Appellee SSS CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS (CIV. Wo. 03-21-0114) (By: Duffy, J., for the court’) Petitioners /Defendants-Counterclaimants-Appellants Rosa E. Dejes, John $. Espanol, end Judith D. Espanol’s application for writ of certiorari, filed on May 16, 2007, is hereby rejected. Honolulu, Hawai'i, gune 25, 2007. DATED: Gary Victor Dubin FOR THE couRT: for petitioners /defendants- counterclainants-appellants fon the application Cran £. Duty Associate Justice and Duffy, 29. Moon, C.J., Levinson, Nakayama, Acob > considered bys 

23adce6cdbe4f8e236a9e78fb3cb93ef6a55194782d24769a7075a6ce692554b

2007-06-25T00:00:00Z

0982f905-d86e-419d-8a09-cc51aadad0d7

Frontier One, LCC v. McKenna

hawaii

Hawaii Supreme Court

LAWLIBRARY No, 28603 IN THE SUPREME COURD OF ‘THE STATE OF HAWAT! FRONTIER ONE, LCC, a Hawaii Limited Labiiry:|® oat THE HONORABLE SABRINA S. MCKENNA, JUDGE OF THE FIRST CIRCUIT COURT, STATE OF HAWAI'I; VESTIN MORTGAGE, INC. VESTIN REALTY MORTGAGE I, INC.; VESTIN REALTY MORTGAGE 12, INC.; OWENS MORTGAGE INVESTMENT FUND: BRIDGE CAPITAL, INC.; SUNSET FINANCIAL RESOURCES, INC.; STATE OF HAWAI'I, Respondents. ORIGINAL PROCEEDING (CIV. NO, 04-1-2126) (By: Moon, C.J., Levinson, lakayama, Acoba, and Duffy, JJ.) upon consideration of the petition for a writ of mandamus filed by petitioner Frontier One, LUC and the papers in support, it appears that the agreenent resolving the foreclosure eale implements the October 31, 2006 order modifying the May 13, 2005 foreclosure decree. The provisions of the resolution aor ment are reviewable on app 1 of @ judgment entered on an order confirming the foreclosure sale, the judgment may be stayed pending appeal, and petitioner has an adequate remedy by way of appeal. See HRS § 667-51(a) (2) (Supp. 2006); HRAP 8. ‘Therefore, pers joner is not entitled to mandamus relief. See Kema vs Gaddis, 91 Hawai'i 200, 204, 962 P.24 334, 338 (2999) (A writ of mandamus is an extraordinary renedy that will not issue unless the petitioner denonstrates a clear and indisputable right to relief and a lack of alternative means to redress adequately the alleged wrong or obtain the requested action. Such writs are not intended to supersede the legal discretionary authority of the lower courts, nor are they intended to serve legal remedies in lieu of normal appellate procedures.). Accordingly, I? IS HEREBY ORDERED that the petition for a writ of mandamus is denied. DATED: Honolulu, Hawai'i, July 5, 2007. Sli ian Rua bree gare e Yorn, Lelgs 

b81305c5ae4f2e055eb228ba83273b179a8b233b881676450f397089e7ddcc48

2007-07-05T00:00:00Z

b501ab65-53f8-4286-b00b-a9db6505d191

FTW Revocable Trust v. Smith

hawaii

Hawaii Supreme Court

LAW LIBRARY No. 27374 IN THE SUPREME COURT OF THE STATE OF HAWAI'I FTW REVOCABLE TRUST, STEPHEN R. . Plaintis: . HADLEY, and LINDA K. HADLEY, ‘Appel lants~Petiticners, vs. cepseed a nd ld ata haste ee pay s = a a o i CERTIORARI TO THE INTERMEDIATE COURT OF APPERLRZ o (Civ. No, 03-1-1967-09) “ae Oe ‘ORDER REJECTING APPLICETION FoR WaT oF ceRmionmh: = B (By: Levinson, J for the court’) Upon consideration of the June 28, 2007 application for 4 writ of certiorari by the plaintiffs-appellante-petitioners FTW Revocable Trust, Stephen R. Hadley, and Linda K. Hedley, end the June 28, 2007 response by the sbove-captioned defendants~ appellees-respondents, the application is hereby rejected. DATED: Honolulu, Hawai'i, July 23, 2007. FOR THE COURT: STEVEN H. LEV; Forevant to Hawai'i Role of Appellate Procedure smith is eubetitoted for Feter R. Young, he. Thompson ané Neeley Cho! rensin, Ses in theiy individuel cepecities anc, ith reepect te the claims agesnet then in their official copecities, they are Feplaced by their successers in office. + considered by: Neon, C.J., Levineon, Nakeyend Circuit Judge Ayabe, in F ene he ce of Dutt}, ou, recused, Bey ane R. Steven Geshell, for the plaintiffs-appellants-petitioners, on the application William J. Wynhoff, Deputy Attorney General, for the defendants-appeliees-r ‘on the response pondents, 

a7c6c88ed3d7b7f323fe9e4daf989f29508583e9005547c5832de915342afefd

2007-07-23T00:00:00Z

f858fdf5-ae0e-4de0-a925-71cd19d77138

Vidinha v. Miyaki

hawaii

Hawaii Supreme Court

*** NOTFOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter No. 26168 = m o ALTHIA VIDINHA, Respondent-Appellant, and WARREN VIDINHA, CORY VIDINHA, KELLIE ANNE VIDINHA, JOEY VIDINEA, BRANDON VIDINEA and ERITANNY VIDINHA, Plaintiffs, CLYDE T. MIYAKI, M.D., and SHARON LAWLER, M.D., Petitioner-Appellees, and ‘THE QUEEN'S MEDIAL CENTER, JOHN DOES 1-10, JANE DOES 1-10, DOE CORPORATIONS 1-10, and’DOE PARTNERSHIP 1-10, Defendant CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (crv. No. 01-1-1477) (By: Moon, €.9., Levineehy Makayana, Recbe, and Dutty, 23.) Fetitioners-Defendante-Appellees Clyde 7. wiyaki, M.D. (ruyekie) and sharon Lawler, M.D. (CLavier*) tinely filed an application for writ of certicrars from the Intermediate Court of popes’ (CIM) decision én Vidisha vw. Mivaki, 112 Heval'i 336, LAS P.3d 679 (app. 2006), which ‘ated the October 23, 2003 First Amended Final Judgment of the Circuit Court of the First *** NOTFOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter Circuit's! grant of summary judgment in Miyaki and Lawler's favor and remanded the case for further proceedings. This court granted certiorari on December 21, 2006 and subsequently ordered oral argunent and’ further briefing. upon careful review of the record and the briefs submitted by the parties (including the supplenental briefs), having given due consideration to the argunent advanced and the issue raised, and also having heard and carefully considered the parties’ respective arguments at oral argunent held on April 24, 2007, IT IS HEREBY ORDERED that the ICA’s Novenber 14, 2006 judgment on appeal ie affirmed. DATED: Honolulu, Hawai"i, June 26, 2007. on the application and supplemental briefe: George W. Playdon, ar, Gorm— Kelvin #. Keneshire, and R Aeron Crepe (of Reinwald, O'Connor & Playdon LLP) Sli ceP Leds for Petitioners-befencante- Appellees clyde 7. Miyakis M.D. and Sharon Lawier, M.D. Ren 6 rescence Michael J. Green, David J . Gierlach, and Debra A. Kagawa, Gor heer tQ for Respondent -Plaintif#-Appel lant Althia Vidinha re Ded ‘The Honorable Elizabeth Eden Hifo presided. 

f7e4824617d5ccd825f06b494cf3a4c0f9411b92c98384c94da703c90dda66f2

2007-06-26T00:00:00Z

d5706b3e-5fe7-4bc1-8164-492880b5b022

In re T. Children: J.K.T.

hawaii

Hawaii Supreme Court

LAW LIBRaRy No. 27690 IN THE SUPREME COURT OF THE STATE OF HAWAI'I IN THE INTEREST OF T CHILDREN K.T. (1), SNP, TTT. TAK.T. (2), and JR.T., IR. Wd Nr tg CERTIORARI TO THE INTERMEDIATE COURT OF APPE (FC-S NO. 04-09813) Zor the court’) (By: Nekeyama, Petitioner-Appellant's application for writ of certiorari filed on May 18, 2007, is hereby rejected. DATED: Honolulu, Hawai'i, June 7, 2007. FOR THE COURT: uate CO TRemeyane Associate Justice kerbert Y. Hamada for petitioner-appellant on the application Yconsicered by: tevinsen, O34 St SEAL Nakayama, Acobe, end Duffy, 99. oe we 

f65d0a57d3c023257164945f189b3d35c074d5f133fba1f85543de9e4d9c736f

2007-06-07T00:00:00Z

382c216f-94c7-48f7-8e44-7a2b1a7ee13b

In re Doe

hawaii

Hawaii Supreme Court

No. 25416 IN THE SUPREME COURT OF THE STATE OF HAWAT'T OOFNHY 22 Nap wag In the Interest of JOHN DOB, Born on May 2, 1983, Petitioner/Minor-Appellant . CERTIORARI 10 THE INTERMEDIATE COURT OF APPEALS (Fe-3 NO. 0037695) ORDER REJECT} car4: weIT OF ceRrr (By: Moon, C.J., for the court") titioner/minor-appellant John Doe's application for writ of certiorari, filed May 15, 2007, is rejected. DATED: Honolulu, Hawai'i, June 27, 2007 FOR THE COURT: Brian A. Costa (of Costa & DeLacy), for petitioner/ minor-appellant, on the application fef Justics considered by: Circuit dudge Alm, in place of Acoba, Moon, C.5., Levinson, Nakayama, and Duffy, JJ.; an 

3134e46c4a8fb3ee93e68b0ae8df18a968c688951a775811c884de8a26d8fe60

2007-06-27T00:00:00Z

df34d8e1-7ee6-43da-bec8-08bad67bc7a7

Diplomat Tours and Travel, Inc. v. Sanga

hawaii

Hawaii Supreme Court

IN THE SUPREME COURT OF THE STATE OF HAWAI'I DIPLOMAT TOURS AND TRAVEL, INC., NO. 26866 Plaintiff-Appellee/Respondent vs. TRINIDAD M. SANGA and DELIA ENCARNACION ALUPAY dba PHIL USA TRAVEL & SERVICES, = Defendant s-Appellants/Petitioners ITs 70 THE INTERMEDIATE COURT OF APPEALS CERTIORARI (CIV. NO. 1RCO3~1-3443) (By: Duffy, J., for the court’) Defendant-Appellant/Petitioner Trinidad M. Sanga’s application for a writ of certiorari, filed on May 30, 2007, is hereby rejected. DATED: jonolule, Hawai'i, July 9, 2007. FOR THE COURT: Len € Deaf. Associate Justice Den S. Ikehara for defendant-appellant/ petitioner Trinidad M. Sanga on the application . Nekayene, and Dotty soeres by 

91b5f1dd74cbb4a8c66f389d8f8c43ee00d08846486a9a890a3be0700012a058

2007-07-09T00:00:00Z

8622257a-e2f1-404c-a975-6ff0516919cc

State v. Lo.

116 Haw. 23

28775

hawaii

Hawaii Supreme Court

LAWUBRARY ‘+++ FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER *** IN THE SUPREME COURT OF THE STATE OF HAWAI'I 000 STATE OF HAWAI'I, Petitioner, vs. THE HONORABLE DAVID W. LO, JUDGE OF THE DISTRICT COURT OF THE FIRST CIRCUIT, STATE OF HAWAI'I and JACK MILLER,’ Respondent No. 28775 3 ORIGINAL PROCEEDING o = (caSE noe one+07-027523) SE z Oo OCTOBER 30, 2007 = MOON, C.9., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ. Per Curiam. In this original proceeding, petition State of Hawai'i (the prosecution) petitions this court for a weit of mandamus directing respondent the Honorable David W. Lo, judge of the District Court of the First Circuit (the respondent judge), to vacate @ pretrial order granting respondent Jack Miller's [hereinafter, defendant Miller) motion to compel discovery in State v, Miller, Case No. 1DTC-07-017113. The prosecution contends that the respondent judge exceeded his lawful authority under Hawai'i Rules of Penal Procedure (HRPP) +++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** Rule 16(d) (2007), quoted infra, by compelling the prosecution to disclose to defendant Miller the calibration distances and calibration locations for the laser unit used to cite defendant Miller for excessive speeding, in violation of Hawai'i Revised Statutes (HRS) § 291C-105(a) (1) (Supp. 2006), quoted infra. Based on the following, we hold that, because the calibration information falls within the ambit of HRPP Rule 16(d), the respondent judge did not exceed his lawful authority and that, therefore, the prosecution is not entitled to mandamus relief. 1. BACKGROUND On March 25, 2007, defendant Miller was cited for excessive speeding, in violation of HRS § 291C-105(a) (1), for allegedly driving 76 miles per hour in a 35-mile-per-hour zone on Kalanianaole Highway in Kailua, O'ahu, The speed was measured by @ laser unit operated by Honolulu Police Department officer Justin Wint! Rs § 2910-208, ntitled “Excessive Speeding," provides in relevant pert: No persen shall rive 6 motor vehicle at spe ‘The oppliceble state or county speed limit by thirty miles per hoor er merel.J jc) dnp person who viclates this section chell be guilty of 2 petty misdeneaner |.) 1+ FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER *** Defendant Miller scught discovery pursuant to HRPP Rule 16,? seeking disclosure by the prosecution of routine discovery 2 URPP Rule 26 provides: (a) Applicability. Subject to subsection (d) of this role, Siscovery uncer thie rule may be cbtesned in and is LJnites to cases in which the Gefendant is charged with & felony, and may commence upen the filing in the circuit Court of an indictment or complaint () Dinclosure by the prosecution. (2) Srecuceune or Warress Winwn Froseeorron’s Pesszssiow. the prosecutor shall disclose te the defendant oF the Eciehdant’s ettorney the fellowing material and information Within the prosecutor’ s possession or contrel (i)° Ehe'nanes and last. known aderesces of persons hon the prosecutor intends to call ae witnesses in the Presentation of the evidence in chief, together with any Pelevant written or Fecerdes statenente, proviced that Statements recorded by the prosecutor shell not be subject to aisclotures {iii any written or recorded statenents end the suretance of any oral statenents nade by the defendant, o: nade by 8 co-cefendant if intended to be used in s joint Trial, together with the nanes and last known addresses of persone whe witnessed the making of such statements: Tali) ony reperte or statements of experts, which were made in connection with the particular case or which the prosecutor intende to introduce, or which are material to The preperation of the defense and are specifically Gessgnated in writing by defence counsel, inclusing results of physical or nentel examinations and of scientific tests, experiments, or comparisons: (iv) any Books, papers, docunents, photographs, or tangible cbjects which the prosecuter intends to introduce, of uhich were obtained from or which belong to the Sexcnasnt, or which are materiel to the preparation of the Gefense and are specifically designated in writing by Sefense counsel; {v) 8 copy of any Hawai'i criminal record of the defendant tnd, if #0 ordered by the court, a copy of any crininal record of the defendant cutsice the State of Nawas's (vi) whether there hes been any electronic surveillance laneluding wiretapping) of conversations te which the defendant was a party oF occurring on the Gefencant’® prenices; (vis) ony Reterial or information which tends to the guilt of the defen or would tend to reduce the defendant's punishnent therefor. (2) Erecaceont er arruns Nor Mameaw Prceecurson’s Fosstssion, pen written request of defense counsel and specific Geclgnetion by defense counsel cf material of snforsation hich woulé be Giscoverstle if in the possession or control (cont snved..-)  *+** FOR PUBLICATION IN WEST'S HAWAT REPORTS AND PACIFIC REPORTER * items’ and nine additional items concerning the laser unit used by officer Winter. The prosecution disclosed the traffic crine citation, but did not disclose the laser unit items. Defendant Miller thereupon filed @ motion to compel discovery of the following laser unit itens: + manufacturer's operation and maintenance manuals; + certification documents: + police maintenance records: + manufacture and acquisition dates: + warranty documents; + laser readings: + firearm qualification test results for officer Winte: 21. scontinves) of the prosecutor and which ie the possession or contre} of ether governnentel personnel, the prosecutor enall use Giligent good faith efforts to cause such naterial oF infornation to be nade available to defense counsel? end if the prosecutor's efforts are unsuccessful the court shell) issue suitable subpoenas er orcers to cause such material oF information te be nade available to defense counsel (4) Diteretionary disclosure. pon s showing of materiality and if the request is veasensble, the court in ke iscretion may require siscloeure a2 provides for in this Rule 16 in eases cther than those in which the Gefencant is charged with s felony, but now in cases involving vielatiens. (Emphases in criginal 2 the routine discovery materials included the police report or citation, any police Photoaveph oF videotepe of the defendant, names end eddresses of prosecution witnesses, eny prior criminal record cf the defendant of prosecution witnese, and pelice dispatch log, “te +** FOR PUBLICATION IN WEST'S HAWAT REPORTS AND PACIFIC REPORTER *** + fixed distance used to calibrate the subject laser unit and location where the calibration took place; and + delta distance used to calibrate the subject laser unit and location where the calibration took place. Defendant Miller contended that the accuracy of the laser unit was necessary to sustain 2 conviction for excessive speeding based solely on the laser unit and that the laser unit items were material to determining the accuracy of the subject instrument. ‘The prosecution opposed disclosure of all the laser unit items as “not discoverable under [HRPP) Rule 16.” ‘The respondent judge, by order filed on October 4, 2007, granted the motion to compel discovery as to the laser unit calibration distances and calibration locations, denied the motion as to all other items, and directed the prosecution to disclose the calibration information to defendant Miller. The prosecution thereupon filed the instant petition for a writ of mandamus, requesting that this court vacate the respondent judge’s October 4, 2007 order compelling disclosure of the laser unit calibration information. I. STANDARD FOR DISPOSITION “The extraordinary writ of mandamus is appropriate to confine an inferior tribunal to the lawful reise of its proper jurisdiction.” State ex rel. Merslend v, Ames, 71 Haw. 304, 306, 788 P.2d 1281, 1283 (1980) (internal quotation marks and  FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** citations omitted). “But mandamus may not be used to perform the office of an appeal.” Id. Thus, this court must determine at the outset whether a mandamus petitioner may have a remedy by way of appeal or any other means of relief from the trial court's action. Ids But the mere fact thet other renedies are not available has never in itself been sufficient Justification fer mandemos, “and where... the trial juage hae Giscretion to act, mancamie clearly will net lie to. Snterfere with or control the exercise of that discretion, even where the Jucge has acted erronecusly, unless the judge has exceeded his lor her] jurisdiction, hae committed 8 2 nd manifest sbuse of discretion, or hee refused to act ons fubject properly before the court where it was Onder a legal cuty to act. [ds at 307, 788 P.2d at 1283 (internal citations, brackets, quotation marks, and ellipses omitted). III. piscussroy A. Whethe ution’s Petition for Writ of Mandamus is Proper As indicated above, this court must first determine whether the prosecution, as the mandamus petitioner, may have a remedy by way of appeal or any other means of relief from the trial court’s action. Marsland, 71 Haw. at 306, 768 P.2d at 1283. It does not. HRS § 641-13 (Supp. 2006) authorizes an appeal by the prosecution, ina criminal case, from: (1) an order or judgment sustaining 8 motion to dismiss an indictment or complaint or any count thereof; (2) an order or judgnent dismissing @ case where the defendant has not been put in jeopardy; (3) an order granting +** FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER *** _ a new trials (4) an order arresting judgment; (5) @ ruling on a question of law adverse to the State, where the defendant wes convicted and appeals from the judgments (6) 2 sentence deened to be illegal; (7) @ pretrial ozder suppressing evidence; (8) an order denying the State's request for @ protective order for non- disclosure of witnesses for their personal safety under HRPP Rule 16(e) (4) (9) @ judgment of acquittal following @ jury verdict of guilty: end (10) @ denial of authorization to intercept wire, oral, or electronic communications. Clearly, under section 641-13, the prosecution is not authorized to appeal the respondent judge’s October 4, 2007 pretrial discovery order. Thus, the prosecution would be without @ renedy unless extraordinary relief is granted. Consequently, we next examine whether the respondent judge exceeded his authority under HRPP Rule 16(é) thereby entitling the prosecution to mandamus relief. 8 ner HAPP Rule 16(d Disclosure in criminal cases is governed by HRP Rule 16, which limits discovery “to cases in which the defendant is charged with a felony,” HRPP Rule 16(a), except as provided in HRPP Rule 16(d). See supra note 2. HRPP Rule 16(d) provides that, “[ulpon 8 showing of materiality and if the request is reasonable, the court in its discretion may require disclosure as provided for in this Rule 16 in cases other than those in which  FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** the defendant is charged with a felony, but not in cases involving vielations.” “thus, discovery ina misdeneancr . . . case may be permitted by the trial judge '[u)pon @ showing of materiality and if the request is reasonable,’ but only to the extent authorized by HREP Rule 16 for felony cases(,]” iste, the item sought to be cisclosed must be an enunerated iten under HREP Rule 16(b). Marslang, 71 Haw. at 309, 788 P.2d at 1284 (first set of brackets in original). In a misdemeanor case, @ district judge acts beyond the scope of his or her authority under HRPP Rule 16(d) -- and, thus, exceeds his or her jurisdiction -- by ordering disclosure by the prosecution of material end information net discoverable pursuant to HREP Rule 16(b). See Maxsland, 71 Haw. at 313-14, 768 F.2d at 1286-87. In Maxsland, the district judge -- upon written request by the defendant who was charged with the misdemeanor traffic crime of driving under the influence of intoxicating liquor (DUI) compelled the prosecution to disclose forty-one items, including information about the Intoxilyzer 4011S. Id, at 310 13, 788 P.26 at 1285-86. At the time of the DUI in Marslang, HAPP Rule 16(b) distinguished between disclosure “upon written request” and disclosure “without request.” Disclosure “upon written request” was required by the prosecution as to those items presently enumerated in HRPP ule 16(b) (i) through (v). ‘+*+ FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER *** Disclosure “without request” was required by the prosecution as to those itens presently enumerated in HRPP Rule 16(b) (vi) end (vii). The distinction wes eliminated in 1993 when HRPP Rule 16(b) was amended to its present form. See supra note 2. ‘The prosecution in Marsland opposed disclosure of the forty-one items and petitioned this court for mandamus relief. We granted relief as to thirty-four of the forty-one items. Id. at 305-06, 788 P.2d at 1262-83. We held that (1) the defendant was not entitled, and the district judge was not authorized, to order disclosure of the thirty-four items, including those related to the intoxilyzer, inasmuch as the items did not fall within the ambit of any of the categories now designated as (i) through (v) and (2) discovery in a misdemeanor case that exceeded the limits of discovery established by HRPP Rule 16 for felony cases could not be justified under the rule. Id, at 313, 788 P.2d at 1286. In the instant proceeding, the prosecution contends that the laser unit calibration distances and calibration Jocations are “beyond the scope of discovery as set forth by [HRP] Rule 16 and Marslend.” The prosecution, thus, contends that the respondent judge acted beyond the scope of his authority under HREP Rule 16(d) and exceeded his jurisdiction by compelling the prosecution te disclose the calibration information to Gefendant Miller. However, information on the calibration  *** FOR PUBLICATION IN WEST'S HAWAT' REPORTS AND PACIFIC REPORTER * distances and calibration locations for the laser unit used by officer Winter is materiel to challenging the accuracy of the perticular laser unit, which, if determined to be inaccurate, could result in a failure of proof that defendant Miller was driving at 2 speed of 76 miles per hour. Such failure of proof could result in an acquittal for the charged offense of excessive speeding or a conviction for speeding as @ viclation.‘ that being the case, information showing that the subject laser unit -- as the sole basis for the excessive speeding charge -- was not properly calibrated as to distance and location may be considered to fall within the ambit of HRPP Rule 16(b) (1) (vii) as “material or information which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce the defendant's punishnent therefor.” The accuracy of the particular leser unit used by officer Winter to cite defendant Miller on March 25, 2007 is necessary to sustain a judgment for excessive speeding based < Under HRS § 291¢-102 (Supp. 2006), entitled “Nenconplisnce with speed Limit prohibited": (a) A person violates this river (2) Actor venicle at a speed greater than the naximun speed line other then provides in section 291C-205; ction Sf the person (2) A moter vehicle at @ speed ese than the minimum speed Limit, where the naxinun GF ninimn Speed Limit ie establishes’ by county ordinance or by effieial signe placed by the director cf transportation on nighwsye under the Girector’s juriediction. Moreover, BRS § 291C-161(8) (Supp. 2006) provides that “[s]t is @ véolatien fer ny persen te viclate any of the provisions ef this chapter(.]* 10+ ‘+++ FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER *** solely on the laser unit. See State v, Tailo, 70 Haw. 580, 582, 779 P.2d 11, 13 (1989) ("[C)ourts have . . . consistently held that evidence of the accuracy of the particular radar unit is necessary to sustain a conviction for speeding obtained solely by radar.” (Citations omitted.)). Thus, the information on the laser unit calibration distances and calibration locations is material, the request for such information is reasonable, and defendant Miller was entitled to disclosure of the information pursuant to HRPP Rule 16(d). By ordering the disclosure of the information, the respondent judge acted within the scope of his authority under HRPP Rule 16(d) and did not exceed his jurisdiction. IV. CONCLUSION Based on the foregoing, the petition for a writ of mandamus is denied. Peter B. Carlisle, Prosecuting. Attorney, ona Lowell scotty fey Deputy Prosecuting Retorsey, for petitioner fon the petition ec PRpBcrag Puce nutes a Zz Gorm «Dads ane 

efd494baf488b44af0c1567aa23ac30de0a4788f922c115ac285a160aa8c467e

2007-10-30T00:00:00Z

ac1d9c30-17cf-44d4-83dd-f97b23b50a77

Jones v. Iamwong

hawaii

Hawaii Supreme Court

LAW LIBRARY g 5 z 2 No. 27235 9 IN THE SUPREME COURT OF THE STATE OF HAWAT‘pS/E a3tg = JOHN A. JONES, Petitioner-Plaintiff-appellangl CHAWEEWAN IAMWONG, TYRONE P. COLLINS, ROCKY’S LIMOUSINE SERVICE, Respondent ~Defendant s-Appellees, and JOHN DOES 1-98, JANE DOES 1-99, DOE PARTNERSHIPS, CORPORATIONS AND/OR OTHER ENTITIES 1-98, Respondents-Defendants-Appellees. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIV. No, 01-1-2939) “ WITHOUT PREJUDICE (ay: Nakayama, Jc, for the court?) 18 appearing that the judgment on appeal in the above referenced matter has not been entered by the Intermediate Court of Appenls, 86 Hawai'i Revised Statutes § 602-59(a), as amended by Act 149 of the 2006 Hawai'i Session Laver see alse Hawas't Rules of Appellate Procedure (HRAF) Rule 36(b)(1) (2006), IP 15 HEREBY ORDERED that petitioner-plaintift- appellent’s application for writ of certiorari, f1led on June 1, 2007, is disnissed without prejudice to re-filing the application pursvent to HRAP Rule 40.1(a) (°Ne later than 90 deys after the filing of the intermediate court of appeals’ judgment on appeal + Reobs, and Duffy, Court: Moen, C.c., Levineon, Nakayar or dismissal order, any party may apply in writing to the suprene court for a writ of certiorari.”). Honolulu, Hawai"i, June 4, 2007 FOR THE COURT: Peete CO tty Orme Associate Justice My, Boe wy DATE! 

9328105b32f93c28a407156c357dd4058a2d74efa842c1ddac94737a1eeee73e

2007-06-04T00:00:00Z

f16ef6a7-b6bf-4443-a591-7da7d2c1ee86

143 Nenue Holdings, LLC v. Bonds

hawaii

Hawaii Supreme Court

LAW LIBRARY no. 27689 IN THE SUPREME COURT OF THE STATE OF HAWAI'I 143 NENUE HOLDINGS, LLC, @ Hawai'i limited iability company, Respondent /Plaintiff-Aappellee g SUZANNE BONDS, Petitioner/Counterclaimant Appellant 143 NENUE HOLDINGS, LLC, @ Hawai'i limited liability company, Respondent /Counterclaim Defendant /Crossclaimant-Appellee and AMERIQUEST MORTGAGE COMPANY, @ Delaware corporation, Respondent /Additicnal Counterclaim Defendant /Crossclain Defendant-Appeliee and RONALD G.S. AU, RYAN G.S. AU, and NATALIE AU, Additional Counterclaim Defendants-Appellees and FREDDIE FRANCO; ALALA MANAGEMENT, LLC, a Hawai'i limited Liability company; and DOES 1 THROUGH 20, Additional Counterclaim Defendants CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIV. No. 05-1-0377) Duffy, J., for the court”) Petitioner/Defendant-Counterclaimant-Appellant Suzanne Bond’s application for a writ of certiorari, filed on May 3, 2007, is hereby rejected. DATED: Honolulu, Hawai'i, dune 7, 2007. FOR THE couRT: —~ By Paros €. Buy + ¢ g SEAL | Associate Justice ce wi Gary Victor Dubin for petitioner/defendant- counterclaimant-appellant on the application Considered by: Moen, C2. fon, Nakayens, and Duffy, 23., and cércuit Judge Tewn, in place of Accba, J:, recused 

8225516474ccf2bd422011257e6bf49bc4cb2a3451981a2da48f799a5413025b

2007-06-07T00:00:00Z

cdb6a232-cced-47be-94f1-2155f169db30

Pflueger v. Chang

28574

hawaii

Hawaii Supreme Court

Law UB) wo. 26576 s bhi tHE supRawe coun? oF ce stare oF wawar@| ZOE JAMES H. PPLUBOER, PPLUPGER PROPERETES, in FELGBGER VAMMCEVENT, LLG, Peticionete z 6 Bi 2 vs 4 g 2 THE HONORABLE GARY W.B. CHANG, JUDGE OF THE FIRST CfkcUIT COURT, STATE OF HAWAI'I; STATE OP HAWAI'I; C. BREWER AND COMPANY, LTD.; C. BREWER PROPERTIES, INC.; C. BREWER HOMES, INC.; HAWAII LAND AND FARMING COMPANY, INC. ; EHALANI HOLDINGS COMPANY, INC.: KILAUEA IRRIGATION COMPANY, INC.; THOMAS A. HITCH; HITCH CO.; JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; DOE UNINCORPORATED ASSOCIATIONS 1-10, Respondents ORIGINAL PROCEEDING (CIV, NO. 06-21-1391) ORDER (By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ upon consideration of the petition for a writ of mandamus or prohibition filed by petitioners James H. Pflueger, Pflueger Properties, and Pflueger Management, LLC and the papers in support, it appears that the change of venue of Civil No. 06- 41-1392 to the fifth cireuit court was within the discretion of the respondent judge. Petitioners fail to demonstrate that the respondent judge flagrantly and manifestly abused his discretion in changing venue without prejudice to a re-transfer by the fifth circuit court and that irreparable and immediate harm would otherwise be the necessary consequence. ‘The change of venue or a re-transfer of venue is reviewable on appeal from a final judgment in Civil No, 06-1-1391, Thue, petitioners are not entitled toa writ of mandams or prohibition. See Kena Gaddig, 91 Hawai's 200, 204, 982 P.2d 334, 338 (1999) (A writ of mandamus oF prohibition is an extraordinary remedy that will not issue unless the petitioner dencnetrates a clear and indisputable right to relief and a lack of alternative means to redress adequately the alleged wrong or obtain the requested action. Such writs are not intended to supersede the legal discretionary authority of the lower courts, nor are they intended to serve as legal remedies in lieu of normal appellate procedures. where a court has discretion to act, mandams will not lie to interfere with or control the exercise of that discretion, even when the judge has acted erroneously, unless the judge has exceeded his or’ her jurisdiction, has committed a flagrant and manifest abuse of Giseretion, or has refused to act on a subject properly before the court under circumstances in which it has a legal duty to act.). therefore, IP IS HEREBY ORDERED that the petition for a writ of mandamus or prohibition is denied. DATED: Honolulu, Hawai'i, July 3, 2007. g . Men Petorege ~ Passes Cree One PNW Boren: Buds r+ 

b69996f6449b7dbcaa65daedcb70b697c5a55b5db09a733adb9c45e4373a473b

2007-07-03T00:00:00Z

c828b32e-e9ea-4c7f-b2d3-be67e639e169

In re Tax Appeal of Director of Taxation, State of Hawaii v. Medical Underwriters of California.

115 Haw. 180

hawaii

Hawaii Supreme Court

MAW LIBRAR, FOR PUBLICATION IN WEST'S HAWAM REPORTS AND PACIFIC REPORTER **# IN THE SUPREME COURT OF THE STATE OF HAWAI'T 000 IN THE MATTER OF THE TAX APPEAL OF DIRECTOR OF TAXATION, STATE OF HAWAT'E, ‘Appellant /Cross-Appellee, aai4 p 1s SWAB ano Wuvk 1 YHUON MEDICAL UNDERWRITERS OF CALIFORNIA, ‘Taxpayer-Appellee/Cross-Appellant- Vee Rd Of ONY LOG No. 27023 APPEAL FROM THE TAX APPEAL COURT (TAX APPEAL CASE NO. 00-0061) AUGUST 30, 2007 MOON C.J. LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ. OPINION OF THE COURT BY NAKAYAMA, J. Appellant /Cress-Appellee, director of taxation, State of Hawai's (“director”), appeals from the following orders and judgment of the tax appeal court:! (1) the April 1, 2004 “orde Regarding Director of Taxation, State of Hawaii’s Motion for Sunmary Judgment”; (2) the Septenber 13, 2004 “Order Granting Appellee Medical Underwriters of California’s Motion for Partial Summary Judgment Filed August 10, 2004"; (3) the Septenber 13, 2004 “Final Judgnent”; and (4) the January 18, 2008 order denying the director's motion for reconsideration. On appeal, the director asserts that the tax appeal court erred by (1) sua sponte determining that Medical Underwriters of California ("Myc") was subject to the .15 percent general excise tax rate ‘The Honorable Gary ¥. chang prs  ¢+* FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER * imposed by Hawai" Revised Statutes (“HRS”) § 237-13(7) when it is undisputed that MUC was not Licensed as an insurance solicitor or agent, and (2) denying his motion for reconsideration. Appellee/Cross-Appellant, MUC, cros: ppeals from the following judgment and orders of the tax appeal court: (1) the September 13, 2004 “Final Judgment”; (2) the December 20, 2004 “order Denying Appellee Medical Underwriters of California's Motion for Attorney's Fees and Costs Filed Septenber 27, 2004" and (3) the December 20, 2004 “Order Denying Appellee Medical Underwriters of California's Motion for Leave to File Amended Answer to Appellant Director of Taxation, State of Hawaii's Notice of Appeal to the Tax Appeal Court Filed July 6, 2000 and to Alter or Anend Final Judgment{.]" On appeal, MUC presents the following points of error: (1) the tax appeal court erred by failing to exempt MUC from the payment of general excise taxes pursuant to HRS § 237-29.7 inasmuch as MUC is an insurance (2) the tax appeal court improperly denied MUC’s motion for leave to file company authorized to do business under HRS chapter 43: an amended answer to director’ 6, 2000, and to alter or amend the final judgment filed September 23, 2004; and (3) the tax app notice of appeal, filed on July 1 court improperly denied muc notion for attorneys’ fees and costs. For the reasons that follow, we resolve the director's appeal as follows: (1) the tax appeal court erred by applying the .15 percent tax rate imposed by HRS § 237-13(7) inasmuch as it is reserved for licensed general agents, subagents, and solicitors; and (2) the tax appeal court did not err by denying the director's motion for reconsideration. With respect to MUC’s cross-appeal, we hold that: (1) MUC is not an insurance company 2  )R PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER * exempt from the payment of general excise taxes; (2) MUC'S axgunent that the tax appeal court erred by denying its motion for leave to file an anended answer to the director's notice of appeal, and to alter or amend the final judgnent filed Septenber 23, 2004 Le moots and (3) the tax appeal court did not err by denying MUC’s notion for attorneys’ fees and costs. We therefore partially vacate the tax appeal court's judgment and remand with instructions to enter judgnent in favor of the director in the anount of $105,172.04. 1. BACKGROUND It is undisputed that MUC manages the Hawai"i-based insurance operations for Medical Insurance Exchange of California (*MIEC") and Clarenont Liability Insurance Company ("CLIC"), foreign insurers authorized to do business in Hawai". Inasmuch as MUC's activities essentially constituted the transaction of insurance busines! the insurance division of the Department of commerce and Consuner Affairs, State of Hawai‘i, has consistently construed MUC as an insurer for licensing purposes under HRS chapter 431. As such, MUC has taken the position that it is an “insurance company” exempted from general excise taxes under HRS § 237-29.7. Based upon the perceived exemption, MUC did not file general excise tax returns with respect to, and did not pay general excise taxes on, funds received in exchange for its services rendered to MIEC and CLIC. In 1999, the director assessed general excise taxes against MUC at a rate of four percent for unreported income received from 1985 through 1999. MUC prepaid and appealed $160,258.45 of the director's assessments for the time period  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER. from January 1, 1992 to January 31, 1999 to the Board of Review, First Taxation District ("Board”).? On June 7, 2000, the Board found that MUC’s tax liability was $19,460.36. on July 6, 2000, the director filed a notice of appeal in the tax appeal court.” 1, The parties’ motions for summary judament on August 24, 2001, the director filed a motion for summary judgment. Therein, the director alleged the following facts. MUC is the attorney-in-fact for MIEC and the managing agent of CLIC. MUC provides managenent services to MIEC and CLIC, including selling insurance, making investments, and adjusting, settling, and paying claims. To execute those services, MUC maintains an office located at 1360 South Beretania Street, Suite 405, Honolulu, Hawai'i and employs three persons in ite claims department. MUC receives a percentage of the premiums it collects on behalf of MIEC and CLIC as compensation for its services. Although MIEC and CLIC were licensed in this jurisdiction as foreign insurers, MUC was not licensed as an insurer under HRS § 431:3-201. MUC was also not licensed as an insurance general agent, subagent, solicitor, or adjuster under HRS § 431:9-201. During the time period in question, MUC did not file any general excise tax returns and paid no general excise tax. Based upon the foregoing factual allegations, the director argued that (1) MUC’s income from management services provided to MIEC and CLIC was subject to Hawai'i’s general excise tax at a 3 The Board dismiesed MiC's appeal as to the 1985 to 1981 Jecanents dve to MUC'# failure to prepay. + te Honorable Gary W.B. Chang presided. 4  ‘OR PUBLICAT IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER rate of four percent, (2) MUC was not an insurance conpany authorized to do business under the Hawai'i Insurance Code and was thus not exempt from paying general excise taxes under HRS § 237-29.7, and (3) MUC did not qualify for the reduced .15 percent general excise tax rate available to licensed inevrance general agents, subagents, solicitors, or adjusters. On Septenter 10, 2001, MUC filed a memorandum in opposition. Therein, MUC disputed the director's characterization of MUC, MIEC, and CLIC as separate entities. Rather, MUC claimed that (1) it is the attorney-in-fact for MIEC, a reciprocal insurance exchange, (2) that CLIC is a wholly ovned subsidiary of MIEC, and (3) in every tax year since 1981, the insurance commissioner has treated MUC and MIEC as a single enterprise or entity, MUC asserted that the MIEC entity payed gross premium insurance texes to the director of finance, pursuant to HRS § 431:7-202, and that MUC, as part of the IEC entity, was not subject to an additional general excise tax. uc argued further that it should be included within the definition of “insurer” for purposes of the general excise tax exemption by virtue of its status as a constituent of the MIEC entity. On April 1, 2004, the tax appeal court filed an order partially granting and partially denying the director's notion for summary judgment. The court concluded as follows that of an inuurance: solicitor or geteral agents” provides that, spon every person engaged a” a licensed colietter, General agent, or eubagent pureuant to [HRS] chepter 431, there i8 hereby levied’ snd shall be sesessed and collected tax equal to ‘the director filed # reply nenorandum on Septenber 12, 2001 and 2 sopplenental nenorandum in support on October 2, 2001. MUC filed’ a supplenental nenorandum in opposition on Octeber 3, 2002 5 1* FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** 25 per cent of the conaissions due to such activity.” 5." (ioc) is taxable at the reduces general excise tax rate of .15N on its conissions oF compensetion for services Eendered se the attorney-in-fact. (“The Court 14 not Ignoring the licensing requirement in uns § 237-12(7), but believes that the statutory requirenenes of attorneys-in-fact contained in HRS chapter 431, in effect, satisty the statutory licensure requirenents of HRS § 237-13(7)- S.A determination of the exact dollar anount of tax Llabinity 42 not sajudicated by this order. (Some brackets added and some in original.) on August 10, 2004, MUC filed a motion for partial summary judgment. MUC argued that since the court decided that MUC is subject to a .15 percent tax rate, the only remaining issue is the exact dollar ancunt, which MUC calculated to be $3,943.95. On August 19, 2004, the director filed a response to muc's motion for partial summary judgment. Therein, the director did not oppose MUC's calculation of its tax liability in the amount of $3,943.95. Rather, the director clarified that he continued to object to the court’s refusal to uphold the assessment at a tax rate of four percent. On Septenber 13, 2004, the court filed an order granting MUC's motion for partial summary judgment. The court also filed 2 “Final Judgnent,” stating as follows: 1, Appellant Director of Taxation, ste appeat filed Joly 6, 2000 from the Board of Review for the First Tonation District, State of Hawaii's Decision dated June 7, 2000 is hereby denied; 2.) ““Rppeliee Medical Underwriters of California is taxable lat the teduced general excise tax rate of 0-15t (Fizteen hundredths of one percent) on ite commissions or conpe! Services rendered as the attorney-in-fact for Medical Exchange of California; ‘3: Rppeliee Medical Underwriters of California's Liabiiity for general excise tex for the period Janvary 1, 1992 through Jenuary 31, 1999 is $3,943.95 (Three, Thousand Nine Hundred. Ferty Three Dollars and Ninety’ Five Cents)-[*] Any remaining * the $3,943.95 amount ie derived from applying @ .15 percent tax rate to Mic’ s gross incone received as compensation for services rendered to (cone insed, 6 1+ FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER *** elaine ore dientesed with prejudice The director's motion for reconsideration Following the tax appeal court's oral ruling on MuC’s August 10, 2004 motion for partial sunmary judgment, the director filed a proposed order that included the following pertinent finding of fact: “MUC’s gross income subject to the general excise tax for compensation for services rendered as an attorney~ in-fact to (MIEC] and (CLIC] for the period January 1992 through January 1999, inclusive, totaled $2,629,301.00." uc filed objections on September 8, 2004, asserting, inte: , that the dixector’s finding of fact Se inoppropriate because said proposed “fact” As erroneous an neoppertes by any evisence. That appellee treated appellant’ Genera excise tax aseesenents, as “adniesions against interest’ Under Aule 803 of the Hawaii Roles of Evidence for the purpose of Mc's notion for partial summary Judgment, does not convert the assessments Into stipulated facts: [the director's) proposed finding . . . should alse be rejected because it is factually incorrect. (The] [f}inding «+ « Eltonesusly states that appellee received “compensation for Secvices rendered as an attorney-in-fact for... (CLIC)." In fact, [CLI¢] 1s Not s reciprocal insurance carrier and therefore did not compensate MIC for services rendered as its atterney-in= fect.” (Some ellipses added and some in original.) On September 17, 2004, the director filed a motion for reconsideration of the order granting MUC’s motion for partial sunmary judgnent, arguing that MUC’s objections presented new evidence of genuine issues of material fact when MUC made the following two factual admissions: 1, (toc] aid not receive any compensation or commissions from (CLIC) for services rendered 45/ay attorney-in-facts and Iie} “does not agree that its gross income subject to the gencral cneive tax for conpensation for services rendered as (,..continued) nec and CLIC, calculated by the director to be §2,629,301.00. The tax appeal Court opperently did not avard the director interest of penalties 1  FOR PUBLICATION IN WEST'S HAWAN REPORTS AND PACIFIC REPORTER * fn sttorneymin-fact to (MIEC] and (CLIC) for the period January 4992 through Janvary 1998, inclusive, totaled $2, €25, 301.00. The director contended that the compensation received by MUC from CLIC was subject to a tax rate of four percent, rather than .15 percent, inasmuch as CLIC was not a reciprocal insurer and MUC was not its attorney-in-fact. The director also averred that MUC created a genuine issue of material fact as to MUC’s tax Liability inasmuch as it expressly denied receiving gross income in the amount of $2, 629,301.00 during the tax period in question. ‘The director pointed out that .15 percent of $2, 629,301.00 equals $3,943.95 and that MUC’s denial of the gross income amount necessarily means that its calculated tax liability required MUC filed a memorandum in opposition on Septenber 27, 2004. MUC countered that the .15 percent tax rate applied to its compensation received from CLIC inasmuch as it acted as an “insurance company” for all of CLIC’s business in Hawai'i despite its lack of attorney-in-fact status. MUC argued further that calculation of its tax liability was based on the director’s own assessments, that the director “had every opportunity to verify CLIC's insurance status and the accuracy of its own assessments,” and that “[i]t is simply too late for [the director] to raise . . + ‘new evidence’ as a basis to vacate the Order and Final Judgment herein.” On January 18, 2005, the court filed an order denying the director’s motion for reconsideration. 3. MG's motion to amend On Septenber 23, 2004, MUC filed a motion for leave to file an amended answer to the director's “Notice Of Appeal To Tax  “OR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER Appeal Court” and to alter or amend the September 13, 2004 “Final Judgnent[.]” Therein, MUC requested consolidation of the adjudication of the 198-1991 assessments with the present adjudication of the 1992-1999 assessments. The director filed a memorandum in opposition on October 8, 2004, objecting to MUC's motion, inter alia, on the grounds that MUC may not cure its failure to perfect a timely eppeal with respect to the 1985 to 1991 assessments through a motion to amend its pleadings in the present case regarding the 1992 to 1999 assessments. On December 20, 2004, the court filed an order denying MUC’s motion for leave to file an amended answer to the director's “Notice Of Appeal To Tax Appeal Court{.]" 4, MUG's motion for attorneys’ fees and costs On September 27, 2004, MUC filed a motion requesting an award of attorneys’ fees and costs. Therein, MUC asserted that it prevailed on its appeals before the Board and the tax appeal court and that the director’s assessments from 1985-1999 were frivolous, wilful violations of law, and in bad faith. on December 20, 2004, the tax appeal court filed an order denying Muc’s motion for attorneys’ fees and costs. 5. Notices of appeal On December 10, 2004, the director filed a notice of appeal from (1) the April 1, 2004 “Order Regarding Director of Taxation, State of Hawaii’s Motion for Summary Judgment,” (2) the September 13, 2004 “Order Granting Appellee Medical Underwriters of California’s Motion for Partial Summary Judgment Filed August 10, 2004," (3) the September 13, 2004 “Final Judgment,” and (4) the January 18, 2005 order denying the director's motion for reconsideration. NUC filed a notice of cross-appeal from the °  FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER *4 final judgment on December 27, 2004. On Janvary 19, 2005, MUC filed a separate notice of appeal from the following post- judgment orders: (1) the December 20, 2004 order denying MUC's Septenber 23, 2004 motion for leave to file an amended answer and to alter or amend the final judgments and (2) the December 20, 2004 order denying MUC's September 27, 2004 motion for attorneys’ fees and costs. I, STANDARD OF REVIEW When reviewing decisions of the tax appeal court, we have generally stated as follows: It Ss well settled that{,] in reviewing the dectaion and findings of the Tax Appeal’ Court, a presumption arises favoring ite actions which should not be overturned without good and sufficient reason. The appellant hes the burden of cision of the Tax Appeal Court was Apoes sky cou vy, cies Honolulu, €5 tawat' 36, 33, 936 p-24 612, €18 (1997) (quoting 79 Haw. 449, 455, 634 P.2d 3302, 1306 (1992)) Conversely, “(Conclusions of Lew art right/urong standard,” "Gold v. Uarrlson, P.2d 353, 359 (1996) "(citing Furukema v. Honolulu Zooleaical Acclaty, "eS awai't 7, 12, 336 P-24 €43, G48 (1997))- Under the e nove’ or right /wrorig standard, this court “evamine[s] the facts fand anewer{a] the question without being required te give any Weight to the trial court's anewer to it." ide (ceiving Aletin Ocean View Inv. Cou, Inc., 84 Hawai" 447, 453,"995 P20 992, 598 (99 owed under the jawai's 94, 100, 962 1 e Tax Avr re Club v, County of Maui, 90 Hewai't 334, 339, 978 P.2d 772, 777 (1999) (brackets in original). gous Va More particularly, the director's appeal and MUC's cross-appeal in the case at bar present questions involving the meaning of, and interplay between, provisions of HRS chapters 237 and 431, Such ere questions of law reviewable de novo. Ide ("It]he meaning of a statute is 2 question of law that this court 10 1+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** reviews de novo.”) XII. DISCUSSION A. ‘The Director's Appeal 1. MUC is subject to the ceneral exci at a rate four percent. ‘The director's first point of error asserts that management services provided by MUC to MIEC and CLIC should have been taxed at four percent, 2s cpposed to -15 percent. In order to resolve the issue presented by the director, it is first necessary to address the issue presented by MUC's cross-appeal as to whether MUC is an insurance company exempt from general excise taxes under HRS § 237-29.7. a. MUC is not an insurance company under HRS § 237- 29.7 and HRS chapter 431, and it ie therefore not exempt from general excise tax: As mentioned, HRS § 237-29.7 exenpts from the payment of general excise tax assessments “insurance companies authorized to do business under HRS chapter 431.” MUC, in its opening brief on cross-appeal, urges that it is an insurance company under HRS § 237-29.7 and an “insurer” under HRS § 431:1-202 by virtue of its status as the inseparable operating arm of the MIEC reciprocal insurance exchange.* Contrary to MUC’s argunents, however, the provisions of HRS chapter 431, article 4, in pari materia, evince a legislative intent to recognize a bipartite relationship. See HRS § 1-15(1) + Mocts pening brief does not present any argunent with respect to ite velaticnship with CLIC. Accordingly, any such argument has Deen waived, iai't Rules of Appellate Procedure Rule 26(b) (7) (2008) (Points not nay be deened waived."), and the forthconing analysis iil freee only unether on attorney-in-fact of a reciprocal insurer ie insurance cenpany or “insurer. a ‘+++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** (1993) ("The meaning of ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true “405 define a meaning.”). For example, HRS §§ 431:3-107 and 431: reciprocal insurer and its attorney-in-fact in terms of their relationship with each other, rather than bestowing existential equivalence. See HRS § 431:3-107 (1993) ("A reciprocal insurer means an unincorporated aggregation of subscribers operating individually end collectively through an attorney-in-fact conmon to all such person to provide reciprocal insurance anong ); HRS § 431:4-405 (1993) ("Attorney as used in this themselves part, refers to the attorney-in-fact of a reciprocal insurer."). Also, as argued by the director, HRS § 431:4-406 requires the attorney-in-fact to obtain a pover of attorney. Indeed, HRS § 431:4-406 (1993) provides as follows: $431:4-406 Power of attorney. (a) The rights and powers of the attorney of a reciprocel insurer shall be as provided in the power of attorney given it by the subscribers. {b)" “She power of sttorney must set forth: (2) The powers, duties, and conpensation of the attorney: (2) ThatPthe sttorney ie eapowered to accept service of frotess on behalf of the insurer end to authorize the Ecanissicner to receive service of process in action Sgsinst the insurer upon contracts exchanged? (3) Except as to renasseseable policies, a provision for contingent several lisbility of cach subscriber in a Specified ancont, which ancunt shall be not less than che her more than ten times the presium or premium Sepoait stated in the policy. (c) The poner of attorney may: (i) Provide for the right of substitution of the attorney and revocation of the power of attorney and rights thereunder; (2) Tnpose svch restrictions upon the exercise of the poner as are agreed upon by the subscribers; (3) Provide for the exercise of any right reserved to the Subscribers directly of through their advisory committee and (4) Contain other lawful provisions deened advicable (a) The terms of any power of attorney, or agreenent collateral thereto, shall be reasonable, equitable, and no such power, agreenent or any anenduent thereof, shall be used or 12  ‘OR PUBLICATION IN WEST’ HAWAII REPORTS AND PACIFIC REPORTER effective in this State until approved by the comissicner. If, as NUC asserts, an attorney-in-fact 18 the operating arm of the reciprocal ineurance exchange, as opposed to a legally distinct agent of the exchange, a power of attorney would seem unnecessary. Moreover, a reciprocal insurance exchange is required to have a subscribers’ advisory committee. Soe HRS 55 431:4-409(a) (7) and 431:4-415 (1893). BRS § 431:4-415 provides the following: $¢31:4-415 Subscribers’ advisory comsittee, (a) the advisory ccnmittee of s donestic reciprocal insurer exercising the Subscribers” rights shall be selected under such rules ss the subscribers adopt. (b) Not ieee than three-fourths of the committee shall be od) of subscriber ney, oF an ‘fnploved by, representing, or having a financial interest ia the attomey, Te) The committee shall: (D) Supervise the finance (2) Supervise the incurer's operstions to evch extent as te assure their conformity with the subscribers” agreement and power of attorney? (3) Procure the avait of the account: and of the attorney at the expense of the 5 and. (4) Have such sdditiona powers and functions as may be conferred by the subscribers’ agreement. (Sophasis added.) These requirements are clearly designed to protect the rights and interests of the subscribers where they do not align with those of the attorney-in-fact. Finally, HRS chapter 431, article 4, is replete with provisions that refer separately to the “attorney” and the “insurer.” See HRS § 431:4- 406 ("The attorney is empowered to accept service of process on behalf of the insurer and to authorize the conmissioner to receive service of process in actions against the insurer... .")4 HRS § 431:4-411(b) (1993) (“The bond shall be in the sum of $25,000 conditioned that the attorney will faithfully account, before a notary public, in a sworn affidavit, for all moneys and 13  +* FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER **¢ other property of the insurer coning into the attorney's hands, and that the attorney will not withdraw or appropriate for the attorney's own use from the funds of the insurer any moneys or property to which the attorney is not entitled under the power of attorney.”); HRS § 431:4-415(c) (3) ("The [subscribers’ advisory] committee shall . . . (plrocure the audit of the accounts and records of the insurer and of the attorney at the expense of the insurer... .”); BRS § 431:4-422 (1993) ("The attorney or other parties may advance to the reciprocal insurer funds as it may require from time to time in its operations.”). Additionally, under analogous circumstances, the Indiana Court of Appeals in Ind, Dep't of Revenue v, Am. nderwriters, Inc., 429 N.E.2d 306 (Ind. Ct. App. 1981), reb'a denied, 431 N.E.2d 528 (Ind. Ct. App. 1982), held that American Underwriters, Inc. (*A-U"), the attorney-in-fact of American Interinsurance Exchange ("Exchange"), was a “distinct entity for tex purposes... .” Id, at 312. In so holding, the court recognized that the arrangement consisted of a singular entezprise, id. at 311, but explained that “in the legal form of ‘the operation, and in the final analysis, a cleavage exist (ed) and the single enterprise [was] conpartmented.” Id, The court elaborated upon the separateness of A-U and the Exchange, as follows: First, the interests of A-U and the Exchange are divergent, and the interesta of the Exchange are not coextensive with those Of Ax U." Acceraing to the contract cocurents the subscribers ere eititied to any profite and assete of the Exch dissolution, ‘and AcU hes no interest in those the subscribers have no interest in the Ml assets of the Exchange are eubsect to the LiabLlity of the insurance egeration, Bur none of the sesets of A-0 are svailable to these claimants, AsO has five wholly-owned subsidiaries in weich the Exchange subscribers heve no inter ‘Second, treated for most purposes as an entity By AU, public Likewise, u  FOR PUBLICATK IN WEST'S HAWAII REPORTS AND PACIFIC REPORTEI snsedtutions, heme of (the Exchange]. AcU he for the purpose of increasing the guaranty fund, and A-O hes received the Fuchange's notes az security, Separate acccunts are kept, and the respective assets of A-U and the Exchange are segregated. Bonk sccounte are kept in the name of the Sxchange and checks written in the rane of the Exchange. Policies of insurance are written in the mane of the Exchange, losses adjusted in the nane of the Exchange, and, in general, business is trantacted in the rane of the Exchenge, Federal tax returns are fled in the nane of the Exchange. ‘The annval statement to the Indlana Tneorance Departnent 1s published in the nae of the Exchange, and cther publications. reflect the Investaent Port folio to be in the rane of the Exchange snd nanaged by the indiana National Bank. These dscunente are not commingled mith the personal assets or Business of A-U. and the public at lorge, It sues and de ued in the leaned the Exchange suns of money Id, at 311-12, The court also noted that, having elected to operate as an interinsurance exchange, A-U may benefit from the advantages that flow from the particular business form, but must also accept the attendant disadvantages: It was conceded in oral argument by A-U that the principal eevantage to writing incurance in thie sanner is the insulation of Liability to A-U in-an area of high-risk, substandard insurance, Tt appears that the rganizers of Ac deliberately have selected this statutorily permitted vehicle of reciprocal insurance end have Conpartnented the enterprise to achieve that end. Different forms of business enterprises have different legal ss vell es tax Consequences, ‘sone advantageous, and sone disadvantageous, “On the fone hand, we’ view AU as desiring to trest the Exchange as 3 Separate entity to maintain insulation from 1iability, and on the other hand, as desiring to escepe dual taxation By calling itself ‘and the Exchange ene single enterprise Id, at 312. The court thus concluded that the receipt of Premiums from policyholders by the Exchange wae one taxable event, and "when A-U, as attorney-in-fact acting for the Exchange, paid itself personally . . . the premium for its management fee, a second taxable event occurred.” Id. Similarly, in the case at bar, MUC’s own arrangements with MIEC indicate that it is a separately taxable legal entity. Under MUC's written agreements with MIEC, MIEC owns all investments and corporate accounts of the exchange. MIEC i: responsible for the payment of state and federal taxes inposed on as  ‘#** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER * the exchange. MUC is to receive premiums paid by subscribers and deposit those premiums into separate accounts held by MIEC. It is conceded that MUC does not share in the liabilities of insurance contracts. See also In the Matter of Int’). nderwriters, Inc., 157 F. Supp. 367, 371 (W.D. Mo. 1957) ("[Rlisk is an essential factor of the insurance business, and in the absence of risk imposed upon an entity, regardless of the other insurancelike functions it performs, it is not an insurer.”).? MUC was separately incorporated. MUC files its oun corporate income tax returns. MIBC is statutorily mandated to “sue and be sued” in its own name. HRS § 431:4-404 (1993). Under these circumstances, we believe that Am, Underwriters, tne, provides separate and additional grounds supporting the conclusion that MUC maintains a separate identity from, and is not subsumed within, the reciprocal insurer it serves. Arguing for a contrary result, MUC offers a plethora of subargunents, which we address in turn. 4. Prior codifications MUC first refers this court to codifications of the general excise tax and regulatory insurance schemes predating the 7 the court ultinstely concluded that the attorney-in-fact at issue wee an “insurance corporation” for purposes of the Bankruptcy Act, inasmuch 3 Missours law statutorily inposed the requisite degree of risk on the attorney= incfact. 157.F, Supp. at 371, 373." For example, Missouri law requized the reserve and’ guaranty fund for the protection of insureds.” The attorney-in-fact was not permitted to sesese the subscribers seditional ‘charges in the event that “claims for losses exceed(ed] the fonds available for payment of losses.” Id, Moreover, Misscurt law isposed the duty to replenish funds that fail below the statutorily inposed inion on Doth the subscribers and the attorney-in-fact- Id However, the court's ultinate conclusion that the attorney-in-fact was an insurance corporation 1s distingalshable from the present cose insofar oe this jurisdiction's insurance code inposes no Such Fisk’ ch attorneys-in-fact ef reciprocal insurers. Indeed, as nentioned, MIC concedes that 1t does not share in the liabilities Of the insurance contracta, 16  + FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER *** 1955 recodification of the insurance code. MUC claims that, under the statutory framework in effect at that time, an attorney-in-fact in a reciprocal insurance exchange was considered an insurance company exenpt from the payment of general excise taxes. MUC's interpretation of the prior version of the insurance code is plausible. Indeed, the code made no reference to reciprocal or inter-insurance exchanges as an insurance entity distinct from its attorney-in-fact. Rather, as MUC points out, the code expressly required an attorney-in-fact to “pay such taxes and fees for the transaction of business of insurance as prescribed by law for the transaction of the sane kinds of insurance by other insurance companii Revised Laws of Hawai'i (“RLH") § 6825 (1935) (emphasis added). RLH § 6792 (1935) provided further that soretyship, oF 2 oF of entering Into contracts substantially anounting to insurance, shal) be desned on insurance concany and shall not transact business unl the business is suthorized or permitted by the laws of the Tercitory, and ali laws regulating the same and applicable thereto ‘been complied with vss + (Emphases added.) Thus, it appears that the attorney-in-fact was statutorily deened the entity transacting the business of insurance and against whom the tax on gross insurance premiums received vas assessed. Seg RLH § 6850 (1935) (imposing a tax on gross premiums received from all risks located in and all business transacted in the Territory of Hawai'i). It therefore made sense to construe the attorney-in-fact (the entity charged with payment of the tax on insurance premiums) as the entity to hich the benefit of the exemption from the payment of general v7  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER **¢ excise taxes inured.* However, even if we were to accept the proposition that the 1935 codification of the insurance code contemplated the attorney-in-fact in a reciprocal exchange as an insurance company, we disagree with MUC’s subsequent assertion that the recodification of the insurance code in 1955* did nothing to alter the plausibility of that interpretation. Particularly persuasive is the legislature's repeal of RLH §§ 6825 and 6791 (1935). See 1955 Haw. Sess. L. Act 277 at 564.! As discussed supra, the provisions of the insurance code currently at issue appear to recognize a bisection between a reciprocal insurance exchange and its attorney-in-fact. Hence, MUC’s reference to repealed statutes is unavailing. ii, The trade meaning rule Equally without merit is MUC's attempt to invoke the trade meaning rule of statutory interpretation, expressed in In re Taxes, Hisvaiian Pineapple Co., Ltd., 45 Haw. 167, 363 P.2d 990 (1961) ("Hawaiian Pineapple Co.”). In Hawaiian Pineapple Co., the taxpayer was the operator of a pineapple cannery located in Honolulu. 45 Haw, at 169, 363 P.2d at 992, In 1945, taxpayer commenced with the manufacturing of frozen pinespple products which necessarily + tn 1935, the legistature levied a general excise taxes against “persons on account of their business snd cther activities in this Territory . ere S38 haw. Ly Act 141at 77, The legislature exempted from the fement of sucht) ier alia, *[JInturanee conpanies which psy the Territory of Hawaii a tax upon their grose preniome under the provisions of the Revised Laws of Hevaii 1935, chapter 224+ - "Ida at 63. * Soe 1955 Haw. Sess. L. Ret 277 at 377-565, Rul § 6791 (1935) was recodified as RLM § 6462 (2945). 1955 Haw. Sess. L, Act 277 repealed AL § 84€2 (1945). RLH § 6625 (1935) wae recodified fas Rim § G50 (2945); 1955 Haw, ean, L, Act 277 repealed RLM $ 8500 (3945)~ 18  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER * involved the packing of frozen pineapple products in hermetically sealed cans. Id, at 169-70, 363 P.2d at 992-93. The tax commissioner tock the position that taxpayer's manufacturing process involved “canning,” within the meaning of a statute that imposed a higher general excise tax rate on “canning” and assessed the taxpayer accordingly. Id, at 171, 363 P.2d at 993. on appeal before the Tax Appesl Court, the taxpayer presented the testimony of several expert witnesses testifying that freeze packing food does not involve sterilization by the use of heat, and therefore would not be referred to as “canning” by the food industry. Id. at 176, 363 P.2d at 996. The Tax Appeal Court agreed with the taxpayer and set aside the tax connissioner’s assessment. Ida at 173, 363 P.2d at 994. on appeal, this court framed the issue as: “Does the process of freezing pineapple products in hermetically sealed cans constitute ‘canning’ within the meaning of the statute?” Id. at 173, 363 P.2d at 995. We subsequently concluded that the tax statute made express reference to a particular trade or industry ~~ canning -- and that the applicable maxim of statutory interpretation wi the trade meaning rule, expressed as follow fence to a particular trade, ‘re used unich everybody int with that trade, Business, or transaction, knows and particular meaning in it, then the words are tobe construed az having that particular meaning, though it may Sister from the conmon of ordinary meaning of the words. Id. at 178, 363 P.2d at 997 (citation omitted). We explained that the party ascerting the trade meaning must prove its acceptance in the trade or industry, id. at 179, 363 P.2d at 997, and, if proved, the result is a presumption in favor of the trade 19  FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER meaning subject always to “the cardinal principle that, the legislative intent, hovever evinced, must be given effect.” Id. at 161-62, 363 P.2d at 998. Applying the rule, we concluded that the “uncontradicted proof” presented by the taxpayer was that “the trade meaning of ‘canning’ and ‘canned! excludes frozen foods, however packed... .” Id, at 179, 363 P.2d at 997. Finding no evidence of a contrary legislative intent, we upheld the trade meaning presumption and affirmed the ruling of the Tax Appeal Court. Id. at 194, 363 P.2d at 1005. Here, however, MUC has failed to provide sufficient evidence of a trade meaning. At trial, MUC offered a declaration by Hiram Tanaka (“Tanaka”), who was employed as the “Administrative Assistant, Deputy Insurance Commissioner” and “Chief Deputy Insurance Commissioner of the Insurance Division of the Department of Commerce and Consumer Affairs of the State of Hawaii” from 1974 to 1999. Tanaka’s declaration stated, in relevant part, as follows: 6. That the Insurance Division includes reciprocal Aneurer attorneys-in-fact, such as MUC, in the definition of “insurer” for the purpose of the exemption of insurance companies under ERS 237-29," and considers MIEC and MOC to be a single Insurer for the purposes of the insurance premium tax. 7." That the original legislative intent benind the fenectnent of the Hawaii Insurance Code was to treat alike ai2 Insurers, whether stock, mutual orf original iegie the statutory interpretation of the Hawaii Insurance Code by the Insurance Division is Pssed, in part, upon the following factst vo “unlike a Stock insurer and mutual ineucer reciprocal insurer does not have any eaployees nd is requized by statute to be cperated by an Sttorney-in-fact. + the attorney-in-fact {8 the reciprocal insurer from an sdninistrative and operations function standpoint + the reciprocal insurer has already paid the 4.78 insurance prenivm tax 20  FOR PUBLICATION IN WEST'S HAWAM REPORTS AND PACIFIC REPORTER **# + the attorney in fact actually performs the Insurance work + aha the public policy of encouraging the fcrnation of insurers, including reciprocal insurers and reciprocal captive Ansurance companies in Hawaii. 11, That the Insurance Division construes the reciprocal ineurer ind insurance premium tax lows to treat reciprocal insurers as a single unit and the reciprocal insurer attorney-Ln- fact as exenpt from gross excise tax under ERS. 237-29. MUC also attached a copy of former insurance commissioner Reynaldo D. Graulty's testimony, presented before the Senate Committee on Connerce and Consumer Protection on February 12, 1999, in support of Senate Bill No. 364. Senate Bill No. 364 proposed to clarify that attorneys-in-fact of reciprocal insurers are exenpt from the payment of general excise taxes by HRS § 237- 29.7.% The former commissioner testified as follows: The OCCA defers to the Department of Taxation on thie bill Ne wish to inform the Coanittee however of the snsurance Implications of this bill Hawadd lew specifies that insurance cenpanies formed in the hie note that the director argues that the fact that Senate ill No. 364 was not enacted Le evidence of the legislature's intent to sunject attorneys-in-fact to the general excise tax. However, although it is possible Chat Senate Bill No. 364's failure to pass indicates a legislative intent to reject the proposal contained therein, such legislative inaction 1g nota Cogent expression of legislative intent. fee a wenue, €(8 S.W.24 91, 85 n-5 (Mo. 1983) [acknowledging that the feilure of s bill to pass ‘nay aid interpretation where a statute ie sxbiguous, Dut stating that such reliance “provides a cenuous besis” insofar as, "without a record to explain the purpose for which the bill Se introduced of & record Of debate cn the bill when considered, examination of the enactments would not Eeveal why the legislature rejected s propeced bill."]) Slue Springs tow) y, ‘SoradLing, 551 5.W.24 £96, 601 (wo. 1977) ("TE [ehe statute] were enbiguovs, This legitlative history Could be construed as one of the aids to statutory’ construction which a court ray use. However reliance on bills not passed provides # tenucus basis for determining legislative intent.“); Escrow Serv, Go. v, Cressler, 365 P.24 760, 766-6? (laeh: 1963) {Finley, Ced- dissenting) (fo hold that every bill of auch a nature introduced into the legislature bet hot passed by it is a manifestation of legislative intent and a directive to the courte not to effect a change similar to that attempted by the ‘unsuccessful bill spproxinates ... (1) extrene naivete respecting the nature of the legislative process, and (2) an abdication of judicial function and Feeponsibility that should not be condoned by resort to legal fictions") a1 ‘0+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** state shall be either an incorporated stock insurer, an incorporated mutual insurer, of a reciprocal insurer. Unlike the stock and mutual insurer, reciprocal insurer does aot have any employees and is required by statute to be cpersted by an attorney-in-fact, the reciprocal insurers reinburse thelr atterney-in-facts [sic] for the cost of cperating the insurance Company. The attorney-in-fact in essence Le the reciprocal insurer from an administrative function standpoint. You cannot hove a reciprocal insurer without an attorney-in-fact, You cannot Rave one without the other” Since the reciprocal inaurer pays premium taxes, ve understood the original legislative intent to be that’ the cperations of the attorney-in-fact, the entity that actually performs the insurance work, ig incloded in the definition of [neuer for the purposes of § 237-29.7, HRS, Exemption of Insurance Cospants Sone of the insurers which write medical malpractice Aneurance in this state are reciprocal insurers comieiles in calttorns hich clearly exenpte the attorney-in-fact of 8 reciprocal. from Californie has © specific provision in thetr tex low taxes Girectly attributable to property used exclusively in oF on Ancone derived from the attorney-inefact’s principal business. Hawaii law sakes no specific reference and is therefore unclear. 5B 364 in Wedical Insurance Exchange's attempt to seek @ clarification of Hawal! law. The Insurance Division 1e sensitive to the potential loss of Jobs that might result if this bill 1g not enacted. One of the Adnieted reciprocal insurers here hi fo directly cervice their Hawaii policyholders, “If the Feinbursenent the attorney-in-fact receives for ite Ha Gperating cost becenes subject to the excise tax, we have been an office with two employees 44 office Sdvieed that the sttorney-in-fact will close ite Hawaii office ond Service the policyhelders from thelr hone office in California. ot only might existing Jobs in Ha attorney’ svin-fact [sic] already doing bu this oeate, out future job creation might also be adversely affected. 41 be An Jeopardy for Feciprocals in ‘The captive insurance law was amended last year to allow the formation of captive insurance companies as reciprocals. One Gonpany has already redenesticated ies captive to Howall an 8 result of this law change. We expect more reciprocal ceptive Tneurance conpant our regular insurance leq, the captive law also requires that a Feciprocal have an attorney-in-faet. Tf our excise tax Lav ie will be forned here in the future, Similar to Unterpeeted in such a nonner ag to tax the attorney-inefact on ite principal business for a Havaii-doniciled reciprocal, this will Rave the negative effect of discouraging the creation or employment ef ccal entities and personnel as the attorney-in- fact (.]. Under a worst case scenario, it will discourage the formation of reciprocal captive insurance cenpanies in Hawaii. We thank the Comittee for the opportunity to conment on this matter. 22 1+ FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER *** Hearing on S.B. 364, Sen. Conm. on Commerce & Consumer Prot., 20th Leg., Reg. Sess. (Feb. 12, 1999) (statement of Ins. Conm’r Reynaldo D. Graulty) (on file with committee clerk). While Tanaka’s declaration and the former conmissicner’s testimony may set forth the insurance division's position as to whether an attorney-in-fact is an insurer, they do not purport to establish an industry-wide understanding. Accordingly, MUC has failed to provide sufficient evidence of a trade meaning and the presumption in favor of that meaning is not triggered.? iid. Equitable estoppel MUC also claims that it relied on the insurance division’s view that it was an insurance company since 1981. MUC contends that the department of taxation had knowledge of MUC's Hawai'i operations because MUC had been filing Hawai'i income tax returns with the department since 1981, yet did not assess MUC until 1999. MUC argues that it is “patently unfair” to “impose a [general excise tax) upon MUC after MUC has relied to its detriment upon a determination by another state agency... .” ‘The director, on the other hand, asserts that equitable estoppel cannot be applied to interfere with the government's exercise of its sovereign power (ie, the power to tax). The director additionally contends that MUC failed to provide any evidence of “manifest injustice.” The director further points “Moc does not argue the related doctrine that the interpretation of wwote by an agency charged with ite administration ie entitled to deference, Seg, @.ds, In the Interest of John Doe, horn on August 3, 1977, 73 Baw. 63, 94, 628 F.2d 272, 275 (1382) (n(T}he Construction of (a statute by tthe agency charged with ite administration is entitled to substantial Geference ... + If the agency's construction 8 a reasonsble one, the court ‘Should give deference to it.") (Some brackets added and some in originals) (Ellipees in original.) (Citation caitted.). 23  ‘OR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER out that MUC has not relied to its detriment on any representation of the director. Moreover, the director avers that the department of taxation has no duty to advise MUC of its tax obligations and that, pursuant to HRS § 237-40, the director 4s authorized to assess MUC at any time insofar as MUC failed to file any annual general excise tax returns. ‘This court has stated that generally, “the doctrine of equitable estoppel is fully applicable against the government if it is necessary to invoke it to prevent manifest injustice.” State v. Zimring, 58 Haw. 106, 126, 566 P.2d 725, 738 (1977) (citing Yamad easter Clad: q ‘count of Hawas's, $4 Haw, 621, 629, 513 P.2d 1001, 1006 (1973), abrocated on other orounds by Morcan vy. Planning Dep’t, County of Kauai, 104 Hawai'i 173, 183, 86 P.3d 982, 992 (2004)). However, “significant limitations have been placed on the doctrine in this context.” Filipe v. chang, 62 Haw. 626, 634, 618 P.2d 295, 300 (2980). As argued by the director, one of these recognized Limitations is that the doctrine of equitable estoppel “nay not be used in such a way as to hinder the state in the exercise of its sovereign power.” Ida; see also Godbold v. Manibog, 36 Haw. 206, 214 (1942) (“The doctrine of estoppel is not applied to the extent of impairing sovereign powers of a state such as it exercises, for example, in the enactment and enforcement of police measures.”) (Citation omitted.). It is beyond dispute that the power of taxation is a sovereign power of the state. See Ionatz v. Conmonvealth, 849 A.2d 308, 313 (Pa. Conmw. Ct. 2004) (“The sovereign power of taxation. . . is in the state... .”) (Some ellipses added and some in original.); Lemke ex rel, Teta v. Brooks, 614 N.W.2d 24 +++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** 242, 246 (Minn. Ct. App. 2000) (classifying the power to tax as a sovereign poser); Nerning Safety Lights of Ga., Inc. v. state, Dep't of Revenue, 678 So.2d 1377, 1381 (Fla. Dist. Ct. App. 1996) (same); Mash. Public Pover Susply Svs. v. Gen, Elec. Co., 778 P.2d 1047, 1050 (Wash. 1989) (sene); Banner County vy, State Bd, of Equalization ¢ Resossment, 411 N.W.2d 35, 45 (Web. 1987) ("The power to tax is a sovereign power. . . .” As such, the doctrine of equitable estoppel may not be applied against the governnent’s power to tax. See Fitzgerald v. City of Bangor, 726 A.2d 1253, 1255-56 (Me. 1999) ("The rationale for the rule precluding the assertion of estoppel against the government in tax cases is to assure that no officer of government has the ability to interfere inadvertently with the government! s fundamental sovereign power to tax its citizens.”); BCS, Inc. v Ariz, Dep't of Revenue, 863 P.2d 920, 922 (Ariz. 7.C. 1993) ("(T]here can be no estoppel involved against a sovereign state. ‘The failure of the tax commission to attempt to collect taxes now sought to be collected from plaintiff for a period of years constitutes no defense to their collection.”) (Citing Ariz. Tax Conm’n v. Dairy & Consumers Coop, Ass'n, 215 P.2d 235, 240 (Ariz. 1950).). Therefore, MUC’s estoppel argument is unavailing. iv. a ments are withor NUC also asserts that the legislature's preservation of the term “insurance companies” when it enacted HRS § 237-29.7 in 1991 indicates @ legislative intent to continue to exempt from the payment of general excise taxes all entities previously considered “insurance companies,” including attorneys-in-fact. However, we can find no evidence of legislative intent supporting 25  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER muc’s leap in logic." Rather, HRS § 237-29.7 continues to expressly reference HRS chapter 431, and, as discussed supra, HRS chapter 431 contenplates the attorney-in-fact as an entity distinct from its reciprocal insurer. NUC contends that the failure of any director of taxation to assess general excise taxes against attorneys-in-fact of reciprocal insurers “confirms the intent of the law to exenpt [attorneys~in-fact] from [tax] liability." However, even assuming that MUC's factual assertion is correct, the mere fact that past directors have not assessed attorneys-in-fact does not require the conclusion that they were not authorized to do so. Rather, that assertion is germane to MUC’s estoppel argument, addressed supra. Finally, MUC asserts that it is authorized to do business under HRS chapter 431. However, MUC’s authority to transact business under HRS chapter 431 does not inform the % Prior to 1992, insurance conpanies were exenpted from the general excise tax schene by HRS § 237-23(a) (4). Sag HRS § 237-23 (a) (4) (2985 Supp. 550). “pecisicaily, aks § 237-23¢a) (4) (Sopp. 1990) proviced that chepter 237 “inal not apply to. - . [i]neurence companies which pay the State a tax pon their gross. premiins Gnder chapter 431 ss +7 dn 1091, however, the legislature repealed HRS § 237-23(8) (4). Seg 1951'Haw. Sess. L. Act 2668 3, at 682. The legieiature simultanecusly enacted the following provision: 237- xcaption of insurance companies. This chapter shall not apply to the gross incone or grose proceeds of insurance Cenpaniee authorized to do business under chapter 421; except this ‘exemption shail not apply to any gross incone or gross proceeds received after Decenber 31, 1991, ae rents from davestments in real property in this state; provided that gross income or gross proceeds fron investments in real property received by sneurence Companies after Decenber 31, 1991, under written contracts entered Into before the effective date of’ this Act that do not provide for the passing on of taxes or tax increases shall not be texed until he Contracts are renegotiated, renewed, or extended. 1991 Haw, L. Act 286 § 1, at 690. The purpose of the 1991 amendment wa to ensure that incone derived from sources sther than premiuns on insurance Centracte vere taxable “at the general excise rate of four percent ss = Stand. Comm. Hep. No. 1002, n 1991 House Journal, st 1396. 26  ** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER. question as to MUC’s tax liability. Although MUC presented evidence that the insurance division has taken the position that At may authorize an attorney-in-fact to transact business under the certificate of authority granted to it in the name of the reciprocal insurer, it does not necessarily follow that the attorney-in-fact and the reciprocal, insurer constitute the same taxable entity. For the foregoing reasons, we agree with the tex eppeal court's implicit conclusion that MUC is not exempt from the payment of general excise taxes under HRS § 237-29.7. MUC does not qualify for the .15 percent tax rate reserved for licensed general agents, subagents, and solicitors. Having established that MUC is not exempt from general excise taxes, we turn to the director's argument that the tax appeal court erred by sua sponte applying the tax rate of .15 percent reserved for licensed general agents, subagents, and solicitors under HRS § 237-13(7). The director contends that MuC was not licensed, an express requirenent of HRS § 237-13(7), and that it therefore could not benefit from the reduced tax rate provided for therein. The director points out that MUC provides management sexvices to MIEC and CLIC, and that any compensation received in exchange for those services is taxable under URS § 297-13(6) at a rate of four percent. The director argues further that statutes exempting taxpayers from the payment of taxes must be strictly construed. MUC counters that if this court should find that it is not exenpt under HRS § 237-29.7, it is alternatively subject to the .15 percent general excise tex rate imposed by HRS § 237- 2  HAWAII REPORTS AND PACIFIC REPORTER 13(7) inasmuch as its business activity most closely resenbles that of a general agent or solicitor, as found by the tax appeal court. MUC avers that the certificate of authority under which it operates is the License qualifying it under HRS § 237-13(7). HRS § 237-13(7) (1993) provides the following: £237, Imposition of tax. There is hereby levied snd shall 18 against persons sn the state neasured by the application of rates against values of product gross proceeds of sales, or gross incone, whichever Se specified, ae follow ” nce solicitors and agents. Upon every fon engaged asa licensed solicitor, general agent, ter 431, there is hereby fed and collected « tax equal to .15 per cont of the commissions due to such activicy. Preliminarily, we note that HRS § 237-13(7) is plainly worded as a statute of imposition, as opposed to a statute of exemption. Thus, although the director is correct that statutes exempting persons from taxes are to be strictly construed against the taxpayer, see Hawaiian Pineapple Co., 45 Haw. at 169, 363 P.2d at 1002 (“This court has. . . often applied strict construction against a taxpayer and in favor of the government when the ambiguity pertained to an exemption in a taxing statute.”); In the Matter of the Tax Appeals of 711 Motors, Inc., 56 Haw. 644, 646, 547 P.2d 1343, 1345 (1976)? In the Matter of the Tax Ropeal Union -Arcadia Re! idenet 63 Haw. 199, 206, 624 P.2d 1346, 1351 (1961), a contrary rule applies. To wit, statutes imposing taxes are to be strictly construed against the government. See Hawaiian Pineapple Co., 45 Haw. at 189, 363 P.2d at 1002 ("This court has on many other occasions resolved an ambiguity in a statute imposing a tax in 28  FOR PUBLICATION IN WES: favor of the taxpayer."); Ince Hawaiian Tel, Co., 61 Haw. $72, 578, 608 P.2d 383, 388 (1980) ("It is a cardinal rule of construction that a statute imposing taxes is to be construed HAWAII REPORTS AND PACIFIC REPORTER. strictly against the government and in favor of the taxpayers . Nevertheless, these competing rules of strict construction “should only be resorted to ‘as an aid to construction when an ambiguity or doubt is apparent on the face of the statute, and then only after other possible extrinsic aids of construction available to resolve the ambiguity have been exhausted.‘” Id, at 579, 608 P.2d at 388 (citing Bishop Trust Co. v, Burns, 46 Haw. 375, 399-400, 381 P.2d 687, 701 (1963). Here, giving effect to all of the words expressed by the legislature, see Canara v. Agsalud, 67 Haw. 212, 215-16, 685 P.2d 794, 797 (1984) ("It is a cardinal rule of statutory construction that courts are bound, if rational and practicable, to give effect to all parts of a statute, and that no clause, sentence, or word shall be construed as superfluous, void, or insignificant Af a construction can be legitimately found which will give force to and preserve all the words of the statute.”), we think it reasonably clear that the phrase “engaged as a licensed solicitor, general agent, or subagent pursuant to chapter 431,” is a direct reference to HRS chapter 431, article 9. HRS § 431:9-201(a) (1993) unambiguously states that “{nlo person in this State shall act as, be appointed as, or hold oneself out to be a general agent, subagent, solicitor, or adjuster unless so licensed by this State.” HRS § 431:9-102 (1993) defines the term “general agent” as: any person sppointed under section 431:3-203(b) (1) and authorized 29 ++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER * by the insurer to perform all of the following acts in this State: (2) Soiiest applications for insurancey (2) Collect preatume on insurance spplied for or sEfectustes (3) point subagents and solicitors: {4} ReEange ineurance on subjects located, resident, or to bbe perfcrned wholly outside this State with an authorized ingurer for which the agent is not Licensed; (5) In accordance with the provisions of article 8, arrange inesrance on subject located, resident, or to be performed wholly outside this state with an neuthorized insurer; and (6) Any other lowful acts porsvant to this article. HRS § 43: }-103 (1993) defines the term “subagent” as: any person appointed by a general agent, or by 2 donestic insurer Upen cenpliance with section #31:9°102 (b) to perform the following facts in this state: (2) Solicit applicetions for tneurances (2) Cellect prenions on ineuronee so spplied for or effectuateds and (3) Any" other lawful acts pursuant to this article, HRS § 432: -104 (1993) defines the term “solicitor” as: any individual sppointed by a general agent or by @ subagent oF by a donestic ineurer upon compliance with section 431:3-102(b], te Perform the following acts in this Stal (2) Solieie applications for insurances (2) Collect preniuns in connection therewith: and (3) Gny other lawful acts pursuant to this article, Here, MUC does not dispute the director's assertion that it does not hold @ general agent, subagent, or solicitor license under HRS chapter 431, article 9. Without such a license, MUC could not have been legally appointed as either a general agent, subagent, or solicitor of MIEC, its certificate of authority notwithstanding. Consequently, MUC does not qualify as a “general agent, “subagent,” or “solicitor,” as defined by HRS chapter 431, and it therefore does not fall within the paraneters of the category described by HAS § 237-13(7). ©. MUC is taxable under HRS § 237-13(6) at four percent. Rather, as averred by the director, the applicable 30 ‘4+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** toxing statute is HRS § 237-13(6) (1993), which provides, in pertinent part, as follow “upon every person engaging or continuing within the State in any service business or calling not otherwise specifically taxed under this chapter, there is Likewise hereby levied and shall be assessed and collected a tax equal to four per cent of the gross income of any such business.” There can be no question that MUC is compensated for the services it provides to MIEC and CLIC, and MUC does not assert any other statutory subsection under which it may be taxed. We therefore hold that MUC 4s subject to a general excise tax at a rate of four percent, purauant to HRS § 237-13(6). 2. The director's motion for reconsideration The director's second and final point of error on appeal acserts that the tex eppeal court erred by denying his motion for reconsideration insofar as MUC made factual assertions after the court's oral ruling on MUC’s motion for partial summary judgment that raised genuine issues of material fact. As previously mentioned, it appears that after the tax appeal court’s oral ruling, the director prepared a proposed order that included the following pertinent finding of fact: *wuc's gross income subject to the general excise tax for conpensation for services rendered as an attorney-in-fact to (IEC) and [CLIC] for the period January 1992 through January 1999, inclusive, totaled $2,629,301.00." MUC filed objections to that proposed finding of fact, asserting that it 4s inappropriate be generat excise tax jens ageinst anterest™ Wic's notion for partial summary juagnent, does net convert the sesesenents into stipulated facts. [The director’) proposed finding . . . shovld sis be foneous and 31  ‘OR PUBLICATION IN WEST'S HAWAll REPORTS AND PACIFIC REPORTER **¢ rejected because it 1s factually incorrect, (The) (f]inding . . - ervonecuely states that appellee received “compensation for Services rendered as an attorney-inefact for... (CLIC)." tn fact, [eLicl 1s No? a reciprocal insurance carrier snd therefor rendered as ite attorney=in- (Some ellipses added and some in original.). The director thereafter filed a motion for reconsideration accusing MUC of nisrepr nting facts to the tax appeal court and arguing that more evidentiary proceedings were required to address the genuine issues of material fact created by (1) the revelation that MUC is not the attorney-in-fact for CLIC, and (2) MUC’S refusal to stipulate to the $2,629,301.00 amount that served as the basis for calculating its tax lability. For the following reasons, we agree with the tax appeal court's decision to deny the director’s motion for reconsideration. First, the director's characterization of MUC's admission that it is not an attorney-in-fact for CLIC evidence is curious given that the director’s own pretrial motions characterized MUC as the attorney-in-fact for MIEC and the managing agent of CLIC, thus demonstrating its cognizance of the fact that MUC’s relationship with MIEC differed from its relationship with CLIC. Moreover, even if the director was truly not aware that MUC was not an attorney-in-fact of CLIC, such basic information could easily have been obtained prior to such a late stage in the proceedings. Second, the director has waived any argument premised upon MUC’s assertion that it did not see discussion supra at n.6. Indeed, the director's August 24, 2001 motion for euamary judgment sribed MOC as fellows: "[MOC] is the attorney-in fact (sic] of an Sneurance conpany, [MIEC]. Taxpayer ie also the managing agent of another Sneurance company, [CLIC]... 32 ++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFICREPORTER *** stipulate to the $2, 629,301.00 anount. The record indicates that Muc's motion for partial sunmary judgnent expressly treated the $2,629,301.00 anount as an adnission by a party opponent under Hawai'i Rules of Evidence Rule 803(a) (1). Thus, MUC made clear that it did not stipulate to the accuracy of the director's calculation; rather it merely agreed that it would abide by that number and used the nunber to calculate its tax liability at a rate of .15 percent. The director was sufficiently apprised of Muc's refusal to stipulate at that time. Nevertheless, the director thereafter filed a response that stated, “the Director does not object or oppose the fact that [MUC’s] general excise tax liability is $3,943.95 for income received in the amount of $2,629, 302.00 as compensation for services rendered as an attorney-in-fact.” By failing to object or oppose MUC’s position at that time, the director may not, in a motion for reconsideration, challenge MUC’s reiteration of that position after the tax appeal court's oral ruling on the matter. Therefore, the director's present point of error is without merit. B. Muc's Cross-Appeal In its opening brief on cross-appeal, MUC presents the following points of error: (1) the tax appeal court erred by failing to exempt MUC from the payment of general excise taxes pursuant to HRS § 237-29.7 inasmuch as MUC is an insurance company authorized to do business under HRS chapter 431; (2) the tax appeal court improperly denied MUC’s motion for leave to file an amended answer to director's notice of appeal, filed on July 6, 2000, and to alter or amend the final judgment filed September 3  1** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER 23, 2004; and (3) the tax appeal court improperly denied muc’s motion for attorneys’ fees and costs. Inasmuch as we have already concluded that MUC's first point of error is without merit, only MUC’s final two points of error remain. MuC's second point of error on cross-appeal asserts that the Tax Appeal Court erred by denying MUC’s motion for leave to file an anended ansver and to alter or amend the judgnent. MUC specifically contends that the director introduced evidence relating to MUC’s tax liability for the years 1985 to 1991, and that under Hawai'i Rules of Civil Procedure Rule 15(b), the court was required to amend “the pleadings as may be necessary to cause them to conform to the evidence, upon motion of any party at any time.” MUC further contends that under HRCP Rule 42, the issue of its tax liability in years 1985-1991 should have been consolidated with the present matter, involving its tax liability for the years 1991-1999, inasmuch as connon issues of law and fact arose from both time periods. The director counters that nUc’s motion to amend was an attempt to circumnavigate the fact that it failed to timely appeal the Board’s adverse ruling with respect to the 1985-1991 time period. However, in light of the foregoing conclusions that the director properly taxed uc at a rate of four percent, the issue presented is moot. 2, MUcts mots ‘ and cost NUC's third point of error on cross-appeal asserts that At ig entitied to attorneys’ £ s and costs incurred in defending 34  {1** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER against the director’s bad faith abuse of power. Specifically, MUC asserts that the actions of the [d}irector in unilaterally rewriting nore than sixty years of law without precedent and then not on his self-«ritten law upon MOC but also. spplyi law retroactively for hearly fifteen to'pay the taxes, penalties, and at the very least, be described factiona taken in bad faith, However, MUC’s argunent is without merit inasmuch ai (1) MUC was properly taxed at a rate of four percent, and (2) the director is correct that MUC’s failure to file returns authorize: it to assess MUC at any tine. See HRS § 237-40(b) (1993) (“In the case of . . . a failure to file the annual return, the tax may be assessed or levied at any time... .”). Accordingly, NUC has failed to assert a legitimate basis for its bad faith claim. IV, concLusrow In sum, the payment of compensation by a reciprocal insurer to its attorney-in-fact is a taxable event under this jurisdiction’s insurance code and general excise tax scheme. Additionally, insofar as MIC is not licensed as a general agent, subagent, or solicitor, it is not subject to the .15 percent tax rate imposed by HRS § 237-13(7). Rather, it is subject to the four percent tax rate imposed by HRS § 237-13(6). 35  +" FOR PUBLICATION IN WEST'S HAWAM REPORTS AND PACIFIC REPORTER * ‘Therefore, we partially vacate the tax appeal court's judgment and remand with instructions to enter judgment in favor of the dizector in the amount of $105,172.04." on the briefs: Hugh R. Jones and Damien A. Elefante, Deputy Attorneys General, for appellant/cross- appellee Mim Yok armeo— Russell L, Ching and Randall 1. Morikawa of Ching, Yuen & Neues Morikawa and Roy ¥. Yempuku of Net Dae the law offices of Roy Y. Yempuku for taxpayer-appellee/cross~ ae appellant e Gorm € Diy ty The 6105, 172.06 ancunt 1s derived from applying a generat excise tex rate of four percent to the $2,629,301.00 received by MUC as compensation for services rendered to MIEC and CLIC. Although the director assessed MOC in the ancunt of 160,250-45 for the tax years presently at iesue, that ancunt Included interest and penalties. The tax appeal coure’s judgment did not award interest and penalties, gg discussion supra at n.5, and the director did not appeal that omiceion. ‘sence, interest and penalties should not be avarded on remand. 36 

b746016b21792df9be003b388f44f9e8a8aab08a3f04bbcbcc23cd8e7df30c45

2007-08-30T00:00:00Z

1e00198f-efe0-412d-933d-d0b6c1aa1b90

In re L-K Children: R. L-K

hawaii

Hawaii Supreme Court

No. 27787 IN THE SUPREME COURT OF THE STATE OF HAWAT'T IN THE INTEREST OF L-K CHILDREN: R. LeK. (1) and R. L-K. (2) ant CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (EC-S NO. 04-09841) on LY (By: Acoba, J., for the court") The Application for Writ of Certiorari filed on May 24, 2007 by Petitioner/Mother-Appellant is hereby rejected. DATED: Honolulu, Hawai'i, June 21, 2007. FOR THE COURI Tae W. Kim, on the application for Petitioner/Mother-Appellant. 2 conssal Moon, C.J., Levinson, Nakayama, Acoba, and batty, 33. 

ef2a488b3ac4141c2da335f72553fd9f03e2c26ba0b28d9c5e96857ed7514936

2007-06-21T00:00:00Z

e93baf9f-04ee-4447-96d0-2708668e6080

Mathias v. State

hawaii

Hawaii Supreme Court

no. 27020 IN THE SUPREME COURT OF THE STATE OF HAWAT'T CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. No. 02-1-0566) ORDER DISMISSING APPLICATION FOR WRIT OF CERTIORARI (By: Nakayama, J., for the court!) upon consideration of the application for writ of certiorari filed by Petitioner-Defendant-Appellant Brandon K. Mathias ("Mathias"), pre se, on Sune 18, 2007, and careful review of the record, we observe 2s follows: (1) Te appears from the record that Mathias renains represented by counsel, Jennie J. Park, Es. ("Park"). (2) The Intermediate Court of Appeals’ Judgment on Appeal was filed on April 19, 2007. (3) It appears that counsel for Mathias may timely file an application for writ of certiorari on or before July 18, 2007. Therefor: IT IS HEREBY ORDERED that Mathias’ application for writ of certiorari filed pro se is dismissed, without preiudice to a subsequent application for writ of certiorari being filed by his counsel within the time limit prescribed by Hawai'i Rules of ‘considered by: Moon, C.J-, Levinson, Nakayama, Acoba, and Duffy, JJ. Appellate Procedure Rule 40.1(a) (2006). We note that counsel is responsible for her own calendaring and the timely filing of an application for writ of certiorari, if any, in thé instant cai DATED: Honolulu, Hawai'i, June 28, 2007. FOR THE COURT: Pru Ort 

f5116d3cd3516b771d8b39e6249ce8ca3048daf7fbcbf34c03b19416e25c1eb0

2007-06-28T00:00:00Z

c8a6df2d-6373-4bfa-b6e1-a0cd385e6448

Buscher v. Doning.

114 Haw. 202

hawaii

Hawaii Supreme Court

IBRARY +++ FOR PUBLICATION WEST'S HAWAFT REPORTS AND PACIFIC REPORTER *** IN THE SUPREME COURT OF THE STATE OF HaWAI'IEI aqaw4 ESTHER J. BUSCHER, Plaintiff-Appellee, 9:01 HY |L~ MiP LOO DUANE S. BONING? COMMERCE INSURANCE CO. + AVIS RENT-A-CAR SYSTEM, INC., Defendants-Appellants, and STATE OF HAWAI'I, Defendant-Appellee, and CRANFORD & CO.7 JOHN DOES 1-5; JANE DOES 1-5; DOE CORPORATIONS 1-57 ROE NON-PROFIT CORPORATIONS 1-5 ‘and ROE GOVERNNENTAL ENTITIES 1-5, Defendants and DUANE S. BONING; COMMERCE INSURANCE CO. and AVIS RENT-A-CAR SYSTEM, INC., Third-Party Plaintiffs-Appellants, STANFORD H. MASUI, Third-Party Defendant-Appellee. No. 27232 APPEAL FROM THE THIRD CIRCUIT COURT (CIV. NO, 99-0220K) Jone 7, 2007 MOON, C.J., LEVINSON, NAKAYAMA, ACOBR, AND DUFFY, JJ. s+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** OPINION OF THE COURT BY DUFFY, J This workers’ compensation case srose from a 1996 motor vehicle collision between vehicles operated by Plaintiff-Appellee Esther J. Buscher and Defendant-Appellant and Third-Party Plaintiff-Appellant Duane S. Boning. At the time of the collision, Buscher was driving within the course and scope of her employment with Defendant-Appellee State of Hawai'i. Buscher made a clain for workers’ compensation benefits to the State and sued Boning in Civil Ne. 97-237K, Buscher and Boning agreed to settle the case for Boning’s policy limits of $125,000.00, and the case was dismissed with prejudice by stipulation of the parties. Soon thereafter, however, an issue arose with respect to whether the Employer State consented to the alleged settlement between Buscher and Boning as required by Hawai's Revised Statutes (HRS) § 386-8 (1993), and Buscher filed the instant lawsuit, Civil No, 99-0220K Boning and Defendants-Appellents and Third-Party Plaintiffs-Appeilants Commerce Insurance Co. (hereinafter, Commerce] and Avis Rent-A-Car System, Inc. [hereinafter, Avis, and collectively with Boning and Commerce, Defendants] appeal from the Circuit Court of the Third Circuit's March 15, 2008 final judgnent,’ raising the following points of error on appeal: ‘The Honorable Ronald Ibarra presided over this matter  (2) the circuit court abused its discretion in granting Buscher's September 24, 2001 motion to set aside the stipulation for dismissal with prejudice of Civil No. 97-237K as to all claims and parties [hereinafter, motion to set aside the stipulation]; (2) the circuit court erred in ruling in its February 11, 2002 Findings of facts, conclusions of law, and order thet the State owed no duty te Boning to reasonably consent to the settlement agreenent after the court previously found thet the State had acted unreasonably and outrageously in withholding its consent; (3) the circuit court erred by denying Defendants’ August 5, 2002 motion to enforce the settlenent agreement: (4) the circuit court erred in dismissing Defendants’ third-party claim against Third- Party Defendant Stanford #, Masui, Buscher’s attorney; (5) the cirevit court erred in dismissing Defendants’ counterciain against Suscher; (6) the circuit court erred in denying Defendants’ October 12, 2000 motion for interpleader and dismiseal; and (7) the circuit court abused its discretion in granting Buscher’s motion for taxation of costs. In reply, Buscher contends: (1) the circuit court did not abuse its discretion in vacating the stipulated dismissal between the parties because the settlement failed (2) the settlenent between Euscher and Boning was either void or voidable: (3) the circuit court did not err in refusing to #** FOR PUBLICATION IN WEST'S HAWAF' REPORTS AND PACIFIC REPORTER *** enforce the agreenent; (4) the State’s refusal to consent to third-party settlement agreement was obstructive and unreasonable; (5) adverse counsel owes no duty to defendants or their attorneys in the course of representation of a party: (6) the court's award of expenses to Buscher as the prevailing party, and based on en offer of judgment, was reasonable; and (7) Defendants’ fifth and sixth points of error should be deemed waived pursuant to Hawai'i Rules of Appellate Procedure (HRAP) Rule 26(b) (7). Additionally, the State, in response to Boning’s second point of error, replies that the circuit court correctly rejected Boning’s cross-claim against the State for unreascnable failure to consent. Based on the following, the circuit court's March 15, 2005 final judgment is affirmed. In addition, we vacate the circuit court’s June 1, 2005 order awarding costs and remand this case to the circuit court with instructions that an amended order be entered, awarding costs in the amount of $20,002.82 in favor of Buscher. 1. BACKGROUND A or et Laweuit, Civ. on June 13, 1996, Buscher, while driving within the course and scope of her employment with the State, was injured in 2 motor vehicle collision with @ vehicle driven by Boning. Buscher nade a claim for workers’ compensation benefits to the *** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** State and also sued Boning in 1997 in Civil No. 97-237K. The State did not intervene in that case, nor did it initiate its own suit against Boning in connection with the motor vehicle collision. On July 8, 1999, Buscher accepted Defendants’ offer to settle Civil No. 97-237K for $125,000.00. The State was advised of the settlement by letter dated July 14, 1999. Boning’s insurers, Conmerce and Avis, issued settlement checks totaling $128,000.00, payable to Buscher and Masui, in July 1998. Such checks, however, apparently were never delivered to Buscher or Masui. Buscher and Boning, on numerous occasions, beth requested written consent to the settlement from the State as required by HRS § 386-8.7 Without receiving such consent, however, Euscher HRS § 286-£, “Liability of third person,” provides in relevant part cresting in sone person other than the employer oF another enployee of the enployer acting in the course of his fenploysent s legal liability to pay denages on account thereof, the injured exployee or his Gependente (hereinafter referred to collectively a8 the enployes) may claim such thire person. ie chapter and recover Ganages from Ig the exployee conences an action against such thire person he shall without delay give the employer written Rotice of the action and the nase and location of the court in which the getion ie Erousht ey personal service oF registered nail. The exployer may, at any time before trial onthe facts, join as party pleintife No release or settlenent of env claim or action under Teene inves  “+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER signed @ release and settienent agreement, drafted by Boning, on August 2, 1998. The settlement agreement did not require the signature of a representative of the State, nor did it mention anything about the State's consent. Buscher’s attorney, Masui, 4, .continved) This section ic velig without the written consent of both ‘Scploverand-enolcvee, The entire enount of the eettlenent Sfter deauctions for attorney's fees and costs at hereinafter provices, if subject to the employer’ s ri Feinborsenent for his compensation paynente uncer thie Chapter and his expenses end costs of acticn. ot 1f the sction Se prosecuted by the employee alcne, the exployee shall be entitles to apply out of the amcunt of the SSsgnent for denagee, or settlement in case the action ie Cempromiced before jucsnent, the reasonable iitigetion Sepenses incurrea in preparation end prosecution cf such Son, together with's Fessonable attorney’s fee whice all $e based solely open the services rendered by the exployes's attorney in effecting recovery both fer the benefit of the employee and the employer. After the payment of such expenses and attorney's fee there shell be applied cot ef the ancunt of the Judgment er settlement proceeds, the amount of the employer's expenditere for compensation, Jess nis shave of such expenses and attorney’s fee. 02 application of the employer, the court shail allow as > fest Iien against the amount of the Judgment for damages cr settlenent proceeds, the snount of the empioyer’s ‘expenditure. for compensation, leas his share of such expenses and attorney's fee. In the the anount of ef attorneys" faxed by the cou fent that the parties are unable to agree upen sonable litigation expenses end the encunt Under thie section then the same shell be After reimbursenent for his compensation paysents the exployer shall be relieved from the cbligetion to make forther compensation payments to the enpioyee under this Chapter op to the entire snount of the Balance of the Settlenent of the Sudgeent, If satisfied, as the case nay be, after deducting the cost and expenses, including attorneys" fees ie aaded.) +++ FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER *** signed his approval of the form and content of the release and settlement agreement. Masui also signed a stipulation for dismissal with prejudice as to all claims and parties in Civil No. 97-237K. On August 9, 1999, Boning filed the signed stipulation for dismissal with prejudice in the circuit court, despite the fact that Buscher had not yet been paid the settlement consideration and the State had not yet consented to the settlement. by letter dated October 18, 1999, the State informed Buscher that it consented to the settlement conditioned upon: (1) the deposit of $12,500.00 into an interest-be ‘ing account until the amount of the workers’ compensation lien and/or any amount of contribution for fees and costs was finally determined; and (2) the State's reservation of its “rights, remedies, clains or causes of action it may have against . . . Eoning with respect to any workers compensation benefits provided by the State to Mrs. Buscher « . Perceiving the October 15, 1999 letter as the State’s written consent, Masui requested that Defendants issue settlement checks by letters dated October 18 and 27 and Novenber 5. Having not received the checks, Masui, by letter dated Novenber 15, 1999, informed Defendants that he considered the settlement “void for failure of your clients to meet their obligations.” In +#** FOR PUBLICATION IN WEST'S HAWAT] REPORTS AND PACIFIC REPORTER *** reply, by letter dated Novenber 16, 1999, Defendants’ counsel stated: Je be reminded that you personally assured me that ‘Coke care cf” the lien with Employer, Seate of Deputy Attorney General] Ma. Schoen then personally called me on Novenber s, 1999 and told me that Employer wovla not consent to the cettienent you and T Feached on behalf of cor respective clients Therefore, we have not receives consent from the State as yoo insist. 5. The Instant Laweus 02201 fon December 13, 1999, Buscher filed the instant, lawsuit, Civil No. 99-0220K, which included the previously dismissed personal injury lewevit 2s Count I as well as nunerous other claims accusing Defendants of breaching the settlenent agreement and the State of interfering with the agreement by wrongfully withholding consent. In response, Defendants: (2) cross-clained against the state for, inter alia, unreasonable failure to consent to the settlenent, interference with a contractual relationship, and negligent claims handling/necligent failure to consent; (2) counterclaimed against Buscher for, inter alig, abuse of process, breach of the settlement agreement, and misrepresentation? and (3) filed a thiré-party complaint against Masui alleging that he breached his duty to Defendants by failing to obtain the required employer's consent, failing to exercise reasonable care and diligence to obtain consent, and  +++ FOR PUBLICATI HAWAF'T REPORTS 4’ REPORTER *** we: misrepresenting to Defendants that he had obtained such consent, thus causing excess litigation expenses. 1. Defendants’ motion to intexplead On October 11, 2000, Defendants filed @ motion to: 6 deposit with the covrt $125,000.00, (2) interplead representing the settlenent proceeds of the first lawsuit; and (2) dismiss Defendants. At 2 Nevenber 6, 2000 hearing, the court orally denied the notion, ressoning thet there was still a dispute as to whether or not there was @ settlement. An order Genying the motion was entered on Decenber 4, 2000. Defendants’ counterclaim against Buscher on May 15, 2001, Defendants moved for partial summary judgment on their counterclaim against Buscher as to Counts 7 (breach) and III (misrepresentation). By order dated July 6, 2001, the court found that the State “did not agree to the settlement,” and that there was “no valid settlement under HRS § 386-8." The court, however, inexplicably granted Defendants’ motion. On July 22, 2002, Buscher filed @ motion for relief from the judgnent or order on the grounds of mistake, inadvertence, and/or to accomplish justice. By order dated September 13, 2002, the court granted Buscher's notion and set aside its order granting Defendants’ motion for partial summary judgment.  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER on April 28, 2002, Buscher moved to dismiss Count I (abuse of process) and Count III (misrepresentation) of the counterclaim, arguing, inter alia, tha found that there was no settlenent, Buscher cannot be said to (2) because the court have abused the legal process by pursuing her lawsuit against Defendants; and (2) Defendants failed to state a claim for misrepresentation because they did not allege that when Buscher signed the settlenent agreenent, it was with the present intent to make @ false representation. Following @ hearing on June 10, 2002, the court granted Buscher’s motion by order dated August 19, 2002. on October 31, 2002, Buscher filed a metion to dismiss Count 11 of the counterclaim (breach), asserting that without valid settlement agreement, there can be no breach. The court granted Buscher’s motion on January 24, 2003. Judgnent was entered in favor of Buscher on March 4, 2003. 3, Buscher’s motion to set aside the stipulation dismissing Civil No. 97-237k with prejudice In the meantime, on July 27, 2001, Buscher filed notion to set aside the stipulation dismissing with prejudice Civil No. 97-237K, requesting that the circuit court, pursuant to Hawai'i Rules of Civil Procedure (HRCP) Rule 60(b), relieve Buscher from the stipulation because the settlement agreement, upon which she relied in executing the stipulation, was void or 20  *#** FOR PUBLICATION IN WEST'S HAWAT' REPORTS AND PACIFIC REPORTER voidable. After an August 8, 2001 hearing, the court granted the notion by order dated September 24, 2001. 4. Jury trial on Buscher’s personal injury ca Jury trial conmenced on Buscher's personal injury case against Boning on Septenber 11, 2001. ‘The jury returned a verdict in favor of Buscher, and on November 7, 2002,, judgment was entered in her favor in the amount of $275,000.00. 5. Bench trial on Defendants’ cross-claim against the state on February 11, 2002, after @ bench trial, the circuit 1 order, court issued its findings of fact, conclusions of which, inter alia, dismissed Defendants’ cross-claim State. The court entered the following relevant findings: 48, [The statel’s # ettlonent agreement mar unreasonable and the dire: of a negligent review of Flaineiff Buecner'e worker’ © Conpensation and liability cleins by [the state]. Seid Feview wae below the standard of care required of an exployer in determining whether to consent to empleyee[s’) Personal injury settlement agreements. (Trial testimony of Richard K. Griffith, page 23, line 7-i8.) 49, (The state)’s negligent claim handling, i.e.(,] ite wrongful refusal to consent to Plaintiff Buscher' & settlement agreement with Defendant Bening, was 8 legel cause of Plaintiff Buscher’s enotional distress. ‘The court additionally entered the following pertinent conclusions of law: 6, By choosing net to intervene in Plaintiff Boscher’s suit ageinet Defendant Boning oF prosecute claim ageinst then, [the State) chose to rely on Plai Buscher’s prosecution of her case against Oefendant Boning [the State]"s sole Werker"s compensation  ‘++ FOR PUBLICATION IN WEST'S HAWAT' REPORTS AND PACIFIC REPORTER * 10, (The State]’s October 15, 1999 letter Exhibit = ao awr se not consent ae that term is used in (HRS §) 256-2 because it purports to reserve to the employer the Fight te sue the tortfeasor, whereas the consent under (HRS §) 366-8 hheane the employer looks only t0 the settienent proceeds for Teinbursenent of its worker's compensation lien claim end gives up its right to sue the tortfeasor 12. the court finds that [the State] hed @ duty to ‘act reancnably to Flasnei## Borcher in evaluating the Settlenent agreement in Angust 1989. 12. (The State} nad a duty not to unressonsbly withhold ste coneent from Plaintife/Defendent soning Tettlement agreement. 13, [The State) waived ite inmunity under (RS chapter] €62, and none of the exceptions under [HRS §) €62- 18(4) apply to protect the state, au worker’ compen fed upon [the State]’s conduct in handling the the reasons given for Seared articipation in the , the court concludes that the [Statel unsesconably reivsed te consent to the proposed settlenent agreenent The court ruled that, based on the State’s unreasonable refusal to consent, Buscher had stated clains against the State for negligent infliction of enotional distress, intentional infliction of enotional distress, and intentional harm. Nevertheless, the court ruled that “Buscher has not specifically proven monetary damages nor has she proven any general damages as a result of the enctional distress(,]" and dismissed Buscher’s clains. Additionally, the court dismissed Defendants’ clains against the State, reasoning thet “[w]ith respect to (the State]'s negligent claim handling and its impact on Defendant Boning, there is no duty which gives rise to @ cause of action  + FOR PUBLICATION IN WEST'S HAWAP'I REPORTS AND PACIFIC REPORTER *** for ‘unreasonable failure to consent,’ ‘negligent claim handling{,]‘ [lor ‘negligent failure to consent.‘* Defendants’ third-party complaint against Masui on April 29, 2002, Masui filed a motion to disniss Defendants’ third-party complaint against him. Maevi"s motion was granted on August §, 2002 after a June 10, 2002 hearing. Judgnent was entered in favor of Masui by order filed Novenber 7, 2002. 7, Pefendants’ motion to enforce the settlement on August $, 2002, Defendants filed a motion to enforce the settlement agreement, to order the State to consent to the settlenent agreement, and for relief from the February 11, 200: findings of fact, conclusions of lex, and order, After a hearing on October 7, 2002, the circuit court denied the motion on october 24, 2002. 8. Appeal, final judgment, and taxation of costs on March 31, 2003, Defendants filed @ notice of appeal. on April 3, 2003, Buscher filed @ notice of cross-appeal. on Septenber 16, 2003, we filed an order dismissing the appeal and cross-appeal, noting that the orders and uncertified judgments were not reduced to a single jucgnent resolving all claims and parties as required by HCP Rule 58 and Jenkins v. Cades Schutte  FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** Plening 6 Wricht, 7€ Hewai'l 115, 119-20, 869 P.2d 1334, 1338-39 (ag98). on Noverber 19, 2003, Euscher filed a bill of costs in the circuit court, and on Decenber 1, 2003, Defendants filed objections thereto. On October 18, 2004, Buscher filed an amended bill of costs, and on October 25, 2004, Defendants again filed objections therete. On October 25, 2004, Buscher filed 2 motion for taxation of costs. Defendants and the State each filed memoranda in opposition to Buscher’s motion on Novenber 10 and 12, 2004, respectively, A hearing was held on Novenber 29, 2004. on March 18, 2008, final judgment was entered disposing of a11 clains and parties in the case. Defendants filed their notice of appeal on April 12, 2005. The circuit court granted Buscher's October 25, 2004 motion for taxation of costs on June 1, 2008. 11, STANDARDS OF REVIEW RCP Rule 60 Motion to Set Aside Stipulation to Dismiss With Exsiudice “An appellate court reviews a circuit court's determination of an BRCP Rule 60 motion for an abuse of discretion.” Amantiad v. Odum, 90 Hawai'i 152, 158, 977 P.2d 160, 166 (1999) (citations mitted). “[A]n abuse of discretion cccurs where the trial court has clearly exceeded the bounds of ‘++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** reason or disregarded rules cr principles of law or practice te the substantial detriment of a party litigant.” Office of Hawaiian Affaire v. State, 110 Hawe'{ 336, 361, 193 P.3¢ 767, 780 (2006) (quoting Ranger Ins. Co. v. Hinshaw, 103 Hawai'i 26, 30, 79 P.3d 118, 123 (2003)). ion force Settlement Aoreenent “A trial court's determination regarding the enforceability of 2 settlement agreement is @ conclusion of law reviewsble de nove.” Assocs. Fin, Serve. sai Milo, 87 Hewai'i 12, 28, 960 P.26 1219, 1228 (1998) (citation onitted). c. Interpretation of statutory interpretation is “a question of law reviewable de novo.” State v. Levi, 102 Hawai'i 282, 265, 75 P.3d 1173, 2176 (2003) (quoting State v. Arcee, 64 Hawai'i 1, 10, 928 P.2d 843, 852 (1996)}. “When interpreting rules promulgated by the court, principles of statutory construction apply.” Kewamata Farms, Inc, v. United Aori Prods,, 86 Hawai"i 214, 255, 948 P.2d 1055, 1096 (1997) (quoting State v, Baron, 80 Hawai'i 107, 113, 905 P.2d 623, 619 (1995). Db. Duty “the existence of duty owed by the defendant to the plaintiff , . . is entirely a question of law.” Knodie v  +2 FOR PUBLICATION I} 'S HAWAI'I REPORTS AND PACIFIC REPORTER * Waikiki Gateway Hotel, Inc., 69 Haw. 376, 385, 742 P.2d 377, 363 (1987) (citations omitted). Motion to Dismiss atria} court's ruling on # motion to dismiss is yevieved se nove. srenner ¥, City ¢ County of sonsiuly, 96 hawaii 136, 136, 28 F-3d 350, 394 (pp. 2001). The court must sccest plaintsef"e aliegstione ae true anc view then sn the Light most favorable to the pisintsté; dicnseesl se proper only if Ire beyond doubt that the plaintiff fen prove no set of fects in fuppert of his or her clair t would entitie hin of her to relief.” Dunles v. baspen, Hiewai's 26, 32, $24 P26 19€, 200 (1996), overruled en c“Wawas'i, “162°Hewas $2, 105-02, 13 P38 46, D560 (200s) (citations omitted) . however, "emotion seeking dismiteal cf a complaint te transfcined' ite ¢ hemes Rulee of Civil Frocedure (ANCE) Role £6 motion for summary Judgment when the circuit court Consider matters cuteide the pleadings. Al ¥. AU, 63 Haw Hos 212, Bee 26°95, “Soe Tbe) Wong v. Cavetanc, 112 Hawai'i 462, 476, 143 P.3d 2, 18 (2006). FB p for Summary Judon Me review the circuit court's grant or cenisl of guneary sudgnent de nave. Mavall Grease “ution v. veka, Se waned 213, 201, 1 Pe a 4 for granting © notion for summary [Slunmary judgment is appropriate if the pleadings, depositions, answers to interrogatories, sre Denitesone cn file, together with the afficavste, if any, show that there is no genuine issue es to any rial fact and that the soving party is entitled to Susgnent 2s a aster of lew. A fact ie material if roof of that fact would have the effect of tetablishing or refuting one of the essential elenents of @ cause of action or defense assertes by the parties. The evidence must be viewed in the 1ight est favorable to the non-noving party. Jn othe: Words, we must view all of the evidence and th inferences draw therefrom in the Light nest: favorable to the Party cpposing the notion. Id, (citations and internal quotation marke onitted) . con v. City an a 98 Hawai'i 233, 26 Frag se8, #8060 (2002) (eecone alteration in eriginal). 5, 4 x *#* FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER * Kau v, City & County of Honolulu, 104 Hawai'i 468, 473-74, 92 P.3d 477, 482-83 (2004). G. Taxation of Costs “the avard of a taxable cost is within the discretion of the [circuit] court and will not be disturbed absent a clear abuse of discretion.” Hong v. Takeuchi, 68 Hawai'i 46, $2, 961 P.26 611, 617 (1998) (internal quotation marks end citation omitted). TIT. DISCUSSION Euscher’s Motion to Set Aside the Stipulation to Diemis: Defendants first allege that the circuit court abused its discretion in setting aside the stipuletion to dismiss with prejudice Civil No. $7-237K. Buscher responds that the court did not abuse ite discretion because pursuant to HAS § 386-8, neither the settlenent nor the stipulation was valid without the State's written consent. We agree with Buscher. 1. The settlement agreement was not valid pursuant to the plain meaning of HRS § 386-8. HRS § 386-8 states, in relevant part, that “[nJo release or settlement of any claim or action under this section is valid without the written consent of both employer and employee.” This plain and unambiguous language required thé State to consent in writing to validate the settlement between  FOR PUBLICATION IN WESTS HAWAI'I REPORTS AND PACIFIC REPORTER *** Buscher and 5 ing. See Shimabuku v. Montoonery Elevator Co., 79 Hawai'i 382, 357, 903 P.2d 48, $3 (1995) ("[U]nder the clear lahguage of HRS § 386-8, an injured employee, who has previously received workers’ compensation benefits, may not dismiss a claim against @ third-party tortfeascr without written consent of the employer."). The circuit court correctly found, and Defendants agree, that the State did not consent in writing.? Rather, ite october 18, 1999 letter proposed an alternative “settlement,” with which Boning did not agree, whereby the State purported to reserve its right to sue Boning. Therefore, the State's Coteber 15, 1999 letter did not constitute written consent to the settlement as required by HAS § 386-8, and the settlement was not valia. 2. The cirevit court did not abuse ite discretion in setting aside the stipulation. Defendants contend, however, that the stipulation to dismiss with prejudice could not be set aside because: (1) it was improper for the trial court to allow Buscher to make a motion in an independent action after the initial case was dismissed with prejudice; (2) Buscher did not have “clean hands” ° ar de Buscher's position that the State's Ceteber 25, 1999 letter constituted valid written consent Fursuant to HRS € 366-8. In Buscher’s view, S's 306-8 only requires that the employer consent to the settlement agreenent? st oes no! i oyer agree to release si] claine ‘Boscher, however, dia not cross ngly, this issue ie  (CIFIC REPORTER because she breached the settlenent agreenent; (3) none of the reasons enunerated in HRCP Rule 60(b) existed to support setting aside the dismissal of Civil No. $7-237K; (4) Buscher’s motion to set aside the dismissel was untinely and she did not exercise due diligence insemuch ae two years passed between the dismissel of Civil No. 97-237K and her motion: and (5) Buscher did not show that she wee “injured and that circumstances beyond . . . her control prevented timely action te protect [her] interest” as required by Lehman v. United States, 154 F.3d 1010 (9th Cir. 1998). These contentions are unavailing. In Shimabuky v. Montacnery Elevator Cox, we addressed a similar situation invelving en enployee’s workers’ compensation and third-party claims. Therein, the plaintiffs, the injured enployee and his wife, stipulated with the defendants to dismiss all clains and settled their personal injury and loss of consortium clains against the defendants without the consent of the injured employee's employer. 79 Hawai'i at 354, 903 P.2d at 50, We held, purevant to HRS § 386-8, that without the employer's consent, the stipulation to dismiss with prejudice was invalid. Id. at 358, 903 P.2d at Likewise, the stipulation to dismiss in the instant case was invalid because the State did not consent thereto. Accordingly, the circuit court did not abuse its discretion in setting aside the stipulation. s  WEST'S HAWAT FOR PUBLICATION while Shimsbuky is dispositive on this issue, we will proceed to address Defendants’ specific arguments. HRCP Rule 60(b) provides in relevant part: fon motion ane upon svch tems as are Just, the court say relieve party or party's legal reprerentasive fron @ final judgnent, crder, or proceeding for the following Feasone () the judgnent. hes been satisfieg, Felessed, Or diecharged, ors prior judgnent upon which it is besee nas been reverses or Stherwise vacates, cr it ie no Longer equitable that the Judgnent should have prospective application; or (€) any ether season sustifvine relief trom the cperation of she iudanent: The fetion shell be made Sithin © reasonable tines). this rule dees net limit ‘the power'of a court to entertain an inderendent ection to Felieve s party from 2 judgnent, order, er prececaing (Emphases sdded.) According te the plain language of the rule, @ court can “entertain an independent action te relieve a party fron @ judgment, order, or proceeding... .” As such, Defendants’ first contention is without merit. With respect to Defendants’ second contention, Buscher could net have breached the settlenent agreement because, 3s discussed in Section II.A.1, supra, there was no velid settlenent agreenent to breach.‘ Defendants’ third assertion that none of the reasons enunerated in HRCP Rule 60(b) existed to support setting acide the dismissal of Civil No. 97-237K is also without nerit. According to HRCP Rule 60(b), “the court may relieve a party « authough Sefendents scnit thet the State oid not consent to the settienent, Defendants contend that the settienent agreement was stil) valié and enfercéatle as between Euscher and Boning. Me disagree, os discussed in Seetion 131.8, dnixa 20  ++ FOR PUBLICATION IN WEST'S HAWATI REPORTS AND PACIFIC REPORTER. « from 2 final judgment, order, or proceeding for... (6) anyother reason justifying relief from the operation of the judgnent." The Intermediate Court of Appeals (ICA) has stated that “Rule 60(b) (é) empowers the court in its discretion to vacate @ judgment whenever that action is appropriate to accomplish justice.” Inre Hane Ranch Co. Ltda, 3 Hew. App. 141, 147, 642 P.26 938, 942 (1982). The fact that the settlement, upon which the stipulation to disnise was based, was not valid constitutes an appropriate reason justifying relief, and the circuit court did net abuse its discretion in so ruling. Defendants’ fourth contention that Buscher did not exercise due diligence and that her motion was untimely, is also vnaveiling. HRCP Rule 60(b) (6) requires that the motion be made “within @ reasonable time|.)” After the dismissal of Civil No. 97-237K, Buscher and Boning both attempted to get the State's consent and argued their respective positions regarding the effect of the State’s October 15, 1999 letter. Based on the letters exchanged between the parties’ attorneys, it appears that the parties realized that they had come to an impasse in approximately Novenber 1999. One month later, Buscher filed the instant lawsuit. Buscher filed her motion to set aside the stipulation approximately one and one-half years later. Although ultimately, nearly two years elapsed between the dismissal of  FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** Civil No. 97-237K and Buscher’s motion to set aside the Gisnissal, based on the circumstances of this case, it cannot be Saié that the circuit court's ruling that such time period was reasonable clearly exceeded the bounds of reason to Defendants’ substantial detrinent.* Finally, in addition to the fact that this court is not bound by Ninth Circuit precedent, Defendants’ citation to Lehnan is unavailing. First, Defendants contend that Euscher was not injured by the dismissal of Civil No. 97-237K. Contrarily, inasmuch as the settlement agreenent was not valid, if the circuit court had not set aside the dismissal of Civil No. 97- 237K, Buscher would have recovered nothing fron Defendants, who aintained that they did not have to pay the $125,000.00 settlement consideration until Buscher procured the State's consent to the settlement agreenent as required by HRS § 386-8. Second, Defendants contend that Buscher did not show that * Detendante’ reliance on Billingham Inv, Com. ¥, Kunio Yokovans Tevet, @ Saw. Ape. 226, 757 P.2d 316 (1890), and BAM" 7 Hoenata, 77 aol ed, 663 7.20 €© (2994), 4p unavesiing. Uniske the Exstent core, Dillinotam ceale with ¢ moticn for relief from Judgnent based on mcr fue 6018) (1), which, by its terme, must be filed within one year after the judgeent, order, oF proceeding wee entered of taken. Here, Buscher"s ‘Snot request relief Deced on HRCP Rule 6016) (1), (3), atl of Discher’ eine ‘ise distingussheble from the instant case Because more eee ane cne-hel! years clapeea between the entry cf the Gismiseal order ane the tine vyehara filed hie WReP Rule €0 motion. 77 Hawsi's at 148, 862 Prag at 10. Moreover, unlike in this case, the circus roled that such @ tine Selay wee ot reasonable; we affirmec, concluding that the Court had not abused ite discretion in so ruling. 1d." then  ++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER. circumstances beyond her control prevented timely action to protect her interests because, according to Defendants, it was solely Euscher’s fault that she failed to get the State's consent, thus thwarting consunmation of the settiement. To the contrary, both parties attempted and failed to obtain the state's consent to their settlement agreement. The fact that the state unreasonably withheld its consent, a finding not challenged as a point of error on appeal, was not within Buscher’s control. Based on the extraordinary circumstances in this case, which ultimately led to the invalidity of the settlement and ipulation, it is clear that Defendants did not carry their burden of establishing that the circuit court abused its discretion in setting aside the stipulation to dismiss. See 1 162, 80 P.3d 974, 8 Ditto v. McCurdy, 103 Hawai'i 1 3 (2003) ("The burden of establishing abuse of discretion is on the appellant, and a strong showing is required to establish it.” (oueting Lepere v. United Pub, Workers, Local 646, 77 Hawai'i 471, 474, 887 P.2d 1029, 1032 (1995).)). The Circuit Court Did Not Err in Refusing to Enforce the oT ‘Rareenent. Defendants also contend that the circuit court erred in refusing to enforce the settlement agreement. Because, as cussed in Section I11.A.1, supra, the settlement agreement was not valid pursuant to HRS § 386-8, the circuit court did not err  '1 REPORTS AND PACIFIC REPORTER FOR PUBLICATION IN WEST'S HAW: Nevertheless, Defendants contend that in refusing to enforce although the State did not consent to the settienent, the settlenent agreenent was still valid and enforceable as between Buscher and Boning. We disagree. Defendants point to language in Buscher’s complaint in which she adnitted that there was @ settlement agreement between Boning and herself, arguing that such admissions are binding on Buscher. Even assuming, axeuendo, tht Buscher believed the settlement agreement was valid, this does not change the fact thet HRS § 386-8 requires the State’s consent without which there can be no valid settlement agreement. The agreenent between Buscher and Boning cannet be read as enything other than 2 proposed settlement agreement, which never reached fruition because of the State's failure to consent. Accordingly, the circuit court did not err in denying Defendants’ motion to enforce the settlement aoreenent c. court Did Ni s cross: ‘State: As stated in Section I.B.$, supra, the circuit court found that “(The State]’s negligent claim handling, i.e.(,) its wrongful refusal to consent to Plaintiff Buscher’s settlement agreement with Defendant Boning, was @ legal cause of Plaintiff Euscher’s enctional distress.” The court therefore concluded that Buscher stated 2 claim for negligent infliction of encticnal  WEST'S HAWAT FOR PUBLICATION \D PACIFIC REPORTER distress, intentional infliction of emotional distress, and intentional harm. Defendants aver that because the court found the foregoing, the court erred in also finding that Defendants did not have clains against the Stete for “unreasonable failure to consent” and “negligent clains handling.” the State replies that the circuit court correctly rejected the cross-claim against it because: (1) the plain statutory language of HRS § 386-8 does not mandate that consent shell not be unreescnsbly withheld: (2) the legislative history of the stetute indicates an intent to protect the interests of the employer and the employee, but not the tortfeasor: (3) the statutes and cases from cther jurisdictions upon which Defendants rely sre irrelevant and distinguishable; (4) common sense requires affirmance; (5) the state hes epecificslly not waived its immunity for the clains asserted: and (6) the State's conditional consent to the settlement agreement was reasonable. 1, The State Tort Liability Act As a threshold matter, we first address the state's contention that it ie immune from suit based on the State Tort Liability Act (STLA), HRS chapter 622. Generally, “la) sovereign [s]tate 4s immune from suit for money damages, except where there hes been @ ‘clear relinguishment’ £ immunity and the [s]tate has nted to be sued.” Bush con Watson, €1 Hawai'i 474, 461, 916  ‘OR PUBLICATION IN WEST'S HAWAF REPORTS AND PACIFIC REPORTER *** P.2¢ 1130, 1137 (1996) (quoting Bele Defense Fund v. Paty, 73 Hew. 578, 605, 837 P.2d 1247, 1265 (1992)) (internal quotation marks omitted). The STLA provides thet “[t]he State hereby waives its inmunity for liebility for the torts of its employees and shell be liable in the same manner and to the same extent as BRS § 662-2 a privete individual under like cizcunstences (1993). Notwithstanding this general waiver, the STLA contains numerous exceptions for which the State retains its sovereign immunity. Here, the State contends that Defendants’ cross-claim falle within HRS § 6€2-15(4) (1993), which states an exception m arising out of . . . interference with contract for “[alny c: rights[.]"* Assuming, without deciding, that a claim for interference with prospective business advantage’ or prospective © we noted Sn i sue) Core v. 2 Andersen that the requisite elenente ef intentionol oF tortious interte; contractusl relations ere: (2) & contract between the plaintiff and e thiré partys (2) the Gefencant’s knowledge of the contract; (3) the Gefendant’s intentions) inducenent of the third perty te Breach the contract; |) tne ansence of justification on the Gefendant’s part) (5) the subsequent breach of the contract by the third party; and (6) denages te the plaintssr. 223 Hawad's 261, 267 n.17, 182 P.34 752, 148 n.17 (2007) (ettation® omitted) in Kahala Reval Corps, we noted that the following elenents constitute the tert cf intentional or torticus interference with prospective Easiness or econenic advantage: (2) the existence of a valid business relationenip or prospective advantage or expectancy sufficiently definite, Specific, ano capable of acceptance in the sense that there iba reasonable probability of it maturing into a future econcnie benefit to the plaintiff; (2) knowledge of the Teont inved. 2 ++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** contractual relations! fells within the aforementioned exception,’ we nevertheless disagree that Defendants’ claims for “unreasonable failure to consent” and “negligent cleims handling” (continued) Telaticnehip, advantege, or expectancy by the defendant; (3) ecpurpeseful intent te interfere mith the relationship, Scvartage, or cxpestency:, {¢] legal ceuestaon between the Get of interference ond the impairment of the reletsonship, Sevantage, or expectency: ane (5) actual damages: de et 267 n.28, 181 F.3d at 748 n.18 (citation omittes) + Gn Kutcher v, Zimmerman, the 1CA noted thet “the tort of interference with prospective contvactual relatiche is 2 sub-epecies of the erosaer tort of Yherierence with prospective econcnie advantage. 67 Newel 364, 408 n.25, S87 F.26 1076, 1087 5.25 (app. 1888). The ICA then held thet @ pleintift Sileging the tort of interference with prospective contractual relations most flese one prove the following: (2) # prospective contractual relationship existed between the pisintiff ano s thire party) (2) the Gefencant knew of thie reletionshsps (3) the defendant intentionally interferes with the plaintiff's prospective contract (4) the defencant acted without proper justifications (§) the SCiencant's interterence caused the third party to fail te ESnsunnate the prospective contract with the plaintiff; and (El the cetensant's interference causes danages to the plaints Ad, at 406, 108 (footnotes emitted) « + the 3CA, in Hutches, recognized that “the interests protected by [the tort of interference with existing contractual relaticns] and by the tort of [itentionel interference with prespective economic edventage have been viewed as relatea{.J” 67 Hawal't 294, 405.35, 957 F.26 2076, 2087 1.15 (app. {Se6). “west Jurisdictions appear to agree that the tort of interference with prospective economic ecventage falls within the “interference with contract Eights" exception to the waiver of sovereign immunity. See, e.g., Art tecel-U,fhe Inc. 2, Unites States, 755 Fezd i151, 1158 (D-C. cir. 1885) Tconpiling caves ond Pelding that the plaintiff's “clains for interference wietterocpective sovantage are barred s¢ clains arising cut ef interference vith contract rights”); Dunres v United States, 26¢ F.2d 140, 145-44 (30 Cizri(eoneluaing that the tort of interference with prospective advantage was Stinpay en extension” of tne tort cf interference with contractual relations and hos thus snclogable wehin the exception to the tert claime ect) (citation SEEMSG) "Sere ceniec, 361 Us. £22 (1988). But see Colersdo Ins, Group, nes. Gnited States, 216 F, Supp. 767, 793 (B. Core. 1963) CIA] mere Lifigetion of interference with proepective sovantage should not be construed fc neceesacily fall within the sestutery exception pertaining to interference Wit’ Conteactuel rights.”  ++ FOR PUBLICATION IN WEST'S HAWAT REPORTS AND PACIFIC REPORTER“ constituted such an interference claim. It cannot be said that the State improperly interfered with the alleged settlement agreement because, pursuant to HRS § 386-8, the State was = necessary party to such agreement. See Hell v. Burcer King Corp., 912 F. Supp. 1509, 1837 (8.0. Fla. 1995) (holding that because any prospective sale cf the restaurant required the defendant's consent, defendant's refusal to consent did not give rise to a claim for tortious interference). Cf. Ethyl Corp, v. Balter, 386 Sc. 2d 1220, 1224 (Fla. App. 1980) (“[A] cause of action for interference does nct exist against one who is himself @ party to the contract allegedly interfered with"): Uptoun Heiohts Assocs, Ltd, P’ship v, Seafirst Comp,, 691 F.2d 639, 647 (Or. 1995) (holding that a party to a contract could not be Mable in tort for conduct which the party was entitled to do under the contract, even if party has malevolent purpose): Fort vancouv ced 147 F.2d $47, $54 (9th Cir. 1984) (concluding that a “tort{] committed by persons sustaining contract relations” does not constitute the tort of interference with contract rights) (citing Nicholson v. United States, 177 F.2d 768, 769 (Sth Cir. 1949)). We therefore held that the interference with contract rights exception does not apply to the instent case. #* FOR PUBLICATION IN Wi (T'S HAWAT'T REPORTS AND PACIFIC REPORTER The State does not owe Defendants an actionable duty. Defendants next challenge the circuit court’s conclusion that “[w]ith respect to [the State]’s negligent claim handling and its impact on Defendant Boning, there is no duty which gives rise to a cause of action for ‘unreasonable failure to consent,’ ‘negligent claim handling[,]’ [Jor ‘negligent failure to consent.’” The State responds that the circuit court correctly determined that it does not owe an actionable duty to Defendants. We agree with the State. We have often stated: fon upon one fer the benefit of the other =~ or, nore + shethes fect of the plaintiff which ntities to legal protection at the ie entirely a goestion of Lew Knodle, 69 Haw. at 385, 742 P.2¢ at 383 (internal quotation signals, ellipsis, and citations omitted). The state correctly notes that the plain language of HRS § 386-8, supra note 2, does not explicitly mandate thet an employer has a duty not to unreasonably withhold consent. However, this is not dispositive of whether @ duty exists here. Rather, in considering whether to inpose @ duty on a defendant (here, the State) to be owed to @ plaintsff (here, Defendants) we have stated generally that: 2  ‘OR PUBLICN’ IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER *** (W)e recognize that cuty se not escrosanct in itself, put only an expression of the sun total of these considerations Of Belicy which lead the law te say that the particul Blalncitt is eneities to protection. legal duties ar severable facts of noture, but merely conclusory expressions that, in cases of particular type, lability should be inpesed for danage dene. In determining wh Srinct @ duty is owes, we must weigh the consideracior Policy which favor the [plaintiffe’] recovery against those Wich fever uniting the (defendante’] Lisbiisty- The Goestion cf whether che ose # duty to ancther must be Secided ch e cate-by-case Baris, Rowever, we are relsctent fo inpose a new coty upon menbers of cur society withost ery logicel, sound, and compelling reasons taking inte ceneigerstion the octal and funan relaticnenipe ef ovr society. Blaix ving, 98 Howes‘ 247, 259-60, 21 F.3d 452, 464-€5 (2001) (citations omitted). b. Caselaw and statutes Defendants cite to various caselaw and statutes, mainly from other jurisdictions, to support their contention that we should interpret HRS § 386-E as imposing @ duty on the employer, in favor of the tortfeasor, not to unreasonably withheld consent to the settlenent agreement. The State contends that the statutes and cases upon which Defendants rely are irrelevant and distinguishable. Again, we agree with the State. cate The only Hawai'i case cited by Defendants ss Pacific Rent-All, Inc., in which we “[wleigh{ed) the policy considerations underlying an insurer's right of subrogation against those considerations supporting the finality of settlement,” and held that “in the context of fire and casualty insurance,” @ settlement egreement between an insured and @  +++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER tortfeaccr does net bar an insurer's subrogation action. 90 hawai'i 315, 332, 978 P.26 753, 770 (1999). As Pacific Rent-A: makes clear, HRS § 386-8 supports our holding in that case because it statutorily preserves an employer's subrogation rights from third-party settlement. See id. It is unclear, however, how that case supports Defendants’ position that an enployer/insurer has 9 duty not to vnresscnably refuse to consent to a settlement agreement.%° Rather, the case seems to support the State's position insofar as it enphasizes that an employer‘s subrogation interest outweighs the tortfeasor’s interest in reaching @ settlement with an employee. Defendants alse rely on Eckhardt v. Village Inn Vicorpl, 626 P.2d BSS (Cole. 1992), in which the Colorado Supreme Court held that an insurance carrier's refusal to approve a settlenent between an injured employee and third-party tortfeasor must be reasonable. In that case, Eckhardt, the injured employee, received workers’ compensation benefits from his employer, via the insurance carrier, after being injured in a truck accident. Id. at @87. Eckhardt subsequently sued the tortfeasor. Id. Realizing that a recovery in his third-party © To the extent that Defendants are arguing thet Paci{ic Rent-Ai sopperts their contention chat the settienent agreenent shosle be enforceable af Between Buscher anc Bening, such argunent is without merit for the reascns Set forth in Section 111.8, gunzg, 2nd Deccuse Zacific Rent-All wae decices Sin the context of nd Casualty insurence,” and not HRS § 266-6.  PUBLICATION IN WEST'S HA\ REPORTS AND PACIFIC REPORTER suit was unlikely, Eckhardt entered into settlement negotiations, and the tortfeasor offered $12,500.00. Id, Eckharét sought the carrier's approval, pursuant to @ Colorado statute requiring the carrier's consent prior to settlement when the amount to be recovered is less then the total compensation owed by the carrier. Id, The carrier offered to approve a settlement in which it would receive $7,000.00 and @ complete release from its obligation to pay Eckhardt any future benefits related to his claim. Id. After Eckherdt refused the offer, the carrier refused to consent to any settlement not sufficient te indemnify fully the carrier for its subrogated interest. Id, at 857-58. Eckhardt nevertheless settled with the tortfeasor for $12,500.00. Id, at €56. The Colorado Court of Appeals affirmed the administrative lew judge's conclusion that Eckhardt had forfeited future benefits by settling the suit against the tortfeasor without the carrier’s consent. Id. The Colorado Supreme Court granted certiorari and reversed, holding that “an insurance carrier, which has been properly notified about a suit brought in good faith by the injured enployee, has an ebligation to act reasonably when an injured employee requests approval of a settlement in such a suit.” Jd, The court reasoned that imposing ne duty on the carrier te act reascnsbly when retve: tous cettlenent offer would only work to Gininsen the nomber of actions initiated by employers Torttessors. The result would be Contrary to the intent ona purposes of the Act and £0 22 ‘+++ FOR PUBLICATION IN WEST'S HAWAT] REPORTS AND PACIFIC REPORTER *** employers’ best interests because their carriers will net Seteive eny reinbursenent from the third parties Fesponsibie. Id ‘The key fact that distinguishes Eckhardt from the instant case ig that in that case, unlike here, the injured employee, not the tortfeasor, brought suit against the employer/carrier. In other words, Eckhardt stands for the proposition thet the insurer owes a duty to the emplovee not to unreasonably withhold consent. The Eckhardt Court's reasoning, as set forth above, indicates that its holding promoted the public policy interest of not discouraging employees from suing tortfessors, thereby else ensuring that employers receive reinbursemente from reeponsible tortfeasors. The court did not mention sny public pelicy supporting the imposition of @ duty en the enployer owed to the tortfessor. Therefore, Eckhardt does not support Defendants’ position. Defendants elso direct this court to several states that permit an employee to seek court approval of the settlement in lieu of obtaining the consent of the employer or carrier,” and argue that because Hewai‘i does not have such a statute, we befendants cite to the states of Arkansas, Mel anc tiew York, Tisted in 6 Arthur Larson & Lex K. Larse! ‘Slupensaticn’ Law § 116.07 (5) (2000), se states that permit on enpleyee to Geurt approval of the cettienent in' lieu of obtaining the consent of the Gnployer or insurer. achuserts, Nebrasks,  +++ FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER should fashion a remedy for tortfeasors whose settlements ere “held hostage” by unreasonable employers or insurers. We look to HRS § 386-8 and its legislative history for guidance in determining whether tortfeasors should be protected by imposing a duty on employers, as Defendants contend. c. Lesislative history The State aptly points out that the legislative history of HRS § 386-8 indicates thet the statute's purpose is to protect the interests of the employee end the employer. As stated in Shimabuky v. Montoomery Elevator Co.: HRS § 386-8 originated in 1915 a6 of the Laue of the Territory of Hawal't. Rowever, the Siepositive paregraph of HAS § 3EE-E in the instant cose, nich requires consent of Both employer and enployee before Gy “release” or “settlenent” is valle, wes net adged until $551 hen the House Leber Consittes arcnded Senate fil) 1 (6.8. 416) to sneiude tne paragraph. 1961 Maw. Sess. 1. Act 154, § 4409 et 225. The paragraph proposed by the House Labor Connittee provices in Felevant pari section § of Act 221 No release or settlement of any claim or action under this section is valid without the written consent of both enployer and employee. The entire amount of such settlenent ie aubject to the employer's fli cleim for Feinborsenent fer hse expensitures fer benefice onder this chapter and his expenses and costs of acticn In anending 5.8. 18, the House Leber Committee notes: H.D.i anends 5.0.1 in accordance with suggestions of the Department cf Labor ond the Inturance Industry £0 that the wording . . » provides # more equitable Ealance ae betheen the Fights of the employer and the employee. ise. Stand. Conn. Rep. No. 722, in 1981 House Journal, at 595. Thus, the legisisture enacted HRS § 386-8 to give the injured employee # right to cleim workere’ compensation benefits and to proceed against s chize-party tortfeascr without waiving his of her righte to either. Wee, Stand 'ST’S HAWA REPORTS AND PACIFIC REPORTER *** FOR PUBLICATION IN W1 Comm. Rep. No. 722, in 1961 House Journal, at $79. However, because the eaployér's right to reimbursement is often Gepencent on the injured exployee’s actions, the legislature Sspotes 8 provicion regiring the written consent of both expleyer end enployee Before eny release of settlement if value fefore, me mst construe the fourth paregreph of HRS § 306-8 to give foll effect to the intent of the legislature, hich sought to protect the Fights of both enployees and employers: 79 Hawai'i at 357-58, 903 F.2d at As Defendants admit in their reply brief to the State, “[the consent requirement of [HRS] § 386-8 is supposed to protect the employer and employee.” Indeed, it is clear that our legislature intended the statute to protect the employer’s right to reimbursement and the employee's right to claim workers’ compensation benefits and to file suit against the tortfeasor. d. Conclusion Stated simply, there is nothing in cur caselaw or in the legislative history of HRS § 366-€ to support the imposition of a duty on employers in favor of tortfeasors regarding consent tos third-party settlement. Moreover, we do not believe it to be prudent public policy to impose on employers such an actionable duty. Accordingly, the circuit court did not err in ruling that the State did not owe Defendants an actionable duty ctionable Becevte ue hold that the Stete does not owe Defendants an 1 consent coty in this cate, we need not discues whether the Staters conaitic fo the proposed scttlenent agreenent wes Teascnable. Furthernore, as Detensents pesnt cut, the circuit court's ruling that the State's refusal to Consent was unressonable with respect co Fuscher stands unchallenged because the Stave aid not appeal this ruling, Ea  ++ FOR PUBLICATION IN WEST'S HAWAI' REPORTS AND PACIFIC REPORTER, and thus, did not err in dismissing Defendants’ cross-claim against the State. Dd. The ci xt Did Not Err in Dismissine Defendants’ Third-Party Claim Aoainst Masui. Defendants also aver that the circuit court erred in disniesing Defendants’ third-party claim against Masui, which alleged “negligent handling of 2 settlement between his client and (Defendants) resulting in damages to [Defendants] .” Specifically, Defendants contend: (1) Masui’s motion to dismiss was actually @ motion for sunmary judgment and should have been treated as such; and (2) (a) Mesui owed Defendants = duty of care pursuant to Blair v. Ing, 9 Hewai'i 247, 21 P.3é 452 (2001), and (b) Masui’ failure to obtain the State’s consent breached this Guty resulting in harm to Defendants. Regardless of whether Masui's motion is reviewed as 2 motion to dismiss or @ notion for summary judgment, based on the following, Defendants’ argunent that Masui owed Defendants an actionable duty is without merit as a matter of lew, and the circuit court did not err in dismissing Defendants’ third-party claim against Masui. As the ICA stated in Myers v, Cohen, “creation of a Guty in favor of an adversary of the attorney's client would create an unacceptable conflict of interest. Not only would the adversary’s interests interfere with the client’s interests, the attorney’s justifiable concern with being sued for negligence 3  |AWAT'T REPORTS AN! \CIFIC REPORTER would detrimentally interfere with the attorney-client relationship.” 5 Haw. App. 232, 246, 687 P.2d 6, 16 (1984) (quoting Friedman v, Dozore, 312 N.W.26 585, 591 (Mich. 1961)), rev'd on other cfounds, €7 Haw. 389, 688 P.2d 1145 (1984). Accord Rashid v. Albricht, 618 F. Supp. 1354, 1358 (D. Nev. 1993) ("while the Court expects all counsel to conform with the ethical guidelines, imposing an affirmative duty of care to an adverse party in litigation would create an unaccepteble conflict of interest.”); Clark v. Druckwan, 624 S.£.2d 864, 869 (W. Va. 2005) {collecting cases and stating that “courts which have addressed the issue have uniformly found that an attorney does not have a duty to @ third party, including an opposing party, the breach of which would subject the attorney to liability”); Garcia v. Rodev, Dickason, Sloan. Akin & Robb, P.A., 750 P.2d 116, 122 (N.M, 1988) (holding that attorney’s actions would not Norton MaHines, 49 Cal. App. 3d 917, 123 Cal. Rptr. 237 (1975) (stating give rise to cause of action under theory of negligence): that the plaintiff did not have cause of action against adverse party's attorneys for simple negligence). Nevertheless, Defendants cite Blair for the proposition that “there can be a duty of care between an attorney and a non- client either in negligence or contract actions.” Blaiz, however, is distinguishable. Blair involved a legal malpractice  s+ FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER action brought by the beneficiaries of @ trust against the attorney whe drafted the trust documents. Therein, we adopted thé test set forth in Lucas v. Hamm, $€ Cal. 24 $83, 15 cal. Rptr. €21, 364 P.2d €8 (1961), also @ malpractice action against an attorney who drafted trust documents, to determine “whether to impose @ duty upon attorneys to nen-client beneficiaries in the ate clannine context.” Blaiz, 98 Hewai'i at 260, 21 P.3d at 465 (enphesis added). Inasmuch as this case clearly dees not zr held that there involve estate planning, the fact that Bl could be @ duty of cere between an attorney and non-client beneficiaries does not support Defendants’ assertion that Masui owed an actionable duty of care to Defendants here. Indeed, as we rade clear in Elaiz, “we emphasize that our holding today does not create @ blanket duty of care to all non-client beneficiaries in every case.” Id, at 261, 21 P.3d at 466. ke therefore hold that Masui did not ewe Defendants an actionable duty in the instant case such that Defendants could assert # claim for relief sounding in negligence against hin, and the circuit court did not err in so ruling." 1% pathough Defendants eppesr to frame their issue cn epreai in terme negligence, they eiso assert at nuserous tines throughout their briefs that fasts misrepresented to Defencants thet he had ostaines the State's consent. Gniise s cloit for negligence, an stterney can be held liable for frevaslen plerepresentation. "See Kanal Roval Corey, 113 Hawaii at 268-69, 151 F.3d at lens stating that it 1s wel perey for fraud); Matsuura 149, 362, 73 P-2¢ 667, 700 (2003) ("Under ++ FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER *** E. Countercleim Agsinst Buscher and Motion for Interpleader and Dismissal As their fifth and sixth points of error, Defendants contend that the circuit court erred 41 (1) dismissing their jer and dismissal “for the reasons stated in motion for interple the Motion for Interpleader and For Dismissal Filed October 12, 2000"; and (2) denying their counterclaim against Busther “for the reasons stated in their Memoranda in Opposition to the motions.” Buscher replies that these points of error should be deemed waived pursuant to HRAP Rule 26(b) (7) because Defendants fail to provide an argument, citations to authorities, statutes, and parts of the record upon which they relied. Inasmuch as Defendants indeed do not have @ corresponding argument section for either their fifth or sixth points of error, and only direct this court to look at previcusly filed memoranda, we deen these points of error waived. See HRAP Rule 26(b) (7) (stating that an opening brief should contain “[t)he argument, containing the contentions of the appellant on the points presented and the reasons therefor, with citetions to the authorities, statutes and (continued) |, » party 1s not inmune from lisbility for civil Garages besed vpon that Lyte fraud engaged in during prior Litigation proceeainge.")? 2 Chuck, 1 Faw, App. 379, 383-84, 620 P.26 733, 736687 (2980) ("Ine rule of That an attorney representing & client say be held personally liable to an aoverse party cr @ chiro person who eustains injury as 2 result of sn attorney's intentional tortious acte ie weil settled.” (Citations omitted.) Betencants, however, concede in thei cpening brief thet "{iJn the instant Cece, snere sre no allegations thet the agreenent Between (Bvecher) ane Defendants wae procures by fraud.” 38  ‘OR PUBLICATION IN WEST'S HAWALT REPORTS AND PACIFIC REPORTER, parts of the record relied on. . . . Points not argued may be deened waived"). If we were to accept Defendants’ previously filed memoranda as Defendants’ argument in support of these points of error, and thus, part of their opening brief, Defendants would be in violation of HRAP Rule 28 (a), which states that “an opening . . . brief shall not exceed 35 pages|.]” Accordingly, Defendants’ fifth and sixth points of error are waived. F. The Cixcuit Court's award of Costs Finally, Defendants contend that the circuit court (1) lacked jurisdiction to enter an order granting Buscher’s motion for taxation of costs, and in the alternative, (2) abused its discretion in granting such costs. 1, The circuit court had jurisdiction to grant Buscher’s motion for costs. RAP Rule 4(2) (3) (2006), entitled “Tine to eppesl affected by post-judgnent motions,” states: If any party files a tinely motion . . . for attorney's fee or coset, the tine for filing the notice of appesl se Eetensed enti 30. cays after entry of an crder disposing of the motion; provided, that the failure £0 dispose of any, notion by order enteved upon the record within 90 days after the cate the noticn wae filed shell constitute a denial of the RotSen. notion to strike Defendante! faret fest Defendants’ fifth ano siach pointe of ctor should be orened watved pursuant to ARAP Rule 26(b) (7). This court, on Geteber 14,7005, grentes Buscher's motion to strike Defencante’ firet opening Brief, but for faslure te comply with HRAP Rule 26(B) (8) % gugcher prevsovely filed opening erief, arguing, amber alia, «0  FOR PUBLICATION IN WEST'S HAWAF' REPORTS AND PACIFIC REPORTER This rule, effective Jenuary 1, 2000, supersedes the line of cases standing for the proposition that the circuit court lacks jurisdiction to evard costs after a notice of appeal is filed. ‘The rule provices that the court has 90 days to dispose of 2 postjudenent motion for costs, regardless of when the notice of is filed. In the instant case, Buscher prematurely filed opp her motion for costs on Octcker 28, 2004, four and one-half months prior to the entry of final judgment on March 15, 2005. Although the rule does not address the situation in which = motion for costs is prematurely filed prior to the entry of final judgment, we will deem such motion filed immediately after the judgment becomes final for the purpose of calculating the 90-day period, As such, the court's June 1, 2008 order granting Buscher's motion for costs is valid, and Defendants’ April 12, 2005 notice of appeal is deened to appeal this disposition. HRAP Rule 4(b) (3). 2, The cixeuit court's avard of costs a. HRCP Rule 6& We first address Buscher’s contention that she is entitled to costs under HRCP Rule 68 (2003), which provides, in relevant part: At any tine more than 10 days before the trisl begine, ny party may serve upon any adverse party an offer of Eettlenent oF an offer to allow juagnent to be taken 2 aither party for the money or property or to the effect specified in the offer, with coste then accrued, vs An  ++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER. offer not accepted shall be ceened withdyenn and evicence Sherect is net scniesible except in s proceeding te Geternine coste, Lf the sudssent finally chteined by the siferse ie not nore Zeversh : s ‘URL Day the costs incurred after the makina of the offer, (Emphasis added.) Buscher filed two purported HACP Rule 68 offere of judgement -- one on January 31, 2001 and one on July 27, 2001 -- both in the amount ef $200,000.00. The judoment entered against Boning after a jury trial was in the amount of $278,000.00. Although this judoment was not more favorable te Eoning than Buscher's offers, Buscher is not entitled to costs under HRCP Rule €8 because her two offers did not constitute valid Rule 68 offers inesmuch as they did not “fully and completely decide the claim or clains toward which the offer(s) Iwere) directed.” Kikuchi v. Brown, 110 Hawai'i 204, 209, 230 P.3é 1068, 1074 (App. 2006) (quoting Ass'n of Apt. owners of Mailes Flue v. Mailes Resort Co., 100 Hawai'i 97, 120, $8 P.3d 608, 691 (2002) (quoting Crown Frops., Inc. v. Fin, Sec. Life Ing. Co., 6 Haw. App. 105, 113, 712 P.2d $04, 520 (1988))). Here, as discussed in Section 17.8, supra, @ settlenent would not have been valid without the State’s consent pursuant to HRS § 286-8. Thus, had Boning accepted Buscher’s purported offer of judgrent, it would not have fully and completely decided the clains toward which the offer was directed because it lacked the State's written consent. As such, Buscher’s offers were not sufficient to qualify as HRCP Rule 68 offers of judgnent. @ ++ FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER *** b. HRCP Rule $4/d) Buscher, however, is entitled to costs under HRCP Rule S4(d), which provides that “costs shall be allowed as of course to the prevailing party unless the court otherwise directs|.)" “costs” are those properly avardable under HRS § 607-9 (1993), which states: ALL actual disbursenente, including bot not limite te, intvactate travel expenses for witnesses expenses for cepesition transeript originals and copies, and cther incidental expences, including cep) Gnerastace long distance telephone charge sworn to by en attorney ora party, anc deenec resscnabie by the court, may be silowed in taxation of corte. We therefore now address each of Defendants’ challenges to the circuit court's award of costs to Buscher. (1) Messenger service: Defendants first challenge the circuit court's award of 1,125.00 for what Buscher labeled “messenger services,” for “redex” and “CitiExprese” charges. Defendants contend that Buscher is not entitled to the award because she failed to provide “any explanation for why express service was necessary or reascnable. Moreover, there was no justification or support provided for why [Buscher] is entitled to this. Messenger service is an expensive luxury which would be unnecessary with proper time managenent and scheduling to avoid the need for express services.” ++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** “Because there is a presumption that the prevedling party may be awarded its costs, the burden of showing that particular cost request is unreasonable is more properly on the adverse party.” Mong, @8 Hawai'i at 53, 961 P.2d at 616. Thus, it was Defendants’ burden to show why the expenses were unreasonable. With respect to messenger services, the ICA in Kikuchi held that such fees are generally not taxable costs. 110 Hawai'i at 212-23, 130 P.3d at 1077-78. As the ICA explained therein, “except in the rare circumstance where the need in particular case is extraordinary in its volume or nature, the cost of this fonction . . . is properly treated as overhead.” Ic. et 213, 130 F.3d at 1078, In this case, Buscher’s attorneys were on C'ahu, while the case was being tried in the third cirevit (Kona Division) on the islend cf Hawai'i. Buscher avers that the costs requested were for delivery of various pleadings to the third circuit court. Buscher provided itemized invoices detailing the Gate and place of delivery, @ description of the documents Gelivered (s.a., motions, menoranda, exhibits, subpoenas, etc.), and the cost of each delivery, Despite having this detailed information, Defendants do net provide any evidence that any specific delivery costs were unnecessary or unreasonable. Thus, while messenger services may generally not constitute @ taxable “  #4 FOR PUBLICATION IN WEST'S HAWAT REPORTS AND PACIFIC REPORTER, cost, it would be reasonable for the circuit court to have allewed @ portion of this cost for the expense of mailing the numerous filings from O'ahu to Hawai'i. See HRS § 607-9 (“ALL actual disbursements, including but not limited to, - . - postage, sworn to by an attorney or a party, and deened reasonable by the court, may be allowed in taxation of costs.”). We further note that the circuit court reduced Buscher’s requested messenger service costs from $2,606.88 to $1,125.00. We therefore held that the circuit court did not abuse its discretion in ewarding Fuscher $1,125.00 of her requested costs. (2) Expert services Defendants next take issue with Buscher’s request for $5,032.74 for “expert services,” correctly stating that expert witness fees are generally not taxable as costs. See Canalez vw Bob/s Appliance Serv, Ctr., Inc., 69 Hawai'i 292, 307, 972 P.26 295, 320 (1999) ("{T]his court has reaffirmed the proposition that expert witness fees are normally not allowed.” (Citations omitted.}}.% However, the court only awarded $352.02 for “expert services,” apparently for Buscher’s request with respect % pathoogh in Canglez we stated that “expert witness fees incurred after the making of an offer of judgment, if deemed reasonable, are taxable in the Court's diseretion se coste agsinet the offeree pursuant to HRCP Rule bet, ]* €9 Hawei't at 308, 972 F.26 at 31, a8 discussed in Section TI1.F.2. Haugy, Buscher's cffere were not sufficient to quelify ae ACP Bule 6€ offers EF jedgnent. Ae such, uncer HRCF Rule 54(d), expert witness fees ere not shiowed “6  2+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER te Micro-Imaging-HI, Inc. (Kone Hespital), which appears to be 8 charge for @ microfilm copy of her nedical record as well as 2 $20.00 “research” charge. This cost, therefore, does not appear to be an expert witness fee. Because Defendants only objected to an evard of expert witness fees and do not specifically object to this cost, the circuit court did not abuse its discretion in awarding it. See fiona, 68 Hawai'i at 53, 961 P.2d at 618 ("Because there is @ presumption that the prevailing party may be awarded its costs, the burden of showing that a particular cost request is unreasonable is more properly on the adverse party."). (2) Travel expenses Fuscher requested $6,904.35 for travel expenses, including airfare, rental car fees, lodging, expenses, and meals. The circuit court evarded her costs in the ancunt of $6,593.04, but did not explain the $311.31 reduction. In support of ner airfare and rental car expenses, Buscher provided travel itineraries detailing the date each cost was incurred, the matter requiring travel (g.g., circuit court hearing re: Motions/Settlenent Conference), airline flight departure and arrival information, copies of airline coupons used with the passenger's name, rental car charges, and credit card charges showing payment of each expense. Despite having this detailed “  OR PUBLICATION IN WEST'S HAWAF'I REPORTS AND PACIFIC REPORTER * information, Defendants do not cbject to any specific travel expense request; their objection, in its entirety, states: There wes no setisfactery explanation for whe incurred these see or specifically what they were for. The cost of ‘Toaging for witnesses wee not auerdea by the t3ii court in the Harking cose and the sppellste court cored, fee Haruine ve Theda, 18) Haw. 376, 989 Pele 766) (2976) Contrary to Defendants’ implication, as stated above, “[blecause 2 presumption thet the prevailing party may be awarded there 4 dts costs, the burden of showing that @ particular cost request is unreasonable is more properly on the adverse party.” Wong, 87 Hawai'i at 53, 985 P.2d at 618 (rejecting non-moving party's argument thet lower court abused its discretion because moving party failed to explain way the costs were necessary). As we held in wong: (Wyhen costs are avardeble to # prevailing party uncer ERCP Kole S419) and s particular taxable costs allowed by featute oF precedent, then actuel eisburcenente for this purpose sre presumptively resscnable. The saverse party he The burden cf challenging the reasonableness of « particule cost request. in the sosence of @ chellenge to ¢ particy Feguert, st ie not an ebuse of discretion for the trial court 10 suara the cost requested as presumptively Feasonabl Id, at 53-54, 961 P.2d at 616-19. With this in mind, we address each of the categories in Buscher’s request for travel expenses. Firet, airfare clearly falls within HRS § 607-9"s “intrastate travel expenses” category, as do expenditures for Mong, 88 Hawai'i at $4, 961 P.26 parking, rental car, and ¢ at 619.  IAWAT'I REPORTS. 25+ FOR PUBLICATIO’ PACIFIC REPORTER, wes on the other hand, “[mJeals are not texable costs. The necessity for eating lunch is severable from and unrelated to the Litigation.” Id. at 54-55, 961 P.2d at 619-20. After a careful review of the record, it appears thet $466.23 of the costs requested were for meals, which are not taxable costs according to Wong. Id, Thus, this amount should be deducted from Buscher’s award. With respect to Buscher’s request for the cost of lodging, we have stated that “[hjotel expenditures are reasonable only if necessary due to the scheduling of court proceedings or Gepositions. Hotel expenditures for the convenience of counsel should not be allowed.” Id, at $4, 961 P.2d at 619. As stated above, Defendants do not challenge @ particular request, but merely cite to Harkins v. Ikeda, for the proposition that hotel lodging for witnesses is not a taxable cost. Defendants, however, do not point to anything in the record indicating that the hotel lodging expense was for witnesses. Defendants also do not argue that the hotel expenditures were otherwi: unnecessary or unreasonable. Thus, it is clear that Defendants fail to show that the circuit court abused its discretion in awarding this cost. See Int'] Bro, of Elec, Workers v. Hawaiian Tel., 68 Haw. 316, 322 n.7, 713 P.2d 943, 950 n.7 (1986) (“Counsel has no right to cast upon the court the burden of searching through @  FOR PUBLICATIO’ WEST's HAW! REPORTS AND PACIFIC REPORTER + voluminous record to find the ground of an ebjection.” (Citation onitted.)). Absent any argument by Defendants objecting te any of puscher’s specific travel expense entries, we conclude that Buscher is entitled to an award of costs for travel expenses in the amount of $6,438.12, which reflects a reduction of $466.23 for the cost of meals. (4) Cour 2 The cirevit court evarded $4,487.96 for court reporter fees, In support of her request, Buscher provided itemized invoices describing the case name, the date of the deposition, the names of the deponent and the court reporter, and the cost of the deposition, Despite having this detailed infornation, pefendants make only @ general cbjection that “there was no explenation or support for why [Buscher] is entitled to these costs. . . . [Buscher) failed to present any explanation in her bill of costs to ageist the Court in determining whether the depositions listed were reasonable or necessary.” This general objection is substantially similar to the objection rejected in Wong. 88 Hawai"i at $3, 961 P.2d at 61 (rejecting non-moving party's argument that the moving party’s cost request contained “no explanation as to why these depositions and/or costs they incurred were necessary, . . . [the moving party's) failure to WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER * ‘OR PUBLICATIO’ show why these depositions and/or costs they incurred were necessary make it clear that it would be an abuse of discretion for this court to tax them to [the adverse party]”). As set forth above, “when costs are avardable to a prevailing party under HRCP Rule 54(¢) end @ particular taxable cost is allowed by statute or precedent, then actual disbursenents for this purpose are presumptively reesonable. The adverse party hes the burden of challenging the reasonableness of a particular cost request.” Id. at 53-54, 961 P.2d at 618-19. HRS § 607-9 clearly allows “expenses for deposition transcript originals and copies.” Defendants do not indicate which of the depositions were unreasonably obtained or unnecessary and therefore do not carry their burden of showing that the circuit court abused its discretion in avarding this cost. See Int’) Ero. of Elec. P.2d at 950 n. Horkers, 68 Hew. at 322.7, 7 We thus hold that the circuit court did not abuse its discretion in awarding Buscher court reporter expenses. Because Defendants do not specifically contest the remainder of Buscher's request, such costs will be presumed reasonable. See Blair v. Ing, 96 Hawai'i 327, 335, 3 192 (2002) ("No opposition was received regarding the P.3d 184, reasonableness of the costs. In the absence of cpposition, we presume that the remaining costs were reasonable.”).  2+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER, Accordingly, Buscher is entitled to costs in the amount of $20,002.62, which reflects a reduction for meals from Buscher’s travel expenses request. IV. CONCLUSION Based on the foregoing, the circuit court's March 15, 2005 final judgnent is affirmed. In addition, we vacate the cireuit court's June 1, 2005 order awarding costs and remand this case to the circuit court with instructions that an amended order be entered, awarding costs in the amount of $20,002.82 in favor of Buscher- on the briefs: John #. Price and Amand J. We: on for defendants-appeliants and third-party piaintifé: sppellents Duane §. Boning, . Connerce insurance Co., and Rl Lricar— Nuc Oo cetonyomec Avis Rent-A-Car System, Inc. Herbert R. Takahashi, Danny J. Vasconellos, and Rebecca L. Covert > (of Takahashi, Mesui, ad Vesconcelios & Covert): Stanford H. Masui in Gon «Bote bo Substitution after. 5/1/06, for plointiff-appellee Esther J. Buscher and third-party defendant appellee Stanford H. Masui Dorothy Sellers and Kimberly Tsunoto, Deputy Attorneys General for defendant-appellee Stete of Hawai'i 

4e3808c67ab52984b1767041c7b4857b4f19c5351feb42a71774b2bb85ffb651

2007-06-07T00:00:00Z

6a74c84d-d90d-42e6-8b63-7954c4284061

State v. Barona

hawaii

Hawaii Supreme Court

No. 27702 IN THE SUPREME COURT OF THE STATE OF HAWAT'T STATE OF HAWAI'I, Plaintiff-Appellee-Respondent, ALBERT BARONA, Defendant-Appellant-Petitioner, and KELII ENOMOTO, Defendant. a = CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS (Cr. No. 02-1-2277) (By: Levinson, J., for the court™; and Acoba, J., dissenting, with whom Duffy, J., joins) upon consideration of the application for a writ of certiorari filed on May 11, 2007 by the defendant-appellant- petitioner Albert Barona, the application is hereby rejected. Hawai'i, June 6, 2007. DATED: Honolulu, FOR THE COURT: cs 4) STEVEN 1. LEVINGON,— 2) Associate Justibg ©ZAL Shawn A, Luiz, for the defendant- appellant-petitioner Albert Barona, on the application 1 Considered by: Moon, C.J, Levinson, Nakayama, Acobs, end Duffy, 39 

b0eca9302aa6e362c32ab4faec0685fdd0304323c45748a19e418b3b7f139dde

2007-06-06T00:00:00Z

9305478e-5e14-43e9-af4e-7320336c4184

Citizens Against Reckless Development v. Zoning Board of Appeals of the City and County of Honolulu.

114 Haw. 184

hawaii

Hawaii Supreme Court

2+ FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER *** IN THE SUPREME COURT OF THE STATE OF HAWAI'I =--000" CITIZENS AGAINST RECKLESS DEVELOPMENT, an unincorporated association; DORIS NAKAMURA; and UNITED FOOD @ COMMERCIAL WORKERS UNION LOCAL 480, Appellants-Appellants, ZONING BOARD OF APPEALS OF THE CITY AND COUNTY OF HONOLULU; in his capacity as Chair of the ZONING BOARD HENRY ENG, in his DAVID MINKTN, OF APPEALS OF THE CITY AND COUNTY OF HONOLULU; capacity as Director of the Department of Planning and Permitting of the City and County of Honolulu;’ and WAL-MART REAL ESTATE BUSINESS TRUST, a Delaware Business Trust, Appellees-Appellees. No. 27264 APPEAL FROM THE FIRST CIRCUIT COURT = (CIV. NO, 04-1-1280) = 2 MAY 31, 2007 2 » 2 NAKAYAMA, AND DUFFY, J. RECUSED LEVINSON, ‘IN PLACE OF ACOBA, MOON, C.3., IRCUIT JUDGE WONG, QPINION OF THE COURT BY DUFF: Appellants-appellants Citizens Against Reckless Doris Nakamura; and Development, an unincorporated assec: United Foods & Commercial Workers Union Local 480 (Local 480) (hereinafter, collectively, CARD] appeal from the March 30, 2005 fe) (2000) for Brian Pursuant to Hawai's Rules of Appellet ‘ihe careent Chest of the Teujimure and Henry Eng, current Director of aang  “7 FOR FUBLICATION IN WEST'S BAWAS] REPORTS AND PACIFIC REPORTER **_ final judgment of the Circuit Court of the First Circuit,’ which affirmed the decision and order of the Zoning Board of Appeals of the City and County of Honolulu (2BA) dismissing Case Nunber 2003/28A-9, and entered judgment in favor of Appellees 2BA, David Minkin, in his capacity as Chair of the ZBA, Henry Eng, in his capacity as Director of the Department of Planning and Permitting (DPP), and the Wal-Mart Real Estate Business Trust (Ww Mart). ‘This case concerns the appropriate procedural options = third= party may take to challenge the issuance of a Conditional Use Permit (CUP) by the DPP. On appeal, CARD argues that: (1) @ petition for a declaratory ruling is a proper procedure for appealing an action of the director of the DPP; (2) the circuit court erred insofar as it upheld the Director's action because the petition did not seek the determination of a prospective action: (3) the circuit court erred in applying the doctrine of laches to find that CARD's petition for a declaratory ruling was untimely: and (4) the cizcuit court erred in upholding the Oirector’s action on the basis of DPP Rules of Practice and Procedure Rule (Department Rule or DPP Rule) Section 3-5 Based on the following, we affirm the circuit court's March 30, 2005 final judgment. ‘The tonerable Eden Elizabeth Wifo presided over this matter. *#* FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** I. BACKGROUND ‘This case comes before this court after a series of challenges by CARD to the DPP’s issuance of a CUP to Wal-Mart for @ commercial development on the Keeaumoku “Superblock” site. Underlying all of CARD's actions (review processes within the OPP, appeals to the 2BA, and suits filed in the circuit court) is its contention that the DPP improperly accepted and approved Wal-Mart’s application for = CUP, because the DPP violated several provisions of the Land Use Ordinance (LUO), Revised ordinances of Honolulu chapter 21.° The present action does not concern the merits of this claim; rather, it concerns CARD’s attempt to use the declaratory ruling procedure -- required by law under Hawai'i Revised Statutes (HRS) § 91-8 and implemented by the OPP through DPP Rules chapter 3 -- to challenge the decision of the Director of the DPP to issue the CUP in question. Various sections of the LUO pertain to CUPs. Ae stated in tuo § 21 2.50, “Cenditional use permit=-fvrpose and intent," “lal The purpose of this Suction ir to ectatlisn a procedure fer permitting certain Uses in some zoning SISHCes si certain sinimun standards ang conditions, shich are detasied an Article § [Specific Use Development Standords], are net.” The procedures for Eling # CUP spplicetion are detesiea in 100 §'21-2.90°i, “Applicetion Fequirenents.”" LUG § 71-7.90-2, entitled "General requirenents,” describes the criteria that guide the director in evelusting CUP appiicat ions « §a¢ infra Section 111.8. and nete 12. *** FOR PUBLICATION LN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** A. Actions of the Parties Preceding the Motion for Declaratory Ruling The relevant background of this suit and related Litigation of the parties is drawn from the factual summary made by the circuit court in its March 30, 2008 Findings of Fact, Conclusions of Law, and Order Affirming the Decision and Order of the Zoning Board of Appeals in Case Number 2003/2BA-9. 1. Wal-Mart’ ® application for the CUP Findings of Fact nos. 1-14 relate te Wal-Mart's application for, and the subsequent approval of, a CUP application, as well as its conmunications with the public regarding the status of its development plans from May to September of 200: i. Wal-Mart gougnt to construct @ Sent Store (the “Prcject") on real property designated at Tax Map Key tte: 2:09 6 43 (the "xeeaumoku siterly which te Ih the “aifi-3 = Business Mixed Use” conmercsal district in Honoluls, Hawal't Chub and Mal-Nact, 2. Wal-Mart informed the public of ite plans to develop the eroject on the Keeaunoku Site on May 3, 2002, approxinstely {ive months before it commenced construction activities on the Keeaunoke Site. 3. Wal-Mart representatives algo attended numerous neightorhoed board meetings of the Ala Mans /Kakaake Neightornoad Board [ene “Me:gnborhood Bosra") in May, June, Buguet, ond September of 2002 in an effort to keep the pubiic apprises of its construction plans. At these Eeetings, anong other things, Wal-Mart representatives Gisplayes conceptual crawinge of che proposed Presect, and Snaicated that groundbreaking would occur in Late Septenber of October of 2002,” CARD neabers attended every one of These eighborhcod Eosrd meetings 4, on suly 24, 2002, Wal-Mart applied to the Department of Planning and Pernitting ("Oepartment”) for a new Conaiticna: Use Permit (minor) (°CUP") for the Soint  ‘s+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER * development of adjacent zoning lets comprising the Project Bt the Keeaunoks Site 5, AE the Neighborhocd Hoard meeting conducted en August 25, 2008, ‘Wai-Nart's contractor specificsily reperted that fal-Mart was “going through the permitting process.” &. The Director approved Wal-Mart's application and SSauea Cop fo. 2002/CUF-S4 on August 1, 2002 7. Wal-Mart received netice of the issuance of the CUP on Abguet'3, 2002 8. _ on Septenber 18, 2002, 2 foundation permit application as gubnittes to the Departhent to construct the Project. 8. Follewing receipt of the CUP, Wal-Mart commenced Construction of the Project sn Septenser 2002 By Beginning foverect a construction fence arcuna the Keeaumsko Site om Septenser 16,2002, 10, Ae the Septenter 24, 2002 teighborhced Board meeting, Slel-Mart representative announced that "(eJhey Rave Begun fo fence the property.” 11, Department Rule § 6.2, entitled “Notice of Decision,” provides that "(t]he Oirector shall mail the written Secision to the applicant and, upon request, shall give notice of the decisicn to sther interested persons.” The Gecisicn ehall be available for review by the public at the Separtnent of planning and perniteing.” 12. At ne time before Cctcber 2002 did any CARD member Fequest the Separtnent to provide the aeapers with notice of any decision regarding the Project pursuant to Department Rule $6.2 13, At no tine before October 2002 id any CARD menber feriew the public files regeraing the Project. at the Department. 14. On October 16, 2002, Mr. Mark Wolfe ("Mr Wolfe"), Celigornsa attorney’ whe represents other groups who oppose Mel-Mart stores in other Jurisdictions, personally went te tthe beparenent on behalf of CARO renuer United Feed & Connereiei Workers Union Local 4£0. ("Local 480") and mitted s request to review Wel-Mart"s CUP File: File & 2002-cUF-5¢,"" That sane cay, lr. Wolfe also submitted 2 Request for Access to Public hecords to the oepartment for the Keesuncks Site on beheif of CARO wenber Local #80 to Unspect “ell correspondence in file since Jan. 1, 2002 both Inspector's core. s# misc, corr.” Responding to this Fequest, on Getober 23, 2002 the Department. faxed to CARD heaber Local 480.8 copy of the ob file index fer the Eupject parcels thet indicates the Oepartment issued che CUP fon August 8, 2002.  ++ FOR PUBLICATION IN WEST'S HAW? 1 REPORTS AND PACIFIC REPORTER 2. The “october Appeal”: CARD’ approval of Wal-Mart’ = CUP first appeal of the On October 21, 2002, CARD brought its first complaint to the attention of the ZEA: 1S. By a letter dated October 21, 2002 addreseed co Mayor Sereny Hazeis, the Honolull City Couneti, and the 2BA, CARD initiated ite’ first appeal (the “October” 2002 Appeal” or Stace No. 2002/26A-2"), wherein it alleged generally thet the Prosect ae snconsievent with applicable zoning Fequirenente, end argued, among other things, that (2) Project contiiers with the sensng requirements of the 00; (2) the Project will nave an adverse impact on the atenent most be Project will nave ecenemie, see! burrounding Community and an'economic study must be prepared: and. (¢) the Project cenflicte with visions and policies of the Honoluie Frimary Urban Center Development Pian, 26. On Noventer 20, 2002, the Director moved to disnise CARO'« Gctober 2002 Appeal’ on grounds that the ZEA lacked Jurieasctien because there was no "Action of the Director” From which CARD appealed. CARD submitted an oppceition encraridim to the Director's Motion to Demise on Decenber 5, 2002, in which CARD igentified, for the first tine, the itsuance of the CUP as a challenged action of the Director 18. the BA issued ite Findings of Fact, Conclusions of Leu, end Decision and Order with respect to the Octcber 2002 Appeal on July 3, 2003 sn which it granted the Director's. Betion fe Dismiss’ and diansssed CARD’s appeal on greunds, inter alla, thet CARO's sppeal failed to challi Shetich ef the Director, "ane thet even sf che from the issuance of the CUP, it had not been filed within the thirty-say mandatory filing persed Although the written order dismissing the October Appeal was not issued until July, apparently the 2BA voted to dismiss the appeal on January 30, 2003,* on the grounds that the Authough the record does not contain an acknowledgment ef this action from the 28h stse)t, both CARD and the DFP Director recite thie Janvary dismisses! of CARD's' sppeal, 27 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** Petitioners had failed to file their appeal concerning the CUP within the thirty-day mandatory appeal filing deadline.* 3. CARD's second appeal and lawsuit Before the 2BA had issued its Findings of Fact, Conclusions of Law, and Decision and Order on CARD's first appeal, CARD filed a lawsuit in circuit court, as well as second appeal by letter to the ZEA. 2. The Lawsuit With respect to CARD's lawsuit, the circuit court stated: 1. On December $, 2002, CARD initiated @ lawsuit in the Fitst Cirewit Court, State of Hawai'd, copticned CARD ss ney of P clvsi Me, O2-I-281-12 (the “CARO Lawsuit? 20. On Secenber 23, 2002, CARD filed a First Anendes int for Declaratory and Injunctive Relief in the CARD Lausuie thet challenged the Cepartnent's issuance of the CUP ar violations of the rane U0 provieiene identified in the Decenber 2002 Appeal: LU0 § 21=2.90-2(a) (2) ICount One: permitted use); Z1-2-80-2(2) (2) (Count Two: sustable Site}; $ 21-2-90-2 (a) (3). (Count Thee: no alteration of Surrounding area); § 21-2.90-2(a) (4) (Count Four: Contribution te general welfare of neighborhood); § 21- 2°502(m) (Count Five: failure to smpose additional Fequirenents and conditions); § 21-2.90-2(a) (Count Six Esllure to condition vericus {gsves regarding traffs access, parking, ete.| and § 21-21-1.20(a) (Count Seven fatiure to regulate land use in sppropriste manner) This lawsuit was dismissed by final judgment entered on September 16, 2003, pursuant to stipulation of the perties * gae inten Section 111.8. discussing thirty-day deadline.  2+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER * b. The Second Appeal (The “Decenber Appeal") The circuit court summarized CARO’s second appeal to the ZBA as follow: 39. CARD initiated a second oppea? by letter dated Oocenber 13, 2002 to EBA chair Re Brian Tousimure chat specificeliy challenges the issuance of the CUP ("becenber 2002 Appeal” or “Care No. 2003/2BA-") 21. The Osxector and Wal-Mart moves to dismiss the December 2002 Appeal on Januar) 29, 2003 ana Febrvary 6, 2003, respective.y. In ite opposition filed on February 2003, GARD argued that ‘the 28h had Jursedietion over ite appeal becouse CARD should have been, ost wae not, notified invwriting of the Director's issuance of the CUP, ana alvernatively, thet CARD had appealed eo the 22 within 20 Gays of receiving actual notice that the permit was issued, 22, The 2BA issued ite Findings of Fact, Conclusions of Law, ond Decision ana Order with respect to the December 2002 Appeal. oh July 31, 2003. The 2BA granted the Director's and WalMart’ e Motions’ te Dismiss ana denied CARD s appeal on grounde that CARD'® petition was not timely filed. At its hearing on February 27, 2003, the ZBA voted to dismiss the December appeal on the ground that it was not filed within the thirty-day mandatory appeals filing deadline. 4. CARD's unsuccessful appeal to the circuit court of the two ZBA rulings rendered on July 31, 2003 CARD subsequently appealed the 28A’s rulings -- which denied both of CARD’s appeals to that agency -- to the circuit court, as recounted by the circuit court: 23. on August 28, 2003, CARD fi1ed an eppeel to the First Citeuse court for the Stace of Hawas'i in Civil No. O41 3250-05 (CARO 1") “appealing from the “[dvly) 1, 2003 tinal actions ot the Zoning Board of Appeals of the City anc County of Honelois fetuing Findings of Fact, Cenelusiene of Law, Cecieiens and Orders upholding the Director of Departnent of Planning and Permittine’s approval ef Conditional Use Permit (Minor) No. 2002/CUP-S4 +s (ZEA .  “++ FOR PUBLICAT! IN WEST?S HAWAT! REPORTS AND PACIFIC REPORTER, case Mos. 2002/28A-2 and 2003/28A-1)." CARD algo sought @ Seclerstion that the CUP was erroneously granted by the Dizector because the CUP Spplicaticn aid net conply with the LUG. The Fizse circuit Court affirred the JBA'e decisior and orders in 28K Case Nos. 2002/28n+2 and 2003/2BR-1, Siensssed ChRO’s clains for declaratory relief with prejudice, and entered final judgment ageinst CARD on March £5, 2008.’ In Ate conclusions of law, thie Court stated 6. CARD October 2002 Appeal and Decenber 2002 Aepeed were properly oisnissed ae untimely because beth wore filed efter the s0nsay deadline of Seprenber £2002 ned Lepeed: 7. The fact that CARD renbere attended Neighcornoed Board meetings where they voleed concerns Secut the Project dia not require the Department to provide such CARD menbers with written notice that the Gop sad Sesued. chad menbers failea to avail thenseives of Departnent mechenions that would have provided notice ef the appiicetion fer and the Essvance of the CUP, including the right to inspect, the public records at the Department and to request notification of decisions regarding the Project, persuant to Department Rule § 6.2 @. on the facte before the Court, the 30-cay peals period established by 100 § Z1-i.40 and 28K Rule § 26-2 cannot be tole The timely filing of a notice of appeal with istrative agency 1s fundamental to the agency s jurisdiction ane here the statutory tine Fequirenent fer filing a notice of appeal hes not bes met, the appeal must be dismissed. "See Korean oo i aise Tee PEA, § Rew. App. 296, 303, 857 P-2a Sit, 315 145801 ‘guetruled on other” arcunds, Indus. Relations, 100 Howell 348, 382 n.7, 60 Pose 288, S02 ne? (2002) 10, Having fatled to timely chaLienge the action of the Director in iseuing the CUP under the Uo in ite appeais to the ZEA, CARD may not “circumvent the adninietrative sppeais process and deed ine Fequirenents by bringing 9 declaratory action in this Court that similarly challenges the Director's actions. See Ko'alau Ag. Cou, Lid, v. Conmission or Maser Rees Mant, #9 Baxali 48%, 469, 493, 927 Poza ser, 1370, 2378 (1996) CARD aid not appesl fron the finol Judgment that this Court enteres  BOR PUBLICATION IN WEST'S HAWATI REPORTS AND PACIFIC REPORTER, 8. CARDYS ea Decl Bulin ‘This appeal concerns the decision of the DPP Director not to issue a declaratory ruling, which was affirmed by the circuit court. CARD petitioned DPP for a declaratory ruling on March 6, 2003, subsequent to the ZBA's vote to dismiss its first, October appeal (No. 2002/CUP-54) and its second, December appeal challenging the approval of the CUP (No. 2003/2BA-1), and after CARD had initiated the December lawsuit alleging 1U0 violations and public and private nuisance claims.’ In its petition for a declaratory ruling, which CARD filed pursuant to HRS § 91-6 and DPP Rule § 3-1," CARD stated, in the first paragraph of the letter, that it was “submit(ting] this petition for a declaratory ruling as to the applicability of certain provisions of the (LU0] to the 317,000 square-foct Wal~ Mart/Sam's Club development proposed for the Keeaumoku Superblock “In the introduction section, CARD stated that “Petitioner requests that the Director review the applicable regulations and issue a Declaration that (1) the Conditional Use Prior to ite petition for 4 declaratory ruling, CARD, in a February 24, 2003 letter addressed to the Director ot the OFF, Tequested that the Department sseve 3 cease and Gesist order to hslt the Froject fared on Sengeing wicistsone of the soneluls Lend Use Ordinance ("LUO"), RO. Zits] the Department denied thie request on March 10, 2003, noting chat the petition for declaratory ruling. CARD appealed this denial but withorew ite Sppeal cn Septenber 19, 200: ‘$e ines Section 111.8. and note 1 22 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** Permit (minor) is voi (2) the Project violates the existing zoning regulations." (Emphasis added.) In the body of the petition, CARD requested declaratory rulings on six specific issues, five of which pertained to the CUP. These requests were Listed under the heading “Specific Requests for Declaratory Relief,” as follows: 1. the Separtnent Improperly Accepted an Approved the Application for a Conditional Use Permit (Miner) . Petitioners Request A Oecloratory Ruling thet the Wal~ Mart owners Did Net submit the Required Flan ef Propored Structures When applying for the CUP iMincr) 3. Petitioners Request ¢ Declaratory Ruling that the Dipartnent bid hot Consider the Foor General Requirencnts hen Approving the Application 4. Petitioners Request 2 Declaratory Ruling that th Separtment Dis hot Consider Evidence in Suppert of er Against the Four General Requirenents when Approving the Application 5. Petitioners Request # Declaratory uling Thet che Proposed Use is Not Permitted as a Conditicnal Use in the Deseriying Zoning District sna oer hot Conform to the Reguizenents of this chapter (a) The site is not suitable for the proposed use Considering size, shape, location, topography, Sntrastrocture sng netorel feacuree (b) The proposed use will alter the character of the Surrounding ares in a manner substantially Tinieing, sageiring Gr precluding the use of n 2** FOR PUBLICATION IN WEST'S HAWAF REPORTS AND PACIFIC REPORTER *** surrounding properties for the principal uses Permitted in the uncerlying zontng district [cl The use at ite proposed location will not provide 3 service er facilities which will Contribute te the general welfare of the conmunitysat-large oF surrounding nelgheorhood [Id] The Aeting Director improperly Failes te Consider the impacts of tne Project on the Community (©) The Acting Director Improperly Failed to Conditicn Permitting on Mitigation of ispacts of the Project on the Community 6. Fetitionere Request a Declaratory Ruling that the Project 25 Geseribed Cannot Meet the BUGI-5 Zoning Regeirenents In response, on April 30, 2003 the Director issued Findings of Fact, Conclusions of Law and a Declaratory Ruling. Rejecting all requests for declaratory rulings with respect to the already-accepted CUP, the Director stated: c. partial pet " Suing: In accordance with Section 3-515) of the Toler, the Eirector Fefuses to issue a declaratory ruling regarding amy natter pertaining to the approval of the [CUP] (Petitioner's “specific requests” Nes. 1 through §). Although the Director maintains that the CUP was properly accepted, reviewed and issued, the Director may refuse to issve a Gecleratory ruling pursuant to Section 3-813) for good cause. Accordingly the petition fer declaratory raling Soncerning any natter airectly related to the approve! of the CUP for joint development of the site is properly refused for the following reasons. 2. The Petitioners have siready filed two appeale fttes. 2002/28A-2 ane 2003/2BA-1) with the Zoning Board of Appeals, (28) challenging the approval of the CUP for Jeint development of the site. See Fart C1 of the FINDINGS centeines herein. Ia both cases, the 2BA 12  /* FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** ruled that the Petitioners failed to meet the Bancatory appeal filing deadline specified under Section 22-2(a), of the Rules of the Zoning boerd of Appeale ("ZEA roles") and 1U0 Section 2171-40 2, Further, Section 22-7 of the 28 rules Sipiicitiy sravents any waiver of the mandstory appeal Filing deadiine. 3. A decision rendered on a petition for declaratory ruling is sppealable by the ZEA (sce Section 21-1, ZEA rules, definition for "Action of the Gizectar"]. ‘2 the Directer were to grant § Seclaratery ruling on any matter related to the CUP, then the Petitioners would in essence be provided 4m oppertunity to circumvent the Z8A"s mandatory appeal Filing deadline and the 100, effectively achieving & “second bite at the sane apple.” To hold otherwise would violate the purpose and intent of ene 2BA"e Randstory appesl f1ing deadiine and the LUO. And, this woulé certainly open the flosugates for'a review Of any action ever taxen by the director, werely By Fequesting © declaratory ruling on the matter. In the remainder of its ruling, the Director addressed the sixth specific request for declaratory relief raised by CARD, the substance of which is not relevent to this appeal. CARD subsequently appealed the Director's refusal to issue a declaratory ruling to the ZBA, and then to the circuit 26. On May 9, 2004, CARD eppesied the Directors's refveal to sssve a declaratory ruling with respect te matters Ferteining to the COP to the ZBR.” Certain rencers of the EEA twice moves to sustain the portion of the appeal pertaining to the Director’s refusal to issue 4 declaratory Piling relating te the CUP at hearings held en Seprenber 22, 2003 and Cetober §, 2003, but the decisions by the ZBA on those motions were’ eplit, with two members for ane two Fenbers oppeses. Bechuse there wae ne majority vote on the Director's refusal to issue # seclerstory ruling relseing £0 the CUF st two separate meetings of the ZEA, CARO's appeal Gn thst Save wes denied pursuant to UA Rule § 20-619)+, On Sune 17, "2004 the ZEn issued ite written Fincings of Fact Conclusions of Law, and Decision and Oraer in Case No. 2003/28R-8  FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER *** 28. On July 18, 2008, CARD tinely filed the snetant eppes) fren the IBA'e decision upholding the Osrecter's refusal te issue @ declaretery ruling regarding the approval of the CUP In'Case No. 2003/28A+3 (the “Appeal®) « In its March 30, 2005 final judgment, the circuit court affirmed the decision and order of the ZBA in case nunber 2003/2BA-3. Before proceeding to the merits of CARD’s claim, the court ruled that CARD was not precluded by res judicata or collateral estoppel from appealing the denial of its request for @ ceclaratory ruling, despite the circuit court’s dismiesal with prejudice of CARO's pricr clains in the appeal for failing to meet the thirty-day deadline under LU0 § 21-1.49 and 2BA Rule § 22-2, Regarding the merits of CARD’s appeal, the circuit court made the following conclusions of law: 8. nile there is no nandstory deadline for a person petition an agency for a declaratory ruling regarding of Usseriying order cx decision of that agency pursuant ee BRS § Si-b, equitable principles of laches can be applied to such a petition, See Suize Pre v card of Acbeals, 7S Rav. 1, 6 0-4, €26 P20 876, 678 hed (1382) ("[s)ance proceedings for declaratory relief have much in cennon with oquitebie proceedings, the equitable Goctrine of laches has eeen applied in euch proceedings.” 22h An. our. 2a ‘S185. (1968) (feotnotes omitted + i ‘Seallz.tadennop, €7 Ha 626, 10! F.26 667 (1988) Tequity ede the vigsiant)} 9. Departnent Rule § €.2 was cnended by 1993 after the decision was rendered to allow, "upon Fequest,” any interestea person to receive notice ef written Gecisions of the Director, yet no CARD menber availed Ringel! herself, or itself of this opportunity to receive such netice. Possessing kicwiedge of the potential Gevelopnent of the Frovect, CARD's failure to request notice of written decisions of the Director pursuant to beparesont Bole § 6.2 ingicates that CARO menbers tlept cn thei® Tights ang invokes the doctrine of aches. Mu 2° FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER *** 10. Having faited to tinely avail thenselves of multiple opportunities ane procedures to timely enalienge the Steuance of the CUP, CARO's delay in filing Sta petition on Naren €, 2003 =- approximately seven months after the Directer issued che CUP and nearly eix months after Wal-Mart openly cormenced construction by erecting ® construction fence around the Project ~~ indicates thet CARD was not sigilent in petitioning the Director for a roling cn the GOB. “Consequently, it is not equiteble te allow CARD te Seek yet ancther review of the CUP after failing to timely avail iteeif of pricr opportunities ta review the CUP. 12, Under Department Rule § 205, the Director has Giscretion to refuse te issue 4 Geclsratory Toling for “goos Cause,” or when such a ruling “may aaversely affect the interests of the city in any Litigation which ie pending or may reasonably be expected to arise." ChRD had already, Tniciated iitigetsen against the city sn the CARD Leweust when it petitioned the Director for a declaratory ruling hed multiple chalienges of the CUP pending before the EEA 12. The Director's refusal to issue @ declaratory ruling on Suplicseive notters rsised in CARD"s petition for’ = Seclaratory ruling was therefcre not sn abuse of hie Siecretion under Departnent Role £ 3-33) and (5). See pee te Temple, 67 Hawei's at 231, 853 Pilg et 1329 ("Director was correct in concluding that it would be a waste of time and effort te duplicate nie Consideration of the cone issues in the context of & request fer a declaratory ruling" where iscues reseed were “Substantially the sane’ as those relating to the various variance appiications."); of. Haas ¢ tavnie Comm, Vi ac. ¢ 2vaws Ape 332, 134, 627 F-28251, BoP 290i) (it Te well-seeties that courte’ wil not entertain a declaratory sudonent action if there 1s peneing, St the time of the Commencement of the action for Geclaratory relief, sn action cr proceeding co which the Ste peracne_are parties ane in which the sane Sanves nay be seudicated.”) (citing 22am. dur. 24 SMdseente $16 (1965), for the proposition that *Lulnder the Seneral Tule, a deciatetery judgnent is not s proper mode cf Seternining the sufficiency of 1egel defenses to = pending Setion” 13. Additionally, the Director's gecision to decline te rule on CARD's petition waz not an abuse of his siscretion pursuant to HRS § 81-8 because the petition did not seek the ‘Geterminaticn of a prospective action of the Departnent in ite interpretation ef the LUO; rather, CARD requested the Director to determine the propriety of the Directer’s past action in approving the CUP under the LUO, which CARD hed Ereviourly' ena repeatesiy challenged sn aultipie forune Eee Feel 0. State Public Euplowent Relations ad., 60 Hw 450, 44s, 381 F.2d 113, 117 (2978) [section sie decleratery petition’ inveives « question “relevant to sone action whieh 1s 2° FOR PUBLICATION IN WEST’ HAWAF REPORTS AND PACIFIC REPORTER * the lagency] might take in the exercise of the powers grante by [etarute)”) 14, Consequently, the 28h's affirmance of the Dizecter’s Gecision and dieniasal of CARD's appeal in Case Mucha 2003/2BA~8 was not axbiteary, capricious, or sthernise contrary te daw CARD filed a timely notice of appeal on April 29, 2005. 12, STANDARDS OF REVIEW AL Se Review of « decision made by the circuit court upon Sts review cf an agency's decision i¢'a secondary apes! ‘The standard of review is one in which this court nese determine whether the cizcslt court was right cr wrong in its decssien, applying the stancaras eet forth in BRS § 9:~ 14(g) [13993)) te the agency's Secisicn= Ki ” sat: Hawai'i v. su! 87 Hawai't 217, 229, 963 P.2¢ 1315, 1327 (1998) (quoting Bragg v, Hawai't 302, 304, 916 P.2d 1203, 2205 (1996)) (alteration in original). HRS § 91-24, entitled “Judicial review of contested cases,” provides in relevant part: (9), Upon review of the record the court may affirm the decision of the agency or remand the case with snstructions for further proceedings; of it may reverse or Bodily the decicion and ofver if the substantial fights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, oF orders (2) In violation of constitutional or statutory provisione; er (2) Inexcess of the statutory authority or jurisdiction or the agency: er (3) Made upon onlawtu! procedvrer or (G) Affected by cther errer of lew; or (S) Clearly erroneous Sn view of the reliable, probative, and substantial evidence on the whole 6) Arbitrary, or caprietous, of characterized 6: ebuse of discretion or clearly unwarranted exercise of discretion. 16  FOR PUBLICATION IN WEST'S HAWAN'I REPORTS AND PACIFIC REPORTER “[U}nder HRS § 91-14(g), conclusions of lew are reviewable under subsections (1), (2), and (4); questions regarding procedural defects under subsection (3); findings of fact under subsection (5)7 and an agency's exercise of discretion under subsection (6)." Inve Hawaiian Elec. Co., 81 Hawai'i 459, 465, 918 P.24 561, S67 (1996) (citing Qutdoor Circle v. Harold K.L. Castle 1 638-39, 675 P.2d 784, 789 (1983). Teust Estate, 4 Haw. App. 63 B. Statutory Construction Statutory interpretation is “a question of law reviewable de nove.” State v, Levi, 102 Hawai'i 262, 265, 75 P.3d 1173, 1176 (2003) (quoting State v. Arceo, @4 Hawai'i 1, 10, 928 F.2d @43, 852 (1996)). This court’s statutory construction is guided by established rules: First, the fondsnental etarting point for statutery interpretation ir tne Language cf the statute itself. Second, where the statutory language is plain ana Gnanbigucus, cbr sole duty is to give effect to its plain ang obvious nearing. Third, implicit in the task of Etatotory construction is our forencst cbligation to Gieertain sna give effect to the intention of the Legislature, which is to be obtained prinartly fron the Lerquage contained in the statute iteelf. Fourth, when there is doubt, doubleness of meaning, of snaistinctivenees Gr uncertainty of an expreseion used inva statute, an ambiguity exists Eeterson v. Hawaii Elec. Light Co. Inc., 85 Hawai'i 322, 327-28, 944 P.2d 1265, 1270-71 (1997), superseded on other grounds by HRS § 269-15.5 (Supp. 1999) (block quotation format, brackets, citations, and quotation marks omitted) .  REPORTER *** When there is ambiguity in a statute, “the meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning.” Id. (quoting HRS § 1-15(1) (1993)). Moreover, the courts may resort to extrinsic aids in determining legislative intent, such as legislative history, or the reason and spirit of the law. See HRS § 1-15(2) (1993). C. Construction of ative ‘The general principiee of construction which apply te statutes also apply to administrative rulee. Ae sn Statutery construction, course iook fiver at an seministrative rule's language. If an soministrative rule's guage is unanbiguous, and ice literal application ie ser inconsistent with che policies of the statute the Inplenence nor produces an sbevrd oF unjust result, s enforce the rule's plain meaning’ clatos, G6 Faw. 316, 385, 715 ald Ste SoO TEC ee Co. v. Ponce, 108 Hawai'i 445, 454, 99 P.3d 96, 105 (2004) (quoting In re Doe Children: John, Born on January 27 1982, and Jane, Sern on Julv 31, 1886, 10 Hawai'i 38, 53, 93 P.3¢ 1145, 1160 (2004) (quoting In_xe Was‘cla 0 Moloka'i, Inc,, 103 Hawai'i 402, 425, 83 P.3d 664, 686 (2004) (qucting Lee vs Elbaun, 77 Hawai'i 446, 457, 887 P.2d 656, 667 (App. 1993)))). . ew of OPP Refusal sue a De 2 Under HRS 91-14(g) (6), an administrative agency's discretionary determinations will not be disturbed unless S++ FOR PUBLICATION IN WEST'S HAWAT REPORTS AND PACIFIC REPORTER *** “[alrbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.” However, only discretionary decisions of agencies receive this deferential level of review. In this regard, this court has stated: The standard of review for adninietrative agencies consists of two parte: firet, an analyeie of whetner int legislature enpowerea the agency with ciseretion te make a particular secerminat ion? and second, if the agency's Setersination was within its realm of discretion, wnether the agency abused that gigeretion (or whether the agency’ = action wes Otherwise arbitrary, oF copriciess, oF Gharacterizea by... (a) clearly unwarranted exercise of Giscretion," WAS § 81-1419) (6)). If on egency setermination fe not within its realm cf discretion [as sefined by the Teoisiature), then the agency's seterminaticn 12 not entitled to the deferentiai “abuse of dsscretion” stander Gf review. If, however, the agency acts within its realm of Siscretion, then its determination will not be overturned Unless the agency hae abused ite discretion Paul’ s v. Befitel, 104 Hawai'i 412, 417, 91 P.3d 494, 499 (2004) (internal citation omitted). ‘The abuse of discretion standard should apply to the DPP Director's decision regarding whether to refuse to issue 3 declaratory ruling, because the legislature empowered the DPP with discretion over its decleratery ruling procedures. HRS § 81-8, which governs the declaratory ruling procedure, establishes that “felach agency shall adopt rules prescribing the form of the petitions and the procedure for their submission, consideration, and prompt disposition.” (Emphesis added.) A refusal to issue a declaratory ruling is a manner of disposing of the petition. See ev. Hawai'i Government i 18 o** FOR PUBLICATION WEST'S HAWAT'T REPORTS AND PACIFIC REPORT 182, 107 Hawai": 178, 190, 111 P.3d $87, 599 (2005) (Acoba, J., concurring} (“Orders refusing to issue a declaratory ruling would fall within the definition of actions ‘disposing’ of petitions.” By empowering agencies generally with the authority to adept ru es regarding the manner in which declaratery ruling petitions shall be considered and disposed of, the legislature has granted agencies discretion with regard to the consideration of declaratory rulings. The boundaries of that discretion, which normally are defined by the legislature, may in such cases be established with reference to the agency rules themselves, or by reading the statute and the agency rules in tandem. See Paul's Elec, 104 Hawai'i at 417-18, 91 P.3d at 499-500 (“the boundaries of an agency's discretion are established by the legislature + and these statutory boun: ies will likely assist a reviewing court in defining ‘discretion’ when the court examines an agency’s action for an abuse of discretion.” (Citation omitted.) .* The legislative history of Secticn 91-8 alse showe ne envisioned that agency decisions regarding whether to issue & ratory ruling would invelve the use of discretion. A repert of the House ‘ag Comittee on the bili which would become HRS chapter $1 seid thie, eqard to the declaratory ruling sectien This section would require each agency to adept rules governing the sssvance cf declaratery crdere. These rules, however, could provice fer the agency having sone discretionary power to refuse to bake © Gecleratory Foling 20  In this case, DPP Rule § 3-5 governs DPP refusals to issue a declaratory ruling, making that decision discretionary with the DPP Director, within the parameters of five enumerated reasons. The rule provides: s a The director may Tefore to iseue 7 declaratory Tuling where: (2) the au Scer not invoive exseting facts, Gan reasonably be expected ts tion is speculative or hypothetical and br facts (2) The petitioner's interest se not of the type hich woulé give him/her standing to sasntsin an fection if he/she were to seek judicial relief. (3) The issuance of the declaratory ruling may adversely offect the interests of the city in Sny Litigation whieh ie pescing or my Feasonably be expected to arise, (4) The matter Se not within the jurisdiction of Separtnent (5) For other geod couse. DPP Rule $ 3-5 (1999), available at http: //honcluludpp.org/ permitinfo/parti.pdf. Therefore, DPP decisions to refuse to issue a declaratory ruling will be reviewed under the “abuse of discretion” standard, with reference to the language of HRS § 9 @ and the bases for refusal enumerated in the Department rule. 1. -eontinued) ge. Stand. Con. Rep. No. &, in 19€1 House Journal, at 659. See infra note 1e  Pointing to COLs 9-14 as erroneous, CARD makes three basic arguments as to why the DPP Director's refusal to issue a declaratory ruling was in error, namely that: (1) A petition for a declaratory ruling was a proper procedure, based in part on Suire Prot dawas: no a 173 Haw. 1, 626 P.2d 876 (1992) (2) CARD's petition for a Gecleratory order was timely and the doctrine of laches should not apply; and (3) the Director's decision could not be justified fon the grounds of DFP Rule § 3-5(3), which allows the Director to refuse to issue a decleratory ruling where euch = ruling “nay adversely affect the interests of the city in any litigation.” In response, Wal-Mart argues that: (1) the decision to refuse to issue a declaratory ruling on the matters relating to the CUP was prope 1, because (a) it was justified on the basis of Department Rule § 3+5(3) and (5), as the ruling requested was a duplicative matter with regards to pending litigation, (b) it was justified on the “good cause” reason that it would be absurd to allow a challenge to a permit issuance by declaratory ruling at ‘san connection with this argument, CARD claime thet it was error for the lower court te “creat (e) s ‘Legal defense’ or ‘other good couse’ ‘ation for the DPF's decision," which was not previced by the DPF. ge we hold herein that the Geclaratory ruling petition mas not a. proper procedure fer seeking review of the DPP's isevance ef the CUP, this, sion ‘ith CARD's second and third arguments, nees not be addressed 2  +++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER anytine in the future when a direct appeal must be filed within thirty days of issuance, and (c) a request for a declaratory ruling under HRS § 91-8 is not a proper procedure to challenge the Director's approval of a minor CUP; and (2) Swire Properties does not require the Director to issue @ declaratory ruling on matters pertaining to the CUP in this case. B. Th Bulini 2 oper Mean: Review of Se Bs ny CARD, having failed to bring an appeal of the CUP issuance within the required thirty-day time-limit, sought review of the CUP issuance via the declaratory ruling petition procedure provided by HRS § $1-8 and accompanying DPP Rule § 3-1. Although styled as a “petition for a declaratory ruling as to the applicability of certain provisions of the [1U0) to the 327,000 square-foot Wal-Mart /Sam’s Club development proposed for the Keeaunoku Superblock,” in reality five out of six of its specific requests sought a declaration that the CUP was improperly issued. See supra Section 1.2." It is undisputed that an appeal of a CUP issuance must teke place within thirty days of the mailing or service of the b the sixth point, a request for 4 declaration that “the Project as Described Cannct Meet the BMi-3 Zoning Requitenents,” reesivea & declaratory ruling from the Directer which was affirmed ty the 2A, end not challenged  director’s decision, pursuant to LUO § 21-1.40 FOR PUBLICATION IN WEST'S HAWal REPORTS AND PACIFIC REPORTE! nd as provided forin 2BA Rule § 22-2. LUO § 21-1.40 provides: Likewise, Appesls fron the actions of the director in the aaninistration of the provisions of the LUO shall ke te the Zoning beard of appeals as provided by Section é-1816 of che charter. Appeals shall be filed within 30 days of the Rolling or Service of the director's decision 2BA Rule § 22-2 states as follows: (a) | [A written petition appeating an action of the director host be received at the departrent of land utiiizasion within 30 days of the cate cf nailing or perscnal service of the director's written dec nef the eubaivieien tion must be received within 15 days Teceipt of the notice cf the a (b)___Tf the appeal is not tinely filed, st shall be Giemieses by the board upen the Board's ohn motion or the notion of any party to the proceedin Based on the text and structure of the statute, its tegislative history, and relevant caselax, we agree with Wal-Mart that the declaratory ruling procedure was not intended to be utilized to seek review of agency determinations that have already been made and which have not been timely appealed. HRS § 91-@, entitled “Declaratory rulings by agencies,” provides that: Any interested person may petiticn an agency for a Geclaratory order ac te the applicability of any statutory Provision or of any role cr ender ef the agency agency shall adopt rules prescribing the ferm cf the Petitions and the procedure for their submission, Corsigeretion, and pronpt disposition. Orders disposing of Petitions in such coses shall have the sone status as ofher Sgensy creere 88 FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER *** HRS § 91-8 (emphasis added) ."" As both the title (“Declaratory rulings by agencies”) and the pertinent text ("a declaratory order as to the applicability [of a statute, agency rule, or order]”) make clear, the declaratory ruling procedure of HRS § 91-8 is meant to provide a means of seeking a determination of whether and in what way sone statute, agency rule, or order, applies to the factual situation raised by an interested person. It was not intended to allow review of concrete agency decisions for which other means of review are available. Reading HRS § 91-8 in a common sense fashion, and bearing in mind the plain meaning of the term “applicability,” it cannot seriously be maintained that the procedure was intended to review already-made agency decisions. For such decisions, like the DPP Director's issuance of the CUP to Wal-Mart, the agency has already spoken as to the # DPP Rule § 3-1 describes the subject of a declaratory ruling in substantially similar terns: ested person nay petition the director ‘or ordinance to the departnent, or of any rule or order of the departnent.”” OPP aosea}. The enly difterence between DPF Rule § 3-1 and HES § ice ie that the Dep rule clearly states that declaratory rulings can cnly be sought over statutes oF ordinances. # a Condition which ss only implicit in Re § 91-8. “DFP Roles Soi (weny stotate of ordinance gelating te the desertnent, of of any rule cr order of the Separtment” (Emphasis eadea.J) In the context of declaretory iudanents, it hes been said that “the purpose of such & proceeding iis) te renove uncertainty from legal Fe Sng clarify, quiet, ane stabilize then before irretrievsble acts hav Undertaken, ‘to enable an sesue of questioned status of fact, on which o whole complex sf rights nay depend, te be expeditiously determined vs. ." 26 C.O'8. Declazatory ludments § 3 (1956)  *** FOR PUBLICATION IN WEST'S HAWAFT REPORTS 4? PACIFIC REPORTER “applicability” of the relevant law to the factual circumstances at hand -- implicitly or explicitly it has found the relevant legal requirements to be met. There is no longer a question of how the relevant laws, in this case the 1U0, “apply.” Use of the declaratory ruling procedural device only makes sense where the applicability of relevant law is unknown, either because the agency has net yet acted upon particular factual circumstances, or for some cther reason the applicability of some provisions of law have not been brought into consideration. Cf, State vs Lucks, $6 Haw. 128, 133, 532 P.2d 85: 858 (1975) (“We view the term ‘applicable offense’ as described in Penal Code Section 101(2) (a) to mean an offense that is applicable to a civen set of factual circumstances that make up a criminal act.” (Emphasis added.)). ‘The structure of Hawaii's Administrative Procedure Act (HAPA), HRS chapter 91, combined with the agency rules governing appeals of actions of directors, confirm thie view, The HAPA Provides a party with several separate means of seeking review of agency determinations. Two provisions apply to agency rules: (1) under HRS § 91-6, an interested party may petition an agency to \s For example, CARD's request for a declaration thet “It]he Department Improperly Accepted and Approves the Application for @ Conditional Jee Ferast (tsiner)* or “that the Wal-Mart Owners Did Not submit the Required Plan of Proposed Structures hen applying fer the CUP (Minor]” bot seek declarations as to matters for which the agency has already determined that the 00's Feguivenents were met =~ and no question of their “applicability reneine 26  IR PUBLICATION IN WEST'S HAWAII REPORTS AND PAC IC REPORTEI adopt, amend, or repeal an existing rules and (2) under HRS § 91-7, such party may seek a judicial declaration as to the validity of an agency rule. Final agency decisions or orders in contested cases may be appealed to the cireuit court as provided in HRS § 91-14.% Given this panoply of review options available to interested parties, each specified to a different type of agency action, it would appear that the legislature intended the declaratory ruling procedure to likewise have a unique and independent role in the statutory scheme. See State v. Kalani, 108 Hawai'i 279, 283, 118 P.3d 1222, 1226 (2005) ("{Clourts are bound, if rational and practicable, to give effect to all parts of a statute, and. . . no clause, sentence, or word shall be construed as superfluous, void, or insignificant if a construction can be legitimately found which will give force to Win the context of DEP actions that pertain to the adninistration of ‘the zoning and subdivision ordinances, like the CUP approval at iesue here, appeal must be brought to the 28A before it is appesieble co the eareurs Court. “See Revised Charter of Honolulu (RCH) § €-1516 ("The soning board of oppeais shall hear and determine appeals fron the actions of the dsrecter Sn stration of the zoning ovdinances, including variances therefrom, subdivision ordinances ang any rules and regulations adopted porsuant to either.” (citation omitted)). This is because the director's action, which broceeds without the need for an agency nearing, is not a "a final cecision oF Order in 2 contested case"? euch » hearing i8 provided by the Zh, which results in s final sppesiatle decision. gee Kena Old Hawaiian Trasie Group By and Inzovah Sereene ve Liman, 69 Haw. G1, Si-90, 734 Foe 161, 167€8 (1907 (heTding that circuit court lacked jurisdiction where plaintiff sppeoled Girectly fron county planning director's issuance ef special nanagenent ares Riner permit, Eecause directar's sction wae not “e fine! decision or order 1m & contested case” ang Hawai) county charter provided that el) appeals of Girector’s decision would go the Board of Appeals, which would conduct o hearing -+ “its cecision, unlike that of the director, ungvestionably would b sppealable to the circuit court”  ROR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER *** and preserve all words of the statute.” (Citations omitted.)). We therefore presume that the legislature acted intentionally when it chose the term “applicability” to denote a special type of procedure, whereby an interested party could seek agency advice as to how @ statute, agency rule, or order would apply to Particular circumstances not yet determined. See Moran ve Elanning Deo't, 104 Hawai'i 1 (hen @ law is enacted, @ presumption exists that the words in 3, 185, 86 P.3d 982, 994 (2004) the statute express the intent of the legislature.”). It is therefore inconsistent with the structure of HRS chapter £1 te allow declaratory orders as a means of review of agency decisions This interpretation is consonant with our caselaw. Although dealing with a jurisdictional issue not presented here, in Ba State Public Em ati , this court stated that HRS § 91-8 “is designed to provide @ means for securing from an agency its interpretation of relevant statutes, rules d orders,” and noted that “[t)he only parties necessary to a proceeding under § 91-8 are the petitioner and the agency.” 60 Haw. 436, 444, 591 P.2d 113, 118 (1979). This comports with the view propounded here, that the declaratory ruling procedure is intended to allow an individual to seek an advance determination of how some law or order applies to his or her  FOR PUBLICATION IN WEST'S HAWAET REPORTS AND PACIFIC REPORTER *** circumstances. See alse Korean Buddhist Dae Won Sa Temple, 87 Hawas'i at 231, 953 P.2d at 1329 (upholding Department of Land Utilization (DLU) Director’s conclusion that “it would be a waste of time and effort to duplicate his consideration of the same issues in the context of 2 request for a declaratory ruling,” where party seeking ruling had already raised issues in its variance application and associated litigation). ‘The legislative history of the HAPA and the caselaw of another jurisdiction are also in accord with the view that the declaratory ruling procedure cannot be used to review decisions that agencies have already rendered. Hawai'i adopted HRS chapter 91, “Administrative Procedure,” based on the Uniform Law Commissioners’ Model State Administrative Procedure Act of 1961. In a prefatory section entitled “Content of the Model “As Justice Acoba, concurring, recounted in Linge v. Howat’ In 1946, the Nationa Conference of Commissioners on Uniform State Laws iteuea the Nodel State Auministrative Procedure Act. Hot Epacedure Acts (amended 1961}, 18 U.L.A. 115-76 ftinster ed- 2000} The Model Act wae then revised in 196i (Revised Model Ret). Id. at. 174 HAPA was noceled after the 1859 draft of the Revised Model Act.” Ase- Stand. Com. Rep. No. 8, in 196) House Jour es The House Connittee's report provides section-by-section anslysis of BILL Ne. $, with reference to the Revised Model Act. he te the section on declaratory rulings, now coaifies as HRE § 21-8, the Connittes Section & of the Revised Model Act has been adopted with the Fellowing change (a) The amerchent to this section changes the style of the language to confor to Section 6 of this bill. the lenguege of (continues...) 2  22° FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER. State Administrative Procedure Act,” the Commissioners outlined what it termed the “major principles embraced in the Act." 15 U.L.A. at 178, Among the six principles was the following: on for advance determination of the validity of (3) eee edninistrative rules, and for "Declaratory rulings, ekfording advance determination of the applicability of Sdeinistretive rules te particular case: Id, et 179." This principle clearly shows that the declaratory ruling procedure was intended for advance determinations of applicability, rether than review of already-made agency Gecisions. In adopting the HAPA, we presume that the Hawai'i legislature was avare of the Model Act as well ae all connents related thereto. Cf, Cowan v. First ins. Co. of Hawaii, Ltd, 61 Haw. 644, 649 n.4, 608 P.2d 394, 399 n.4 (1980) Tt is a (.sontinued) thse section does not necessarily require an agency te issue Geclarstery crder in every indtance but is intended to incuce then to de so nore frequently than they may have been doing in xe past. This section would require each agency to scope rules Governing the sesuance of declaratory orders, These rules however, could provide for the agency} having sone dsscres icnary Power to refuse te make a declaratory roling. Since the refuse) in itselt would be an agency order, in appropriate cases, ‘application for judicial review on the grounds thet denial was en abuse of discretion on the part of the agency nay be mede. ad. av 656-59. 207 Hawai's at 186-88, 111 .3¢ at 597-98 (acoba, 3. concurring) {emphasise onittes) The Ccnnissicners sieo stated There is no good reason uby these generel Frinciples should not govern throughout the entire administrative seracture Setsile; they are e: process. Ad. at 175 20  FOR PUBLICATION EST" HAWATI REPORTS AND PACIFIC REPORTER *** well-settled rule that the adoption of another state's statute encompasses that state’s judicial construction of the statute unless a contrary intent appears.”); State v. Yamasaki, 91 Hawai'i 163, 165, 981 P.2d 720, 722 (App. 1999) (looking to Model Renal Code and Commentaries to “inform (court's) effort to glean the scope of parallel statutes” in Hawai'i}. Furthermore, there is clear evidence in the legislative history that the legislature carefully studied the Model Act before adopting it. See Stand. Com. Rep. No. & in 1961 House Journal, at 654 ("[YJour Committee has examined and very carefully reviewed the first tentative draft of the revision of the Model State Administrative Procedure Act... and the comments made by the committee on the revision of said Model State Administrative Procedure Act. The basic structure for this bill in the amended form has been the Revised Model Act.”). The language chosen for HRS § 91-8 is Substantially similar to that of the Model Act," and the legislature stated that changes made were for stylistic reasons to conform with other parts of the bill, rather than for % The 19€2 Hodel Act contained Rulings by Agencies” 1@ following provision on “Declaratory Each agency shall provide by rule fer the filing and prompt Aleposition sf petitions’ for secleretory rulings #2 te the applic ef any statutory provision or of any rule or créer of the agency Rotinge cieposing of petitions have the cane status ae agency secieione or orders in contested cases nity 15 ULAR, at 267 o** FOR PUBLICATI IN WEST HAWATI REPORTS AND. REPORTER substantive alteration. See id. at 659 ("The amendment to (Section 6, Declaratory Rulings by Agencies) changes the style of the language to conform to Section 6 of this bill."). The comments on the “Declaratory Rulings by Agencies” section do not indicate an intent to deviate from the model act in terms of the availability of the declaratory ruling procedure. See supra note 16 The view of another jurisdiction that has adopted the Model Act strengthens this conclusion. The Supreme Court of Wisconsin, interpreting a similar Wisconsin provision also derived from the Model Act," has explicitly adopted the position Rithovoh the House Conmittee Repert comment on the Declaratory ings section states that it was “intended te tnauce (egencieal eo iistve laratery orders) more frequently than they may have been doug in the Past,” it also states that "(t}ne language cf this section dees aot Recessarily require an agency te iseue 2 declarstory crder in every instance,” and clearly provides for discretion te refuse to make 8 decletetery slice Stand. Com. Rep. No. 8, in 1961 House Uostnal, et e553.” che Stansigg conmectee iso sade the following conclusion, eased on the cemnonte submitees te re “that under declaratory rulinge by’ agencies, the agencies would be required to render rulings which sost agencies have net been desing in the pest! ide at G85. These connents in no way imply that the deciarerery ruling proceccre should serve a different function ae that suggested by its text or noted by the drafters of the Model het == rather, they appear to persarn te specifi gitcunstences that the Hawai'l legislature scught to eadiess in intaceucing broad reforms into its administrative lam, d-esy the fect that price te the daw administrative agencies in the state didnot requlerly asus declocatery rulings, "This reluctance of agencies to issue formal declaratory flings eae snared by other stotes, anc the federal government, which ied to ene referee embodied in the Model Act. See Frank £. coopers State saministsatise tao na0= verges) the Wisconsin statute provides in relevant part: Any agency mey, on petition by any interested person, issue @ Geclaratery ruling with respect to the amilicabilicy to an Wis. stat. § 227.4111) (west, Hestiew The Language through 2007 Act 5) (emphasis added) iesue in thi case is substentisily similer to that of the  o** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER, we take here, holding that the declaratory ruling procedure “does not provide a method of review of a determination already made but a method of requesting an agency to make a determination.” Wisconsin Fertilizer Ass'n v. Karns, 158 N.W.2d 294, 300 (Wis. 1968). See also Aiello v, Litscher, 104 F. Supp. 2d 1068, 1073- 74 (W.0, Wis. 2000) (holding that inmates could not use Wisconsin declaratory ruling procedure to challenge Department of Corrections’ dismissal of their complaint under the inmate complaint review system, as this would allow the department to “sit in judoment on a decision made by itself”) (citing Karns). Based on the foregoing, the circuit court did not err when it affirmed the ZBA decision upholding the DPP Director's refusal to issue a declaratory ruling. Because HRS § 91-6 only allows for declaratory rulings as to questions of “applicability,” an administrative agency has no discretion to issue rulings under this section that do not bear on such questions. See Paul's Elec., 104 Hawai'i at 417, 91 P.3d at 499 (If an agency determination is not within its realm of Giscretion (as defined by the legislature}, then the agency's determination is not entitled to the deferential ‘abuse of discretion’ standard of review.); id. at 420, 91 P.3d at $02 ("If cont inued Wisconsin etatute, as it focuses on the “applicability of any role oF statute,” HRS § 51-8  2** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER * the legislature has not granted the agency discretion over @ Particular matter, then the agency’s conclusions are subject to de nove review.” + In fact, such a ruling wovld be in excess of the DPP’s statutorily-defined authority. The OPP Director therefore did not abuse his discretion, under the applicable Statute and DeP Rules, when he refused to issue declaratory rulings as to matters involving the CUP application. Moreover, the Director's stated reasons for the denial are in accord with the basic notion of our holding here, that the declaratory ruling Procedure may not be used as a means for review of issues that have come before the board and been properly decided.” ce gw s Not Rei ntra CARD argues that “Suire Properties is very clear that the § 91-8 Petition is available to interested parties who had not received notice of an action of the Director to obtain review of the Director's action,” and notes that CARD “did precisely what the Swire Court advised.” We disagree. 4M the “good cause” reasons cited by the Director te refuse to issue a declaratory ruling included the following: (1) the Petitioner nad slscsay filed appeals to the 264 but missed the eppeais desdiine, (2) “Section 22~ the ZEA rules prevents any waiver cf the mandatory appes! filing deedi ine,” ang (3) “IE the Director were to grant s declaratory ruling on any natte® related to the CUF, then the Fetitioners wovld in easence ve provided an opportunity to circunvent the ZBA’s mandatory appeal filing deadline and the 10, ‘effectively achieving 2 ‘secone bite st the sane opple.” Te ele therwise would viclate the purpose and ntent of the ZEA's mancatory appeal filing deadline ang the U0." Ang, this would certainly epen ene flecdgates for a review of any action ever taken by the cizecter, merely by requesting & Gectaratery ruling on the matter.” of ™  FOR PUBLICATION 1N WEST'S HAWAII REPORTS AND PACIFIC REPORTER ** Sulre Properties concerned an appeal from a circuit court decision affirming a 28A ruling in favor of petitioning landowners, who had challenged the action of DLU officials of “initialing” or “checking off” on several building permits as part of @ phased development project. 13 Haw. at 3-5, 826 P.2d at 877-78. This court reversed the circuit court on the basis that the ZEA lacked jurisdiction to entertain an appeal of the DLY actions, because the “check offs” were ministerial acts that did not constitute an “action of the director” from which an appeal could be brought under the ZEA Rules Relating to Administrative Procedure. Id, at 7-8, 626 P.2d at 679. Rather, this court found that this matter hed already been resolved three years prior to the institution of the landowners’ appeal, when the DLU issued 8 letter approving the building height plane of Phase IV of the development project in 1986. Id. In the course of explaining the manner in which DLU decisions may be appealed, the court noted a 2BA rule of the tine requiring that any appeal from actions of the DLU director“ be ® after uly 2998, the DPP tock cver many functions formerly hosted én the iv. “The OFF websites Neighborhood Boerd Information Handbook gives the following entry on the DPF: Establiched as of July 1998, reflecting responsibilities formerly housed under Department of Land Utilization, euilding Cepartment, and evaft {zon transportation, sewer sng engineering prograns. Ae of January, 1995, the former Department of Planning merged into OFF Departnent of Planning and Permitting, City and County of Honelule, A View a  FOR PUBLICATION WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER * brought within thirty days of mailing or service of the w: ten decision. Id, at 6, 826 F.2d at 878. The court appended a footnote to this rule, upon which CARD relies heavily. In that footnote -- footnote four -- this court state We are avare chat this section provides for a thirty dey Geagline following written notice. Only the ap fan action gets written notice, genersiiy, ‘nae Suize. Properties. However, one appellee dia receive s iet’ the DL, dated Septenber 16, 1986, which specifically states St}he proposed Building heights for Phase IV have been reviewed and determined to be acceptable pursuant to POH Ordinance No, #421 approved March 5, 19950" tn additichy appellees had the option of asking the Director of the Diu for s Dectaratory Ruling onder the Rules Reieting Te Administrative Frectice and frocedure for the Deporenent of 1d Utilization. Hewever, we caution fi Ice Proceedings’ for declari in conncn with equitable proceedings, the equitesle doctrine of laches has been applied in such proceedings.” Id, at 6 n.4, €26 P.2d at 876 n.d (citations omitted). Notwithstanding the fact that the statenents in this footnote are dicta, even taken at their word they do not support the right sought by CARD. CARD argues that the Sire Eroperty footnote created a way out of the dilemma faced by would-be chellengers who miss the deadline for appeals of Director decisions: by petition for a declaratory ruling. We disagree. Simply stated, CARD reads too much into footnote four. The Sire Properties footnote four dicta was not 2 ++ FOR PUBLICATION IN WEST'S HAWAT'T intended to avthorize an untimely “back door "ORTS AND PACIFIC REPORTER *** appeal of Director decisions by requesting a declaratory ruling. Iv. CONCLUSION Based oh the foregoing, we affirm the circuit court's March 30, 2005 final judgment. on the briefs: James J. Bickerton and K. Bartlett Durand, Jr. (of Bickerton Saunders Dang & Sullivan) for appellants-appellants Citizens Against Reckless Development, an unincorporated association; Doris Nakamura; and United Food * Commercial Workers Union Local 480 C. Michael Heihre, Kelly G. Laporte, and Allison M. Mizuo’ (of Cades Schutte) for appeliee- appellee Wal-Mart Rea: Estate Business Trust Lori K. K, Sunakoda, Deputy Corporation Counsel, for appellee-appellee Henry Eng Dawn D. M. Spurlin, Deputy Corporation Counsel, for Zoning Board of Appeals of the City and County of Honolulu and David J. Minkin ope Baca S-Zivinee Nata OF eceeycts en Van €. Says ta (attr. v 

2affb3725542acd4fde00d1cd28924be532e5ea8272483736255f95765d4c43d

2007-05-31T00:00:00Z

8b7f994a-8775-421a-b510-43254d0c6154

Diplomat Tours and Travel, Inc. v. Lazo

hawaii

Hawaii Supreme Court

NO. 26570 IN THE SUPREME COURT OF THE STATE oF HAWAT'T. = ae DIPLOMAT TOURS AND TRAVEL, INC. Respondent /Plaintiff-Appellee, vor cage Ra 2e| VERONICA B. LAZO, Petitioner/Defendant-Appellant, and DELIA ENCARNACION ALUPAY dba PHIL USA TRAVEL & SERVICES, Defendant -Appellant. a CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIV. No. 1RC03-1-3438) ORDER REJECTING 1 (By: Moon, C.J., for the court?) Petitioner/defendant-appellant Veronica B. Lazo's filed May 30, 2007, is application for writ of certiorari, jected. Honolulu, Hawai'i, June 22, 2007. Dan 8. tkehara, for FOR THE COURT: petitioner/defendant- appellant Veronica B. NTE Lazo, on the application Grossi gpa 2 Ve oe ws DATED: f Sopeidered by: Moon, ¢.J., Levinton, wakayama, and Duffy, 9.; and Cirowit Judge Wong, in place of Aecba, 5. recusee Oat 

da477d5782eba8c08c5b79d6f16bdd38167af9608d9ede0d2ec2e7fe280e070c

2007-06-22T00:00:00Z

2dd22991-3ecd-4632-b7f2-52cffe10b225

Silva v. City and County of Honolulu.

115 Haw. 1

hawaii

Hawaii Supreme Court

Law Liprany FOR PUBLICATION IN WEST'S HAWAI'T REFORTS AND PACIFIC REPORTER IN THE SUPREME COURT OF THE STATE OF HAWAI'I 00 LORIN SILVA and CAROL SILVA, individually and as personal representative of the Estate of Kevin Silva, Plaintiffs-Appellants, CITY AND COUNTY OF HONOLULU, Defendant-Appellee, and 10, JANE DOES 1-10, DOE CORPORATIONS 1-10, DOE PARTNERSHIPS 1-10, and DOE GOVERNMENTAL AGENCIES 1-10, Defendants. a No. 27385 APPEAL FROM THE FIRST CIRCUIT COURT (CIV. NO. 05-1-0286-02) ‘Sn¥fonr oats 20:6 we oF AUGUST 10, 2007 MOON, C.J., LEVINSON, NAKAYAMA, AND DUFFY, JJ., AND JL, RECUSED CIRCUIT JUBGE CHANG, IN PLACE OF ACOBA, OPINION OF THE COURT BY LEVINSON, Jy ‘The plaintiffs-appellants Lorin and Carol Silva Ihereinafter, collectively, “the Plaintiffs”) appeal from the the Honorable firet cireult court’s dune 14, 2008 judgment, Randal K,0, Lee presiding, in favor of the defendant-appellee City and County cf Honolulu [hereinafter, “the County”] and effectively dismissing their complaint against the Plaintiffs, $04 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS 2ND PACIFIC REPORTER *** On appeal to this court, the Plaintiffs contend that: (2) Hawai'i Revised Statutes (HRS) § 663-3(b) (Supp. 1997)! is the controlling statute of limitations in wrongful death actions against the County, not HRS § 46-72 (Supp. 1998); (2) in any case, the “Plaintiffs substantially complied with the provisions of HRS § 46-72"; (3) the notice period “should have been tolled until . . . a personal representative was appointed to represent [the Plaintiffs’ decedent son Kevin's} estate” (hereinafter, “the estate”]; and (4) “[t]he application of HRS y Wns § 663-3, entitied “Death by wrongful act," provides in relevant part: ‘or any of the persons enunersted in Bay agintain an action againet the person causing the death oF ageinat the person responsibie for the seath- The action shall be scintained on benalf of the persons enumerates in Subsection (b), except that the legal representative may recover on Eehalf of the estate the reasonable expenses cf the deceased’ s Inst iiness and burial. {b) In any action under this section, such damages say be given as uncer the circumstances shell be deened fair and just Compensation, with reference to the pecuniary injury and loss of love ane affection, - . - By the surviving... father| and] nother: . . Any action Brought Under this section shall be Connenced within tye years from the date of Geath of the injured person, except se otheruise provided HRS § ¢6-72 (Sopp. 1988), entitled “Lisbility for damages notice of injuries," provided in pertinent part: Before the {sic} county shall be liable for damages to any person for injuries to person or property received upon any of fhe... public places of the county, or on sccount ef any negligence of any official or employee of the county, the Person sc injured, . . . oF someone in the person'e behalf, shall, within cf give the chaszperson, Sf the counesi cf the county or the city clerk of Henolule notice Sn writing ef the injuries end the specific canager resulting, stating fully in the notice unen, where, and how the injuries cccurres, the extent shereof, and the amount clasned therefor. (Emphasis added.) Effective June 7, 2007, the legislature anenced this fection, in respects gernare to thit appeai, such that the emphatized language ow reads: “tuo years after the injuries accrued”. Sex Act 152, 28th Leges Reg. Sess., $68, 14 (2007). /+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *+* § 46-72 to the instant case . . . violates the Equal Protection Clauses of . . . the Hawai'i Constitution and the . . . United States Constitution.” We conclude that the Plaintiffs’ first three points are meritiess, but on the basis of their fourth point, as discussed infra in section IIT.D, we vacate the circuit court's judgnent and remand for further proceedings. 1. BACKGROUND In this appeal, we consider whether the notice-of-claim requirement set forth in HRS § 46-72, supra note 2, as applied to the circumstances of this case, operates as a legal bar to the County’s liability for Kevin's death. On September 7, 2004, Carol filed a petition in the circuit court sitting in probate, the Honorable Colleen K. Hirai presiding, for adjudication of intestacy and appointment of a personal representative for the estate. Effective upon its January 21, 2005 order, the probate court granted Carcl’s petition and appointed her the estate's personal representative. on February 22, 2008, Lorin (individually) and Carol (individually and as the estate's personal representative) filed @ complaint in the circuit court, the Honorable Randal K.0. Lee presiding, against, inter alia, the County for damages arising out of Kevin's death. ‘The Plaintiffs alleged that, on July 4, 2004, Honolulu Folice Department (HPD) officers, “acting within the course and scope of their employment by” the County, arrested Kevin in the vicinity of Kipapa Neighborhood Park, The Plaintiffs further  FOR PUBLICATION INV WEST'S HAKAI'T REPORTS AND PACIFIC REPORTER ++# alleged the following facts: (1) that Kevin “sustained severe and life threatening physical injuries as a result of the conduct of one or more of the [HPD] officers who arrested him” and thet “the police knew or should have known that he needed immediate medical attention”; (2) that Kevin, however, “was not provided with any medical treatment” until “hie physical condition Geteriorated further”; (3) that Kevin died the same day at Wahiews General Hospital as 2 result of the injuries inflicted by the HPD officers and by unnaned Doe defendants and the officers’ failure to provide Kevin with timely medical care; (4) that, on July 6 end 7, 2004, at least three articles in Honolulu Rewspapers discussed the incident and Carcl's consequent grief: (5) that, on August 17, 2004, the Plaintiffs’ attorney, Dennis W. Potts, wrote two letters to HPD Detective Sheryl Sunia, which stated in relevant part: RE: My Client: Kevin sii Date of Deaths July 200 Wie’ Tithe Plaintétte’ counse2)] are writing this letter Sue to cur understanding thet yeu are conducting sn internal’ investigation at HPD inte the cireunstances Surrounding the death of Kevin’... on duly 4, 2008 in hie «It}e have been Setained by [kevsn]'s fanily to’ conduct an investigation inte the cireunstances serrounding his death. Ae part of this investigation we do inten... te review and/or listen to the HPO dispatch topes releting to (Kevin) 's arrest, detention and citinate Gesth. We ere therefore writing this letter to request that these dispatch tapes not be cestroyes or discarded and that they be held intact until... Gur review of these capes RE: My Client: Kevin sive Date of Death: July 4, 200¢ Ll! inpne request made in my prior letter encompasses net only the dispetch tapes, but any Communications, dispaten loge or printouts feleting é and  POR PUBLICATION IN MEST" AWAZ'T REFORTS AID PACIFIC REPORTER *#¢ (emphases in original); (6) that, on August 25, 2004, Potts wrote a letter to the County's then-corporation counsel, David 2. Arakawa, which read in relevant part: Re 4, 2008 iwje are investigating the circunstances surrounding the death ef Kevin Sn polsce custody . « fon July 4, 2006." Me nelve] previously written to... Detective’... Sonia, who is epparently conducting an internel snwestigation inte the eiveunstances surrounding [kevin]"s Geath, requesting that 212 HPD daspaten tapes, and any ang all connunications, dispatch loge or printouts Teleting thereto be preserved pending the conpletion of our invest igetien. fare enclosing herewith the twe letters that I sent to Detective Sunie in this regard. wwe are. making the office thet we nade of HPD (emphasis in original); (7) that, on April 13, 2008, Potts sent a sme request of your letter to the County's Department of the Corporation Counsel concerning Kevin's death and describing itself as a “notice of claim” within the meaning of HRS § 46-72, Kahale v. City & County of Honolulu, 104 Hawai'i 341, 90 P.3d 233 (2004), and Salavea v City & County of Honolulu, 55 Haw. 216, 517 P.2d 51 (1973). Citing the Plaintiffs’ complaint and his letters to Detective Sunia and Arakawa, supposedly attached, Potts esserted that the attached cccunente provide you with ali of the available information regarding (Wevin]’s death ane the clains of [the ejetate against the = . «County which we have at the present tire... . [T]he [eletaie. . . is at this tine Etering » .» $800,000.00 as. . . daniges resulting fron his desth at Wentau(Z) General fogpite! en July 4, 2008. Tkevin)'s Geath oppeare to have Deen caused by injuries that he receives at Kiilpape (Neighborhood) Fark ee the Fercit cf sn alsercetion with persens using thet perk Nell as inturies that be received subsequent to hit arrest Caused by employees of [HPD]. These injuries includee traumatic Snvuries to his head ane ecay. .- caused by the manner in which he was restrasrea 1h saaition, [the [kevin] wae not provided with’ of [HPD] once st became he has sustained ‘+44 FOR PUBLICATION 8 MEST’ § HAWAI'I REPORTS AND PACIFIC REPORTER * On March 22, 2005, the County filed a motion to dismiss the Plaintiffs’ complaint on the ground, inter alia, that the Plaintiffs had not complied with HRS § 46-72. (Citing Kahale, 104 Hawai'i at 343, 90 P.3d at 235; Albert v, Diets, 283 F. Supp. 854 (D. Haw. 1968); Oaklev v. State, 54 Haw. 210, 220, 505 F.2d 2182, 1187 (1973) (Abe, J, concurring).) on April 25, 2005, the Plaintiffs filed a memorandum in opposition to the County’s motion, which advanced several alternative arguments: (1) that (a) their letters to Detective Sunia and Arakawa, their ostensible “notice of claim,” “the highly publicized nature of [the) case,” and/or HPD's Internal Affairs investigation complied with the netice requirement in and of themselves or (b) BRS § 46-72 should be liberally construed to recognize that the County was adequately “‘protect{ed] . . against fraud arising out of stale claims’” (emphasis omitted) (citing Cochran v. Pfluecer Autos., Inc., 72 Haw. 460, 621 P.2d 934 (1991); Levi vy, Univ, of Hawaii, 67 Haw. 90, 679 P.2d 129 (1964); Shibuya v, Architects Hawaii Ltd., 65 Hew. 26, 647 P.2d 276 (1982)); (2) that HRS § 46-72 was tolled pending appointment of @ personel representative; (3) that HRS § 663-3(b), see supra note 1, which sets forth a two-year limitation period, is the controlling statute and that HRS § 46-72, which only concerns “injury” cases, is of no consequence te the present wrongful death matter (quoting Kahale, 104 Hawai'i at 346, 90 P.30 at 236); and (4) that BRS § 46-72, as applied to the Plaintiffs, contravenes the equal protection clauses of the United States and Hawai'i constitutions insofar as “no rational basis existe for the disparate treatment of claimants when a cese of wrongful €  ‘104 FOR PUBLICATION IN WEST'S HANAT'T REPORTS AND PACIFIC REPORTER +1 death involving the [County, as opposed to the state,] arises” (quoting Kahale, 104 Hewai"i et 383-84, 90 P.3d at 245-46 (Acobe, Ju, concurring and dissenting)). During a hearing conducted on May 4, 2005, the circuit court reasoned in relevant part es follows: Kahale . . . overruled Salavea . . . and held that HRS Siteri2 provices the statute of limitations that governs fort claine agsinst the counties. . . . The reel question [o'inis cece de uhecher or not notice wes ectusily given te the (County] within... int Inonth(s) oie Oakey ree [ovthe Soprene Court indicaved that (*jthe basic purpose of the stetutery requirenent of filing » written Rotice olf) clsin | ] 1s to snform the municipal Suthorities [*Jwnen, where, ang how the injuries Occurred « , . .* 54 Haw. at 216, S08 PrZd at 1186). The Purpose is [*)io guard the (counties) egeinst fraudslent anc Snfeunced claine end[") provide the(m) an opportunity te (Jinvectiget le.) wale tne facts fohditions rensin subetantislly the same(_. + | Tihe test fo'determine » . . suféiciency of compliance .'.'. is whether. - the municipal officials [have been misled] to ie] under aii. the elreunstances of the da. at 216-17, S05 P20 at 16). J wieh reqoires & broad reading of the notice requirerent, refers to Sayre v. E] Corece County Hioh Schl! p21? B.26 713. (Ca! Toso). (5¢ Haw. BIE boS pt ee 1167.) 3 bos collision, and ou sth the schoo! district, rather then the municipality. Nith a Brose reading of the netice requirenent, Saye ihelc! thet the notice filed with the school Getrict wae Sufficient [te put the muniespality on notice of the tort Claim). In beth Qakley anc Sauzg, cleins were files. in this partscular case, (e} clain() wlas) not filed with the [Clounty within eix months [after]... the cate Of the alleged injuri " Stn Hegvive State, 51 P.3d 632 (Idaho ct. App. 2002)); a wrongful ceeth clase], the plaintiffs alleges thet the state “eS breschea ite duty te the decedent because [it]. failed te involuntarily ceanit the decedent to s mental health inetstutisen! (a) letter was written te the Stete seserting thet the decedent hed cied end request [ing] fan investigatien into the circumstances . . . . (The court held that the pecsing reference to the decedent was Sheaffseient to put the Stare on netice « See U.S, Const. amend. xIV, § 2 ("Ne State shall... ceny te any person within ite suriediction the equa? protection of the lave."}; Haw. EGnets art. fy €.5 (Ne persen shell be cenieg the equel protectin of the lame sso) ‘1** FOR PUBLICATION IN WEST’ S HAWAI'I REPORTS AND PACIFIC REPORTER +44 This Court views this cese [ae] similar to aay in thet the issue te whether or not the letter toe 1 Araka vas sufficient notice. The fetter to Arakawa (vale written with the intent ef placing (him) on notice that there should be an investigation surrounding the Circumstances of [Kevin]’s desth. This letter... wae Insufficient... . te place (the County] en netice thot a claix was going to be filed eguinst it y rejected the Plaintiffs’ Furthermore, the circuit court summa: equal protection and tolling arguments. Accordingly, the circuit court granted the County's notion to dismiss and, on June 14, 2005, entered final judgment in faver of the County and against the Plaintiffs. On July 5, 2005, the Plaintiffs filed a timely notice of appeal. aa DARD: A. Sunmary dudanent* We review the sonmary Judgment ge “ 3 cuit court’ grant or denial of nove. Hauai's C/miey crease 5 11 F.38 7, 8 (2000) “for ‘summary Judgment Se [Slunmary judonent is appropriate if the pleadings, Gepesitions, aneuere to interrogatories, and Sdnissione cn file, together with the alficavite, if any, show that there ie no genuine sesue ae teeny fateriei fect ond that the moving parey 48 entitled to Sussrent ae 2 nevter of fect is sstersel if Broct of that fact would have the effect of Geteblishing or refuting one cf the essentiel elements Of @ cause cf action cr defence asserted by the ee. The evidence must be viewed in the Tight fetoratle to the nen-noving party. In other words, we must view all cf the evidence and the Inferences Grawn therefren in the liant soet favorable te the party opposing the motion 2a. (eit ions ang internal quotation marke omitted) a motion . . . to dienise fer failure of the pleading te which relier con ke graztes, matters outsice the pleosios are presented to and rot excluded by the court, the notion shell be trestes ene for summary judgment : +. +" Haws"! Rules of Civil Procedure Role 1202)  ‘4+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER , 112 Hawai'i 184, 188, 145 P.36 727, 731 (2006) (brackets in original) (quoting Querubin v. Throngs, 107 Hawai'i 48, 56, 109 P.3d 683, 697 (2005) (quoting Durette v. Aloha Plastic Recveling, Inc., 105 Hawai'i 490, $01, 100 P.3d 60, 71 (2004) (quoting Simmons v. Puy, 105 Hawai'i 112, 117-18, 94 P.3¢ 667, 672-73 (2004) (quoting Kahale, 104 Hawai" at 344, 90 P.3d at 236 (quoting SCi Mamt, Corp, v. Sims, 101 Hawai'i 438, 445, 71 P.3d 389, 396 (2003) (quoting Coon vs City & County of Honolulu, 96 Hawai'i 233, 244-45, 47 P.3d 348, 369-60 (2002))))))}« ws Sue B. ry Interpys ["]the interpretation of = statute is = question of Ele ge ngve-("] State v. Aicea, 84 Hawai'd Pizd ses, 82" (1986) [ ianterne: quotation signal's onittes) |: Furthermore, our statutory construction is guided by established rules Tihen construing a statute, cur forenoet Sbiigation 14 to ascertain and give effect to the intention of the legicleture, uaien is to be y fron the language contained ne statute itself. And we sust read ‘utcry language in the context of the entire ute ang construe it ins manner consistent with ite purpose When there i¢ doubt, dovbleness of tinctiveness er uncertainty of G ine statute, an ambiguity 3h construing sn enbiguovs statute, “{t]he mening of the anbiguovt words ray be scught BY. Ghenining the context, sith whieh the sxbiquovs Words, phrases, enc sentences my be compared, In orer te ascertain tnesr true mesning.” BRS S 1-252) [(1983)]. Merecver, the courte may Petort to extrinsic aice in determining ive intent. One evenve if the use of sry ag an interpre: le, Admin, Diz, of the Court), 64 Hawai’ gat Poze foe, S90 (ilsei1) queting €, 16-19, 906 Fre €5 Tiprackets anc ‘ellipsis points in original) LEootnete onsetes) 56 coneider, weich inguced the legislature to enact it te "+ FOR PUBLICATION IN MEST"S HAWAI'I REPORTS AND PACIFIC REPORTER +++ discover its true meaning.” HRS § 1-112) “Laws 40 Bard MALexia, oF upon the sane subject matter, theil be construed with reference t2 each Other.’ Wher is clear in one stetute may be called lupen in aig to explain shat is doubtful sn another.” mks '§ 1-16 (1993) State ve Koch, 107 Hawai's 215, 220, 112 P30 €8, 74 (2008) Tieone brackets sddes and sone in origi added anc sone in eriginsl)] laueting Stace vf Hawaii 1, 7-8, 72 P34 473, 479-880 (200317 Abe sBSUrG of unjust result, see State v. Hauser, 106 Ha 7, 77, ts F.36 178, 184 (200¢), thie court ie bound to give eftect’ te the plain'meaning of Unenbigvour statutory snguage: we nay only resort to the vse of lesisle: hietory wnen interpreting an enbigvoue statute. £t Valdivia, so Hawaii 46s, ¢72, 26 P30 661, 666 (200TTS Hawaii Home Infusion Assocs, v, Befitel, 114 Hawai's 87, 92, 157 P.3d $26, 530 (2007) (quoting Courbat v, Dahana Ranch, inc., 111 Hawai'i 254, 260-61, 142 P.3d 427, 433-34 (2006)) (brackets and ellipses in original). C. Questions of Constitutional Law “We answer questions of constitutional law ‘by exercising our own independent . . . judgment besed on the facts of the case.’ Thus, we review questions of constitutional law {*Junder the [Jright/wrong[] standard.*” Arceo, 64 Hawai'i at 11, 928 F.2d at 853 (quoting State v. Lee, 83 Hawai" 267, 273, 928 P.2d 1091, 1097 (1996); State v. Trainor, @3 Hawas'd 250, 255, 925 P.2d 818, €23 (1996); Zovomura, 80 Hawai'i at 15, 904 F.2d at 900; State v, Beranco, 77 Hawai'i 361, 355, 884 P.2d 728, 733 (1994). 111. Discussion On appeal, as in the circuit covrt, the Plaintiffs erque: (1) thet HRS § 6€3-3(b), see supra note 1, is the controlling statute of limitations in wrongful death actions against the County, not HRS § 46-72, see supra note 2; (2) thet, 10  + FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REFORTER +++ in any case, the “Plaintiffs substantially complied with the provisions of HRS S{ )46-72"; (3) that the notice period “should have been tolled until . . . @ personal representative was appointed to represent . . . [Kevin's] estate"; and (4) that “t]he application of BRS § 46-72 to the instant case. . « violates the Equal Protection Clauses of . . . the Hawai'i Constitution and the . . . United States Constitution,” see supra note 3. AL 2 e of rf i Claime Brisine Opt OF Injuries Resulting In Death ‘The Plaintitte « m to reason that, inasmuch as HRS § 663-3 applies more “specifically” to wrongful death actions, HRS § 46-72's notice requirenent is applicable only to cases “injuries” shy of death.! (Citing Crawford v Cranford, 62 Haw. 610, 415, 745 P.26 285, 288 (2987).) Furthermore, they urge that, even if we were to determine that involving HRS § 46-72 applied to their claims, that statute must yield to the longer limitation period set forth in HRS § 663-3(b). (Citing Crawford, 69 Haw. at 415, 745 P.2¢ at 287.) The County counters: (a) that an “injury” is simply *L, [t]he violation of ancther‘s legal right . . . [,] a wrong cer", or IhJarm or damage’ “even HRS § 663-3(b) [], the whereas (b) “a death is the result of injuries sustained”, + consuner Lawyers of Hawai'i enphaticelly concurs in its amicus brief. citing Grawiera v Crasterg, 420, 145 FeZ0 265 (1987}-) The Seppesing” Steynere are Wrongful 3° (SURE  +4 FOR PUBLICATION I WEST'S RAWAI'T REPORTS AND PACIFIC REPORTER + statute that [the] Plaintiffs would like this . . . Court to apply to their claims, concerns the ‘death of the injured person[)’ (emphasis added). (Citation omitted.) Consumer Lawyers of Hawaii, as amicus curize, adds: the legislature has not blended personel injury cleins and death Claims... s0 that e single period of Limitation governs each. Claims for wrongful desth are governed sclely by H.R.S. Is) ee it'mist be presumes that the legislature, in enscting W.R.S. [g] €87=7,(") for perscnal injery elaine, and {HRS S$] ee5-3{] for death claims, was aware of the serious... differences between + injury’ soffere by s ISving person versus Gesth = ize tne egislature had wanted #.R.S. [8] 46-72 to apply to ceath claims, . . . it could nave aie #6. (Some emphases omitted and some in original.) We hold, following Kahale, that the statute of Limitations applicable to the estate's claims arising out of Kevin's injuries and the Plaintiffs’ own derivative wrongful Geath damages, is HRS § 46-72. See Kahale, 104 Mi at 343, 345, 347 & n.7, 90 P.3d at 235, 237, 239 6 n.7, We ascribe no significance to HRS § 46-72's general reference to “injuries” as compared to HRS § 663-3's uses of the term “death.” The Plaintiffs’ first amended compleint alleged that their damages sprang from the physical harm allegedly visited upon Kevin in the hours before his death and, to a substantial degree, from the trauma that Kevin experienced while still alive: ed the “genera” personel insury letions fer the Fecovery ef cr property ensil be sneticut lceruea, ane not after, except compensation fer a br sneansty) 2 +4 FOR PUBLICATION IN WEST'S KAWAZ"I REPORTS AND PACIFIC REPORTER ++# ip] sustained severe end ite threatening’ phvsisal-intuties as's result of the conduct of one or nore of the police cfficers who srrectes Nir a2. ss [HPD] knew or should have known that [Kevin] needed inmeciate medical sttention for the phusical 8: “Those police officers who were involved in the arrest, transportation end ineerceration of (Kevin) inflicted physical intury on (hin), [es a) direct and picainate result ‘of unich he . . + ultimately ered 20. "ab of the Derensencs tithe estate susteines spec Garages by way of aedical, funeral and burial expenses and Joes of excess earnings a vell as general canages for the SonEGious cain, sufterina and eactional distress which Tkevin} experiences piact to lig death while [Lorin ene Carol] sustained canages by way of loss of financial Sopport, masntenence snd other, miscellaneous costs and expenses, ‘the lose of filial love, affection, cere, support fane counsel, encticnal distress end the disruption ef their fone and family Life. «+ (Emphases added.) The fortuity of Kevin's death should not allow the Plaintiffs to evade the statute of limitations applicable to “injuries.” Moreover, we reject the Plaintiffs’ argument that Gecedents' estates, per ss, enjoy the longer limitation period of two years because of the logistical difficulties inherent in the appointment of @ personal representative. The Plaintiffs’ Antimation that the legislature intended to create an additional eighteen-month allowance for lengthy probate proceedings is purely conjectural; the Plaintiffs do not, and we believe could not, point te eny authority in support of their suggestion. In any case, the statute of limitations that the Plaintiffs offer as the correct one is facially inapposite to the estate’s claims (with a minor exception). Wrongful death clains, the sole subject of HRS § 66: 3, are derivative claims for the exclusive benefit of a “surviving spouse, reciprocal beneficiary,  FOR PUBLICATION 1 WEST! KAWAI'T REPORTS AND PACIFIC REPORTER children, father, mother, [or] . . . any person wholly or partly dependent upon the deceased person,” not primary claims of the Gecedent’s estate except with regard to “reasonable expenses of last illness and burial." In any event, by its plain language, HRS § 663-3 yields to a more restrictive provisic! any action brought under this section shall be conmenced within two years from the date of death of the injured person, except as otherwise provided” (emphasis added). For the foregoing reasons, HRS § 46-72 applies to claims against counties arising fron fatal injuries -- holding aside for now the Plaintiffs’ constitutional argument. But see iniza section 111.0. B 46-72 Is Not Toll. eviod Befor: Plaintiff fetate’s Fe fepresentative is Aeseint ‘The Plaintiffs argue that the six-month notice period “should have been tolled until such time as @ personal representative was appointed to represent . . . Kevin[’s] estate.” They urge = liberal construction of HRS § 46-72: “Justice (Bernard #.] Levinson was clearly aware of the difficulties that would ensue if the limitations period were not Neither party discusses the possibility that any claim egainst the County dic not gccrue until Corel use sppeinted. in any case, this court has that the eines ‘the estate notes ns aR Person may seek appointment of special chinistretor where necessary to preserve the estate oF to secure its proper ineluding bur net limited to eitustsone wh (e) fer ‘Set glsc APR Rule S6ie) cet the nominated persons ve is not 2 close fan:iy nenber probate say toke tec jong if the statute of linitetsone en the claim Je ebeut te orpire Sie uns € 56053-6148 Supp. 18) ("Spectel eeninieteter: Sproincnen a s+ POR PUBLICATION IN WEST’ TWAT REFORTS AND FACTFIC REFORTER ++ tolled pending the appointment of @ guardian ad litem for a minor. Without . . . a personal representative, there would Likewise be needless confusion and unnecessary litigation with respect to who is legally authorized to act on behalf of the decedent.” (Citing Salavea, $5 Haw. at 223-25, $17 P.2d at 56-57 (Levinson, J., dissenting).) The Plaintiffs’ argument is meritless. ‘There appears to be a long-standing consensus among foreign jurisdictions that, in the absence of @ specific enactment te the contrary, the applicable limitation period is not tolled, nor is its onset postponed, by delays in the appointment of personal representative. See J.N.P., Annotation, Delay in Procurino Appointment of Persona: Representative of Deceased o: His Death in Action for Death, 70 A.L.R. 472, 472-74 (1931 & Supp. 2007); Riley v. $, Transp. Co., 90 F. Supp. 642, @44 (S.D.N.Y. 1950), : n 4g, 192 F.2d 391 (2d Cir. assay: ve Bu : We, 107 F. Supp. 270, 274-76 (W.D. Mich. 1952); Straub v. Jaecer, 9 F.R.D. 672, 678 (B.D. Pa. 1950); Williams v. Quebec $.8. Cou, 126 F. $91, $82 ($.D.N.¥. 1903) ("The Language of the Act is explicit: ‘Such an action must be commenced within two years after the decedent's death,’ and, in view of the plain langua: not be extended by construction.”}; Badezky v. Sargent & Co., 58 the time to conmence an action can  ‘+4 FOR PUBLICATION I WEST’ S HAWAI'I REPORTS AND PACIFIC REPORTER + A, 708, 710 (Conn. 1904) ("The language of the statute('] is clear and explicit, conteining no exception and suggesting no qualification. Neither the failure of the . . . beneficiaries + to secure the appointment of an administrator, nor the failure of an administrator to commence an action, affect the time limit fixed by statute."); Miller v. United Teche, Corp., S15 A.2d 386, 389 (Conn. Super. Ct. 1986) (where wrongful death statute of limitations arred actions “brought” more than “two years [after] date of injury or discovery of injury,” see Conn. Gen. Stat. Anni. § 52-555(a) & historical notes (Lexis 2007), holding that, “(where the permanent administrator is appointed after the running of the (wrongful-death] statute of limitations , the action is barred by said statute of limitations”), rev'd in part on other grounds, 660 A.2d €10, €37 (Conn. 1995); Hannay. Jeffersonville RR, Co., 32 Ind, 113, 123-14 (1869) ("{T]t does not appear possible . . . that the legislature neant that [the two years begin to run upon] the appointment of the administrator. . . . [Bly delay to procure the eppointrent of an administrator, the suit might . . . be delayed for any length of time."); Van Vactor's Adn’x v. Louisville & N. RAR, Cou, 66 8.¥. 4, 4-5 (Ky. 1902); Carden v. L, & NRRL, 39 8.W. 1027, 1028 (ky. 1897); Cashman v. Hedbere, 10 N.W.2d 388, 392-92 (Minn. 1943) (quoting Rugland v, Anderson, 15 N.W. 676, 676 (Minn. 1883) (The action “must ‘be commenced within two years after the act or 16  FOR PUBLICATION IN WEST'S WAMAI'T REPORTS AND PACIFIC REFORTER +++ omission by which the death was caused.’ To this limitation the statute makes no exception, and none can be made by construction.”)); Davis v. State, 253 N.¥.S.2d 267, 268 (App. Div. 1964) (where statute “provide(d) that ‘[i]n any event [a] claim shall be filed within two years after the death of the decedent,’” effectively dismissing complaint on grounds of untimely notice of cla: , despite acknowledging that estate had no recoverable claim until appointment of representative) (emphasis omitted); Davis v, Schactmeistner, 112 N.Y.8.2d 208, 208-09 (Sup. Ct. 1952); Cohen v, Steigman, 292 N.¥.S. 750, 753 (app. Div. 1937); Beat v, Town of Kinston, 10 S.£. 997, 997-98 (N.C. 1890); Eldridge v, Eastmoreland Gen, Hosp., 769 P.2d 775, 778 (or. 1989) (“[T]he appointment of the personal representative is not relevant to the determination whether the limitations period established by [the controlling Oregon statute] hes expired. "); Mann v. Dep't of Transp., 836 P.2¢ 1353, 1355 n.2 (or. Ct. App. 1992), adhered to, abrogated on different crounds after remand, @56 F.2d 1055, 1085 (Or. Ct. APP. 1993); Mierts Adn'x vs Eover, 196 A.2d $01, 502-03 (Vt. 1963); Dodson vs Cont’) Gan Cou, 294 P. 265, 266-67 (Wash. 1930) (following analogous interpretation of Federal Employers’ Liability Act by Reading Co. vs Koons, 271 U.S, $8, $8-65 (1926)); Georce vs Chin, Milw. & St Foul By. Cou, € NW. 374, 374 (Wis, 1681) (while acknowledging that action could have been brought no earlier than representative's sppointment, applying “absolute and unconditional” language of statute to bar action): cf. Safir v Conpacnie Generale Transatiantique, 261 F. Supp. $01, 505 (E.D.N.Y, 1965) (resting analysis on express statutory exception  FOR PUBLICATION 8 MEST’ § HAMAI'T REPORTS AND PACIFIC REPORTER +++ delaying limitation period until appointment of administrator Smith vu. Deller, 288 S.E.2d 828, 826-27 (Ga. Ct. App. 1982) (same); Hehrer v. N. Ninth Lumber Co., 92 N.Y.S.2d 178, 179 (App. Div. 1949) (men.) (seme); Gibson v. Meehan, 178 N.Y.S.24 674, 675 (Sup. Ct. 1958) (same); Carpenter v. Johnson, 514 S.W.2d 968, 869-70 (Tenn. 1974) (same). In the case of HRS § 46-72, the legislature obviously recognized that, where the injured person has died, the act of supplying notice must be perforned by “someone in the person's behalf," see supra note 2, and yet, in the same penstroke, the legislature set the limitation period at six months from the indury, not from the appointment of a pereonal representative or special administrator and without reference to 2 delayed “accrual.” Accordingly, and in view of (1) the overwhelming foreign case law in support of @ literal construction of “six months after the injuries are received,” HRS § 46-72 (Supp. 1998), and (2) the availability of special administration as an expedient mechanism by which to preserve an estate's claims, see HRS $§ 560:3-614 to -617 (Supp. 1996); Hawai'i Probate Rule 56 6 ent., we hold that the limitation period set forth in HRS § 46-72 is not tolled pending the appointment of 2 personel representative. C. Zhe Elaintifts complaint Was Untinely Inasmuch as the Plaintiffs did not file their complaint within six months ef Kevin's injuries, it was categoricelly untimely and, accordingly, we need not address the questions of the effectiveness of the Plaintiffe’ letters ee notices of claim or whether the County essentially “notified itself” of the 38  +6 FOR PUBLICATION IN WEST'® HAWAI'I REFORTS AND PACIFIC REFORTER Plaintiffs’ claims as circumstantially reflected in the HPD investigation, As we observed in Salavea and reiterated in Kahale, while the notice requirement set forth in ERS § 46-72 may appear to be a mere “condition precedent to liability,” it “operates, in reality, as 2 statute of limitations.” Selaves, 55 Haw. at 216, 517 P.2d at $3; see also Kahale, 104 Hawai'i at 343, 345, 347 & n.7, 90 P.3¢ at 235, 237, 239 & n.7. Furthermore, the legislature recently affirmed HRS § 46-72's character as a statute of limitations by enacting Act 152, 24th Leg., Reg. Sess. (2007), the preambles of which describe HRS § 46-72 as “the statute of limitations for claims for damage and injury against the counties.” See Act 162 §§ 1, 7, 8, and 14 (emphasis added). That being the case, the Plaintiffs did net comply with HRS § 46-72 (holding aside their equal protection argument, see infra section II1.D), inesmoch es they filed their initial complaint on February 22, 2005, more than seven months after Kevin's alleged Jely 4, 2004 injuries. Cf. Kahale, 104 Hawai'i at 349, 90 F.3d at 24] ("Rachael, as Brandzie’s next friend, having filed claims for relief on Brandzie’s behalf while she was still @ minor, ensured that HRS § 46-72 would not act as @ bar to those claims against the [County].”).  ‘1** FOR PUBLICATION IN WEST'S HAKAI'I REPORTS AD PACIFIC REPORTER + >. 1; es? Tort Victins Fron tate’s Tort Victins W aii Coni on. Finally, given our disposition of the Plaintiffs’ first three points of error, it becones necessary to reach their equal protection’ argument, on which basis we vacate and remand. 1, The Plaintifte’ Arouments: The Plaintiffs contend that HRS § 46- creates a class of tort claimants, to wit, those injured by the conduct of a county, who are subject to disparate treatment vis-a-vis victins of injuries caused by the state" without @ rational basis to support such a distinction." (Quoting Felder v, Casey, 487 U.S. 131, 145-46 (1988); Turner v. Stages, 510 P.2d 879, 882-£3 (Nev. 1973); Jenkins v. State, $40 P.2d 1363, 1367-68 (Wash. 2975).) (Citing Reed v. Reed, 404 U.S, 71, 75-76 (1973); Crandall v, city ef Birmingham, 442 So. 2¢ 77, 78-79 (Ala, 1983); Gleason Davenport, 275 N.W.2c 431, 436 (Iowa 1979); Reich v. State, 194 NW.2d 700, 702 (Wich. 1912); Glassman v. Miller, 38€ N.W.2d 655, + We confine our interpre ESE SUBLE note 3, ingenuch oe we reed tion to Rewaii's equel protection clause, t comment cn ite federel counterpart © Set BRS § 662-4 (1993) (7A tort claim against the State shall be forever barreo unless action is begun within two yeors after the cleim eccrues, except in the case of @ medical tert clals ) * the Fleintsffe cet fundamental rights nor suspect claeessics are ot ietve. Tod Wawast ot 383, 90 oad at 245 (Acts, o-, concursing ang disser! But see" Shoemaker v. sugror Mont inc, 251°8.6.28 $48, S61 m1 62) iRsity Pedey STE (his eteunes that the right to recover cempensatery caneces tortfeasor is not = “fundesentel zaght ¥ S04, $08 {Joma 1973) iReynoldsen, ng) Tit would plainiy sapinge gx besic rights to ceny reascnable opportunity fer redress in court to ene whe Ehrough the wrongful ect cf ancther hee been permanently oieabied, with e consequent inebility te enjoy life ane to follew ¢ geinful eccepation in order te acquire ane pe 20 ‘449 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER **# 656 (Minn. 1984).) In substance, the Plaintiffs argue that, whereas tort cleimants against private parties or the state derive the benefit of @ two-year limitation period, they and other plaintiffs allegedly injured by a county are subject to a more restrictive six-month limitation for which no rational basis exists.!? We agree.” 2. Analysis our case law construing Hawaii's equal protection clause is heretofore silent as to the particular nuance before us. Justice Sernard H. Levinson postulated that “the purpose of protecting the public fisc from fraudulent claims justifies the imposition on victims of governmental torts a more onerous requirement of prompt notice of claims than on victims of private torts,” Salavea, $$ Haw. at 223 n.3, $17 P.2d at 56 n.3 (Levinson, J., concurring and dissenting) (emphases added), but we are not willing simply to transform this explanation of the separate classification of governnent and private tortfeasors’ victims into retionél besis for the distinction between county and state defendants; we have no reason te believe that the r= of Maui and Howai'i Counties, hore counties haves two-year shelf ‘ofpesea to the six nonths mandates by ARS § 46-72 (Sopp. 1992). (The County of Mevs's charter wae anended in 200, but this is net pertinent here. We igegree with the Plaintstfe’ implicetion thet county charters. supplas stove eeatuter. See Hew. Const. ert. VIIJ, $6 1-2, €7 HRS § 80-26 (1998). In any cere, the only chaluenges classificaticn to wnich the Plaintiffs belong 2 of clasmante againet the City and County ef Henolube ® ie should nete, in response to the County's understandable suppesition that, "if [we] Believed ARE § 46-72 to be unconstitutional,” we rotle neve scopted custice Acobe’s position in Kenaie, 104 Hewari at 382-8, 50 F.3a at 248-46 thecbe, OW, concurring end dissenting), thet the Kabale pleinti¢is sid not advance 2 constitutiens] argurent. o ‘14 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER +*+# counties endure greater budcetary strain or more freudulent clains than the state. Among the few authorities on point, Farnum v. 6.0. Searle 4 Co., 339 N.W.2d 392 (Iowa 1983), advances the most detailed justification of @ county/state distinction, but we believe it to be distinguishable. In Farnum, the plaintiffs “contendied] there is no rational basis for having @ more stringent limitations period for actions against county doctors than for tions against state doctors.” Id. at 396. The Iowa Supreme Court disagreed: Despite hone rule, counties eperate under greater SSecel constraints than’ the state does. Their mein scarce of revenue is the property tax. The property tex levy 15 subject to a statutory ceiling. Strict tine lines are established in the Local fidget hondn conteast, the (lowe) General Assenbly is free te raise revenue from nunber of sources, and its procedure ‘chebles it to appropricte funds es necessery, after the fact, te pay claims. ‘This court has previously noted the special problems encountered by ons municipelities tn inplenenting Budgets. Euogetary cone: Sn’ Lungayly, Vogelmann, 213 Bl.20 $00 (Iowa re 1 354 N.W.2d 776, Tel (2986),1 a8 supporting the notice fequirenent See [ida] at $07-08.” Other courte have alse given weight to This factor in upholding similar netice requivenentes he sane reasoning lea the hew Mexice Supreme Court to uphold differential treatment of victina and tertfeasers in shalogous facts in Eerancls Hogs[-] Ashley Atencio, + = $68 P.261259 (IN. 1971); the court Baler In this state, cities are clearly limited in their expencitures.” The absiity of cities te re soney to meet such extraordinary expense 15 230 restrictes. Therefore, it appears that sone rational basis coes exist for limiting the tine period in weich soit may be brought against a city. es... at 1236. other cou: Sohciusicn. We find these case vpnoleing the cifferential tr ‘448 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** Seoarra v. Chi, Transit Auth., 637 N.E.2d 572, S75 (Ill. App. Ct. 1994) (where plaintiff challenged notice requirement for suits against the Chicago Transit Authority (CTA) thet did not apply to suits against municipalities, upholding stetute as consistent with equal protection, noting that the CTA, “having as its only purpose the operation of one of the largest mass transit systems in the United States{,] performs @ . . . governmental function with ite own peculiar problems having no parallel in the usual functions of . . . governmental entities,” such as a “large number of personal injury claims") (internal quotation signals omitted) . unlike Seoarra, Farnum, and Atencio, the record before us is silent with respect to any difference between the levels of government in this state that would constitute @ rational basis for a more stringent limitation period when the County is the defendant as compared to when the state is the defendant. In % the Farnum court relied upon Tous statutes to illustrate differences between the scurces of and procedures for allocating funds of the State versus the counties. See 322°N,k.2e st 287 (citing lows code ensps. 24, B5R ang §6 331.422, 424. (corrent vertion available at http! /swm legis. state. 12.os/ionalaw. nts! , Sintleriy, in Atencio, the New Hexico Suprene Court cbrerved thet, “[i)n IWew Mexico], cities ere Ciesrly linited in their expenditures” and that sItine ability of caties to raise neney co meet extraordinary expense se alec restricted,” S68 F,20 at 1286 (citing Nit. Stat. Ann, $6 11-61 end =6 (1852 ¢ Repl. 1974)/- Uniske the present matter, the Gefendent city hae froffered some atecrtedly “rational” beses for enjoying a shorter statute of : rey 1asites [in thesy bility] to isnel 4 wcities have @ greeter heed te know whet ing a fiscal year becouse, potentially, they 3 f iseality. wisie Ganatta coed not sirettiy Gite factual support for the CThte unique stature, the court cited S by $8 Habezd 4€7 (211. 1986), in hich the 11]inote Supreme Cou ) of the nagnitude of the gperstione ef [ene CTA) ‘ipevating ef the busy streets and crougefares cf the second largee: city in tne United states, one cf the rgest cities of the werle, [it] becenes involved in the largest velune of {cent inves...)  ++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER fact, the legislature has expressly recognized that the disparity is at least unnecessary and at most unfair. Effective June 7, 2007, the legislature enacted Act 12, 24th Leg., Reg. Sess., $8, which amended HRS § 46-72 so as to expand the limitation period to “two years after the injuries accrued.” See supra note 2. Act 152’s preamble states that “it ie necessary to conform the statute of limitetions . . . against the counties with the Limitations period applicable to the State and private individuals generally to ensure fair and consistent application of the law." See Act 182 § 1; accord 4 “{eJhe purpose of” the amendnent): Sen. Stand. Comm. Rep. No. 276 § 7 (articulating at 2 (Feb, 14, 2007) (“This [amendment] will bring county clains in conformity with all other government and private sector cleins and the reasonable expectations of the public.”). Furthermore, while the County and the state’s Department of the Attorney General opposed the amencnent from its inception, when testifying against it, they failed te demonstrate how, if at all, the County's exposure to or procedure for handling tort claims is different from the state’s so as to justify a disparate Limitation period: 4. scentinved) personal Injuries litigation in the state. There are, no doubt, many, if not Bere, “Blind” claine - thoee not reported by ite employece =~ than in ‘ony Other municipality in ilisnele."” igs at 9] (emphasis eded) We are unwiiiing te “fine” or juescially netsce thet the ceunty’s bodgetary fetters place it ine worse posiesor than the states Te the contrary, the county's cherter appears te sanction certein emergency appropriations, even if on unaresespated deficit results, fee Revived Charter cf Woneluis § $08.3 (2000 Sone ‘not inciuged in the Eusget orci ia) To meet contingencies which could not 6 then the budget or: Unless pete matt be ineluces  FOR PUBLICATION IN WEST'S HAWAI'I REFORTS AND PACIFIC REPORTER + ‘The eix-nonth requirenent is @ policy matter . Because the Counties rely on public funds to operate, it is critics! that the Counties have all possible avenues to Protect their scarce resources. ‘The mesority of the laine received by the counties ore not the sentational mettere ebout which the negia reports; rather the majority of the clains are the hore monsane types of mattere that sffect ronicspalsties and Counties an their citizens, (egal, pothole claims, ‘damage fo mailboxes from refuse trucks, eidewalk trip snd falls, noney lest in parking meters, tree branches dinging ears, ‘yensele danage fron debris in the readwey, land) injuries From divete in parke ws + See Hearing on S.B. 1641," Sen. Intergov’tal ¢ Mil. Affairs Comm., 24th Leg., Reg. Sess. (Feb. 12, 2007) (statement of Corp. Counsel Carrie K.8. Okinaoa) (on file with committee clerk); It just as easily (statement of the Dep't of the Att’y Gen could be said of the state that ite “resources” are “scarce” and that it 4s regularly sued over “debris in the roadway,” “damage fron refuse trucks,” and similar workaday perils. Finally, the cases offered by the County in its answering brief concern only the governnent-versus-private tortfeasor distinc n that we have already rejected as dissiniler to the classification scheme at work in HRS § 46-72 (Supp. 1998). See Rios v. Montoonerv County, £72 A.2é 1, 16-19 (Mé. 2008); Johnson v, Marviand State Police, 626 A.2¢ 162, 167 (Nd. Ct. App. 1993); Biccitelli v, Brockhvizen, $96 N.W.2d 392, 401 (Wis. 1999) .1 S.E, 1681, 24th Le ef the anenanent te Bhs §. 46-7 incorporated it inte the bill Conn. Rep. No, 919 at 2 (Hal Reg, Sere (2007) wae an esriser incarnation the Senate Judiciary and Lazer Comittee sat would become Act 182. See Sen. Stanc 2, 200). spect tully decline to follow the contrary conclusion of Shoemsier v. Alancr Most., Ins., 291 S.£.22 £68, ©: (G2. 1982) (opnolaine Retice statute at not viclotive of equel protection). The Georgie Supreme Cosrt plainly sisrese the limitation statute's cistinction Eetween the Teontinced...)  ‘+4 TOR PUBLICATION IN MEST’ § HAWAI'I REPORTS AND PACIFIC REPORTER 3. The Bottom Line Wie hold that there is no rational basis for the classification scheme effectuated by HRS § 46-72 as it read in 2004. The County offers no rationale for the distinction between the classes, nor can we deduce one. ‘The record on appeal and the legislative history are silent with respect to any budgetary, logistical, or other difference between the County and the state that might justify the unequal treatment of victims of their torts. We cure this constitutional error by severing HRS § 46-72's (since repealed) six-month provision, thereby relegating the Plaintiffs’ clains to the same two-year limitation M1. -continved) Fequireneits of notice to sunicipslities and to counties, concluding simply that “sufficient differences exist between governmental ond Eri tortieasors to justify... requiring that. - sotice be given to one but not the other,” gee 4g, et 550 (enphases added). Preeiging Justice Mist protestes thet “the different tines for netice as between counties and Cities... Go) not beara ressonable relationship tos legitimate Gevernnental purpose,” but His dissenting opinion prompted not moment's Fetlecticn by the sajerity.” See ig. at S8I°S2 |Hiil, Feds, eissencine) oh 1976), disturb ‘Suprene Court uphele & statutory’ schene t netice periods applied to the State of Utah (one @ county Ininety days), ane 2 city or town (six months). dd. at The court ressoned! nile no precise formula has been enunciated, it is generally hele that the lesisisture hat a wide discretion in enacting lews which affect ene group of citizens differently then other groupe ‘The legislature is presuned to have actee within their Constitutional authority even though inequality resuites [nsie ."- de may hove Seen preserabie fer ne iegssiatore to'nave specified ¢ uniform period for all an subcivicione ef Stete government, ss tne state be stricken down merely because the legsslatore adoptes three pericas curing unieh notices of claine mst be files. 647 Ifoctnete omitted). We generally agree with Croudes’s intimation subject to only rationg:-basis scrutiny ie pretonptively valid for equal-protection purpeses, Ost, a we noted gupta, the Haws: iegitieture sitimatively acknowleages that parity aneng cleine against the counties and the state “ie necessary.” 26 ‘1° FOR PUBLICATION IN WEST'S HAWAS'T REPORTS AND PACIFIC REPORTER ++* applicable to claims against private tortfeasors under HRS $§ 657-7, see supra note 6, and 663-3(b), see supra note 1. See Kehale, 104 Hawai'i at 348 n.8, 90 P.3d at 240 n.8 ("{T]he legislature is perfectly free to amend [HRS § 46-72) to provide, say, for @ two-year limitations period or to repeal st altogether, in which case tort claims against the counties would be governed by HRS § €57-7."). Inasmuch as the Plaintiffs filed their complaint well within two years of Kevin's initial contact with HPD on July 4, 2004, a fortiori “within two years after the WRS § €S7-7, they are entitled to cause of action accrued,” pursue their claims. IV. CONCLUSION In light of the foregoing analysis, we vacate the circuit court's judgment and remand the matter to the circuit court for further proceedings consistent with this opinion. on the briefs: Dennis W. Potts and Todd W. Eddins, Goro for the plaintiffs-appeliants Lorin and Carol Silva Moana A. Yost, Deputy Corporation Counsel (DCC), for the \ defendant -appellee Pei OM rusleny aren City and County of Honoluly Janes Krueger, Karee &. Dusty + Consumer dangers ef haw! WBC be, Jane E, Lovell, DCC, for the amicus curiae County of Maui 

2e45b8d73d46ad4b2552cee45fee8eb06fe6d0d36acdf8bcb75d0a593b637df5

2007-08-10T00:00:00Z

23991e9e-6732-49bc-9a93-c031d8d6769c

Vestin Mortgage, Inc. v. McKenna

hawaii

Hawaii Supreme Court

LAW LIBRARY wo, 28322 IN THE SUPREME COURT OF THE STATE OF HAWAI'I \VESTIN MORTGAGE, INC.; VESTIN REALTY MORTGAGE I, INC.; VESTIN REALTY MORTGAGE IT, INC. ; OWENS MORTGAGE INVESTMENT FUND; BRIDGE CAPITAL, INC. ; SUNSET FINANCIAL RESOURCES, INC., Petitioners, ‘THE HONORABLE SABRINA S. MCKENNA, JUDGE OF THE FIRST CIRCUIT COURT, STATE OF HAWAI'I; STATE OF HAWATTs ALTERNATIVE DEBT PORTFOLIOS, L.P.; ALTERNATIVE”, DEST PORTFOLIOS LLC, ‘Respondents. aati ORIGINAL PROCEEDING 1 (CIV. NO. 04-21-2126) ‘ORDER 1 Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.) Xt appearing that petitioners settled the matter for which mandamus relief is sought, 37 18 HEREBY ORDERED that thie original proceeding is ismisned. DATED: Honolulu, Hawai'i, June 27, 2007. MaeSifolovrnas— Peace Cea are oN, Rowe &. Duly. Ge 

a8d4d8a8427a28d826437405b15add940ffaf0b5d89d60a88821586ccb9c31ff

2007-06-27T00:00:00Z

a57b0422-cec5-44b8-8203-0fc0bb9cadd9

Holi v. AIG Hawaii Insurance Company, Inc.

hawaii

Hawaii Supreme Court

LAW LIBRARY No. 26089 IN THE SUPREME COURT OF THE STATE OF HAWAT'T HOLI, Petiticner-Pla: sue wnwnss snconance conan, ave., EZ § esponsenttetendare-appeilee/crose-nppelie@alé = Fy Fae = and Srile ae 2 @ 0 JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS <SpO; 2g CORPORATIONS 1-10; ROE “NON-PROFIT” CORPORATIONS 1-70; and @OE GOVERNMENTAL ENTITIES 1-10, Respondente-Defendants- Appel lees/Cross-Appellees. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIV. NO. 02-1-0395) for the court’ (By: Nakayama, Petitioner-Pleintiff-Appellant /Cross-Appellee’ s application for writ of certiorari filed on April 26, 2007, is hereby rejected. DATED: Honclulu, Hewai"i, June 5, 2007 FOR THE COURT: Bassas Obreastereyarer Associate Justice Arthur Y. Park, Laurent 3. Remillaré, Jz., John C. McLaren and Earl T. Nakasato for petitioner-plaintiff- appellant /cross-appellee on the application son, Nekayens, Acobs, anc buffy, Coneicered by: Moon, C2.) Le 

d919545f72ef00b2de6a5f955094233cc14d81b2bff464efbb777926a6b89a49

2007-06-05T00:00:00Z

8615200b-0b15-49f8-8f1d-c36f5e278103

Kalima v. Marks

hawaii

Hawaii Supreme Court

LAW LIBRARY No. 28594 IN THE SUPREME COURT OF THE STATE OF HAWAT'T LEONA KALIMA, DIANNE BONER, RAYNETTE NALANI AH CHONG, Special Administrator of the Estate of Joseph Ching, ‘Deceased, on behalf of themselves and all others Similarly situated, Petitioners, "HE HONORABLE VICTORIA S. MARKS, SUDGE OF THE FIRST CInGUIT COURT, STATE OP HAWAL'Y; STATE OF HANAT; STATE Gr UownE'x DEEARDINT OF HAWAIIAN HOME LAND; STATE OF HAWAI'T HAWAIIAN Howe Lanbs TwoSF g)) BIVECUM, Cities Revien Patenr Lien LENcialy Inher eftictal cepucity a0 Governor of eh Stace of Howat.” sespendente 2 ad = m ORIGINAL PROCEEDING = o te Wo Sear) = ORDER (By: Moon, C.J., Levinson, Nakayama, and Duffy, JJ. ‘and Intermediate Court of Appeals Judge Nakamura, in place of Acoba, J., recused) Upon consideration of the petition for a writ of prohibition filed by petitioners Leona Kalima, Dianne Boner, and Raynette Nalani Ah Chong, Special Administrator of the Estate of Joseph Ching, Deceased, on behalf of themselves and all others similarly situated and the papers in support, it appears that the transfer of Civil No. 99-4771 to another circuit judge was within the discretion of the respondent judge and petitioners fail to demonstrate that the respondent judge flagrantly and manifestly abused her discretion in transferring the case. Accordingly, petitioners are not entitled to extraordinary relief. See Xeme vs Gaddie, 91 Hawai't 200, 204, 982 P.24 334, 338 (1999) (A writ of mandamus or prohibition is an extraordinary remedy that will a clear and not issue unless the petitioner demonstra indisputable right to relief and a lack of alternative means to redress lequately the alleged wrong or obtain the requested action. Such writs are not intended to supersede the legal discretionary authority of the lower courts, nor ere they intended to serve as legal remedies in lieu of normal appellate procedures. Where a court has discretion to act, mandamus will not lie to interfere with or control the exercise of that discretion, even when the judge has acted erroneously; unless the judge has exceeded his or her jurisdiction, has committed a flagrant and manifest abuse of discretion, or has refused to act on a subject properly before the court under circumstances in which it has a legal duty to act.). Therefore, IT IS HEREBY ORDERED that the petition for a writ of prohibition is denied. DATED: Honolulu, Hawai'i, July 9, 2007. Gp Paste CNet our Yorone. Debt: GAS Hla —_— 

c1421c3b6419cfa42b724b9ae69d0ead87c93759b41ad160b9e651fbed411deb

2007-07-09T00:00:00Z

cf12e3a5-ed2b-479b-84c7-1ac35f4f5bff

Ranches v. City and County of Honolulu. ICA s.d.o., filed 02/16/2007 [pdf], 113 Haw. 330. S.Ct. Order Accepting Application for Writ of Certiorari, filed 06/22/2007 [pdf].

115 Haw. 462

hawaii

Hawaii Supreme Court

+*4FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTERS** IN THE SUPREME COURT OF THE STATE OF HAWAI'T ‘o0o==~ JERRY RANCHES AND RIZALINA RANCHES, Petitioners/Plaintiffs-Appellants CITY AND COUNTY OF HONOLULU, i Respondent /Defendant appellee e and JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; DOE PARTNERSHIPS 1-10; DOE NON-PROFIT ENTITIES 1-10; ‘and DOE GOVERNMENTAL ENTITIES 1-10, Defendants No. 27846 CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIV. No, 04-1-1274) ocTosER 5, 2007 MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ. OPINION OF THE COURT BY ACOBA, J, Petitioners/Plaintiffs-Appellants Jerry Ranches (Jerry) and Rizalina Ranches (collectively, Petitioners] filed an application for writ of certiorari! on May 16, 2007, requesting + Pursuant to Havas" Revised Statutes (HRS) § 602-59 (Supp. 2006), 42 party may appeal the decision of the intermediate appellate court (the ICK) oniy by an appiiestion to this court fora writ of certiorari, Sea HRS § 602 59(a).. In determining whether to accept or reject the epplication for writ of certicrari, this court reviews the ICA decision for: (2) Grave errors of law or of facts or (2) Gbvicus inconsistencies in the dectaion of the [ICA] vith that of the supreme court, federal decisions, or Tee own decision, ‘and the magnitede ef such errors or inconsistencies (wontinved. «1  “FOR PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REFORTER* that this court review the judgment of the Intermediate Court of App 1s (the ICR) filed on April 16, 2007, ieeued pursuant to its Summary Disposition Order (S00) filed on February 16, 2007,” affirming the March 15, 2006 judgment of the first circuit court? (the court) in favor of Respondent/Defendant-Appellee City and County of Honolulu (Respondent) in a slip and fall case. Respondent filed a memorandum in opposition to the application for certiorari. In the opposition memorandum Respondent initially contend that Petitioners’ petition should be denied because it “does not contain any basis for review that is new or different than his [sic] request for review to the [ICA]. However, Hawai'i Rules of Appellate Procedure (HRAP) Rule 40.1 (2007) does not require a new basis for review in order for a petition to be accepted.* (continued) Gictating the need for further appeal. BRS § 602-S9(b). The grant or denial of a petition for certiorari is discretionary with this court. gge HRS § €02-59(a) + the $00 was issued by Chief Judge Janes S. Burns and Associate Judges John $.W. Lin and Craig #. Nakamura. > the Honorable Randal K.0, Lee presided. + WRAP Rule 40.1 (4) states: (2) Contents, The application for a writ of certiorari shell not exceed 12 pages and shall contain in the folloxing order! (2) A short and concise statenent of the questions presented for decision, set forth in the most general terme Possible. The statenent of a question presented will be Seemed £0 incluce every subsidiary question fairly comprised therein. Questions not presented according to this parsgragh Will be disrecsrdes. The supreme court, at its Option, may notices plain error not presented. (2i"A statenent! of prior proceedings in the case (3) A short statement of the case containing the facts (eontinved, ‘s**F0R PUBLICATION IN MEST’S HAWAI'I REPORTS AND PACIFIC REPORTERM#® ‘The requirements in HRS § 602-59(b) are “directed only to the application for the writ, It is not descriptive of the scope of review determinative of the [s]upreme [c]ourt’s decision to grant or deny certiorari. The (s]upreme {cJourt’s power in that regard is intended to simply be discretionary.” State v Chong, 86 Hawai'i 262, 283 n.1, 949 P.2d 122, 123 n.1 (1997) (emphasis and citations omitted). Accordingly, Petitioners are not required to provide a “new or different” basis for review in their petition. I. Petitioners present the following questions for this courts decision: (1) [whether] the definition of what constitutes 2 subsequent remedial measure under Hawai'i law [should be clarified]; and (2) whether actions taken by [Respondent] in preparation to refinish a floor prior to a slip and fall incident can be defined as subsequent remedial measures.” (Emphasis in original.) In. The following pertinent matters are from the petition and opening brief. (Petitioners) filed their Complaint . . . on July 13, 2004, alleging that on May 26, 2003, (Jerry) slipped and fell’ immediately inside the entrance to the men’s restroom ‘at Eva Beach Park due to conditions on the floor which posed fn unreasonable risk of harm. “1 -continvea) Imatersal. to the consideration of the questions presented. (4) A brief srgunent with supporting authorities. A. copy of the challenged opinion, dispositional order, of Fullng of the [ICA] shall be attached as an appendix. 3  FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*## Qn January 21, 2006, {Respondent filed various notions’ in Motion in Limine Ro. 2 Exclusion of all Evidence of Subsequent Remedial Measures the concrete slab to drain water away fron the door. ‘On February 7, 2006(, Petitioners) filed (a) Menorandum in Gppositien 6 (Respondent's) Motion in Linine Worl. (Emphases added.) At trial the following evidence was adduced and events transpired, according to Petitioners. [Petitioners] were occasional users of Ewa Beach Park. «The restroom .". + has no roof and the walls. we Constrsctes of concrete block. (Jerry) walked paste Shower and into the docrway which required him to take an ineediate left turn ang right torn. As soon as [Jerry] nade the lefe turn his right foot slipped and he fell. [Jerry] hoted that the floor under him was smooth snd worn. Tt hed Previously been painted but the paint had worn off... [ije wes sitting in a puddle after he fell. There were no Greing in the floor ang walls of the men's’ restroom 1s {O)n the day of the incident, ager cabato) iniezed the nen’ restroom st approximately 12:00 p.m. tipon’entering the men's restroom, Mr. Cabato saw a puddle of Water. The floor "had sone green moss end mildew.” Mr. sbato authenticated a photograph of the shower pipes without the water “on” and that photogreph was sdmitted as Exhibit P-€5. Mr. Cobato testified that the floor felt slippery in the aves where he found (Jerry) still on the floor after his fall. fs. Stacey Kahue ((Rahve)} .; . had testified at la} deposition as” (Respondents Hawai'i Rules of Civil Procedure) Rule 30(b) (6) witness regarding "any and all nodificaticns and/or repairs to the men’s restfoan and Adsscent shower area at Eva Beach Fark from May 26, 1998 up fo and including the current date.” ‘Sn offer of proof that [Kshse] woule' tests work a2 the pro‘ect sanacer for Arakaki Contracting which cestroce ..—. which beaan-orior to (ersy'sl fall on tity 26,2005, Th addition to testifying regarding ~ the resurfacing work which the floor was determined to Fequire because of its worn, weathered and smooth condition, [Kehue] would testify regarding photographs he took of the Condition of the restrooms which were submitted to [Respondent] prior to the subject incident. 4 ‘++POR PUBLICATION IN WEST'S HAMAT'T REPORTS AND PACIFIC REFORTER**# ould Jead “directly to the issue of the resurtacina of the Res el obiectio aclu otect, hese actions fore th ‘The _{clourt had decned the cost incident resurfacing to bes cee eint Lenedlal seasure in ite ruling on (Respondent Gotion in Linine Noi. . and it extendea that derinition to inclade events witch occurred prior to the subject Sneidene. (Baphases added.) As set forth by Respondent, fa) jury [trial had) conmenc{ed) on February 27, 2006, and end{ed] on March 3, 2006, with the jury's verdict in favor of [Respondent]. [Petitioners] appealed from the judgment entered on the jury's verdict. On February 16, 2007, the [ICA] entered its [S00] affirming the sudgnent. ur. With regard to the two questions posed in the petition, Petitioners are generally correct in that the “(ICA] simply states that it affirms the March 15, 2006 judgment” and “[tyherefore it is impossible for Petitioners to specifically address any flaws in the ICA's reasoning.” The ICA did say: Generally, we agree with the following statement made by [Respondent] in the answering brief: ‘The only tesves which shosld be considered by this Tejourt are the following: 1) = if the resus’ he nen ing, 2] the exclusion of evidence regarding the operation of the showerhead and the slope of the Concrete shower, ped $00 at 3 (emphasis added). Ww. As to their first question, Petitioners cite the following text of HRE Rule 407.  POR PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REPORTER*## nen, after an event, taken previously, would hi lures are taken which, if je made the event less likely to weal scence oF culpabl fheevent. ‘This rule does not Tequire the exclusion of Gvidence Of subsequent measures when offered for ancthe: Purpose, such as proving @ dangerous defect in products Tiability cases, ownership, control, or feasibiliey of precautionary measures, if controverted, or impeachment. (Emphases added.) The Commentary to HRE Rule 407 states in pertinent part as follows: This rule is similar to [Federal Rules of Evidence (FRE) ] 407, ‘the Advisory Conmittes’s Note to which points out: ~The’ rule incorporates conventional doctrine which excludes evidence of subsequent renedial messures as proof of an scmission of fault..." The. . - around tor ‘suclusion rests on 2 social oolicy of encoureaing people to ‘in turtherance of added safety. The courts have applies thie principle to exclude evidence of subsequent repairs, Installation of = ‘in company rules, land discharge of employees, Tule is brosd enough to. encomps Tals rule ie limited seri evidence when offered as proof of Conduct. “The second sentence of the rule lists some of the Sther purposes for which this evidence nay be admitted. The Yule varies from [FRE] ¢07 in the addition of “dangerous in products liability cases” af one permissible Ray be oamiteed. (Emphasis added.) (£11ipses points in original.) As to the first question Respondent reiterates in its response to Petitioners’ petition that “the basis for [Respondent’s] motion vas not only HRE 407 (subsequent renedial measures), but also HRE 403 (exclusion of relevant evidence due + Thus under limited circunstances, subsequent measures were ruled adnissible in order to prove the existence of defects in a product in two Hewai'i cases. In Am, road. Cos, v. Kenai Air of Hawaii, Inc., 67 Haw. 219, 228, 686 P.26 1, 7 (2580), this court held that the lower court erred in Fejécting Kenai's “offer of proof related to measures allegedly taken to Fenedy the problem of unexpected power failures in the particular model of In In xe Hawaii Fed. Asbestos Cases, 665 F. Supp. 1454 (D. Haw. 2086}, the federal court followed the Fationaie set forth in Kenai, holding that the “state of the art” theory as 2 defense to strict liability for estes cleins was inadnissible because "the product's design 1s considered at the tine of triai not at the tine of nanofactore. [HRE] 407 allows the jury to consider eubsequent renediel measures at proof of @ dangerous defect. Agi at 1657 (esting Renal, €7 How. at 223, 686 F.2d at 9) 6 ‘++FOR PUBLICATION IN MEST'S HAWAI'T REFORTS AND PACIFIC REFORTER'*# to prejudice).”* Respondents argue that “the [court] ruled that the evidence of the subsequent floor resurfacing was precluded by HRE 403{, thus t]here is no need in this case for (this clourt to define subsequent remedial measures, as that w not the basis for the (court’s] ruling.” In response, Petitioners said in their reply brief that Respondent’s failure to respond to the HRE 407 issue, and subsequent redirection towards an HRE 403 analysis exemplifies Respondent's lack of understanding of the “trial court’s ruling and the interrelationship of Rules 407 and 403 regarding the resurfacing project." The question of whether further explication is needed regarding HRE Rule 407 is subsumed in Petitioners’ second question. v. Preliminarily it should be noted that “[t]he bar of [Rlule 407 is specific and unambiguous: Evidence of subsequent remedial measures ‘is not admissible to prove negligence or culpable conduct.'” Addison M. Bowman, Hawai'i Rules of Evidence Manual $ 407-1 (3d ed. 2006). The term “subsequent” indicates that the measure in question must have been undertaken “after * im connection with this question, Respondent said in its answering brief that it does not take a position on the HAE Rule {07 argument. Instead, Respondent contended that the court algo based its decision on HAE Rule 403 grounds. HRE Role ¢03 states in part that “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice(.]" “Respondent algo declared that under HRE Role 401, evidence Pertaining to the resurfacing of the men’s bathroom is not relevant beceuse it Goes not shave a tendency to neke the existence of any fact that is of Consequence to the determination of the action more probable or lees probable than st would be without the evidence.” 7 ‘s*4FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERS#® [the] event,” which is “the occurrence that caused the death or injury cited in the current complaint.” Id, (brackets in original). This rationale tracks interpretations of FRE Rule 4077 as in Moulton v, Rival Co,, 116 F.3d 22, 27 (1st Cir. 1997) (admitting evidence of prior accidents vas not an abuse of discretion); and Traylor v. Husavarna Motor, 988 F.2d 729, 733 (eh Cir. 1993) (stating that “remedial measures were taken before rather than after the ‘event,’ which in an accident case the courts have invariably and we think correctly understood to mean the accident” (citations omitted) ). HRE Rule 407, entitled “[slubsequent renedial measures” (emphasis added), provides in relevant part that “[wJhen, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event.” The word “remedial” means “intended for a remedy or for the removal or abatenent of a disease or of an evil.” Wl ts Thix Dictionary 1920 (1993) (emphasis added). Thus, a “measure” is “remedial” if it is intended to address the occurrence of an event by making the event less likely to happen in the future. 7 tt may be noted that “[HRE 407) {a simiiar te [FRE] 407" but vvaries from [FRE] 407 in the addition ‘dangerous defect in products liability fone permissible purpose for which remedial measures nay be Comentary to HRE Rule 407. The Variance between HRE 407 and FRE 407 does not affect the analysis herein, because the instant case does not Involve products Iiability, ‘S*4POR PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REPORTERS#* Therefore, measures that are taken after an event but that are predetermined before the event are not “remedial” under HRE Rule 407, because they are not intended to address the event. See Schmeck v. City of Shawnee, 651 P.2d 85 (holding that the city’s ordering and installation of traffic 600 (Kan. 1982) signal control devices at an intersection where the plaintiff had been injured were not “remedial” because the city’s actions “had been predetermined . . . many, many months prior to [the] accident,” and the city had “merely completed something which had started long before the plaintiff's accident” (first emphasis added and following emphases in original)}; 23 Charles Alan Wright 6 Kenneth W. Graham, Jr., Federal Practice & Procedure § 5283, at 104-05 & 105 n.43 (Ist ed. 1980) (observing that when FRE Rule 407 is read to require a “causal relationship” between the accident and the measures, “exclusion would not be required where the motivation for the renedial measure was not the prevention of a recurrence of the accident in issue,” such as where “the defendant undertook repairs as a result of an earlier accident”).' Because such measures are not “remedial,” it follows that evidence of such measures is not inadmissible under the plain language of HRE Rule 407. + ansofar as ERE Rule 407 is similar to ite federal counterpart, interpretations of the federal rule by treatises and cases are instructive. See, Qua, Stave v, Viset, 98 Hawal't 94, 108, 19 P.3a 42, $3 (2001) ([Slecause the BRE are patterned on the [FRE]... , construction of the federal counterparts of the WRE by the federal courts’ is instructive, but obviously not binding on our courts." (Citations omitted.)); Nskagsus w nana, 52 Haw. 379, 368-89, ¢77 P.24 611, 617 (1970) (felicwing a treatise on fegersi procedure in interpreting Hawai Rules of Civil Procedure Rule $9) ° ‘*4FOR PUBLICATION IN WEST'S HAWAI'I REFORTS AND PACIFIC REPORTER*#* vi. In their appeal, Petitioners contended that “different standards of review must be applied to trial court decisions regarding the admissibility of evidence, depending on the requirements of the particular rule of evidence at issue.” (Citing Kealoha v. County of Hawaii, 74 Haw. 308, 319, 944 P.2d 670, 676 (1993). nen application of a particular evidentiary rule can yield only one correct result, the proper standard for appellate Feview is the right/wrong standard: However, the traditional abuse of discretion standara should be in the cae of those rules of evidence that require & “juagnent call" on the part of the trial courts nied Kealoha, 74 Haw. at 319-20, 644 P.2d at 676. Petitioners correctly submit that “decisions regarding the aduissibility of evidence under [HRE Rule 407), such as the decision to exclude [Kshue’s] testimony and other evidence of the resurfacing project, should be reviewed under the right /wrong standard as 2 measure taken is either a subsequent remedial measure(,] or it is not.” However, the standard of review for exclusion of evidence under HRE 403 is the abuse of discretion standard. State v. Rabe, $ Haw. App. 251, 264, 687 P.2d 554, 563 (2984) (citation omitted). Evidentiary decisions based on this rule, “which require a ‘judgment call’ on the part of the trial court, are reviewed for an abuse of discretion.” Walsh vy. Chan, 80 Hawai's 212, 215, 908 P.2d 1198, 1201 (1995) (citation omitted). Under an abuse of discretion standard, as Petitioners set forth, 10 SWAT'T REPORTS 28D PACIFIC REPORTER*## [t]he trial court abuses ite discretion if it bases its ruling on an erroneous view of the law of on a clearly erronecus secerenent of the evidence. Oftice of Hawaiian Aefaies v State, 110 Hawai'i 338, 351, 133 F-3a 767, 780 (2006) {citing Bancer Ins. Coz, Hinshaw, 103 Hawai" 26, 30, 79 P.3d 119, 123 (2003) (citation omitted) }. Abuse of Giseretion occurs when “the trisl court nas clearly exceeded tthe bounds of reason or disregarded rules or principles of lew or practice to che substantial detrinent Of @ party litigant.” 1d. vit. AL As to the second question, Petitioners acknowledge that they must “prove both the existence of a condition which posed an unreasonable risk of harm and that [Respondent] knew, or should have known of the unreasonable risk, and that it failed to take reasonable steps to eliminate the risk or adequately to warn users againet it.” (Citing Corbett v, Ass'n of Apartment Owners: of Wailua Bayview Apartments, 70 Haw. 415, 417, 722 P.2d 693, 695 (1989).). According to Petitioners, Respondent determined that it was neces: ry to resurface the floor of the men's restroom ot Eva Seach Park. It hired Arakaki Construction to re irface the floor with a slip reasatent, ‘Rrakaki Construction began to execute 1e part of that work, the Ticor of the subject men's restroon. (Emphasis added.) They state that “[Kahue’s] precluded testimony was highly relevant on all of these issues.”* Petitioners maintain that “[nJone of these actions had anything to do with the happening of (Jerry's) fall. * in that regard Petitioners aesert that “under [HRE) Rule 407 an ‘action taken prior to sn event cannot be a subsequent venedial measure(, and) Ss 2 subsequent action, which is taken pursuant to @ predetermined course Of aétion is not # subsequent remedial measure.” n  FOR PUBLICATION IN MEST’ S HAWAI'I REPORTS AND PACIFIC REFORTERt*# [Respondent] would not . . . have been discouraged or affected in any way, by the prospect of admissibility at a trial arising from an incident yet to occur or unknown at the time.” Thus, Petitioners maintain, the excluded evidence “was highly probative of the substantial risk of harm and notice which they were required to prove as elements of their clains.” 5 Petitioners urge this court to adopt the analysis set forth in several cases that support their position that “Rule 407 Limits its scope to evidence of measures which were taken ‘subsequent’ to the date of the incident which gave rise to the Litigation.” As set out by Petitioners, in Ravond v. Raymond Corp., 938 F.2d 1518, 1523 (Ist Cir. 1991), a side loader . . . identified as Model 75 was involved in the subject accident. (Zd.] at 1523. Subsequent to the Eble of Model. 75, but prior to [plisintiff’s injury, the 3 fondant rade design modifications in ite subsequent Medel which "were on the drawing board prior to the manufacture of Model 78." Id. The trial court did not Edit evidence regarding these modifications, but the (first Clizcuit concluded that *[a}ay reliance upon’ 407 at all, however, wae misplacedt 1” They cite the following statement from Raymond. o Sevent* The term “event” refers to th Becident that precipitated the suit. Roberts v. Hnrnischtecer Corp, 901 F.2d 42, 44 net (sth Cir. 1909); 96 F.2d 17, 21 (4th Cir. see), ‘Id. (emphasis added). This is an accurate assessment of the holding in Raymond and establishes a clear before and after “event” delineation. In accordance with this rationale, actions taken by Respondent prior to Jerry's fall would not be afforde 12 “+++P0R PUBLICATION IN MEST’S HAMAT'T REPORTS AND PACIFIC REFORTER'** protection under HRE 407, because the policy considerations behind the statute would not apply as set forth infra.” ‘The rationale for this interpretation, Petitioners urge, is in Cupp v. AMTRAK, 138 $.W.3d 766, 776 (Mo. Ct. App. 2004). In that case, the plaintiff argued that “the evidence did no more than reiterate the existence of conditions that Antrak was aware of prior to the accident and measures Amtrak had planned to take prior to the accident.” Id." The court of appeals “agree[d],” stating as follows: ‘the. sey ration tudin = ‘accident resedial measures does not appl if the measures In Etestion were planned, provided for or undartaran prior to she-accident, the purpose of the exclusionary rule is te fan eigen and has been induced By the accident to sake the repair to prevent further Injury. A defendant who is swore of the problen and has propoted measures for remediation Id. (citations omitted) (emphases added). Similarly, it does not appear Respondent can benefit from the protections of HRE 407 * — fowever, Bawmond held that “[t]he district court did not abuse its discretion in ruling that the Nodel 76 evidence vas only parainally relevant ane excluding the evidence under (FRE] Rule 403.” 938 F.2d at 1522 (footnote ‘Onittes) (emphasis added), The first circuit explained that the question of strict Liability in New Hampshire centers on the level of dangerousness of the product et the tine of Sele. for this reason, the introduction of evidence of vresaceiden on e he ae ‘Eo tne defendant and mislesding to the jury for determining the question ‘sf sanufactore end sale ds at 1524 (citation omitted) (emphases adéed). Contrastingly, in the {nitant cose, the pre-sceident neatures were not made after the resurfacing of the subject floor, but were mage in contemplation ef the resurfacing and, arguably, were more then “marginally relevant.” in missouri, “[tJhe rule regarding the admissibility of post-accident remedial neatures con best be stated by reference to (FRE Role) Sortai" pollard ve Ashby, 298°S.W.20 394, 401 (Mo. Ct. App. 1990). 13  FOR FUGLICATION IN WEST’ S HAWAI'T REPORTS AND PACIFIC REFORTER**+ simply because it vas in the middle of the resurfacing project when the accident took place. Also, Petitioners ly on Schneck. As previously noted, in that case claims against the city and a power company arose out of a motorcycle accident which occurred on July 11, 1976, as the result of inadequate traffic signals. 651 P.2d at 588-89. Objection was made to admission of “the date the new signalization equipment was ordered, July 13, 1976, and the date it was finally installed, March 24, 1977[.]” Id. at 599. However, the trial court noted that “the installation of traffic control devices . . . was conduct that had been predetermined + many, many months prior to this accident!.]” Id, at 600 (emphases added). Evidence of the city’s pre-accident plan to install traffic signals, the installation of which took place after the accident, was held to be admissible. Id, the Schmeck court reasoned that because the city’s actions were determined prior to the accident, “the [city] merely completed something which had been started long before the plaintiff's accident. Thus, this evidence could not be characterized as % kan. stat. Ann. § 60°: remedial conduct” states! 1 (2006) which pertains to “Subsequent When after the occurrence of an event renedial or precautionary measures Gf taken previously Would have tended to mal yent less Likely to occur, evicence of such subsequent measures is not sduissible to Prove negligence or culpable conduct in connection with the 1s ‘s++70R PUSLICAEION IN WEST'S HAMAI'T REPORTS AND PACIFIC REFORTERY*# subsequent remedial conduct.” Id, (emphases in original)." Finally, Petitioners cite Rollins, in which the district court allowed all evidence of repair prior to the accident to be admitted, but precluded admission of evidence of that same repair that occurred after the incident. [alii evidence of discussions, drafts, proposals, deliberations of actual alterations of repairs regarding Gither the haroware of the procedures involved with the operation of the ship-tovshere power cable connection that Securred prior to the incident on August 11, 1986 will be Sdaitted. “this evidence is not governed by’ Rule 407 and is highly probative as to notice and knowledge of the potential dangers of the ship-to-shore hardware and procedures Evidence of actual repairs, alterations or procedural Changes made after August il, 1986 ere inadnissible, 761 F. Supp. at 940-41 (emphases in original). The Rolling court explained that evidence of prior measures directly connected to the accident are “highly probative as to notice and knowledge of the potential dangers[.]” Id. However, the Rollins court did not allow evidence which occurred after the accident to be admitted under FRE 407. Id. at 941. It said that “[e]vidence of actual repairs, alterations or procedural changes made after % — Schneek noted that even though the trial court “really ha(d) @ even finding the installation of traffic control devices was rene Shed been predetermined... prior to this scci serait nonetheless limites the use of such evidence. Schueck, 651 at’ 600. The trial court instructed the jury thet Lt "could not use anything that happened after the date of the accident for the apportionment of Liability or fault,” although it could be used "ro show a condition that existed.” Id. (enphasis added). The Schaeck court, without discussion, ‘Seened to accept the trial court's rationale ang further explained that the ‘siso sdnissible te show “contrel(, which} was s major issue.” ‘et, control is not an issue in the present case. In addition, ‘G07 provides that evicence of subsequent renedial measures may be Introduced to! prove "a dangerous defect in products liability cases, Ounershipy control, of feasibility of precestionsry neasures, Sf controverted, oF inpeachnent™ but not "to show a condition that existed.” Thos, vnile we Sore with the Schreck court that repairs to which a defendant has committed Before an accident But which are not completed until after the accident are not “subsequent renedisl measures”, the evicence in this case is not Sdniseible unger any exception to the general exclusionary role recognized in this. jurisdiction as ‘***FOR PUBLICATION IN WEST’ § HAWAI'T REPORTS AND PACIFIC REPORTERM+® August 11, 1986 are inadmissible.” Id, (emphasis in original)." Rolling noted, however, that subsequent matters may be admissible under exceptions to Rule 407. Id,'* ‘The reasoning of the Schmeck court is persuasive, Actions contemplated and commenced prior to the “event” required by HRE Rule 407 cannot be considered “remedial” in the sense contemplated by that rule. Moreover, the exclusion from evidence of post event measures does not serve the policy underlying Rule 407 of removing any detrimental effect that such repairs would have on a defendant in subsequent litigation inasmuch as the repairs were contemplated before the accident. “Rolling steted that [tIhis policy [onder FRE Rule 407} is not served by adnitting evidence of subsequent repairs, even if the Gecision to make such repairs was msde prior to the incident being litigated. ‘Once an accident occurs, there 18 even hore reasch to encourage defendants to take renedial Defendants should not fear that if 1itigation ‘after a particular incident, any renedial measures token will be admitted to prove their negligence. 761 F. Supp. at 940. % The Bolling court said: ‘Tis [clourt, however, makes 2 reservation in accord with Role 407. Subsequent repairs, alterations, or Procedural changes nay be adnissibie if offered to prove Sunership, control or feasibility of precautionary measure, Sf such te controverted. Moreover, defendants should be oh notice that such evidence may also be acnitted if necessary for inpeachsent purposes or if plaintiff seeks to admit the evidence for reasons other then to denonstrate tre Gefendente’ cvlpabiisty. Kika, 455 F.2d 392,) 386 ((sth Cir. T97d)) (in certain Limited instances, ‘however, the policy favoring the repair of dangerous conditions 18 overcome by the duty of courts to ellow litigants to bring the facts of the situation to tre tention of the jury where they are otherwise Felevant end Probative."). 761 F. Supp. at 942. 16 FOR FUELICATION IN MEST’S HAWAI'T REPORTS AND PACIFIC REPORTER**# In that light, a rule excluding from evidence measures contemplated before the “event” but completed afterwards as set forth in Bolling, without more, is unconvincing. Bolling did not explicate the rationale underlying its view that there was “more reason to encourage defendants to take remedial measures”, Rollins, 761 F. Supp. at 940 (emphasis added), after an “event” although the measures had already been initiated prior to the event. On that point, the reasoning set forth in Cupp is significantly more persuasive. HRE Rule 407 was designed to encourage defendants who are first notified of a dangerous conditions to make repairs, without fear of prejudicing their defense in ensuing Litigation. Tt was not, however, designed to protect defendants who knew of a condition, had initiated steps to renedy it, but did not finish before an innocent party was injured. See, Cupp, 138 $.W.3¢ at 776 ("The purpose of the exclusionary rule is to protect a defendant who has been first alerted to the possibility of danger after an accident... . A defendant who is aware of the problen . . . prior to the accident is not entitled to the sane protection.”) vain. In sum and based on the foregoing, the measures taken by Respondent in thie case that began prior to Jerry's accident and continued thereafter cannot be characterized as either subsequent or remedial and, therefore, cannot be precluded under HRE Rule 407, notwithstanding the fact that they were completed after Jerry's accident. To the extent the court excluded such ‘s/+F0R PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERS evidence on HRE Rule 407 grounds, it reversibly erred, and insofar as the ICA premised its judgment on such a ruling, the TCA gravely erred. rm. As previously noted, in its opposition memorandum Respondent argues pre-accident evidence was nevertheless excludable “on the basis of HRE 403.” HRE 403 provides that “{a}ithough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” At trial, Respondent's memorandum in support of Motion in Limine No. 1 Re: Exclusion of all Subsequent Remedial Measures, stated that its HRE 403 arguments were made in the alternative. Assuming arquendo that thie [clourt allows inte evidence testimony of photos of the resurfacing of the floor or the cut ade near the entrance of the men’ # restroom or the feasibility of precautionary measures despite the underlying policy and purpose of Rule 407 of the (HRE], any testineny of photos of the resurfacing or cut near the entrance of the men's restroom nder Hule 403 of the [HRE]. (Emphasis added.) Respondent argued with respect to Motion in Limine No. 1, that [t]he introduction of testimony with recerd to the Eequrtacing of the floor of the nen's restroom or the fegeabiisty of rectutionsty measures will enly serve te Moreover, the introduction of this evidence will confuse the jury with regard to the iseves in this case. (Emphasis added.) 18 ‘s+470R PUBLICATION IN MEST’S AWAIT REPORTS AND PACIFIC REPORTER#*# ‘The arguments made by Respondent during the motion in Limine hearing similarly indicated that “{alny reference to the because it wou! ublic policy. i the resu would be more prejudicial than it would be probative to the city.” (Emphasis added.) The court apparently agreed, ruling that, (vlader Rule 407 and Rule 403, 407, subsequent renedial he pad was done after this incident. The court finds that Sliowing teatineny and or evidence regarding the resurfacing find the cut from the pad, the prebstive value, so therefore, the court will grant ‘notion in linine nutber one. (Emphases added.) x, ‘The court also ruled at trial on exclusion of Kahu testimony. According to Respondent, linen the esue [of excluding evidence of subsequent renedial nesoures) was revisited doring the trial, the [court] Sliowes the picture requested by (Petiticners), but Sustained the objection as to the testinony of witness Kehoe, fineing that "given the nature of his testimeny and Balancing it ageinst the probative and prejedice to show the weight of the evidence, the (court finds that the prejudice Dstweight any probative value of his testimony end, therefere, will not allow [Kahue's) testimony.” pon objection to Kahue’s testimony, Petitioners made the following offer of proof: It 4s cur intention to call [Xahue], who is currently an employee with the City and County ef Honcluis, as a witness ecegtity reaarding the werk that he did back in January of ‘Out purpose in Calling TKenue] would be to a specifically with respect to photographs in Exhibit Nunber Poe, and £2 elicit testimony’ from kahve) regarding the’ as ‘S*4FOR PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REFORTER!*# ature of the protect that Arakaki Construction was involved h_spacificaliv the resurfacing of the flocr thst uae rs ie preiect- He hed an inspector, Allison Ayabe, who was his contact with the Departnent of Design and Construction, with whom he wae in contact to report on the progress of the project. (Emphases added.) The court sustained the objection, statin ‘The (court further finds, that given the nature of his Testimony and balancing it against the probative and prejudice to show the weight of the evisence, the [elourt Finds thet the prejudice outweighs eny probative value of Ais testimony and, therefore, will not allow (Kanue's] testimony es to where he was’ working. The court was not specific in its ruling as to the reasons for sustaining the objection. AL Respondent argued in its answering brief that because witness Kahue could not specifically recall the condition of the men’s restroom, his testimony was irrelevant and not highly probative as to the need to repair the floor. Second, Respondent argued that the offer of proof regarding Kahue’s testimony did not prove that the resurfacing of the men’s restroom would have “eliminated the allegedly dangerous condition." Third, Respondents contended that Petitioners failed to establish an evidentiary link by not retaining an expert to support their position that the resurfacing would have prevented Jerry's accident. In conclusion, Respondent maintained that if the pre~ accident events are admitted, “[t)he jury may . . . improperly concludle] that [Respondent] found that the restroom floor was defective and that the resurfacing project was performed to remedy this defective condition.” Respondent argues that thus 20 ‘ss4POR PUBLICATION IN WEST'S HAMAT'T REPORTS AND PACIFIC REFORTER**# “the [court] did not abuse its discretion when it precluded evidence of the resurfacing of the men’s restroom floor and the testimony of [Kahue].” B, In response, Petitioners submitted in their reply brief ‘that Kahue’s testimony regarding the resurfacing project “would have been damaging to the City’s case [but] would not constitute ‘unfair prejudice’ under [HRE] Rule 403.” Petitioners quote from the Advisory Committee Notes to FRE Rule 403 which states that “unfair prejudice” in this rule “means an undue tendency to suggest a decision on an improver basis, commonly, though not necessarily, an emotional one.” (Emphasis added.) Petitioners also rely on Kaeo v. Davis, 68 Haw. 447, 454, 719 P.2d 387, 392 (1986), which states that “evidence with a capacity for unfair prejudice cannot be equated with testimony simply adverse to the opposing partys for evidence is only material if it is prejudicial in some relevant respect[,]” and United States v, Figueroa, 618 F.2d 934, 943 (2d Cir. 1980), for the proposition that “[e]vidence is prejudicial only when it tends to have some adverse effect upon a [party] beyond tending to prove the fact or issue that justified its admission into evidence.” Petitioners asserted that “the only dancer of ‘unfair dice’ addi he tet hi widence wae a ur set 2  FOR PUBLICATION IN WEST'S HAWAI' REPORTS AND PACIFIC REFORTER!+# evidence of a subsequent remedial measure which it considered to be an improper basis{,]” (emphasis added), as it had expressed in its ruling on Respondent’s motion in Limine no. 1. Petitioners claim that “{t)here is no indication in the record that the [court] vas concerned with any other possible prejudicial effect of the testinony of (Kahue) regarding the resurfacing project.” Accordingly, Petitioners argue the court’s analysis under HRE Rule 403 was “fatally flawed," because “[Kahue’s] testimony regarding the resurfacing project which began before the subject incident was not evidence of a subsequent renedial measure under Rule 407." This is correct. With respect to HRE 403, neither Respondent nor the court identified the specific prejudice that would befall Respondent, except that evidence of the pre-accident resurfacing would prejudice Respondent. However, such evidence is not excludable on HRE Rule 403 grounds merely because the effect of admitting such evidence might engender an adverse view of the City’s conduct, but must be unfairly prejudicial. See discussion infra. Second, as to the dangerous condition and (apparently expert) issue(s) Petitioners contend that it was “{not] necessary for Kshue’s testimony to ‘establish that the resurfacing would have eliminated the allegedly dangerous condition,’” in order to be admissible." Petitioners submit that there is no authority at may be noted that no authority is cited for the proposition that expert witness opinion is required as part of the proof ins e1ip and fall case 22  'FOR PUBLICATION IN WEST'S HANAI'T REPORTS AND PACIFIC REFORTER' to support Respondent’s position. Rather, Petitioners claim that “[e}he evidence was adnissible, at a minimum, to establish notice + that the defendant knew, or should have known, of the unreasonable risk of harm.” (Citing Corbett, 70 Haw. at 417, 772 P.2d at 695.). Respondent cites Bogosian v. Mercedes-Benz of N. Am, Ince, 104 F.3d 472, 481 (1st Cir. 1997), to support exclusion of evidence of the resurfacing project under HRE Rule 403. In that case, the plaintiff brought a strict liability claim against Mercedes-Benz after the automobile she parked and exited rolled back, injuring her. Id, at 474-75. The Bogosian court stated that “[a]lthough [the first circuit] has recognized that (FRE) 407 applies to strict liability cases, . . . it does not apply where, as here, the modification took place before the accident that precipitated the suit.” Id, at 481 (citing Raymond, 938 F.2d at 1523). The Booosian court observed that “[iJn cases such as this, the district court may, if necessary, exclude evidence of the remedial modification by resort to its considerable discretion under [FRE] 403, which permits exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice or misleading the jury.” Id. (citations omitted). It was further noted that because [a) strict Liability claim centers on the condition of the preduct at the tine it leaves the seller's handste} ©. the introduction of evidence of sre-accisent design 23 ‘*++FOR PUBLICATION IN WEST'S HAWAI'T REFORTS AND PACIFIC REFORTER**# Of the allegedly defective prodoct may reason to the defendant and misieading to the jury for determining the question whether the product wa nseascnably dangerous st the tine of manufcture and sale. Ids (citation omitted) (emphases added) (internal quotation marks and citations omitted). ‘The Eogosian court concluded that because “the jury had before it uncontroverted evidence that Mercedes-Benz could have implenented the modification during the relevant time frame[,] any evidence that Mercedes-Benz, in fact, later modified its vehicles risked the danger that ‘jurors would too readily equate subsequent design modifications with admissions of a prior defective design.’” Id, (citation omitted). Thus, Bogosian held that “the district court did not abuse its considerable discretion” in refusing to allow the plaintiff to question Mercedes-Benz’s only witness regarding a modification that had taken place subsequent to the sale of the car but prior to the plaintiff's accident because the plaintiff “was attempting to create a feasibility dispute where there was none.” Id. at 481- 82. Unlike Bogosian, in this case, the evidence of the measures taken by Respondent that began prior to Jerry's accident were not “uncontroverted.” Instead, those measures were probative of proving the existence of a condition which arguably posed an unreasonable risk of harm and that Respondent knew, or should have known created an unreasonable risk, but failed to 24  FOR PUBLICATION IN WEST'S NAMAI'T REPORTS AND PACIFIC-REFORTER*+# reasonably eliminate or to adequately warn users about.” See Corbett, 70 Haw. at 417, 722 P.2d at 695. Moreover, unlike Rogosian, this is not @ case where proposed modifications to the product or site were made after the product or site had passed into the control of the consumer or user. The product liability situation in Bogosian is simply not relevant to the slip and fall situation where the premises always remained in control of Respondent, Therefore, contrary to Respondent’s contention, Rogosian does not support excluding the measures pursuant to HRE Rule 403. on the other hand, a8 noted before, the Rollins court admitted “all evidence of discussions, drafts, proposals, deliberations or actual alterations or repairs” that occurred prior to the incident inasmuch as that evidence was “not governed by [FRE] Rule 407 and [was] highly probative as to notice and knowledge of the potential dangers[.]" 761 F. Supp. at 940-41. However, in Rollins, that court also rejected the defendant's FRE 403 argument as to subsequent repairs allowed under any exceptions in FRE 407, It was stated that Itihe fact that such evidence may “hurt” the defendants’ case does not nean that its protative value is outweighed by ite prejudicial effect. “Untair prejudice” as used in [FRE] Role. 403 ie not to be equated with testimony sisply adverse fo the opposing party. Virtually all evidence is % he question of whether notice shovld be attributed to Respondent would, as other facts, rest Gn the fact Finder's determination of credibility ee the weight to be given such evidence, See State v. fastmen, 6) Hawa: 13, TettsBS'etbertnf es" soe “tecacing chee sedieariay it ae’ within the province of the "fact“finder te assess the credipility of witnesses and to Fesolve ali questions of fect” (eitation omitted) ) The commentary to HRE Rule 403 states that “(this rule is Adentical with (FRE) 403,” 25 ‘**7OR PUBLICATION IN WEST'S HAWAI'I REPORTS AND FACIPIC REPORTER*! Ss prejudicial or it isn’t material. The prejudice must be unfair. Ada at 941 (citation omitted) (emphasis added) (some internal quotation marks omitted). Similarly, in this case, admitting the measures taken by Respondent would not be unfair to Respondent, but would be “highly probative as to notice and knowledge of the potential danger(.J” Id, at 940-41. Therefore, the court incorrectly excluded evidence of the resurfacing project on HRE 403 grounds, because the project commenced before the subject accident and the evidence was not subject to HRE 407 exclusion or the policy considerations thereunder, Such evidence was probative at least as to notice. Under these circumstances, admission of the evidence would not have been unfairly prejudicial, as the court apparently believed. CE. Cupp, 138 S.W.3d at 776 (defendant who has proposed measures prior to accident not entitled to bar against post accident remedial evidence); Rollins, 761 F. Supp. at 941 (rejecting FRE 403 argument as precluding subsequent measures into evidence under exceptions to FRE 407); Schneck, 651 P.2d at 600 (evidence of defendant's pre-accident remedial plan and predetermined post accident conduct admissible in evidence). xz. Respondent also declared that under HRE Rule 401, evidence pertaining to the resurfacing of the men’s bathroom is not relevant because it does not “have a tendency to make the existence of any fact that is of consequence to the determination 26  POR PUBLICATION IN WEST’ § HAMAI'I REPORTS AND PACIFIC REFORTER*## of the action more probable or less probable than it would be without the evidence.” However, based on the foregoing, Respondent's pre-accident plans to resurface the bathroom would have a tendency to make the existence of notice of a dangerous condition -- an element of the negligent action -- more probable than it would be without the evidence. See Cupp, 138 $.W.3d at 776 (defendant aware of problem not entitled to bar of pre~ accident measures); Rolling, 761 F. Supp. at 940-41 (pre-accident measures highly probative as to notice and knowledge of danger). Accordingly, such pre-accident plans would appear to be relevant. xin. For the foregoing reasons, the ICA’s April 16, 2007 judgment and the court's March 15, 2006 judgment are vacated and the case is remanded to the court for disposition consistent with this opinion. Mark F. Gallagher (Zan DP wrhattoen with nim on the appiication) taw Offices Bir Hoderinae~ Sf ran Mattoch,, for Petitioners/ Plaintiffe-appellants. - Marie Manuele Gavigan, — Aw tw Deputy Corporation 22 counsel (Carrie K.S. Okinaga, Corporation Yow €. Dufbgith + Counsel, with her on the response) for Respondent/ Defendant-Appellee. 27 

90cdb59ac64ccb674a9ace9fcecde18202bb1f990e1d44cb48e062c7eca8d4a8

2007-10-05T00:00:00Z

8247a6dd-9653-4dda-8a0d-c703c5969ce5

Kuamoo v. State, Department of Agriculture

hawaii

Hawaii Supreme Court

NO. 26370 IN THE SUPREME COURT OF THE STATE OF HAWAT'T “WILLIAM J. M. KUAMOO, SR., Petitioner/Claimant-Appellant, STATE OF HAWAT'I, DEPARTMENT OF AGRICULTURE, Respondent /Employer-Appellee, Self-Insured, nd = oF i = o UAWAIZ HEALTH SYSTEMS CORP., dba HILO MEDICAL ciNTER, Respondent /appellee s APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD (CASE NO. AB 2002-122(H) (1-80-02492)) ORDER DISMISSING NOTICES OF APPEAL AND PERMITTING PETITIONER/CLAIMANT-APPELIANT TO PILE AN APPROPATATE APPLICATION FOR WRIT OF CERTIORARI IN ACCORDANCE WITH ‘HAWAI'I RUL aoe APPELLATE PROCEDURE RULE 40.1 tiys Dotty, Jus for the court) Xt appearing that (2) Petitioner/Claimasnt-Appellant Willian J. M. Koanoo, Sx, fLled two documents labeled “Wotice of Appeal,” on dune 12, 2007 and dune 19, 2007 respectively, seeking review of the Intermediate Court of Appeals (ICA's Hay 18, 2007 fudgnent on appeal that affissed the Decision and Order of the Labor and Industrial Relations Appeals Board filed on Decenber 31, 2003, (2) the appropriate vehicle for seeking review of the ICA’s judgment is an application for a writ of certiorari, pursuant to Hawai"! Revised Statutes § 602-59, and which must comply with Hawai‘ Rules of Appellate Procedure (HRAP) Rule } Considered by: Moon, C.J., Levinson, Nakayama, Accba, end Doffy, JJ. 40.1(d), and (3) insofar as the ICA’s judgment on appeal was filed on May 18, 2007, the deadline to file the application for a writ of certiorari will not expire until August 16, 2007, IT 1S HEREBY ORDERED that the “Notice of Appeal” documents filed on June 12, 2007 and June 19, 2007 are dismissed, and Kuance may, if he so chooses, file an application for a writ of certiorari in accordance with HRAP Rule 40.1. The application must be filed by the close of business on August 16, 2007. DATED: Honolulu, Hawai", gune 22, 2007. ' FOR THE COURT: Gormn #. Dues oe Associate Justice 

76bccd8d7ea3ea25c6eac2407b89fecf8279204aef81d0349b0e347c2c36ab6b

2007-06-22T00:00:00Z

f7f300b8-9c2d-439f-b23b-67de8b0c2f2d

Ice Cream Dreams, LLC v. Marks

hawaii

Hawaii Supreme Court

wo. 28502 IN THE SUPREME COURT OF THE STATE OF HAWAT'T ICE CREAM DREAMS, LLC, Petitioner, aa 00d iON vs. 3 WEVA Eh Wd Of a3 ‘THE HONORABLE VICTORIA S. MARKS, JUDGE OF THE CIRCUIT COURT OF THE FIRST’ CIRCUIT: Respondent, and THE ISLANDS ICE CREAM COMPANY I, LLC; LEONARD RYDER) KAREN KOZEN-RYDER; and COLD STONE CREAMERY, INC. Real Parties in Interest. ORIGINAL PROCEEDING (crv. No. 07-1-0028) ORDER (By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.) upon consideration of the petition for a writ of mandamus filed by petitioner Ice Cream Dreams, LLC and the papers in support, it appears that the April 9, 2007 order dismissing Civil No. 07-1-0028 is forthwith appealable upon entry of a final judgment thereon and petitioner has an adequate remedy by way of appeal. Therefore, petitioner is not entitled to mandamus relief. See Kema v, Gaddis, 91 Hawai'i 200, 204, 982 P.2d 334, 338 (1999) (A writ of mandamus is an extraordinary remedy that will not issue unless the petitioner demonstrates 2 clear and indisputable right to relief and a lack of alternative means to redress adequately the alleged wrong or obtain the requested action. Such writs are not intended to supersede the legal discretionary authority of the lover courts, nor are they intended to serve as legal remedies in lieu of normal appellate procedures.). Accordingly, IT IS HEREBY ORDERED that the petition for a writ of mandamus is denied. DATED: Honolulu, Hawai'i, april 30, 2007. Paul Alston and Peter Knapman for petitioner frm MiccSxp Lecrnae~ Prats ON ue GNC Pra Yone. Saline + 

cfca5b7ffb0c6134c4b64123beeec44e511b1a2575d0c5abd58d0bb316b8e577

2007-04-30T00:00:00Z

3c22b622-7f75-4668-9a89-6e2f38c6a4e3

In re United Public Workers, AFSCME, Local 646, AFL-CIO v. Shimizu

hawaii

Hawaii Supreme Court

LAW LIBRARY NOT FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER * no. 26568 IN THE SUPREME COURT OF THE STATE OF HAWAI'I 5 IN THE MATTER OF UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AF! Complainant ~Appellant~Appellant, KENNETH A. SHIMIZU, DEPUTY DIRECTOR, DEPARTMENT OF ENVIRONMENTAL ‘SERVICES, CITY AND COUNTY OF HONOLULU; ERIC TAKAMURA, DIRECTOR, DEPARTWENT OF ENVIRONMENTAL SERVICES, CITY AND COUNTY OF HONOLULU; KENNETH NAKAMATSU, DIRECTOR, DEPARTMENT OF HUMAN RESOURCES, CITY AND COUNTY OF HONOLULU; AND NUFI HANNEMANN, MAYOR, CITY AND COUNTY OF HONOLULU’, Respondent s~Appellees~Appellees, and HAWAII LABOR RELATIONS BOARD: BRIAN NAKAMURA, CHAIRPERSON, ENORY SPRINGER, BOARD MEMBER, AND SARAH HIRAKAMI, BOARD MEMBER, Appellees-Appellees. (crv. No. 03-1-0546) IN THE MATTER OF UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-CIO, Complainant-Appellant~Appellant, KENNETH A, SHIMIZU, DEPUTY DIRECTOR, DEPARTMENT OF ENVIRONMENTAL SERVICES, CITY AND COUNTY OF HONOLULU; ERIC TAKAMURA, DIRECTOR, DEPARTMENT OF ENVIRONMENTAL SERVICES, CITY AND COUNTY OF HONOLULU; KENNETH NAKAMATSU, DIRECTOR, DEPARTMENT OF HUMAN RESOURCES, CITY AND COUNTY OF HONOLULU; AND MUFI HANNEMANN, MAYOR, CITY AND COUNTY OF HONOLULU, Respondent s-Appellees-Appellees, and Porsuant to Nawas"t Rules of Appellate Procedure (*HRAP") Rule 43(c} (2000), Renneth A, Shimizu, Eric Takamura, Kenneth Nekanateu, and Mofi Hannensnn nave been substitutes as parties to the instant appeal in place of Frank 3. Doyle, Timothy £, Steinberger, Cheryl Okuna-Sepe, and Jereny Harris, Fespectively (in thelr official copacities); algo, nominal appellees Brory Egeinger snd Saran Hirekani have been substituted in place of chester Kuniteke and Kathleen Rakuya-Markrich, respectively.  + NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER, HAWAII LABOR RELATIONS BOARD; BRIAN NAKAMURA, CHAIRPERSON, EMORY SPRINGER, BOARD MEMBER, AND SARAH HIRAKAMI, BOARD MEMBER, ‘Appellees-Appellees. (CIV. NO. 03-1-0552) APPEAL FROM THE FIRST CIRCUIT COURT (CIV. NOS. 03-1-0546 and 03-1-0552) ‘SUMMARY DISPOSITION ORDER (py: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, Jd.) Complainant-Appellant-Appellant United Public Workers, AFSCHE, Local 646, AFL-CIO (hereinafter “UPW") appeals from the Circuit Court of the First Circuit's order,? filed May 6, 2004, denying its motion for order to show cause and for contempt otion for contempt sanctions”) against the above- (hereinafter * named Respondents-Appellees-Appellees (collectively the City and county of Honolulu, hereinafter “City”). The circuit court’s order was filed on the same day that this court filed an order granting a stay pending appeal in favor of the City as to the exact seme subject matter. At issue was the City’s alleged noncompliance with an order fron the circuit court which ordered the City to take certain affirmative good faith actions towards meeting its employment obligations to UPW and the unionized refuse collection workers whom it represented arising from the automation of the City’s refuse collection system. on appeal, UPW makes the following assertions: (1) there is no dispute that the City had failed to comply with the ‘The lionoreble Sabrina S, McKenna presided. 2 “+++ NOT FOR PUBLICATION IN WEST'S HAWAU REPORTS AND PACIFIC REPORTER *** circuit court’s September 17, 2003 findings of fact, conclusions of law and order (“compliance order”) requiring the City to begin good faith restoration and expansion of municipal refuse collection services; (2) the City’s appeal in United Public Workers, AFSCME, Local 646, AFL-CIO v. Shimizu, No. 26168 (April 4, 2005) (hereinafter “URW v. Shimizu”) and then-pending motion for stay before this court had no impact upon the City’s affirmative duty to comply with the circuit court's order, inasmuch as an unstayed order is fully enforceable pending appeal; and (3) the City had no right to an “automatic stay” from that order; and that because the City’s motion for stay before the circuit court was denied, not appealed, and therefore final, the circuit court, pursuant to the “law of the case” doctrine, “had no authority to deny (UPW’s] motion for contempt” as @ means of revisiting the issue of whether the City was entitled to such an automatic stay. upon carefully reviewing the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised, we hold as follows: (1) The instant appeal is moot. On May 6, 2004, this court filed its order granting a stay fron enforcement of the circuit court’s September 17, 2003 compliance order (pending appeal in UP y, Shimizu (decided on April 4, 2005)) ~~ the sane day as the circuit court filed its order denying UPH’s motion for contempt sanctions. This court’s order was filed before the  [NOT FOR PUBLICATION IN WEST'S HAWAII REFORTS AND PACIFIC REPORTER cdxcuit court's own order on that day. Therefore, even if the edrcuit court had ruled in favor of UPW and granted contempt sanctions, its ruling, by virtue of being filed “second in tine,” would be inmediately superceded and invalidated by this court's grant of a stay to the City, inasmuch as the circuit court would have to yield to this court’s superior jurisdiction in the face of its unequivocal pronouncement that the status quo shall be maintained until URW v. Shimizu was decided. As the City correctly points out, “[hlad the [circuit] court agreed with the UPW’s position and forced compliance, it would have destroyed the ‘status quo,’ which is the very purpose of pursuing a motion for stoy.” Given the timing of this court's and the circuit court’s rulings, no live controversy remains, because this court's May 6, 2004 order granting of the City’s motion for stay precludes the awarding of contempt sanctions in UPW’s favor even Af this court were to reverse the circuit court’s denial of UPW's notion. And it is well-settled that “merely abstract or moot questions will not be determined on appeal . . . .” AIG Hawai's nevrance Co., Inc. v. Batenan, 82 Hawai'i 453, 459, 923 P.2d 395, 401 (1996) (citation omitted) (internal quotation marks omitted). Thus, the only remaining question is whether an exception to the mootness doctrine is applicable. As UPH correctly notes, “[this court has) repeatedly recognized an exception to the mootness doctrine in cases involving questions +++ NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** that affect the public interest and are ‘capable of repetition yet evading review.'” See In re Doe Children, 105 Hawai'i 38, 56-57, 93 P.3d 1145, 1163-64 (2004) (emphases added) (citations omitted). ‘The phrase, “capable of repetition, yet evading review,” means that's court will not dianiss » case on the grounds of mootness ‘Chaluengee governmental action would evade full review the pessage of tine would prevent any single plaintift fron fenaising subject to the restriction complained of for the period necessary to complete the lawsuit, Idk at 57, 93 P.3d at 1164 (citations omitted) (some internal quotation marks omitted). UPW asserts that “[d]isputes over whether services in the public sector may be privatized or should be restored to civil servants is ‘capable of repetition’ and Likely to evade review.” (Citation omitted.) This generalized argunent, however, fails to demonstrate how the complained-of action in the instant case (noncompliance with the circuit court's order to begin goed faith restoration and expansion of the City’s refuse collection services) will escape review. In fact, said action has already been subject to full review in UP ws Shimieu.? Because no exception to the moctness doctrine has been shown or is otherwise apparent, the instant appeal is >the DEH y, Shinigu summary disposition order states in pertinent part: Notwithstanding the circuit court's ruling that the City was bound to "restore collection services for the city which had Deen privatizes and to expand services to businesses, condominiums, and Churches and compete with private haulers to contract services for military bases and public Schools,” the unchallenged language of the HAB's February 11, 2003 decision, bound the City to the same Echeractual obligations when this court reversed the NLAB's prior Gecision in United Eublic Workers, AESCWE, Local G26, AFLACIO, v Msnnenan, 106 Nawel'i 359, 362-63, 105 P, a 236, 238-40 (2005) 5  {14+ NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER * dismissed as moot. Therefore, IP 18 HEREBY ORDERED that the instant appeal is dismissed. DATED: Honolulu, Hawai'i, May 18, 2007. on the brief Herbert R. Takahashi, (Of Counsel for Masui, Gorn Vasconcelos and Covert, Attorneys at Law) for Complainant “Appellant Appellant Mca Rlbarise Corporation Counsel for Respondent s~Appellees~Appellees o} ae Yon 0-86: 

f49c71e2716f1aefa7e9e8c47a9cfe64a6cb6236a5a320959c855b1cfba1bb99

2007-05-18T00:00:00Z

3f9268b6-6b79-4ffa-b4b7-688d7b62a406

State v. Deryke

114 Haw. 161

hawaii

Hawaii Supreme Court

No, 27259 Hd 81 AvW Lone o3ms STATE OF HAWAI'I, Respondent-Plaintif£-Appell noe vs. ERIK BAREND DERYKE, Petitioner-Defendant-Appellant. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (HPD TRAFFIC NO. 02436927) (By: Nakayama, J., for the court™ ‘and Acoba, J., dissenting) Petitioner-Defendant-Appellant’s application for writ of certiorari filed on April 4, 2007, is hereby rejected. Honolulu, Hawai'i, May 18, 2007. FOR THE COURT: Pu Cue oe Associate Justice DATED: Brian A. Costa and James A. DeLacy for petitioner-defendant- appellant on the application » Nakayama, Acobe, and Duffy, 93. ‘considered by: Moon, 

94a08183dfe5642e9fc1769e5613fd758c86fdc08892fd269c70f633099048d9

2007-05-18T00:00:00Z

1ad31e11-5d68-4b9a-8351-4463161747c6

State v. Kaheaku

hawaii

Hawaii Supreme Court

LAW LIBRARY No. 26968 IN THE SUPREME COURT OF THE STATE OF HAWAI'T STATE OF HAMAI'T, ae Plaintiff-Appellee-Respondent, =e | CHARLES KAHEAKU, JR. BPO OS Detendant-Appellant-Petitioner. 33/° en | CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (Cr. No. 04-1-0341) way: (By: Levinson, J., for the court!) upon consideration of the application for a writ of certiorari filed on April 23, 2007, by the defendant-appellant- petitioner Charles Kaheaku, Jr., the application is hereby rejected. DATED: Honolulu, Hawai'i, May 22, 2007 FOR THE COURT: Dwight C-H. Lum, for the defendant-appellant-petitioner on the application * considered by: Moon, C.J-, Levinson, Nakayama, Acoba, and Duffy, 3d 

3e12fc67bc663c597983004de921beca12ba2bbb1ff7f443e5037152876d7a64

2007-05-22T00:00:00Z

298fda37-01ef-4de2-81f1-b9bbe8129200

Grandinetti v. Corrections Corporation of America

28318

hawaii

Hawaii Supreme Court

LAW LIBRARY No. 26318 IN THE SUPREME COURT OF THE STATE OP HAWAI'E FRANCIS GRANDINETTI, III, Petitioner-Plaintiff-Appellant, state a mlti CORRECTIONS CORPORATION OF AMERICA, dba Ci company doing business in the State of Hawai'i, et al. Respondent s-Defendants-Appellees. CERTIORARI 10 THE INTERMEDIATE COURT OF APPEALS (CIV. NO. 06-1-1762) Ps (By: Moon, C.J. for the court") Petitioner-plaintiff-appellant Francis Grandinetti's application for writ of certiorari filed on May 7, 2007 is hereby rejected. Hawai'i, June 19, 2007. FOR THE court: Ap 4, [ f Justice PATED: Honolulu, a3 Nakayama, Acoba, ané Duffy, Jv. fered by: Moon, C.J., Levins 

fb4e20fbefc95fe5b93d3ac4a8cbf70b5245118329c07ad2bf505339276f19da

2007-06-19T00:00:00Z

18106586-0b12-44ee-9a70-933babbf6136

In re K. Children: D.K. and B.K.

hawaii

Hawaii Supreme Court

No, 27515 IN THE SUPREME COURT OF THE STATE OF HAWAI'I No. 27514 IN THE INTEREST OF K CHILDREN: D.K. AND B.K. (Fe“S No. 04-09743) No. 27515 JN THE INTEREST OF B.A.N., JR. z (FC-S No. 04-09756) 6 WY “re CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (FC-S Nos. 04-09743 and 04-09756) RB TING APPLICATION FOR RTIORART (By: Levinson, J., for the court’) Upon consideration of the application for a writ of certiorari filed on May 18, 2007, by the respondent-appellant- petitioner, the application is hereby rejected. DATED: Honolulu, Hawai'i, June 15, 2007. FOR THE COURT: Richard S. Kawana for the respondent- appellant-petitioner on the application Jay K. Goss and Mary Anne Maghier, Deputy Attorneys General, for petitioner- appellee-respondent on the opposition Considered by: Moon, C.J., Levinson, Nakayama, Aceba, and Duffy, 90 atte 

2a17c23b76bbd744ea3aa17b4025342a98560bc18f157eb62b6434cfc91f4191

2007-06-15T00:00:00Z

7f20e71c-bbb3-4dba-957b-3aaf035239f9

Cutter Motor Cars, Inc. v. Ayabe

hawaii

Hawaii Supreme Court

No. 28496 IN THE SUPREME COURT OF THE STATE OF HAWAI'I CUTTER MOTOR CARS, INC., dba CUTTER ALA MOANA VOLKSWAGEN MAZDA, Petitioner vs g THE HONORABLE BERT I, AYABE, Respondent { 3 ORIGINAL PROCEEDING ae 8 (e1v. NO, 06-1-1698-08 (BTA) He OS 2 ORDER (By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.) Upon consideration of the petition for a writ of mandanus filed by petitioner Cutter Motor Cars, Inc. and the papers in support, it appears that petitioner fails to demonstrate irreparable and inmediate harm from the denial of the motion to disqualify plaintiff’s counsel in Civil No. 06-1-1498 and the denial of the motion is reviewable on appeal from a final judgment in Civil No, 06-1-1498. Therefore, petitioner is not entitled to mandamus relief. See Wiong v. Fong, 60 Haw. 601, 593 P.2d 386 (1979) (a writ of mandamus may be brought where irreparable and immediate harm would result from an order denying a motion for disqualification of counsel); Kena v. Gaddis, 91 Hawai'i 200, 204, 982 P.2d 334, 338 (1999) (A writ of mandamus is an extraordinary renedy that will not issue unless the petitioner Genonstrates a clear and indisputable right to relief and a lack of alternative means to redress adequately the alleged wrong or aa obtain the requested action. Such writs are not intended to supersede the legal discretionary authority of the lower courts, nor are they intended to serve as legal remedies in lieu of normal appellate procedures.). Accordingly, 37 18 HEREBY OROERED that the petition for a writ of mandamus is denied. DATED: Honolulu, vai‘, April 27, 2007. 

c673d72ec51d23bf6bf8ee4619e0b9cb81dcc331cef5e32ad4626a5113ee67e4

2007-04-27T00:00:00Z

fa4b6071-0e01-407c-a795-35fff1aede69

Brescia v. North Shore Ohana. Concurring Opinion by J. Levinson, with whom C.J. Moon joins [pdf]. S.Ct. Order Denying Motion for Reconsideration and/or Clarification, filed 08/31/2007 [pdf].

115 Haw. 477

hawaii

Hawaii Supreme Court

‘s*470R PUBLICATION IN WEST’ S HAMAI'T REPORTS AND PACIFIC REFORTERS+# IN THE SUPREME COURT OF THE STATE OF HAWAI'I 00. JOSEPH A. BRESCIA, Plaintiff/appellant-Appellee NORTH SHORE OHANA, HAROLD BRONSTEIN and CAREN DIAMOND, Defendants /Appellees-Appellante and runswane comnssion oF aie counne or mwas) Defendant /Appellee Ibs Wy 2l G31. No. 27211 APPEAL FROM THE FIFTH CIRCUIT COURT (CIV. No, 3-1-0177) guLy 12, 2007 NAKAYAMA, ACOBA, AND DUFFY, 33.; WITH LEVINSON, J., CONCURRING SEPARATELY, AND WITH WHOM MOON, C.J., JOINS ‘OPINION OF THE COURT BY ACOBA, J. We hold in this secondary appeal by Defendants/ Appellees-Appellants North Shore Ohana, Hareld Bronstein, and Caren Diamond [hereinafter collectively, “Appellants”], from the Merch 4, 2005 judgment of the circuit court of the fifth circuit! (the court) issved pursuant to the court's March 4, 2005 findings of fact, conclusions of law, decision and order reversing and remanding, in favor of Plaintiff/Appellant-Appellee Joseph A. Brescia (Brescia), the June 10, 2003 decision of Defendant/Appellee Kaua'i County Planning Conmieion (the ‘The Honcrsble George M. Matvoka presided.  '+FOR FUELICATION IN WEST’ § HAWAI'I REPORTS AND FACIFIC REPORTER'S Commission) to deny Brescia’s application, the June 16, 2003 Commission’s order denying Brescia’s motion for reconsideration, and the Conmission’s findings of fact, conclusions of law, decision and order dated September 9, 2003 (2003 order), that: (1) the Comnission’s decision in enforcing the shoreline setback Line as shown on the July 1, 1983 subdivision map is supported by reliable, probative, and substantial evidence, (2) the Commission did not act arbitrarily or abuse its discretion in denying Brescia's request for an amendment or variance as to his lot to build within 31 feet of the shoreline, given that, inter alia, other shoreline setbacks in the area ranged from approximately 35 to 80 feet, (3) Brescia did not have a right to rely on representations of the County of Kaua'i Planning Department (Planning Department), if any, as to any purported setback boundary inasmuch as (a) the Conmission retained the authority to establish shoreline setbacks within the Special Management Area (SMA), as opposed to any individual planning department employee, and (b) Brescia was on notice that @ restriction in his deed Provided that the Commission could impose a greater shoreline setback at the time of building permit review, (4) Brescia was not vested with a sufficient property interest to implicate any alleged due process violation and, in any event, at the time of building permit review he was given a full public hearing by the Commission, and (8) inasmuch as Brescia acknowledged to the Commission that utilizing the Developer's Setback provided Br + and 4,974 sq. ft. of buildable with between 4,203 sq.  ‘s*4F0R PUBLICATION IN WEST'S HAWAI'I REPORTS AND FACIFIC REPORTER: area, and Brescia’s own architect testified that utilizing the Developer's Setback did not necessarily make the lot unbuildable, Brescia did not demonstrate that he was denied reasonable use of his property. Accordingly, we vacate the court’s March 4, 2008 Judgment, and remand to the court with instructions to enter judgment affirming the 2003 order. 1. AL ‘The subject property owned by Brescia is Lot 6 within the 15-lot? Wainiha Subdivision 11, located on the makai? aide of ' Alealea Road on the north shore of the island of Kaue'i. The subdivision is located in the SMA along the shoreline. Any development in the SMA is governed by the Coastal Zone Management Act (C2MA), codified in Hawai'i Revised Statutes (HRS) chapter 205A. The CZMA includes guidelines for development within the SMR. The legislature, finding that “special controls on developments within an area elong the shoreline are necessary to avoid permanent losses of valuable resources and the foreclosure of management options,” HRS § 205-21 (2001), delegated the responsibility to each of the counties of enforcing the objectives and policies of the CZMA and of issuing SMA permits in accordance with the stetute’s mandates, A policy under the CZMA is to “{e]nsure that new cevelopents are compatible with their 2 obeter: includes 28 or 16 love counts are present as to whether the subdivision se net material, however, co cur eiecuetion, > ose se or “toward the see[.]” Mery ae). Pokol ¢ Samuel hi, Etbert, Hawaiian Dieticuary 228 (rev, eds 3 {S*4FOR FUBLICATION I MEST’ HAWAI'I REPORTS AND FACIFIC REPORTERS visual environment by designing and locating such developments to minimize the slteration of natural landforms and existing public views to and slong the shoreline(.]" HRS § 205R-2(c) (3) (B) (2001). Further, an objective of the C2MA 4s to “{rleduce hazard to Life and property from teunami, storm waves, stream flooding, erosion, subsidence, and pollution.” HRS $ 20SA-2(b) (6) (A) (2001). on Kaua's, the Connission is the body charged with smplenentation of the C2MA. In that regard, the Commission adopted the Planning Departnent’s “Shoreline Setback Rules and Regulations” {hereinafter “Kavi Roles") in furtherance of this ebligatson. HRS § 20SA-48 (2001), entitled “Conflict of other ows,” states in relevant part that “[i]n case of » conflict between the reguizenents of any other state law or county ordinance regarding shoreline setback Lines, the nore restrictive requizenents shall apply in furthering the purposes of this part.” 2 Tale fe the second tine the Wainiha Subdivision TZ hes been c sidered by this court. On Octeber 25, 1978, the Conmission approved SMA Permit (U)-79-1 allowing for the Gevelopnent of the subdivision. The Connissicn’s issuance of SMA (U)-79-1 was subsequently challenged and eventually overturned by this court in Ma » n Yn, 65 Haw. $06, €54 P.2d 674 (1982). ‘S*4FOR PUBLICATION IN WEST'S EAWAI'T REFORTS AND PACIFIC REFORTER® on July 5, 1983, developer Alex Ferreira (the Developer) reapplied for an SMA Use Permit. The Developer proposed a 22-lot subdivision. Included within his application was a proposed preliminary subdivision plan map dated July 1, 1983, on which the Developer designated a so-called “Zoning District Boundary Setback Line” [hereinafter “Developer's Setback”]. The Developer also included in his application an Environmental Aeseeement which stated, inter alia, that “Inlo structures are allowed within 40 feet of the certified shoreline and, therefore, the shoreline area will not be affected.” After community opposition was expressed, ‘the Developer presented a second proposal for 2 20-lot subdivision, again indicating the same Developer's Setback on a map dated Septenber 19, 1983. A third plan proposing 19 lots was also submitted at the same time, and it too included a map indicating the Develeper's Setback. The Director of the Planning Department stated the following, inter alia, in his evaluation of these two proposals: sauna ExAOINGS: laistscnenay, (the Seveloper) proposed the following TSEISLETIGAL’ oppldcabie co eleher"Gee fon scheme enedens Stor STPES eto ta eandaes to geste Peston and ‘49FOR FUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REFORTER*## This shoreline property 1s located within the Orban Lond Use District, is further zoned Resicential District (R-4), with «strip slong ‘the shoreline zoned Open District 10), the’ orth shere fevelsonent Plan Tecate maintains ‘He_Ghen District (01 to avoid the undue ‘[iskcachient of structures onto the ehoreline. . Eibedon the foregcing, it te concluded that the design alternatives conform to the Raval Ceneral Flan, the Comprehensive Zoning Ordinsnce, and the Subdivision Ordinance. It ig further concluded that adverse sreironmental and ecologies] effects can be minimized, and st iciet end cvldelines contain 7 2052 of the IGRS1, and Aules and Reauletions of the County St Kasai relating to cbiectives, policies and euicelines, Bt 1s ido" concluded that provided all these restrictions are established, it te not Siternative and’ tha Eubdivicion review end spprevel- In necting sé chiectives,, ik ip nore important to extebligh the restrictions and GEiteris st this tine snd not necessarily the supivision Tevout. (Emphases added.) After continued opposition by beth connunity members and members of the Conmission, the Developer presented a fourth proposal for a 1S-lot subdivision, Like all of its predecessor proposals, it was accompanied by @ map that included the sane Developer's Setback. On Decenber 15, 1983, the Commission issued its “Findings of Fact, Conclusions of Law, Decision and ord approving SMA (U)-84-2. No reference to the maps presented in the proceedings was made in the SMA (U)-64-2 order. However, the Commission's findings included the following: The Zoning for the property se ceicential District (Rr4)™ end Open District feet wide, ihe property 12s ‘s+4FOR PUSLICATION IN WEST! § RAWAZ'I REPORTS AND FACIFIC REFORTERS** iz! he arate north shore Development Plan Update (orth Shore Update”), as pproved by the Planning Coamisslen, recommends that the subject site and surrounding properties be rezoned from ite present Residentiel bistrict” (R-4) /open District (0) to Residential District (R-2)/open District (0) due to their Jocetion in a coastal high hezerd zone area... snd due to the rural Reture of the ares. Shore Usdate ie sti subtect tae) public hearings at the County Council level; B) County Couneli review and approvals and c) review and approval by the Mayor. sa nejuinivbers 22, The North Shore of Kauai has long been recognised for ite natural Deasty and scenic Qualities. The goals of the North shore Develepnent Flan Update reflect thet the area's nigue natural beauty end special rural charm should be preserved.” eens definstely reflects Uhese charscteristice, and eny developnent Within the ares should be sensitive to ene Quelities that make it a special place. Ap reserve tnd wh te 7 ‘the quality of coastal scenic and cpen space A supporting policy of this cbiectiv focsting sich cevelcpnente to-mininize the fublie views te and alone the shoreline.” nother obtective relates to redveing nea fe erty from tsunami, storm seve Seselocnent in cress scbject fo ster wav ae a ainsien ant Sabriena beseras* The Weens aren does have a {raoile envionment cbiectives. Any development shoul reflect and be Farmenicus with the present character of at Ccaetal scenic and open space rescurces, the Stbaivieion of the real property shoulé and will bject to the following restrictions ke con shall bs sitnss ip, Senatroctien shal be aloe frsnerty slong the shoreline ys + (and) icte chall be se wide o£ peecible so ae to saxinize view planes to the shoreline? nd ‘#9FOR PUBLICATION IN WEST'S HAWAI'T REFORTS 2ND PACIFIC REFORTER!*# the overall layout of the subdivision shall be subject to Planning Comission approval, (Enphases' added. ) ‘The Commission's conclusions in the SNA (U)-84-2 order included, inter alia, the following: 1. The Planning Commission hae jurisdiction Seer thie spplication pursuant te ERS Chapter 205°A and the SHA Rules, and the power under said statutes and rules to Lspose ressonsble restriction and conditions in the developnent of the ¥% property herein. 1 4," ie de turther concluded thet provided that the yectrictions es noted above fe eetabliched, it ip not necessary to select « design alternative and that such decision could be nage at time of Eubdivision review and approval. In meeting SHA ebjectives, it is sore inpertent to establish the restrictions and criteria et this tine. Among the conditions enumerated in the SMA (U)-84-2 order, in light of the “visual sensitivity of the site” were the following: 2. Boe to the views) of the site in 8) Building locations, materials, and designs shall be subject to [the Conieeson's) Ecview ang spproval at the tine of Bullding and soning permit application. ‘The bullding locations shell be constructed cn the ground in strict Sdherence to the approved eubaivision map and buileing plot pisn roma corrent certified shoreline at rine St cevelemment. uo nart of any structure sal penetrate the Open sone striae ‘renting the shoreline. ec) Builainge shail be lisited to one story above the fleed elevation. b) hi’ " he setback from Alesles fosd and Alanc'o Road shail be a minimon ef 20 feet. All cther frent yard cethecks shell be 18 feet. The eide yerd eetbacke shell be & Hininun of 10 feet, ineressed setbacks sn 2 ihe plang ‘*ATOR PUBLICATION IN WEST’ S HAWAL'T REPORTS AND PACIFIC REPORTERS*# permit review if the deeien of a residence Scrrante--areater eathactiate ALLof the shove resuirenents shell be eciablished as egbrictive covenants within each deed at the tine of subdivision: 1 "" "8. tne everatl eubdivieion design and layout . be'subsect to the review and/aroreval ef the Acenmizaicnl in accordance with suk The subaivieion ote shall be as reauirenents. wise a= porribie and Roxinize view plane: oreline. (Emphases added.) After the {ssuence of SMA (U)-84-2, the Commission on april 11, 1984, granted the Developer tentative subdivision approval for a 15-lot subdivision, which differed in layout from the previous (fourth) 15-lot proposal submitted by the Developer. Once again, however, conditions of the approval were that all building setbacks be measured from a certified shoreline, that no part of any structure penetrate the Open zone strip fronting the shoreline, and that these restrictions be made part-of all subdivision deeds. After obtaining tentative subdivision approval, the Developer sold the property to Sylvester Stallone (Stallone), who subsequently sought approval of the final subdivision nap. on March 13, 1985, the Commission approved the final subdivieion map. The final subdivision map, later recorded as File Plan 1840, did not contain the Developer's Setback which had appeared on all previous maps submitted to the Conmission. Section 9-3.8 of the Kaua'i County Code, entitled “Final Subdivision Map," requires that the final subdivision map indicate, among other things, setback lines. Additionally, ‘s#070R FUBLICATION IN WEST'S IANAI'T REPCRES AND FACIFIC REPORTERS Section 9-3.8(c) (5) of the Code, entitled “Errors and Discrepancies,” stated: he approval of the fina subdivicion sep by the Planning Connissicn shall not relieve the spplicent of the responsibility for any error in the dimensions or other Giecrepancies or oversights. Errore, discrepancies, oF oversights shall be revised or corrected, upon sequestt,) to the eatiefaction of the Pisnning Commission. On February 20, 1992, the Declaration of Covenants, Conditions and Restrictions (hereinafter “cCtRs”) for the ‘the subdivision was recorded at the State Bureau of Conveyanc CcéRs stated, inter alia, the following: . DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR WAINIHR SOBDIVISTON=11, RECLIALS WHEREAS, a6 2 condition to fine) subdivision spprova: ronerty By the = certain re ‘Sovenante ware imposed upon the Eroperty, which restrictive ‘SSuenants are stated in Schedule “p sttached hereto and nade 8 part hereo!t.) WHEREAS, [Stailene], by making this Declaratien, ans gest 7 r Brosertys and WoW, THEREFORE, (Stallone! ben (as hereinafter defined), hereby Geclaree that bert - suguibered, conveved, sold. used, cccunied and improved, ibiect to and 1 betefit tn th suitations, restrictions, covenants and conditions set Sersh in thie Ceclaration. sll of shleh are established and isclared be Tor th enhanc Pratectina the wales, desirability and attractiveness of the Eccertv, there Linitetions, restrictions: covenants and ihe bene (it of ang be binding Gn all parties having or oro coquize eny right, tite er inte TICLE 12 por sreseicHons Section 1, county Restrictions, All Owners che Her Getached-herete. In the event tency between Schedule “B" and the 10 FOR PUBLICATION IN WEST’ S HAWAI'I REFCRTS 25D FACIFIC REPORTER*# Section 2. Construction. No building . . . shall be constructed. .'. until the complete plans, drawings and Specifications therefor . = « have been submitted to and approved by the Design Comittee. . ;.- No residence shall Contain less than 2,500 square feet of covered space (excluding garage, lanais and cutbulldings) « Section $. Setback Lines. Al1 building setbacks shall conform to the requirenents stated in Paragraph € of . Schedule "E" attached hereto Schedule “B" is a restatement of the conditions of approval in SMA (U)-€4-2, and states in relevant part: SCHEDULE “2” COVENANTS, CONDITIONS AND RESTRICTIONS FoR i.” Buliaing tocations, materials and designe shell be subject ‘te [Conmission) review and epproval at the time of Building end soning permit application. - = 2: “All butidine setbacks shell ke nesiured from a worrent certified shoreline at the tite 7 [Eonting the shoreline. "W'.", aneresced setbscks shalt be required by the io. “there shail be no reversing movenents onto Alea: Reed, Each lot shall provice for ite cm turn-around. (Emphases added.) on February 11, 2000, Brescia and Jodie A. Brescia purchased Let 6 of the subdivision by Warrenty Deed (deed), recorded on February 23, 2000. Accerding to Brescia, Lot 6 is a funnel-shaped flag let, with the top of the “funnel” being the shoreline. The Conmicsion found Lot 6 is the most seaward and visually prominent let within the subdivision. Eleven of the lots 1¢ subdivision, including Lot 6, abut the shoreline. On December 11, 2001, the cwner of neighboring Lot 9 appeared before the Conmissicn to seek @ Building Location, Material and Design Review in accordance with SMA (U)-84-2. The a  ‘#9FOR PUBLICATION JN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTES Commission unanimously voted that the ouner was required to comply with the setback identified in SMA (U)-84-2 order, as restated in the CC&Rs attached to the deed, and as illustrated on the Developer's original proposal map dated July 1, 1983. The July 1, 1983 map indicates @ setback on Brescia’s lot of approximately 61 feet at the northeastern makei corner ranging to about 71 feet at the northwestern makai corner. on Septenber 3, 2002, Brescia’s attorney submitted a letter to the Commission in which he stated, “Please consider this letter as a request for all necessary permits and approvals to allow the proposed single fenily residence on the property.” Brescia sought “an Anendnent to SMA (U)-@4-2 to allow the applicant ‘to deviate from the building setback line dened by the Planning Department to be applicable to the lot. . .7 a Class I Zoning Permit; and @ Shoreline Setback Variance.” According to Brescia's application, a setback of approxinately 63 feet 2s shown on the July 1, 19€3 map would allow for a triangular-shaped buildable area of approximately 4,974 square feet. Within this area, Brescia must construct, in accordance with the CCéRs, a residence of at least 2,500 square feet-- excluding garage, lanais, a required turnaround area, and septic system. 4 Rules Section 5, entitled “shoreline Setback Lines,” states: Sherel. County Sper reeches of shew waves other than etore ang tice) waver, ‘*#47OR PUBLICATION I WEST'S HAWAI'I REPORTS AND PACIFIC REPCRTER## except that such shoreline setback Lines shall be 20 feet inland on any land parcel of record when eny one oF nore of the following exist! im wildsble arcel ie x orelin anda County reauirenente wherein the parcel is located Eneivding but net limited to front end eide yard setbacks, cross-slope requirenents, and terrein Fequirencnt shoreline cethacks esteblisned at [a] distance crester than chat Fer oe 5 in con deh the (Emphases added.) Under the C2MA, = variance may be granted for private facilities if the Conmission “finds in writing, based on the record presented,” that the variance is “clearly in the public interest(,]” or that “hardship will result to the applicant if the facilities or improvements are not allowed within the shoreline area[.]" HRS § 205R-46(a) (7)-(8) (2001). Although ‘ URS § 20SA-46 (2001) states in relevent pert: (a) A variance nev be granted for a structure or activity otherwise prohibited by this pare if the authority Hinge in writing, bese that the propeced structure or activity is necessary for oF anciiiary (9) ” Erivate factiities or improvenents that are clearly in the public interest (6) Frivate facilities or improvenente which will neither adversely affect besch processes nor artificially fix the shoreline; provided that the authority also finds thet Eesult to the agplicant if the facilities or Inprovesente are not allowed within the shoreline areas sha ined in qles adopter Seereval listed in Net sh Sn teont snved 13  ‘s9470R PUBLICATION IN WEST’ S HAWAI'I REPORTS AND PACIFIC REPORTERS: the legislature in HRS § 20SA-46(b) assigned the Commission the + Kaua't task of defining hardship with respect to SMA varianc County has not defined “hardship” in its rules for the purposes of evaluating shoreline setbacks.* On Decenber 10, 2002, Brescia submitted a County of Koua't, Department of Planning application form in order to seek 2 Building Permit and an Amendment to SMA (U)-84-2, oF in the alternative, a variance.‘ The form contained a printed section entitled “For Variance or Use Permits only,” and stat cont inved) ro 7 ‘fon, and slens lempheses adced.) + Section 12(b) of the Keue'l Rules, entitled “Administration of These Fules anc Regulations,” states in relevent part! The Agency, through its Director, shall receive and review Plans for proposed structures, facilities, or activiti that are prohibited within the shoreline setback upen the rubniceicn of adequate plone and eta attached to = properly executed application form requesting # variance through the Flonning Cennicsion of the County of Kevai- ss se rules and regulations Applications for 2 variance from t (2) guch structure, activity, or facility e in the public interest: oF bronceeg activity, orf Hioreline setrack: (Emphases added.) + in the ebeence of a definition of hardship" in the Haue's Rel sn his answering brief thet, “[t]he County's Comprehensive ing Orésnence (Cz0) similarly recognizes thet there ray be a need for & ice in oppropriste circunetences, sion may grant veriences . 1. [where] the strict application of the regulations cepriver the property cf privileges enjoyed by cther property lowers] in the vicinity ng tithin the cone District, 37 ne shone that he cennot make @ Feasorsbie use of the property i feng are opplied.”  ‘**TOR PUBLICATION IN WEST’ HANAI'T REPCRTS AND PACIFIC REPORTERH# NO “Conditions justifying Variance or Use Permit application: (use additional sheets as required)” As justification for the variance,’ Brecia wrote, “[S]ee letter of [Brescia’s attorney), dated Septenber 3, 2002,” referred to supra. Brescia’s attorney stated in the September 3, 2002 letter that Brescia’s proposed 3,600" square foot residence would be “31 feet inland of the certified shoreline at its nearest point(.]” The letter states: In support and justification for his requests, (Brescia) brings the following to the attention snd conssderetion of the Cennission: . . . The Applicant's residence woeld nae be the only residence in the subdivieson or aleng thet stretch of coastline built as close to the shoreline,” the existing Fesience on lot 4 of the subdivision is approximetely 20 fect from the shoreline. (Emphasis added.) However, on appeal to this court Brescia acknowledges in his answering brief that, contrary to his Septenber 3, 2002 letter, setbacks in the area range from 35 to 80 feet. Further, Brescia also acknowledges that the setback on neighboring Lot 4 is not the 30 feet represented in his spplication to the Conmission, but is in fact 40 feet. On January 2, 2003, the Conmiseion held a hearing, at which time Appellants were granted intervenor status. Brescia’s architect testified that utilizing a setback of approximately 60 feet as indicated by the developer's original proposal map dated July 2, 1983, makes the triangular-shaped lot “almost become unbuiidable. . . . [YJou cannot get a reascnable structure on, Brescis reprecented the fate feet. In hie opening brief iat_he uss requesting s stevecure Renever, in hie cpening brief ‘applied cn September 3, 2002 for gle fenily resicence en Let 6" for 8 “propered 3,300 equare operon feet structure 1s ‘**+FOR PUBLICATION IN WEST’ S HAWAI'T REPORTS AND PACIFIC REFORTERM+# there.” Brescia argued that, since no setback was illustrated on the final subdivision map, the “Open District strip" referred to in the SHA (U)-64-2 order 4s the line shown on the County Zoning Naps. Rather than inposing a setback on Lot 6 of approximately , 61 to 71 feet at each makes corner as does the Developer's Setback, the County Zoning Map would impose a setback on Lot 6 of about 9 to 22 feet at each makai corner. The County Zoning Maps were adopted by ordinance as part of Section 8-2.2 of the Kaua'i County cede (1987). After having conducted a site visit to the property and hearing oral argument from ell parties, the Commission denied Brescia's application on June 10, 2003. On June 16, 2003, Brescia filed a Notion for Reconsideration. On June 24, 2003, the Comission denied Brescis's motion. On September 9, 2003, the Comission entered its Findings of Fact, Conclusions of Law, Decision and Order. The relevant findings of the 2003 order state as follows: 2. The Wainthe Subdivieion IT. . . wae opproved [Sma] Tee Permit SMA (0)-B6-2, and Subaivision 2 On Decenber 16, 133, the comission! issued tts Afisndinas, conclusions, Dh0l anoroving SMA (0)-24=2. “The [onmissicn's 2incangs! State the foliowina: io." 1. , the Zoning for the property is “neeicential District (R-é)" and Open District (0), Pas Oven Distrsee strip se 65 dccis Feet vice. The property se within the Teva] istrict. shore of Faves hee long been for ste natural fe ‘scene “thetedore, to further protect the quality of ccastai scenic and open space rescurces, ‘the scbaivielon of the Feel preperty should and will be subject te the following restrictions: 16 ‘#*TOR PUBLICATION IN MEST’ § HAWAI'T REPORTS AND PACIFIC REPORTERS+# ee (©) Bp construction shall be allowed with 5.” the approval of Ma (0)! which state in pare: 2 was subject to conditions, 2," " Bue to the visual seneitivity of the site in relation to its ecenie location on the North . Shor a) Bs + b) BID building vetbacks sheil'be meseured from a corrent certified shoreline at tine of develcpnent. No eart a All of the shove recutrenente shell be established ag restrictive covenants with er a . ‘subdivision ~The Auclicetion for SMA (v)-84-2 included the Hielininary subsivigion map dated Saly tn S803 stich sent tied che area Ceent lag tps Uoevalacar'e Setback) ‘Kelied uocn by the [coneissionl Sin | aaprevine oma in | .". » (Brescia's) deed included the [CcéRe) imposed by the [Coonission}, as required by SMA (O)-E-2. 32, On Decenber'11, 200%, ‘the Suliaing Location, ‘Materiel and Design Review for Lot’ 9 of the Weiniha subeivicion (71), ScE4=BE, THK 5-€°09-008 was before the [Conmission).— The [Conmiesion], in reaffirming the original intent of SHA 10)- 84-2, unanincusly voted on cecesber 11, 2001 that the applicant “shall comply with the set backs identifies in the Findings of Fact, Conclusions of Law, Decision snd Order, for SHA (U)~64-2; dated Decenber 15, 1963, and the eriginal proposal map dated duly 1, 1563." is. “according to (rescia's) seotes 2002 applics leis i te the (Cesnission) ‘at the January 26, 7003 public hearings a celine seth ified shoreline detec 36, t Develosar's Settack] eau see =f 2, suomiteed ‘sche prencked substvision sap dated Surg te taee with the Applicetion for swh (U)-e42, xii] -silow [presesa: aa aa acre ane subnitted with the Bpplication for GW (0)-84-7 when Restured from Alesles Rese ii 1 tal tetancy scbroniestely 4.20 souere fect om Whien fe construct a ingle family resioence, 7  *40POR FUBLICATION IN WEST'S HAKAI'T REPORTS AND PACIFIC REPORTER: 20, [Brescia) submitted on Affidevit attached to his Opening Brief which stated he “wer informed by Kaual County Officials, whom he did net pane, [that] the "shoreline setback on’ Lot 6 was 20 feet inland of the certified shoreline." (Emphases added.) Among the Commission's conclusions were the following: 1. The Hawai'i [COMA], HRS 2054-1, et. seas, controle Gevelepment in the cosetal sone by the (Smal permit process, 5." Swi (0}-84-2 ie the primary and controlling permit for the development of the Wainihe Subdivision II. &"" The condstione upen which the approval of SMA (W)-84-2 was besed upen were incorporated into the [CCéRE] of the deed (Brescia) received from [the Developer). Heeiva x7 eects] wae Bot on noth the rea 7 mets rer z rocture aha Estgtrate the open sone strip fronting the shoreline” and shat =ipiaiiding locations, materials, and designs shall be cbiset te Penni es 2 Eine_of building and soning nemit anlication.” 8." Patevant to the geale and objectives of the (C2MA], HRS 200Re1, et, sea, in order to preserve and protect the quality ef cosstal ecenie snd open space resources, the Planning Conniseicn in ite Findinge ef Fact, Conelgsions of id Order, Sua (0]-¥0-2. dated December TE subsitred with th tetrate’s The [bevelener'e Setheck ‘Sine She ecasr arent ineenes aber ye teaeea aarp aa ‘ the {co sud wi-bane mas to preserve Wiew plan Soo renee peace Se eae ea ae eegeal sands end i] “te unidentified “Fava! County Offtesaie" did not have the [aidninistrative suthority to sake the final decision on the Jecation of [Brescia's) building, because that decision wae reserved to the [Ccamissicn]« BS." The (Connieeion], purscant to Section 9-3.6(d) (5) of tthe Keva's County Code, 1987, © oenced, hee the authority with respect te the revision er correction of approved fin] subdivision mape as follows: Errore, ciserepancies, of cversignte chell be revs sfection of the 18  ‘***FOR FUBLICATION IN WEST’ S HAWAI'I REFCRES AND PACIFIC REPORTER’ OO 16. The area fronting the July 1, 1963 [Developer's Setback] was identified by [the Developer) and relied on by the (Conniseicn) when st iesved ite Findings of Facts Conclusions of Leu, Decisicn nd Order spproving SHA (0)-Bé- 2 1. dbs tin wt are develaser's Sorbecit aiit tt th z : Setar and coor a oot ele hee eae a te 3g." Prohibiting buridings within the aree fronting the (Developer's Setback] identified in the Findings of Face, Conclusions of Lew, Decision end Créer, for SMA (0)-84°2, Gated December 18,1983, and on the propored eubdivieion’ map Seted'July 1, 1968 submitted with the Application for SHR (0)=86-2 ae ie oppiies to Lot €, t Z le use reperty. 18. Feascnable use ir not necessarily the use most desired by the onner of the property, and [erescie’s] ‘compliance with 99 (0l-£4-2 allows for' the construction of 8 fubstantial house en the property witheut the opplicant being denied reaccnable use of the property. aa. “ny sion el iBreset id in angular shared us r intel Sant ‘Sepending gm which celcuiaticn submitted by (Srescia] ie used. . = 2a. WBrescia’s] lot is the most seamard and visualiv broninent lot within the subdivision. and coneteuetsen Sut TEC tie srea's scenic and oper fesse aoe snd za (Emphases added.) Finally, the 2003 order stated as follow: 1S upon the foregoing Findings of Fact and fons of Lew, it is the Decision of the Planning Consission that? 1.” [breseis's] reovest to mend Sua (U)-64-2 or orant ez Sa ees PDevelover's Setback! is deniea? ‘shall be prohitited from constructing fronting the (Developer's Setback] -d'in the Findings cz Fact, Conclusions of Lew, Decision ang Orser, for =¥A (0) dated Decesber 15, 3983, end the proptsed subdivision mop dated July 1, 1963, subsitted «ith the Application for SMA (O]=€(-2 which prohibits eny structure fron penetrating the open zone strip fronting the shoreline, and thie allowe [Sresele) ressconsele ute of hie property. (Enphesis added.) n. On December 12, 2003, Brescia filed a Notice of Appeal as  }FOR FUBLICATION IN WEST’ HAMAI'T REPORTS AND FACIFIC REPORTER'S An the court, On March 4, 2005, the court issued its findings, conclusions, and Order, and Judgment pursuant thereto. The court's order in effect found (1) the Open zone strip referred to Ap the 4A (U)-84-2 order is the Open zone shown on the County's Zoning Map, (2) Brescia had a right to rely on alleged representations made by Planning Department employees as toa purported setback boundary, and (3) Brescia cannot make asonable use of his property if the Developer's Setback is imposed.* + the court's findings included, inter alia, the following: 57. ‘The inposition of the [Develeper’s Setback) on the Final supeivision Hap, under the guise of correcting the [rap] exceeds the authority granted to the Conniseion under £°553,8(c) (3) of the Havas County Code(], for it reflected & change in interpretation 16 years after the fect and not en error in éinension, discrepancy or oversight 5." The cee tone strip frontine the shoreline Shounen the Cosnta'e Toning Map 32. “the [Developer's Settack] shown on the duly “63 Map inpoted a cetback of between lt and Tl feet from the shoreline for Let € more then double or triple what ha been represented as'being the applicable eetback fer the subdivision to the public end Brescia. be. “rhe 1¢_shown on the County’, i = 57, “the {Developer's Setback) shown on the July *€3 applicable setbecke, resulted in a triangular builcstie eres oh Let € of only ¢,203 square feet iod.” Other improved lots in the innediate neighterhied . -. were subject to shoreline eet Fonging fron 0'e6 38 feet. ke 30k.” |. . (rlppiicetion of the [Developer's Setback) (cont anced...) 20 ‘*4FOR PUBLICATION IN WEST’ § WANAI'T REPORTS AND PACIFIC REPORTERS -continved) ‘to Lot 6 results in a buildable area of 4,203 equere feet, oF only 26.78 of the lot~ ‘ 113," Doe te the buildine constraints aforessid, fe the # are feet tri fia Eszry 115." the Commission's denial of the, variance lacks support if the record. 8 added.) The court's relevent conclusions were #¢ follows: 4. The “oven 21 Eronténe ine”, pene fon the Coon Bap in existence at the time, as supported by the relieble, probetive and cubstantisl evidence en the whole recerd. 5.” The Cpen zene ax chown on the County's Dosing Map, within whieh structures are prohibited, Se sufficient fo hnect and ie net contrary to the cbsectivee of the. Seate cama] and the {SHA} laws, ee supported by the relisble, probative end cubstanticl evidence on the whole Tecere, 3.” ne Commission's finding that the Plenning Connission in [the order granting SH (U}-€4-2) intended thet the "open sone strip fronting the shoreline” be the [Developer's Setback] shown on the Joly "62 Map, inetecd of tthe Open zone shown on the county's Zoning Map and North Shore Development Flan (Upeste NO. 1), wae clearly erroneous in view of the reliable, probetive, ané substantial evicence (oh the whole Fecore. io, “the connissicn's actions on Decenber 11, 2001 in its new intexpretation and epplication of @ setback line, without any notice to and the opportunity to be heard by Brescia and other effected lancemers, were rade in viclation of their constitutional right ef ove proces Pour ss rebatis eviaens lest Sezenearstes thet a £ tS uihelg ang etriet confermty therewith is required. 26." Brescia having met the etanderde for the grenting cf @ varlence to enable the reseenstle vse of ict € in accordance with privileges enjoyed by other iote in the Inediate vicinity, the Con! Eronsously denies the ueriance in view of the relisble, protetive, and svbetenti evicence on the whole Tecere. (eontinved. «1 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*#* On April 4, 2005, Appellants filed their Notice of Appeal with this court. mr. , on eppeat, Appellants argue that the court’s “entize Findings of Feet, Conclusions of Law, Decision and Order... is being appealed as it is wrong as a matter of law.” (Emphasis in original.) Appellants argue that it was an abuse of discretion or a clearly unwarranted exercise of discretion in violation of HRS § 91-24(g) (€) (1993)? for the court to substitute its own judgnent for that of the Commission when it reversed the Commission's decision to deny Brescia’s application. In response, Brescia argues that (1) “the (Conmission’s] subsequent recognition 16 years later of the [Developer's Setback) on the never adopted July ‘63 Map in liew s clearly erroneous in view of the of the [County Zoning Map], reliable, probetive end substantial evidence on the “hole record"; (2) “the Commission cannot impese and enforce a setback Line which is not shown on the final subdivision map, as was required by lew"; (3) “the action of the Commission cannot be justified on the beeis of enforcenent of the CZMA"; (4) “the Connission's decision that the renaining buildable area allows Brescia @ reascnable use of his property is without support and in error"; (5) “the refusal to amend the SMA conditicns or to "(continues Eapheses’ sede.) + See sntza, ‘s*4FOR PUBLICATION IN WEST’ S HAWAI'I REPORTS AND PACIFIC REFORTERY+# grant a variance for the proposed dwelling was arbitrary, capricious, and characterized by abuse of discretion”; (6) “the Commission is estopped from enforcing a totally different building prohibition than is set forth in the [SMA (U}-64-2 order)"; and (7) "Brescia had a vested right to proceed with the construction of his residence,” and “the Commission's action to recognize the line on the July ‘83 map as the applicable setback Line violated Brescia’s constitutional due process right Ww. “tReview of & decision made by @ court upon its review of an adninistrative decision is a secondary appeal. The standard of review is one in which this court must determine whether the court under review was right or wrong in its decision.'” Leslie v. 84. of Appeals of County of Hawaii, 109 Mawas's 364, 291, 126 P.34 1072, 1078 (2006) (quoting Lanai Co. nc. vs Land Use Comm'n, 108 Hawai'i 296, 306-07, 97 P.34 372, 3€2-€3 (2004) (other citation omitted)). The standards as set forth in HRS § 91-14(g) (183) are applied to the agency's decision. a Pa'akei 0 Ke'sina v, land Use Comm'n, 94 Hawai'i 31, 40, 7 F.3d 1068, 1077 (2000). HRS § 91-14(g) provides: view of the record the court may affirm the on of the agency er renand the cate with izetruct ions for further proceedings; cr it may reverse cr nosify the decizien and order if the substantial righte of petitioners may have been prejudiced because the Sdhinietrative findings, conciveione, decieions, or orders (s) upon " (2) In wicletion of constitutions! or stetutery provisions) oF (2) En excess ef the etatutery authority oF juriediction of che agency: ef Nace ypen unlawful procestres cr Affected by other error of law cr 23 STOR PUBLICATION IN WEST’ § HAWAI'I REFORTS AND FACIFIC REFORTER*#* (5) Clearly erroneous sn view of the reliable, Prebetive, and substantial evicence on the whole Fecore? oF (©) Kebitrary, or capricious, or characterized by abuse of cisereticn or clearly smsrranted enereise of discretion. “*Under HRS § 91-14(g), conclusions of law are reviewable under subsections (1), (2), and (4); questions regarding procedural defects under subsection (3); findings of fact under subsection (5); and an agency's exercise of discretion under subsection (6).'" Sierra Club vs Office of Planning, State of Hawa‘, 109 Hawai'i 411, 414, 126 P.3d 1098, 1202 (2006) (quoting In re. Hawadian Elec, Co., 61 Hawai'i 459, 465, 918 P.2d 561, 567 (1996) (other citation emitted) ). “whn agency's findings are not clearly erroneous end will be upheld if supported by reliable, probative and substantial evidence unless the reviewing court is left with a firm and definite conviction thet @ mistake has been made.’” Boe va Hawai'i Labor Relations Bd., 105 655 (2004) (quoting Kilauea Neschborhood hes'n v. Land Us ‘ai'i 97, 100, 94 P.3d 652, Comm'n, 7 Hew. App. 227, 229-30, 751 P.2d 1031, 1034 (1988). [T]he courts may freely review an agency's conclusions of low.'" Lanai co., 105 Hewai"l st 307, $7 P.3d at 383 (quoting Role Heweii Div.-Cestle & Cocke, Inc. vs Ramil, 72 Haw. 419, 424, 794 P.26 1125, 1118 (2990) (other citation omitted)). “abuse is apparent when the discretion exercised clearly exceeds the bounds of reason or disregards rules or principles of law or practice to the substantial detrinent of a party litigant.” Kimura vs 24  'FOR FUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER* Kemalo, 106 Hawai'i 501, 507, 107 P.3d 430, 436 (2005) (internal quotation marks and citation omitted). In connection with his first argument, Brescia is Little question that the [SMA (U)- acknowledges that *[t]h 82-2 order] imposed a prohibition against building in the Open zone strip fronting the shoreline of the Wainiha 11 subdivision.” Brescia argues that the “[tJhe dssue is whether the ‘open zone strip’ was determined by (1) the clearly existing Open/Residential Line on the officially adopted County's Zoning Map, or (2) the elusive [Developer's Setback) shown én the July \€3 Map which was never adopted or even mentioned in the (SMA (0)~84-2 order]." We conclude that the Commission's decision in enforcing the Developer's Setback as shown on the July 1, 1963 subdivision nap is supported by reliable, probative, and substantial evidence on the whole record and, thus, was not clearly erroneous. Accordingly, the court's finding no. S@ that “[elhe Open zone strip fronting the shoreline referred to in the SMA decision and Order is the Open zone shown on the County's Zoning Map" is clearly erreneous, and conclusion no. 4 which states, inter alia, that “[t]he ‘Open zene strip fronting the shoreline,’ . . . is the Open zone as shown on the County Zoning Mep" is wrong. Erescis states, “[E]xcept for the verbiage referencing the Open strip fronting the shoreline, the [Commission in its SMA (0)-€4-2 order] did not adept, approve, or incorporate by 28  'FOR FUBLICATION IN WEST’ § HRMAI'T REFORTS AND PACIFIC REFORTER*## reference any of the maps presented in the proceedings.” According to Brescia, inasmuch as the only official, map which showed “any Open zoned strip along the shoreline was the County's Zoning Map, adopted by the County under ordinance No. 239," this is the only setback of which he had notice. Breecia maintains, “IMJoreover, the County's North Shore Development Plan Update (which {s also the County's Zoning Map) was adopted by the (Commission) at a special meeting on September 28, 1983, only tuo months before the issuance of [the SMA (U)-84-2 exder]." Thus, Brescia asserts that Commission members were aware of the contents of the North Shore Development Plan Update and, given that the SMA (U)-@4-2 order refers to the “Open zoned portion” in the past tense, it is apparent that the Commission wes referring to the County Zoning Maps. We first note, as previously stated, that the maps submitted by the Developer in seeking a SHA Use Permit to develop the subdivision indicated 2 Developer's Setback, which would impose a shoreline setback in the area that would become Lot 6 of approximately 61 to 71 feet st each makai corner. The maps and the Developer's Setback shown thereon were part of the Developer's application and the setback remained consistent throughout the Developer's sutmissions. ‘The Developer also included in his application an Environmental Assessment which stated, inter alia, that “(nJo structures are allowed within 40 feet of the certified shoreline end, therefore, the shoreline area will not be affected.” The 26 ‘++FOR PUBLICATION IN MEST’ S HAMAI'T REPORTS AND PACIFIC REFORTERY*# SMA (U)-84-2 order, in finding nos. 10 and 23, confirmed that the “open District strip is approximately 40-75 feet wide,” and that “Ino construction shall be allowed within the Open zoned portion of the property along the shoreline.” Although no reference 18 made to what the developer called the “Zoning District Boundary Setback Line,” findings nos. 10 and 23 in the SMA (U)-84-2 order plainly refer to that setback, in effect incorporating the Developer's Setback by reference to the Open district strip.” It is evident, then, that SMA (U)-G4-2 condition 2(b), stating in part that “[nJo part of any structure shall penetrate the Open zone strip fronting the shoreline,” refers to the lend seaward of the Developer's Setback. This setback line indicates an approxinate 61 to 71 foot setback in the area of Lot 6. Hence, Brescia’s argument that the “open zoned portion” referred to by the Conmission in SMA (U)-E4-2 is not the 40-75 fect strip specifically described in the order as the “open district strip,” but is rather the area marked “open” on the County Zoning Mep, is not persuasive. The approximate 9- to 22-foot shoreline setback in the area of Lot 6 indicated as “Open” on the County Zoning Map would There ie no evicence in the record thet thie condition in SMR (O)~ 84-2 wor contested or eppesied after ite ies ng Director's Tene on the Zoning Desteiet represented to the Conpiseion noted Ane” (Devel eps Re to the Kort a2 thet the 10 stated that the cpen district FOR PUBLICATION JN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERt## be less than the setback established in the SMA (U)-84-2 order, and is thus inconsistent with that order. The court's finding no. ‘$8 that “[t)he Open zone strip fronting the shoreline referred to in the SMA Decision and Order is the Open zone shown on the County's Zoning Map,” then, is clearly erroneous inasmuch as the record lacks any substantial evidence to support such a finding. vt Brescia’'s second argunent on appeal is that the Commission cannot impose and enforce a setback line not shown on the finel subdivision map, as required by law. For reasons stated both supra and infra, we conclude as clearly erroneous the court's finding no. 57 that “{t)he imposition of the [Developer's Setback] on the Final Subdivision Map, under the gui'se of correcting the final subdivision map, exceeds the authority granted to the Commission under Section 9-3.8(c) (5) of the Kauai County Code, for it reflected @ change in interpretation 16 years after the fact and not an error in dimension, discrepancy or oversight.“ BAe previcuely noted, Section $-2.8(e) ($) of the Kevatt County cose, entitied “Errcrs and Discrepancies,” tater a2 follow ‘The epproval of the final subdivision mep by the Flenning Connission shall net relieve the applicent of the seeponeibility for any erzer in the dimensions cr other Giecrepancies or cversighte. Errore, oiecrepancies, oF oversights ehall be revised or corrected, open request te the satisfaction of the Planning Comission. Brescis suggests that the oniesion of the Developer's Setback on the {ine subdivision rap cid not conetitote an error in ginereien oF oversight of the type intenced for correction by fection $3 inty Code. As noted, the Connission, ih conclusion nes (continues... 28 ‘*+FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REFORTERS+® Rs mentioned above, Section 9-3.8 of the Kaua'i County Code requires that setback lines be indicated on the final subdivision nap, however, no setback lines, including the Developer's Setback, were indicated on the final subdivision map. Pursuant to HRS § 205-26 (2001), “{nJo development shall be allowed in any county within the [SA] without obtaining a permit in accordance with this part.” Thus, within @ SMA, development is controlled by a SMA permit. See Mahuiki, 65 Haw. dt 519 0.24, 654 F.2d at 663 n.16 (stating that “Iplermits required under this act supersede 01 others, including any permits required from state agencies such as the Lend Use Commission in conservation and agricultural districts along the coast, so that the 1975 shoreline protection legislation for the first tine supersedes state controls in an inportant area of environmental, concern” (quoting 0. Mandelker, Environmental and Land Controls Legislation 317-28 (1978)). Irrespective of the fact that the final subdivision map did not indicate any setback lines as is required by County ordinance, the Developer's Setback, as required by SMA (U)-84-2, must be adhered to, Accordingly, Brescia's second argunent is unavailing. vit. Brescie’s third argunent on appeal is that the action PC. continues) 2003 order, stated that “pureuent to Sectson 9-3.8(8)($] of the Faus's County Code, 1587; as anenced, (the Comission] hee the authority with respect te the ‘ction’ of epproved fanei eubdivieion rape.” ineenuch se we ‘Gecisien en ether grounce, we need net reach the ancy in this cove wae of tne type encenpected ‘county cede. 29 Sphela the Conn: ticn ef whetner the En Seetien $-3,6(e) (3) of *##7OR PUBLICATION IM WEST'S HAWAI'I REFORIS AND PACIFIC REPORTER'*# — of the Commission “cannot be justified on the basis of enforcenent of the [CzMA]." Brescia contends that the Commission “ignor fed] the plain language of [the SMA (U)-€4-2 order)” and that “[t]he issue in this appeal is whether the (court) wae correct in finding and concluding that the Conmission’s actions under the circumstances were inconsistent with (the SMA (U)-84-2 order}.” Inasmuch as we conclude, as stated supra, that the Commission's use of the Developer's Setback was consistent with the plain language in the SMA (U)-84-2 order, as also reflected in Brescia’s deed, the Commission's imposition of the Developer's Setback was justified. Additionally, as Brescia recognizes, the record clearly shows that as to the SMA (U)-84-2 order, the “Commission duly considered, addressed and upheld the policies and objectives of the CZMA, es well as its [SMA] requirenents(.]” Thus, the court's conclusion no. 7 that “[t]he Commission’ s finding that the Planning Comission in SMA (U)-@4-2 in 1984 intended thet the ‘open zone strip fronting the shoreline’ be the [Developer's Setback) shown on the July ‘63 Map, instead of the Open zone shown on the County's Zoning Map. . . , was clearly erroneous” is wrong as @ matter of law. Nonetheless, Brescia further contends that “[t]he decision by the Commission to reject Brescia’s proposals and to impose the [Developer's Setback] on Lot 6 with its 61% to Ti-feet setback was in clear excess of the requirements end objectives of the CMA. . . and the [Kaue‘i Rules].” (Enphesis added.) Erescia does not cite any specific provision of the C2MA 30  +e+FOR FUELICATION IN WEST'S KAWAT'T REFORTS ARD PACIFIC REFCRTER: or the Kaua't Rules in connection with this assertion. it is observed, however, that HRS § 205-22 (Supp. 1970) and Section § of the Kavs's Roles both pertain to the establishment of shoreline setbacks. HRS § 205-32 stated in pertinent part that “ [tine commission shall establish setbacks slong shorelines of not less than thenty feet and not more than forty feet inlandl J" (emphasis added.) Section § of the Hava'l Rules states in relevent part thet “[s]horeline setback lines are estdblished throughout the County of Kavai at 40 feet inland... , except that such shoreline settack Lines shall be 20 feet Jolan . [ulhere the buildable eres of the parcel is reduced to less than 50 percent . . . after applying the 40 foot shoreline setback Line and all State and County requixenents[.J” (Euphasis sdded.) © or form; to bring about or “Establish” is defined as “[t]o into existence[.]” Black's Law Dictionary 586 (8th ed. 2004). On the plein language of the statute and the rule, the establishment of these setbacks does not prohibit a developer fron propesing a greater shoreline setback on a development than those contained in HRS § 205-32 or Section 5 of the Kaua'i Rul in an application for a SMA use permit. Likewise, the CZMA and the Kaua'i Rules do not prohibit the Commission from accepting such a proposal in approving @ SMA use permit. Of course, generally, @ setback is nothing more than “[t}he minimum amount of space required between @ lot line and a buslding line.” Black's Lew Dictionsry at 1404 (enphasie added). 2 ‘***FOR PUBLICATION Im WEST’ § HAWAI'I REFORTS AND PACIFIC REPORTERC## In that regard, as previously mentioned, this is not the first time in which this court has considered the Wainiha Subdivision IT, See supra. In Mahuiki, this court overturned the Commission's issuance of a SMA use permit after the Commission failed to comply with the directives of the C2MA, which required it “to make @ specific finding that the proposed Geveloprent would ‘not have any substantial adverse environmental ch adverse effect is clearly or ecological effect, except as outweighed by public health and safety’ before approving the SMA use permit application.” 65 Haw. at 516, 654 P.2d at 881 (quoting HRS § 208R-26(2) (A) (1976))". Thus, this court vacated the circuit court's order of dismissal and summary judgment in favor of the Developer, and remanded the cese for proceedings consistent with its opinion, Id. at 519, 654 P.2d at 683. Subsequently, as Brescia states, the SMA (U)-64-2 Proceeding “was a re-application by the [Developer] for the same Gevelopment following the reversal and remand in Mahuikif.]” To reiterate, the Developer's first proposal was for a 22-lot ‘The current version of HRS § 205A-26(2) (Al (1976), HRE § 205A 26(2) (A) (2001) tater: (2) No development shall be approved unless the authority ‘fret found: (k) That the development will net have any substential adverse environmental or ecologi: effect, except a uch severse effect 12 Hininiles te the extent practicetle end cl Cotwesghed by public health, safety, or conpelling public interests. Such scverse effects ene. the potent Gevelozsente, each cf Bight net neve 8 tubs  ‘seo PUBLICATION IN WEST'S HAMAI'T REFORTS AND FACIFIC REFORTER!: subdivision. With his application, the Developer included a proposed preliminary subdivision plan map, which designated the Developer's Setback. After facing community opposition to the proposed development, the Developer simultaneously submitted a second proposal for a 20 lot subdivision, and a third proposal for a 19 lot subdivision. Like the first proposal, both the second and third proposals included a map indicating the Developer's Setback. After continued opposition, the Develcper submitted a fourth propose accompanied by a map again reflecting the Developer’s Setback. On December 15, 1983, the Commission approved SMA (U)-84-2, which contains the Developer's Setback. As Brescia relates, “there was no appeal from the granting of the [SMA (U)-€4-2.}" In that regard, pursuant to HRS § 205A-29 (2001), “{aletion on the special managenent permit shall be final unless otherwise mandated by court order.” Because plainly the C2MA and the Kaue'l Rules did not prohibit the Developer from proposing the Developer's Setback, and the Commission from accepting that setback in approving SMA (0)-€4-2, the restrictive covenant containing the Developer's Setback in the CCéRs and Brescia’s deed are valid. similarly, in McDonald v. Pnporiz-Lven County Joint Bd. of Zenine Aopeals, 697 P.2d 69, 70-72 (Kan. Ct. App. 1965), the Court of Appeals of Kansas held that the grant of 2 setback variance by the proper municipal authorities did not have any effect upon a setback , thus, affirmed the established in a restrictive covenant trial court’s grant of sunary judgment te the plaintiffs because  ‘s*0TOR PUBLICATION IN WEST! § JUNAI'T REPORES AND PACIFIC REPORTER: SSS of a violation of a restrictive covenant setback provision. In so holding, the McDonald court ebserved that “it is generally recognized that . . . ‘[rlestrictive covenants do not supersede or in any way affect the requirenents of an already existing zoning ordinance, and conversely, @ zoning ordinance cannot Gestroy, impair, ebrogate, or enlarge the force and effect of an existing restrictive covenant.’ 1d, at 71 (citation omitted). Accordingly, “*({z]oning ordinances, if less restrictive, do not Giminich the legal effect of private restrictive covenants.” Id, (citation omitted). As Brescia recounts, he and his wife acquired Lot 6 by warranty deed, which referenced the CC&Rs. As indicated Previously, the CCéRs plainly state that “as a condition to final subdivision approval for the Property by the [Connission}, certain restrictive covenants were imposed upon the Property, which restrictive covenants are stated in Schedule 'B’ attached hereto end nade a part hereof." The reason for such covenants as the CCBRs wes the “desirel] to enhance and protect the value, Cesizebility and attractiveness of the Property.” To reiterate, the CCuRs also state that: Stallone] tor the sutusl benefit and protection of all Excverty shal] be held, leased, encumbered, conveyess serd, sed, cecupred and smproved, i ns brotection of the lintestionss restrict iene oon Hig ccadiciene cer deren in thie besiaeesoety ora Sugeare of cnteceiee tea eecrecene tae copes Uy snd attigctiverces of the froperty. These iaitaione, Sonaitione stall ron with th Raving or who ecquire any Tight, Citie er interest in the Ficperty or eny part thereof, their heirs, 36 ‘s+sFOR FUELICATION IN MES2’S HAWAI'I REPORTS AND PACIFIC REPORTER®: jonal representatives, successors and arsigns Pe (Emphases added.) As Brescia sets forth, “Schedule ‘BY [is] a restatement of the conditions of approval in the (SMA (U)-84-2,]" which includes the shoreline building restriction that “{nJo part Gf any structuie hall penetrate the open Zone strip fronting thé shoreline." As discussed supra, the Open Zone strip refers to the land seeward of the Developer's Setback. In sum, contrary to Brescia’s suggestion, the C2MA and the Kaua'i Rules did not prohibit the Developer from proposing the Developer's Setback in his application for SMA (U)-€4-2, and likewise the Commission vas’ not prohibited from accepting the Developer's Setback in approving a SMA (U)-84-2. Accordingly, Brescia's third argument is not cogent. virr. In connection with Brescia’s fourth argument regarding reasonable use, as Appellants point out, the “requirement prohibiting any building in the Open zone as well as the other conditions of development were known or should have been known to [Brescia] as they were incorporated into his deed, and he would not obtain final approval for the building location on his lot until the ‘time of building and zoning permit application.’” As recounted previously, these restrictions were incorporated into Brescia’s deed as restrictive covenants. This court has “long held that where a deed makes @ specific reference to a restrictive covenant, the grantee is on notice that his interest is subject to the terns of that 38  ‘S*0FOR FUBLICATION IN WEST'S HANAI'T REPCRTS AND FACIFIC REPORTER’ eS restrictive covenant.” Lee v, Puamana Cnty, Ass'n, 109 Hawai'i 561, 568, 128 F.3d 874, 681 (2006) (citing Pelosi v. Wailea Ranch Estates, 91 Hawai'i 478, 489, 985 P.2d 1045, 1086 (1999) (“The individual defendants in the present matter had constructive notice, by virtue of their deeds, of the [ ] covenants.” (Emphasis and brackets in original.)); Rawlins v. Izumo Taisha Kuo Mission of Havaii, 3€ Haw. 721, 726 (1944) (stating that equity will enforce a contract “containing restrictive covenants which create equitable easements, such as restrictive covenants in a deed or lease limiting the use of the lend in a particular manner or prescribing a particular use which creates equitable servitudes”)}. "*(I]t is a well-settled rule that in construing deeds and instruments containing restrictions and prohibitions as to the use of property conveyed, all doubts should be resolved in favor of the free use thereof for lawful purposes in the hands of the owners of the fee.’” Hiner v, Hoffman, 90 Hawai'i 168, 195, 977 F.2d 878, €85 (1999) (quoting In re Taxes of Johnson, 44 Hew. 519, 536, 386 P.2d 1028, 1038 (1968) (citation and internal quotation marks omitted)) (brackets omitted). Also, “such ‘free end unrestricted use of property’ is favored only to the extent of applicable State land use and County zoning regulations.” 1d, at 195-96, 977 F.2d at 885-86 (quoting Collins v. Goetsch, $9 Haw, 481, 485 n.2, $83 P.2d 383, 357 n.2 (1978). Brescia esserts that the Developer's Setback imposed by the Commission, which as noted above results in a shoreline setback of roughly 61 feet and 71 feet at each makai corner of ‘***FOR PUBLICATION IN MEST’ HAMAI'T REPORTS AND PACIFIC REFORTER*+# Lot 6, denied Brescia reasonable use of his property and is “without support and in error." In that regard, to repeat, Brescia requested en amendment to SNA (U)-84-2 on the basis that such an anendnent was needed in order to allow reasonable use of his property: 5 . Although a Special Managerent Aves Use Ferait has siresdy been leeved for the eubgivicion, i-e., SMA (0) €4-2{], an anendnent to the permit is ececsary to ceviate from the Building setbeck ine deemed by the Planning Depertment to be applicable to the let of approximately 10 fet sherel sn Inland of the certifies ‘The proposed residence ss '32 feet inland of the shoreline at ite nearest point, snd the setback Line Uf determines to be 70 feet] Post be snended to ‘accommodate the orccosed residence to allow reasonable use . shine crerante pe teresciete (Emphasis added.) As stated previously, the Commission denied Brescia’s request and concluded as follows: 18. Pra ndings within Azentine eh eleser identified in the Findings of Fact, Tonciussons of Lew, Cecieien ang Order, for sh (U)-et-2, Gated Lecenber 15,'18€3, ang on the propeeed subdivielon map Gated uly 1, 1963 tonnitted with the Application fer sua (O)s64-2 ae ie eppiies te Let'€, provides [prescia] with At not necessarily the use most desired [erescia's) conplisnce stantial neu he-prezerty reecial & Senied reascnable use of the proserty, (Emphases added.) Ts. Reasonable oi by the owner of the property, According to Brescia’s September 3, 2002 application, as well as his January 28, 2003 written testimony to the Commission, a setback of epproxinately 63 feet as shown on the July 1, 1983 sap would allow for @ triangular-shaped buildable area of approximately 4,974 square feet. As stated, Brescia later revised this estimate, and in his Mey 6, 2003 Opening Brief a  FOR FURLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER to the Conmission related that the buildable area on which to construct 8 single family residence would be 4,203 square feet. Brescia asserts that 4,203 square feet of buildable area equates to 24.78 of the Lot 6 area, As indicated previously, within this buildable srea--whichever of Brescia’e estimates is used--he mist excluding Construct a residence of at least 2,500 square f garage, lanais, » required turnaround area, and septic system, Brescia’s architect, in apparent full recognition of these requirenents, stated at the January 28, 2003 public hearing, “1 Gon't want to say its totelly unbuildable.” Tt As well established thet “mere diminution of market value or interference with the property owner's personal plans and desires relative to his property is insufficient to Snvalidete a zoning ordinance or to entitle him to @ varsancel.]" City of Eastlake v. Forest City Enters. Inc., 426 U.S. 668, 674 n.8 (1976) (internal quotation marks, citations, and brackets omitted). In Kor! ddhist Dee le of Hawes’ Sullivan, €7 Hawai'i 217, 235, 953 P.2d 1915, 1333 (1998), this court found that an applicant for a variance “failed to establish that it could neke no regsonsble use of the land or its (hlall without building the [hJall to s height of seventy-five feeti,]” t initially submitted given that the record indicated the applii plens reflecting a construction design for the hall of sixty-six feet in height. (Emphasis added.) This court stated that reasonable use of the land, in this case within the meaning of 38 ‘S#0FOR PUBLICATION J MESI’S KAWAII REPORTS AND PACIFIC REPORTER the city charter, 1s “not necessarily the use most desired by the owner.” Id, at 234, 959 P.2d at 1392 (citation omitted). Inasmuch a8 the Commission in finding no. 15 found that according to Brescia’s own application letter @ shoreline setback of approxinately 69 feet would allow the applicant trianguler- shaped buflding ares of approximately 4,974 square feet, and whereas Brescia’s oun architect testified that utilizing the Developer's Setback did not necessarily make the lot unbuildable, the Commission could rationally conclude that Brescia did not establish that he could not make reasonable use of the property based on the Developer's Setback. Thus, it was error for the court te hold in conclusion no. 25 that “[t)he record on the whole, through reliable, probetive and substantial evidence, also clearly denonstrated thet Brescia could not make reasonable use of Let 6 Af the [Developer's Setback) is upheld and strict conformity therewith is required.” Because substantial evidence existe in the record to ndicate that the setback inposed by the Commission will permit Srescia to construct a residence of at least 2,500 square feet of Living area, the Connission could have retionally determined thet Brescia retained the reasonable use of nis property. x Brescia's £4fth argunent on oppeai is that the Cennission’s refusal to anend the SMA conditions or to grant a varience for Brescia’s propesed dwelling, which would approach and within 31 feet of the shoreline, was arbitrary, capriciou: 39 "+*FOR PUBLICATION I WEST’ S HAWAI'I REPORTS AND FACIFIC REFORTER**# characterized by abuse of discretion, In HRS § 205A-46(a) (8) entitled “Variances,” the legislature provided that the counties may grant variances based on hardship. As noted supra, the Rules what constitutes Commission has not defined in ite Kaua' “hardship” for the purposes of evaluating shoreline setback variances. In the absence of such a definition, Brescia and the Commission appear to have proceeded on the basis of evaluating whether a setback variance was necessary in order that Brescia retain “reasonable use” of his property. We observe initially that, as mentioned supra, Kaua'é Rules, Section 12(b), states that the application for a variance shall be accompanied by “accurate written statements to substantiate that hardship will be caused." (Emphases. See gunca note 6 and accompanying text. us _.fereas the fect thet Hous's County hae net adopted & definition of Therdship" for the purposes of evaluating requests for shoreline setback et 15 not raised ch appeal, the inpact cf this cnieeion need not be Other counties have included in their criteria for establishing “hardahip" for purposes of granting @ shoreline setback variance the factor of whether @ variance is necessary to provice the applicant reasonable use of his GE, her property. For exanple, the Revised Ordinances of Honolulu, Chapter 22 ‘Shoreline Setzacks,” Section 23-1 Stleg “Criteria fer grenting @ dence,” states in relevant part? (3) Herdehip stancerd. (A) A structure or activity may be granted & Yeriance upon grounss Gf herdehip if: (i) "The sppiicant would be deprive ble use of the lena if required to Eenpiy fully with the shoreline setback Grdinance end the shereline setback roles; (ii) The applicant's proposal is due te unique cfr et and does not draw inte question the resscnabienese cf this Chapter end the ehereline setbeck rules 3 (JH) The properel is the practicoble alternative which sett conforms to the BAIRGSe of this chenter and the shoreline (eentinved,..) 40  -FOR PUBLICATION IN MESO’S HAMAT'I REPORTS AND PACIFIC REFCRTER* added.) In support and justification of his request, Brescia asserts that “[o]ther inproved lots in the immediate neighborhood t” and that range in size from 27,674 to 13,671 square £1 “[e}hese regularly shaped lots were subject to shoreline setbacks ranging from 60 to 38 feet of the certified shoreline”; nis 3,300 square foot proposed residence would not be the largest house in the subdivision; and "S26 of the proposed residence would be nore than 40 feet from the shoreline.” To reiterate, the Commission denied Brescia’s request to amend SMA (U)-84-2 or grant a variance based on its findings and conclusions. As discussed, the Commission could have properly determined that, even with the imposition of the Developer's Setback, Brescia is not deprived of resonable use of his property. See supra. Furthermore, as Brescia explains, the SMA (U)-84-2 proceeding in 1963 was a “re-application by the [Developer] for the same development following the reversal and (.. .continvea) setbeck rol ded.) Also, County of Hawai'i Planning Commission, Rules of (emphases ore, ‘Section G10 entitled, "Criteria for Approvel of @ Practice and Proc Variance," states! ndard rocture cr activity nay be granted @ veriance open grounds of haraship only if: (i) "the spplicent wouie be senriven of . se ef the comply fully with this (4) The request 42 due to unique cir 1 Goes not Grew into question the Fearorablerese of this rule? ene (3) Harcenip st a (448) The Seaueet Se the practic sernative nth Seat conte ee (Enphares added.) a BAWAI'T REPORTS AND PACIFIC REPORTER**# FOR PUBLICATION IN WEST remand in Mahuikil.]" As Brescia indicates, following this court's decision in Mahuiki, the Conmission “could not have been but ‘painfully aware of the importance given to the CZMA by [this] as court in Mahuiki” during the SHA (U)-84-2 proceeding. Thu: Brescia recounts, “(t]he record accordingly clearly shows that the [Connission] duly considered, addressed and upheld the policies and objectives of the C2MA, as well as its [SHA] requirenents” in SMA (U)-84-2. Significantly, as Brescia relates, “there was no appeal from the granting of (SMA (U)-84-2]." Again, pursuant to HRS § 205A-28, “[a]ction on the special management permit shall be final unless otherwise mandated by court order.” In that regard, ye recently observed that “the legislature expressly granted ve to the [Commission] the authority to cerry out the cbjectives, policies and procedures of the C2MA’s SMAS.” Moraan v. Planning Dept., County of Kevai, 104 Hewai'i 173, 164, 86 P.3d 982, 993 (2004) (citing HRS § 205-27 (2001)). Thus, “[iJn order to carry out this express responsibility, the [Conmission] must have authority to enforce the conditions of a SMA Use permit.” Id. Moreover, as reflected in the Conmission’s findings, the application for SMA (U)-84-2 included the preliminary subdivision map which identified the Developer's Setback relied upon by the Commission in approving SMA (U)-84-2. The approval 84-2 was subject to conditions, including that of SMa ( “Ib) review and epproval at the tine of building and zoning permit ilding locations . . . shall be subject to [Commission] a2  'FOR PUBLICATION IN MEST’ S HAWAI'I REFORTS AND PACIFIC REPORTER application[,]" “(nlo part of any structure shall penetrate the open zone strip fronting the shoreline[,]” “{t]he setback from Mealea Road and Alanc'o Read shall be a minimun of 20 feet(,1” “[a]i1 other front yard setbacks shall be 15 feet{,]” and “[t}he side yard setbacks shall be a minimum of 10 feet.” The approval of SMA (U)-84-2 required that the conditions of the permit “shall be established as restrictive covenants within each deed at the tine of subdivision.” Additionally, the requirements and conditions of SMA (U)-84-2 were in fact included in the CCURS recorded on February 20, 1992. the recorded CcuRs were incorporated into Brescia‘s deed. Brescia then clearly had notice of the requirements and conditions of SHA (U)-84-2 when he acquired his property. Hence, inasmuch es the objectives and policies of the CIMA axe “parencunt in any determination involving the use of land in a special management axeal,]" Mahuiki, 65 Haw. at 518, 654 P.2d at 682-83 (citations omitted), the Connission upheld these objectives and policies in issuing SMA (U)-64-2, and the requirenents and conditions of SMA (U)-84-2 were incorporated in Brescia’s deed as restrictive covenants, the Conmiesion had rational crounds for denying Erescia’s request to snend SMA (U)- 24-2, or for 2 variance. Under the circumstances of this case, the Commission did not “clearly exceed[] the bounds of reason or disregard|] rules or principles of law or practice to the substantial detrinent of a party litigant.” Kimura, 106 Hawai'i 4a ‘S#*TOR FUBLICATION IN WEST’ WAWAI'T REFORTS AND PACIFIC REPORTER!*# SS at 507, 107 P.3d at 436 (internal quotation marks and citations omitted) . Consequently, the court's finding no, 115 that “[t}he Commission's denial of the variance request [to build out to within 31 feet of the shoreline) lacks support in the record” is clearly erroneous, especially in light of the fact that the court steelf acknowledged An finding no. 102 thet “other improved lots in the inmediate neighborhood were aubject to shoreline setbacks ranging from 80 to 38 feet." Finally, in this regard, conclusion ne. 26 which states, in part, that “the the court Commission errenecusly denied the variance in view of the relieble, probative, and substantial evidence on the whole record,” is wrong as a matter of lew. x. Brescia’s sixth argunent on appeal is that the Commission is estopped from enforcing a “totally different building prohibition than is set forth in the [SMA(U)-64-2 erder]." More specifically, Brescia asserts that the Commission should be bound by the 20-foct setback he clains the Planning Department represented te be appliceble. We held that the estoppel doctrine is net applicable. In the context of this case, equitable estoppel is Eesed cn @ chenge cf position on the pert of a lend developer by rubstantial expenaiture of money in connection with hie project in relience, net selely on existing zoning Jews or oh good faith expectancy that his development will be pernittes, Est on i efeurence on which he tata tie prozect has net Toning requitenents, ‘ovals will be forthcoming in ave course, ronesd with tne prosect. ry ‘*+sFOR FUELICATION IN MEST’S KAWAI REFORIS AND PACIFIC REPORTER*#* Life of the Land Inc,, v, City Council of the City & County of Honolulu, 61 Haw. 390, 453, 606 P.2d 866, 902 (1980) (emphases added). Estoppel “cannot be applied to actions for which the agency of acent of the governsent has no authority.” Tumer vs Chandler, 67 Hawei's 230, 224, 955 P.2d 1062, 1066 (App. 1998) (quoting Filipe v, Chang, 62 Haw. 626, 634, 618 P.2d 295, 300 (1980) (other estation omitted)) (emphasis added). It ds well established that zoning which terminates inchoate rights to develop land is a legitimate exercise of the police power. see County of Kavas v. Pac, Standard Life Ins. Co., 65 Haw. 318, 336- 37, 683 F.2d 766, 779 (1962) (citation omitted). “Zoning oppel is not intended to protect speculative business risks. Thus, an expenditure made in compliance with underlying zoning but before final discretionary action will be disregarded for estoppel purposes.” Id, at 332, 653 P.2d at 777 (citing Life of the land Inc., 61 Haw. at 455, 606 P.2d at 903). Brescis meinteine that “for the past 16 years, the County had understocd and represented to the public that the le setback was 20 feet." As support for this contention, appli Brescia submitted a letter written to a neighboring property owner by Deputy Planning Director Sheilah Miyake, in which the sh ine setback for the neighbor's property was confirmed to be 20 feet according to the Kaua'i Rules. Brescia states that “[a]t the tine of and pricr te acquiring Let 6 for more than $900,000, Brescia and his agents inquired and were informed by nenbers of x Lot 6 was 20 the Kaua'i Planning Department that the setback 4s ‘**TOR PUBLICATION IN WEST’ S HAWAI'I REPCRTS AND FACIFIC REPORTERS+® feet inland of the certified shoreline.” According to the Commission, Brescia submitted an affidavit “which stated he ‘was informed by Kavai County Officiale’, whom he did not name, [that] the: shoreline setback on Lot 6 was 20 feet inland of the certified shoreline.” But as this court noted in Keno’ v. Kene, 106 Hawai'i 270, 298, 103 F.3d 929, 264 (2005), “Lalgents of the government must act within the bounds of thelr authority: and one who deals with then assures the risk that they are so acting.’” (Quoting Sanare de Cristo Dev, Co., Inc, v, United States, 932 F.2d 681, 894 (20th Cir. 1991).). The authority to establish setback lines within the SMA, as stated in Brescia’s deed, rests with the Commission. 1t is well accepted that a public enployee not vested with decision making authority may not bind the state in its exercise of the police power. See Godbeld v, Manibes, 36 Haw. 206 (1942) (holding that a state cannot be estopped by the unauthorized acts or representations of its officers). More importantly, the esteppel argunent is unavailing given the fact that Schedule “B,” Condition 8 in Brescia’s CC&Rs states, inter alia, that ~ sed setbacks sh the Plannin sii ne teulew if the design of a residence warrants a greater setback.” (Emphasis added.) Thus, Brescia was on notice thet the Commission retained the discreticnary authority to impose @ greater setback. 46  ‘s#4FOR PUBLICATION IN MESI’S HAMAT'I REPORTS AND PACIFIC REPORTER: Nonetheless, the court in finding no. 77 found that “Brescia had the Fight to rely on the representations of the County Planning Department as to the applicable setbacks for the subdivision." This is not a finding of fact, but is rather a conclusion of law. This court “reviews conclusions of law de novo, under the right or wrong standard.” 2's Enters. Inc. v Del Rosario, 111 Hewai'i 484, 489, 143 P.3d 23, 28 (2006) (citation omitted). Because the authority to establish setback lines within the SMA, as stated in Brescia’s deed, rests with the Commission, the court's conclusion that Brescia had a right to rely on the representations, if any, of the Planning Depertment as to the setback, is wrong. Hence, Brescia’s estoppel argument must necessarily fail. xI. Brescia’s final argument on appeal is that he had a vested right to proceed with the construction of his residence, and that the Commission’s recognition of the line on the July 1983 map as the spplicable setback line violated Brescia’s constitutional due process rights. We conclude that Brescia vas not vested with a property interest sufficient to implicate due process protection, but in any event, he was afforded due process in this case. Both the federal and state Due Process Clauses include protection from deprivation of property without due process of a7 *40TOR PUBLICATION IN WEST'S KAWAL'T REPORTS 2ND PACIFIC REPORTERI+# Jaw, See U.S, Const. amend, XIV, § 1; Haw, Const. art. 1, § 5. These guarantees apply when a constitutionally protected property interest is at stake. See Bd, of Recents v. Roth, 408 U.S. 564, 569 (1972); seach De: . City Co City & County of Honoluly, 70 Haw. 361, 376, 773 P.2d 250, 260 (1989). A property interest protected by the due process clause rules or “stem[s} from an independent source such as state 1a understandings that secure certain benefits and that support clains of entitlement to those benefits.” Roth, 408 U.S. at 577. ‘A property interest will be seen to exist “if discretion is Limited by the procedures in question, that is, whether the procedures, if followed, require a particular outcome.” Crown Point 1, LLC v. Intermountain Rural Elec, Ass'n, 319 F.3d 1211, 1217 (20th Cir. 2003) (citing Hyde Park Co. v, Santa’ Fe City Council, 226 F.3d 1207, 1210 (10th Cir. 2000)). See also Jacobs Wa City of Lawrence Kenses, 927 F.2d 1111, 1116 (10th Cir. 1991) Brescia contends that when the Commission applied the more restrictive setback line reflected on the July 1, 1983 map 11 neke or enforce any law which shall abridge coer or insunities of citszene of the United nor shall any State deprive any person ef life, Liberty, or property, without eve precest of Jal) Rewes'd Cet caste tution, entitled “De son shall be deprived of life, liberty or property without due process of low, ner be Censed the equal Pretection cf the laws, nor be denied the enieyaent of the Person's civil rights cr be diserimsnetes ageinet in the enercise thereof Eecause of Face, religion, ‘sex er ancestzy. 46 FOR PUBLICATION IN MEST’S HAWAI'I REPORTS AND PACIFIC REPORTER! on neighboring Lot 9 at a hearing on December 11, 2001, Brescia’s Gue process rights were violated because his parcel was likely to be subject to the same July 1963 map setback line but he was not given notice of that hearing or an opportunity to be heard. As this court hes stated, “these interests teke many forms.” Int'l Bhd, of Painters £ Allied Trades v Befitel, 104 Hawai'i 275, 263, 88 P.3d 647, 655 (2004) (internal property interests--may- quotation marks and citation omitted). “But, the range of interests protected by procedural due process is not infinite.” Id, (internal quotation marks and citation omitted). Recounted earlier, see supra, SMA (U)-04-2 wes issued under HRS chapter 205A and a restrictive covenant in Brescia’s deed stated thet [increased setbacks shall be required . . . if the design of a residence warrants 2 greater setback.” Inasmuch as Brescia’s deed relsted thet the Conmission reteined suthority to anend the setback at the time of building permit review, Brescia was not vested with @ property interest in building a particular structure. A similar procedural due process claim in relation to a land vse decision wae considered in Clark v. City of Hermosa Beach, $6 Cel. ptr. 24 223 (Cal. Ct. App. 1996). Clark held that, even though the landowner had received a conditional vse pernit te build a two-unit condominium, the planning conniesion still retained the discretion to “inpose standards above the minimums designated by the zening ordinance to improve the quality of development and te mitigate any environmental 48 ‘***FOR PUBLICATION IN WEST’ S HAWAI'I REPORTS AND FACIFIC REPORTER +® impacts.” Id, at 241 (internal quotation marks, citation, and emphasis omitted). In finding no legitimate “claim of entitlenent to a structure having any particular dimensions,” that court explained as follows: ‘The Clarks [(Landesners)) do not (and cannot) claim that the City has" infringes their snterest in constrsctSng © home per se.” The City aid not bar the Clarks from belicing these Ecidoninium project sltogethery it denied their application withoot prejucice te submitting @ revised plan reflecting the Council's concerns about height, let coverage, snd sable open space. Thus, the interest at issue ie nat that of a lenuowner to constrict a roof over his head) rather, it ‘is the Clarke’ inverest in building s structure having the specitic dimensions they find ceslrable: Id Hence, in the instant case, irrespective of the actions taken by the Commission at the earlier hearing relating to the neighbor's property, Brescia was not vested with a sufficient property interest to invoke @ due process violation. He was on notice that the triangular-shaped parcel he was purchasing, located in the State’s restricted SMA, was a “visually sensitive (parcel] in relation to its scenic location on (Kauai’s) North Shore,” and from the CCéRs in his deed, that “increased setbacks (could) be required by the Planning Comission at [the] time of zoning and building permit review[.J" Here, as in Clark, Brescia cannot claim an entitlement to situate his residence in any particular location, or claim an entitlenent to a particular ed residence. As in Clark, Brescia is not being denied the right to build a hone; rather, the interest must be classified as “en interest in building a structure having the specific Gimensions” which Brescia finds desireble. Id, ‘The discretion 50 'FOR PUBLICATION IN WEST'S EAWAI'T REFORTS AND PACIFIC REPORTER'*# left in the Commission to increase the setback defeats any expectation that Brescia’s application must be opproved as submitted. Brescia cites Ridenour v, Jessamine County Fiscal ct., 842 8.W.2d $32 (Ky. Ct. App. 1992), for his claim that he was deprived of @ property interest without due process of law. Ridenour, however, Ss distinguishable. In Ridenour, after conducting @ £011 public hearing, a planning conmission issued findings and a recommendation for approval of the applicant's requested zoning change. Id, at $34. A secondary governnent body with final decision-making authority conducted a review of the planning cormission’s decision, and was to confine itself to the record presented to the commission. Id, The secondary body, however, did not in fact confine itself to the plenning conmission record--end, further, did not inform the applicant of the meeting at which his request would be taken up. Id. That court held that, “(blecause the [secondary governnent body] elected to review the reconmendation of the plenning commission solely on the record of [the comission],” it was improper to consider matters outside the record. Id, at 535. Unlike in Ridenour, in this case the Conmission was not conducting a secondary review, and was not required to ccnfine its deliberations to any previously established record. Further, unlike in Ridenour, Brescia was given notice of the Conmission meeting at which his zoning request would be teken up, and a full opportunity to be heard. 51  FOR FUBLICATION IN WEST'S HAWAI'I REFORTS AND FACIFIC REPORTER: Brescia's reliance on Medeiros v, Hawaii County Planning Comm'n, € Haw. App. 183, 797 P.2d $9 (1990), is unpersuasive. In Medeiros, the appellants owned property directly abutting land on which the county planning commission approved the drilling of 4,000-feet deep holes in the geothermal resource subzone. Id. at 190, 797 P.2d at 63. Appellants challenged the issuance of the permit on due process grounds. Id. at 193, 197 P.2d at 65. In finding no due process violation, the Intermediate Court of Appeals noted that whether appellants were vested with a property interest sufficient to trigger protection was arouable, end indeed did not reach this question. Id, at 194-95, 797 P.2d at 65. Brescia proffers that the Commission's imposition of the Developer's Setback on the neighboring property “was a fait accompli to Brescis’s prejudice and in violation of his rights.” This contention is not meritorious. Brescia was given a full public hearing before the Conmission made its ruling on Lot 6. At the public hearing Brescia was able to present testimony to support his request for a variance. The Connission, along with Brescia, Planning Cepertment staff, and menbers of the public, Conducted @ site inspection of the property. It is manifest thet the Commission did receive evidence concerning Brescia’s request for a variance. The record supports, for the reasons stated in this decision, thet the Commission was cbliged to follow C2MA policies and its construction ef SMA (U)-84-2 which established setbacks in the subdivision at approximately 40 to 75 feet, was 82  ‘S+sFOR FUELICATION IN WEST’S HAMAI‘T REFORTS AND PACIFIC REPORTER supported by reliable, probative, and substantial evidence in the record. While the variance scught was ultimately denied, Brescia nonetheless received the due process to which he was entitled. Thus, the court's conclusion no. 10 that “[t]he Commission's actions on Decenber 11, 2001 in its new interpretation and application of @ setback line, without any notice to and the opportunity to be heard by Brescia and other affected landowners, were made in violation of their constitutional right of due process," was wrong 2s a matter of lew. xr. For the foregoing reasons, we vacate the court's March 4, 2008 judgment, and remand this case to the court with instructions to enter judgment thereon affirming the Conmission’s Septenber 9, 2003 order. ‘On the briefs: Pies © Pinca aries Herold Bronstein for defencants/appellees- appellant: Yous. Beye Walton D.Y. Hong for plaintiff /appellant- appellee. 83 

6f194e4067a81d2e709ac1f41d217e71a80354b93362a5bbbb374b3866c32f22

2007-07-12T00:00:00Z

7fd10162-0707-4e4a-9d7b-c49131574235

Coulter v. State

hawaii

Hawaii Supreme Court

Law LIBRARY. No. 27025 IN THE SUPREME COURT OF THE STATE OF HAWAI‘T MICHAEL EDWARD COULTER, E 5 Petitioner/Petitioner-Appellant © vs. STATE OF HAWAT'Z, Respondent /Respondent-Appellee CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (SPP NO, 03-1-00387 CR. NO. 02-1-1513) DEI APPLICATION (By: Duffy, J., for the court") Petitioner/Petiticner-Appellant Michael Edvard Coulter's application for a writ of certiorari, filed on April 23, 2007, is hereby accepted and will be scheduled for oral argument. The parties will be notified by the appellate clerk regarding scheduling. IT IS FURTHER ORDERED that the parties shall, within 21 days from the date of this order, file a supplemental brief addressing the following issues: Whether an individual has a right to due process in the procedures for determining their minimum term of imprisonment, under either the United States Constitution or the Hawai'i S considered by: Moon, C.J-, Levinson, Nekayans, Accbs, and Oafty, 3 Constitution. If so, what constitutional due process guarantees must appl: ‘The supplemental briefs shall not exceed 15 pages. DATED: Honolulu, Hawai'i, May 29, 2007. FOR THE COURT: Geer, gs Associate Justice Phyllis J. Hironaka, Deputy Public Defender, for petitioner /petitioner- appellant on the application 

cf530f5617506ef2fcce6a7b9916e999d7ed30775107fb8bc8abc756d19205e5

2007-05-29T00:00:00Z

1062b9a1-aa40-4e39-8ed3-ea9b4d2e3ee0

State v. Frisbee. Concurring Opinion by C.J. Moon [pdf]. Dissenting Opinion by J. Nakayama [pdf]. ICA s.d.o., filed 09/12/2006 [pdf]. S.Ct. Order Accepting Application for Writ of Certiorari, filed 01/09/2007 [pdf].

114 Haw. 76

hawaii

Hawaii Supreme Court

FOR PUBLICATION IN WEST'S HAWAZ'T REPORTS AND PACIFIC REPORTER *** he IN THE SUPREME COURT OF THE STATE OF HAWAI'I 00 ~- STATE OF HAWAT'Z, Plaintiff-Appellee-Respondent, aqam FRANK FRISBEE, Defendant-Appellant-Petitioner. s No. 27079 CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (Cr. No. 0-1-1685) APRIL 30, 2007 MOON, C.J., LEVINSON, ACOBA, AND DUFFY, JJ., MOOK, C.J., CONCURRING SEPARATELY, AND NAKAYAMA, J., DISSENTING OPINION OF THE LEVIN: on December 11, 2006, the defendant-appellant- petitioner Frank Frisbee filed en application for a writ of certiorari urging us to review the summary disposition order (S00) of the Intermediate Court of Appeals (ICA) in State v Exisbee, No. 27079 (September 12, 2006) [hereinafter, “the ICA‘s $00"}, affirming the January 18, 2005 judanent of the circust court of the first circuit, the Honorable Victoria S. Marks presiding, convicting Frisbee of and sentencing him for the counts set out infra in section We accepted certiorari because the ICA's SDO is inconsi nt, gee Hawai'i Revised Statutes (HRS) § 602-59(b) (2) 8, §§ 1 and 3 upp. 2004), amended by 2006 Haw. Sess. L. Act OR PUBLICATION 18 WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER +++ at 409, with State v. Matias, 102 Hawai'i 300, 75 P.3d 1191 (2003), as discussed infra in section IIT. We therefore hold that Frisbee was entitled to a jury instruction on the possibility of merger pursuant to HRS § 701-109(1) (e) (1993).¢ Accordingly, we vacate the ICA's SDO and renand with instructions fox the ICA (1) to vacate the circuit court's January 18, 2005 judgment and (2) to remand to the circuit court for a new trial. 1. BACKGROUND on August 14, 2000, Frisbee was charged by complaint with, inter alia, one count of kidnapping in violation of HRS $ 707-720(1) Ld) (1993) (Count 1) and one count of kidnapping in violation of HRS § 707-720(1) {el (1993) (Count 11), both allegedly committed in the City and County of Honolulu on or about August 3, 2000.7 From November 20 through December 3, 2002, the circuit court conducted a jury trial. In his application, Frisbee RE § 701-209(2) provider sn re vent part linen the sane conduct of 2 defendant may establish an clenent ef nore than one sffense, the defendant may be prosecuted for each offense of which sven conduct is an elerent. he Gefendant may net, honever, be convicted of mere than one offense ge iej ine oftence se defined ae continuing course of conduct and the defendent’s course cf conduct wae Uninterrupted, unlese the law provices that specific periods of conduct constitute separate offenses. RS € 707-720(2) provices in relevent part: "A person comite the oftense of klcnapping if the person intentionally or knowingly restreine nother person with intent tet... ie) inflict bedily insury open el Tor] (e) Terzorize that person or thira person aph (a) is fulfillea by the intent to either "[1)nfliet bodily injury upen [2] person or subject that perecn te s sexiel offence,” the language cf the Complaint tracked cnly the “bodily injury” prong.’ Conmaze HRS 8°03" 92012) te  POR PUBLICATION IN MEST'S WANAI'E REFORTS AND PACIFIC REFORTER appears to concede arquende that certain trial testimony would support at least one of the counts: [the complaining witness Cher Chang] went with [Frisbee] to the Kan Shopping Center, where [Frisbee] told her to get out Gf the car Chang opened the car door snd began to get oot Sf the car. Ae she was getting out of the car (Frisbe Grebbed ner by her heir and pulled her back inside the car, Shang sat in the cer and continved to ride along with Trrisbee) - They next went to a house by the Eagle Cafe near . Kolin Valley. [Frisbee] get out of the eruck and Chang Stayed ineige then chey went to a Second house and there Trriabee} hed her get cut and go inside with him(s] Chang went and dic net pretest. [Frisbee] told Chang to Kies hin Sno stuff and tell, him that she loved him, ond he made her tlse'his. “River thet he began to choke Chang. ‘They left the house and went to a Chevron gas’ station to get some chips. Ghang went into the gas station Wich [esictecl |’. cheng ran out of the stere and junpec inte ancther cor w"TFriebee) ren after chang, grabbed her ot ren the Car by her aair and put her back ante his iptidbee) drove around and ended up at Sand Island. [als they Grove around [Frisbee] began te tell chang indt’ne was going to shoot [ber] and ner sons. ‘hc"Sind Jeland Chang trieg to go inte che back of the sw, 1. {Als she did (Frisbee) began to hit her in the From our review of the entire record, it does not appear that Frisbee registered any objection to the jury instructions at trial, nor do Frisbee’s opening brief or his application cite any such objection -- in fact, Frisbee’s proposed version of the instructions related to Counts I and IT was materially identical to the version that was ultimately read to the jury. ‘The pertinent snetructions, a2 read and given te the jury, stated: in Count 1... ys + « Frisbee) 4s charged with the cffense of Kignapping. ‘Ri persen connite the offense of Kidnapping Sf he intentionslly ef snowingly reetreins another persen with intent te inflict bodily injury upon thst person ‘There ave three material elenents of the effense of Kicnepping, exch of which the prosecution must prove beyond & Pesrerable deus tees )  + FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER ++ on December 3, 2002, the jury found Frisbee guilty as charged of Counts 1 and 11. On January 10, 2005, Frisbee moved the circuit court “to [d]ismiss Count I or IT. . . or to have the Counts . . . merged into a single offense as it constituted @ single course of uninterrupted conduct.” The plaintiff-appellee-respondent State of Hawai'i (hereinafter, “the prosecution”) replied that “there was a factual basis for the jury to convict [Frisbee] of more than one count of kidnapping,” to wit: [Chang and Frisbee) were in a vehicle that was being driven by [Frisbee]. (He) told (her) to get out by the Kam Shopping Center. As (she] did so, [he] pulled her back in by her hair... Later ony - . [he] used both of Bis hangs and choked (her].. «for abeut two minutes and told her te kite bim, He made (her) kiss his. ‘aiter he choked [Chang], [Frisbee] drove to a Chevron station. [He] exited the vehicie to buy sone food. [Chang] fan away from the vehicle and get inte the car of & stranger . [Frisbee] followed her and pulled her out -continves) These, Three elements, are: ‘That, cn or about the 3ré cay of August 2000, [Fricbee] restraines . - - Cheng; ena Thet (Frisbee) did so intentionslly of knowingly: and That [Frisbee] dig so with the intext te inflict Beaily insury open = = + Chang. In Count 11 . Feigbee|] is charged with the of Kidnapping 1 perscn connics the offense of Kidnapping if he intentionally of knowingly Feetresne encther persen with intent to cereorize thet person. There are saree materiel elenente of the offence of Kidnapping, each of which the prosecution must prove beyond ‘enable’ debt ‘These tnree elenents are nee, enor about the cf August 2000, [frisbee] restrained. oa [frisbee] eid se sttentionsily ex knowingly; and [Frisree] aig so with the intent to terrorize. 9 y between the verdict and sentencing was due to: (1) te ec by frisbee to fineh s course at Cane Ce [2] three contanvencer because of withora ++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER +++ of the stranger's cer by her hair, (le) dragged her back to Bie venicle. (He) threstened to shoot [her] and her At its January 18, 2005 hearing, the circuit court orally ruled as follows: ‘The first incident, if you will, cccurred at or near Kam Ehepping Center where (Chong) tried to leave the car. « Frisbee gresbes herl] by her heir, polled her back into Ale Car, Ivthink at one point choked her as well. eters che conpisining witness jumped into ancther cor, ..”, Frisbee pulled her out of that car and then ‘threatened her sna ner son Se what we have axe cifferent tines, different acts at ditterent locations | = = Accordingly, the circuit court denied Frisbee's January 10, 2005 motion. On January 18, 2005, the circuit court entered its final judgnent convicting Frisbee of, inter alia, Counts I and IT. On January 24, 2005, Frisbee filed his timely notice of appeal. on direct appeal, Frisbee (1) reiterated the position taken in his motion to dismiss and (2) further argued that the circuit court “err[ed) by not instructing the jury on the question of a merger of the charges.”* (Emphases omitted.) In ite S00, the ICA affirmed the circuit court’s judgment. (Citing Matias, 102 Hawai'i at 206, 75 P.3d et 1197; State v. Alston, 75 Haw. 517, 531, 865 P.2d 157, 165 (1994); State v, Libero, 103 Hawai'i 490, 501-02, 83 P.3d 753, 764-65 (App. 2003); State ve Momoki, 98 Hawai'i 188, 194-95, 96 F.3d 1, 7-€ (App. 2002).) On December 11, 2006, Frisbee timely filed the present application. on January 9, 2007, we accepted certiorari. bee never objected at trie) to the eto have constroed Frisbee's secend Court shold neve instructed the Suzy on snetructions ee 8h  /+ FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER *#* During oral argument, Frisbee and the prosecution maintained their respective positions as to the significance of a “temporal break” between the initial restraint and the arguable escape and “recapture” of Chang at the gas station. Frisbee argued that, “even if [Chang] attempted to get away” at the gas station, Frisbee’s whole course of conduct amounted to “essentially just the one act.” Apparently in the alternative, Frisbee reiterated that the question whether Frisbee's criminal conduct was interrupted is one of fact for the jury. The prosecution posited that Chang's fleeing created an interruption between Counts I and II as a matter of law, i.e., would not support a jury finding of uninterrupted conduct. We commented that the prosecution’s closing argunent repeatedly characterized the entire incident as “the kidnapping,” singular, see infra section III.A, but the prosecution replied that, during his opening statement and elsewhere, the prosecutor et trial portrayed Frisbee’s conduct 2s consisting of two separate acts. 11. STANDARD OF REVIEW When jury instructicns or the oaission thereof are at issue on appeal, the standard of review ie Instructions given are prejudicially incufficient, elronecur, inconsistent, ev misleading. Erroneous ground fer ri Exon the ole thet the error wee not Frejudicsal. helrrer is not to be viewed in Sletion sie considesea purely in the sberract. It Sost be examined ip the light of the entire Proceedings and giver the effect wnich the whole Pecers enews st to be entstles. In trat context, the Feal question Becenes whether there iss feascrable feceibility that errer might have contributed to Ecnvicticn, If there ie such a reasonable possibility Sng crininel cese, then the erzer ie not hermiess beyena a reesonebie doubt, ane the juggrent of conwictsen en ftnay have been Berea must be set  44+ FOR PUBLICATION IN MEST'S YANAT'I REPORTS AND PACIFIC REPORTER * Gensaiven, 108 Hawai's 289, 292-93, 119 P.3¢ 597, EG0-07 (20081 (anternal citations, ‘quctation marks, fngentations, ena paragraphing cnittedy bracketed material aases) (7 £)e8 Shanvans, 101 Hewai's 309, 385, eorrsa sits S23 (2008) in (State v. }Eberly, [107 Hewett 425 (2008);) we observed that 7 9, 112 B.3d __. Iw]here instructions were net objected to at ieiei, "TE'Ehe appellant overcenes the presumption that {he instroct ions were correctly stated, the rule is that. such erroneous instructions are presuaptively Edrafol eng ese e ground for reverse] unless it aifizeatively sppeare fron the Fecord se 5 whole that the error was not prejudicial Ide at 250, 112 P.3¢ at 736. State v. Nichols, 121 Hawei'i 327, 334-35, 141 P.3d 974, 981-82 (2006) (some brackets added and some in original). TIT. DISCUSSION In hie application for writ of certiorari, Frisbee basically reargues his direct appeal: (1) that the circuit court erred in denying his January 10, 2005 motion to merge Counts I and 11; and (2) thet the circuit court “errled) by not instructing the jury on the question of a merger of the charges.” (Emphases omitted.) In particular, Frisbee aroues that “there was only one act of kidnapping and the initial act of pulling Chang back inte the car to terrorize merged inte the act of inflicting harm . . . at the Chevron gas station. . . . The two separate acts . . . were all part of the ongoing criminal offense. . . .” (Quoting HRS § 701-109, see supre note 1; State vs Ganal, €1 Hawai'i 388, 384, 917 P.2d 370, 396 (1996); State v. Hoey, 17 Hawai'i 17, 3€, 881 F.2d $04, 525 (1994); Alston, 75 Hew, at S31, G65 P.2d ot 165; State v. Freeman, 70 Haw. 434, 442, 774 P.2d 686, 892-93 (1989); State v. Capric, 85 Hawai'i $2, 104, P.2d 933, 945 (App. 1997)) (citing State v. Castro, 69 Hew. RAWAL'T REPORTS AND PACIFIC REPORTER +#¢ 04 oR PUBLICATION I WES?" 633, 786 P.2d 1033 (1986).) Elaborating on his second point of error, Frisbee asserts that the circuit court should have ascertained by interrogatory whether the jury found that the kidnapping(s) constituted “a single act over a period of time[] or two separate acts.” (Quoting State v. Culkin, 97 Hawai'i 206, 214-15, 35 P.3d 233, 241-42 (2001).)¢ However indirectly he arrives there, the bottom line of Frisbee’s position is that the circuit court and, hence, the ICA erroneously ruled cut the possibility that Counts I and II were grounded in “the same conduct,” see HRS § 701-109(1), thereby mandating, at 2 minimum, that the circuit court instruct the jury regarding merger. We agree with Frisbee. A, In Light Of The whole Record, There Is A Reasonable Possibility That The Jury Instructions were Prejudicially Insufficient, Erroneous, Inconsistent, Or Misleading, We believe that HRS § 701-109(1)(e), see supra note 1, entitled Frisbee to have the jury apprised of the possible merger of Counts I and IT. HRS § 701-208(11 (e), see supra note [1], interposes a constraint on multiple convictions arising from the sane criningl conduct. the statute “reflects 9 policy te Limit the possibility of multiple cenvictions and. extendes Sentences when the defendant har basically engaged in only fone course of criminal conduct directed at one criminal Qeel{]" See Commentary on HRS § 701-103, <Frisbeets application, with ite seventeen-page body, exceeds the rmexinun length permitted by Hawai Rule of Appellate Procedure 40.1(a). ("The 2 caIz pages a). On 2006, ‘we crdered Fristee’s counsel to show cause why he should hot be sanctioned for violating this rule. He vespended presptly and Contritely, anc, sccorcingly, we tock no further action. In any case, the of Frisbee's application ade little substance beyone ¢ tion te Ggikin, wnscn repeste tne permissive stengers for plain error in Jury inetructione, 97 Rawal at 216, 38 Pidd et 243, of which we are freshly [FOR PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REPORTER *+* Whether # course of conduct gives rise to more than one crine [within the seaning of HRS § 70)— Yo8(2) (el). depends in part on the intent and cbjective Of the defencent.. The test to determine whether the Gefendant intended te commit nore than one offense is Whether the evidence discleses one general intent or Giscloses separate sng distinct intents. where there {e"Gne intention, one general impulse, and one plan, there 4s bat one offense. All factual issues involved Ants cerereination aust be decided by the trier of Hoey, 77 Hawal's (at) 27 n.(18, 861 F.2d [at 514 n.{)8 |. + iqueting Buston, 75 hee. (st) 532, 865 Bete iat) des 2 e). Fane's’ 76i=10911) te), however, does hot opply where & defendant's ections constitute separate Offenses under the law. See State v. focpii, 68 Haw. 246, 261, 710 Pi2d 1193, 1197 (2385) Matias, 102 Hawai" at 305, 78 P.3d at 1196 (some citations omitted) (sone brackets added and sone in original) (emphasis in original). In the present matter, the question whether Frisbee's arguably two acts of “pulling Chang) back inside the car”/*put [ting] her back inte his car precipitated one course of criminal conduct or two was never submitted to the jury. We believe that this contravened the letter and the purpose of HRS § 701-109(1) (e). In other words, a reasonable juror could find that Frisbee executed one continuous “restrain[t],” see HRS $ 707-720(1), supra note 2, which, as the jury should have been instructed, would bar Frisbee’s conviction of multiple kidnapping charges. One “restrainit},” even if accompanied by both colors of intent enumerated as HRS § 707-720(1) (d) and (e), cannot support tug convictions of kidnapping. Moreover, because of the wording of the complaint, see supra notes 2 and 3 and acconpanying text, even two separate “restrain[ts]” would have to be accompanied by two distinct requisite stetes of mind -- e.a., the prosecution could not apply the intent to terrorize to both oR PUBLICATION IN WEST! HANAL'X REPORTS AND PACIFIC REPORTER ++# vrestrain{ts]” unless one of the “restrainits]” were also undertaken with the intent to inflict bodily injury. Not only did the circuit court not sua sponte instruct the jury regarding merger, but the prosecution further mddied the waters between Counts I and 11 by never electing which kidnapping count , which of the supposedly distinct wrestrain[ts]" (one at Kam Shopping Center and the other at the gas station, see supra section I) was committed with the intent to terrerize and which was accompanied by the intent to inflict bodily injury. Moreover, the prosecution appears to have conflated the circunstantial evidence supporting the intent to terrorize with the circumstantial evidence supporting the intent to inflict bodily injury. During his opening statement, the prosecutor stated in pertinent part: [Frisbee) decided during thie! tine (ne and chang) were together that he was not geing to let her do anything ithe thet he would shew her uho wae in contrcl- They drove constantly after that all over Honelule They stopped ats gus station to get some food, Chang at. that tine tried te escepe. She... ran to (3 : US (Frisbee) saw her going tot anc trying to escape, [Me] went outside fren the store, grenbes Shang fron the cer, end pulled her beck inte the 0. Yelena Finally they ended op back at injne prosecutien will aek you te return @ finding Of guilt eh tne counte of Kidnapping» ss = One cunt snvelves the intent te do begily fern... Tenang aiyow thet he caused her to feel pain. The second court’... invelves the intent te terrorize. Cheng by culling ber heir, keatane her ug, threatening her ane her Tansty, (Emphases added.) 10  ‘+4 FOR PUBLICATION IN WEST'S WAWAI'T REPORTS AND PACIFIC REPORTER + On direct examination, Chang testified that, after the episode wherein Frisbee “pulled [her] back in” “by Kam Shopping Center,” he said to Chang, “I'm not going to play any games with you.” Then, Chang testified, after Frisbee and Chang stopped at two houses and the Eagle Café, he choked her. Later, after Chang ren away, “[Frisbee] came and he grabbed [her] by [her] hair, pulled [her] out! of the stranger’s car], and shoved [her] back into the [SUV]. According to Chang, he then told her she “ain't going anywhere,” accompanied by a vile obscenity, Then, before “ended up at Sand Island,” Frisbee “chang and Frisb “[t]hreaten(ed Chang] end stuff. . . . He threatened to shoot [chang] and [her] son.” Finally, in closing argument, the prosecution did not foreclose the factual possibility that there was but one continuous course of conduct: They Went to the Kam Shopping Center. ‘and ae (Chang) use getting out, (Frisbee) grebbed her and pulled ner back into the SUV. And this ta here the sianeceine besine ~ «ANG, You Know {fom the instructions that we reed tO You there are tee types of Kidnapping i this cose =~ stent to terscrize and the intent to cause bodily injury tov... Chang. We'll discuss both of these. Bot thie is the initiation of the Kidnanping . . . - They continued to érive sround | |) “she tried toletcape . «when they went to @ gas station... Ae that point, [Trisbee) wos... buying sone foodi) | charg! fen to the cer cf ¢ stronger and tried to get ini “[Feittee] ssw ner. fie went after hie prey. : isened with her vet. He went to get her, and he pulled her back by her naar. ihe this stace of the Kid ns Lchancl -cocurses yet only Bt the carticvlar episooe Bue Tass fer tise Ree He enoh Th the tate evening hears, [Fristee) finaly sterpes beating Cheng. He itcppec the SUV at Sand ‘++ voR PUBLICATION IN MEST’ 8 HAWAI'I REPORTS AND PACIFIC REPORTER ++ [Frisbee] terrified her. And that is one of the kidnappings that ie charged in this case, the intent to ineviewe poypicer evicence of Chang's insurtes.1 ve ith regards to the two counts of Kidnapping ‘~"kidnapping with intent to terrorize bodily injury (eic] beyond e reasonable doubt, (Frisbee) is guilty of both of those. Bodily injury «+ it’s pain. And ‘ (Frisbee) caused ber pain numerous tines when he was ing her up (Emphases added.) In its rebuttal argument the prosecution summarized the charges against Frisbee thusl; Count 1, Kidnapping. . . . [T]he restraint . been proven beyond 2 reasonable doubt. object of that restraint... . And this is charge involving bedily injury te... Chang in the Beating he gave her. ‘EoUiie IJ, once again... (Frisbee) restrained . . Chang. But this tine, with the intention of terrorizing a chang. And throughout her statenent, she tela you she wat teared of him after things turned sour’ at the Kew ‘Shoeping Center fit terrorized her. 11! Chang wes consistent in talking about the bodily spsury at Thriteee] Sntlicted pen her, “the terror thet (Emphases added.) Admittedly, the choking and the “threaten[ing]” occurred sequentially, but the prosecution never established an unmistakable boundary between the allegedly two acts of “restrain(t].” We do not imply any impropriety or conscious deceit by the prosecution. The prosecution may have made an understandable strategic decision to present its case as 2 seamless narrative about a relentless predator. Nonetheless, in light of the reasonable possibility that the Kam Shopping Center events and the gas station events comprised only “one intention, one general impulse, and one plan,” the factual question of merger should have “belen) decided by the trier of fact.” See Alston, 75 Haw. + 865 P.2d at 165 (emphasis omitted), quoted in Matias, 102 at 419+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** Hawai'i at 305, 75 P.3d at 1196; State v, Arceo, 84 Hawai'i 1, 18, 928 P.2d 843, 860 (1996); Ganal, @1 Hawai'i at 379, 917 P.2d at 391 (1996); State v. Vinge, &1 Hawai'i 309, 319, 916 P.2d 1210, 1220 (1996); Hoey, 77 Hawai'i at 27 n.9, 38, 881 F.2d at 514 n.9, 525; State v. Kealoha, 95 Hawai'i 365, 377, 22 P.3d 1012, 1024 (app. 2000) . We are puzzled by the ICA's unelaborated citation of Matias, inasmuch as thet case is on point and compels an outcome favorable to Frisbee. In Matias, the defendant was convicted under the “place to keep firearms” statute and of ownership or possession of @ firearm by s felon, 102 Hawai'i at 301, 303-05, 75 P.3d at 1192, 1194-96. We noted that, with respect to both offenses, the charged conduct -- the “possessilon of]” 2 particular object under the same general circunstances -~ was identical. See dd, at 306, 78 P.3d at 1197. Of course, as an attendant circumstance required by both statutes, that particular object happened to be a firearm, but, more importantly, both offenses arose out of the same elemental “conduct,” ise, what the defendant gig with the cbject, namely, “possess{ed]” it. See ids at 303, 306, 75 P.3d at 1194, 1197. Accordingly, we held, convicting the defendant of both charges without the jury having been received @ mexger instruction plainly offended HRS § 701-109(1) (e). Id. at 306, 75 P.3d at 1197. on the other hand, while the defendant in Momoki wa charged with two offenses arising out of the same general act of Griving, the crimes’ conduct elenents differed. Seg 98 Hawai'i at 198, 46 P.3d at & (reasoning that the intent to drive under the influence of drugs, “no matter how egregious the case,” does  FOR PUBLICATION IN WEST! § HAWAI'T REPORTS AND PACIFIC REPORTER +1 not equate to or “subsune(]” the intent to drive without due care) (quoting HRS § 701-109(1) (e)). The ICA concluded that “a general intent to” conmit one of the crimes does not “inevitably include{} an intent to conmit the latter” and, consequently, affirmed the convictions. Jd, While the ICA grounded its discussion in intent, the material difference between the charged offenses lay in their respective conduct elements; i.e, the mere act of “driving,” with “the influence of . . . drug(s]” as an attendant circumstance, is not “the sane conduct” as the defendant’s “serving” among lanes, see id. at 190, 46 P.3d at 3, notwithstanding that “driving” and “swerving” could occur simultaneously. By comparison, in the present matter, the culpable conduct in both Counts 1 and II was Frisbee’s “restrain[ing]” of Chang. Finally, we respond to the ICA’s SD0"s citation of Likero. Insofar as Libero implies that an appellate court may determine de novo whether a “defendant's course of conduct was uninterrupted” as 2 matter of law, we hold that it was wrongly decided. In Liberc, the defendant had been convicted of attempted murder and assault. 103 Hawai'i at 493-94, 83 P.3d at 756-57. He had confessed to the following chain of events: [the cefendant) nit (the victim] «(the victim) fell and ig net get up. (The defendant] tock off the bottom Rolg-cf [the victin]*s clothes. [3he defendant] thought he Nentes to nave sex with [tne Victim), but then he “didn't went [the victim] got up and [the defendant) hit her asain = Ad, at 495-86, 83 F.3d at 758-59. On appeal, the defendant argued, inter alia, “that the circuit court should have issued merger and unanimity instructions to the jury.” Id. at S01, 83 P.3d at 764. The ICA sunmarily reasoned that, while the assault 4 ‘i++ FOR PUBLICATION IN WEST'S IAWAI'T REPORTS AND PACIFIC REPORTER *** and attempted murder charges vere based on the same general behavior of “hit[ting]” this particular victim, they did not arise out of an uninterrupted course of conduct: “The State fulfilled its obligation to prove that (the defendant] committed ‘separate offenses under the law’ by showing that [he] at one point intended only to harm [the victim] and at another point intended to cause her death.” See id, at 501-02, 83 P.3d at 764-65. The ICA thereby ignored the reasonable possibility of an HRS § 702-109(1)(e) violation and our oft-repeated admonition that “the factual question of merger” is one for the trier of fact. B. The Jury Instructions were Plainly Erroneous. We realize that Frisbee neither objected to the instructions as read nor requested his own version of a merger instruction. Nevertheless, Hawai'i Rule of Penal Procedure $2(b) allows for an appellate court to redress “[p]lain errors or defects affecting substantial rights” and “*[wle have recognized that [plain] error occurs when the trial court's instructions to the jury fail to preclude the return of guilty verdicts which violate the statutory mandate of HRS § 701-108,’" see supra note 1, Matias, 102 Hawai'i at 306, 75 F.3d at 1197 (some brackets added and some in original) (quoting Alston, 75 Hew. at 529, 865 P.2d at 164). In light of our case lew enunciating the trial court’s responsibility for oversight of jury instructions regardless of attorneys’ failure to object, see Michols, 112 Hewai'S at 225 6 n.S, 336, 337 6 n.6, 141 P.3d at 982 6 n.5, 963, 984 & n.€ (quoting State v. Haanio, 94 Hawai'i 405, 418, 16 F.36 246, 286 (2001); State v, Astronome, 95 Hawai'i 76, 62, 18 F.3d as {9+ FOR PUBLICATION JN WEST’§ HAWAI'T REPORTS AND FACIFIC REPORTER +44 938, 944 (App. 2003)], we believe that the ICA gravely erred by failing to remedy an instructional error that is not harmless beyond @ reasonable doubt. We do not contend that merger is foreordained, ives, that @ reasonable end properly instructed juror could not find an “[] interrupt (ion]” of Frisbee's course of conduct. Nevertheless, given the reasonable possibility that the jury's verdict led to two convictions for “the same conduct,” we hold that the circuit court’s failure to charge the jury with respect to merger contravened HAS § 701-109(1)(e) and was not harmless beyond @ reasonable doubt. IV. CONCLUSION In light of the foregoing analysis, we (1) vacate the ICA’s judgment, (2) vacate the circuit court's January 18, 2005 judgment, and (3) remand to the circuit court for a new trial, see Matias, 102 Hawai'i at 306, 75 P.3d at 1197. Daniel H. Shimizu, Deputy Prosecuting Attorney, for the plaintiff-appellee- respondent State of Hawai'i Richard 0. Gronna, for the Bee ALecrinsen defendant-appellant-petitioner Frank Frisbee Yorn 6 Océ by 1é 

478416f6e91d494eb730baab5210a454f5e0d7ec6ff36f149fa48696d6279cb4

2007-04-30T00:00:00Z

05afa5c4-b2de-492b-8c34-ba64d861c359

State v. Basuel

hawaii

Hawaii Supreme Court

No. 27080 IN THE SUPREME COURT OF THE STATE OP HAWArT “ z STATE OF HAWAI'I, Respondent /Plaintift-Appellee cals RICHARD J, BASUEL, Petitioner/Defendant-Appellant . oo CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. No. 02-1-2725) ORDER REJECTING APPLICATH: WRIT OF CERT) (By: Moon, C.J., for the court") uel 's Petitioner/defendant-appellant Richard J. application for writ of certiorari, filed on May 12, 2007, ia hereby rejected DATED: Honolulu, Hawai'i, gune 5, 2007. FOR THE COURT; * considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, ov. aang 

0624d356206e70e3affa106c336988973670f0f551038561e411f4c913b7f8e9

2007-06-05T00:00:00Z

170efa3a-3bd8-454e-a794-323a0e4e8b69

Livingstone v. Jones

hawaii

Hawaii Supreme Court

No. 28132 IN THE SUPREME COURT OF THE STATE OF HAWAT'T LAW LIBRARY JOHN D. LIVINGSTONE, Respondent-Petitioner-Appellee, -neopondent-nopei, SHANNON N. JONES, Petitiones OS APPEAL PROM THE FAMILY COURT OF THE SECOND ciKCOIT (UCCJEA NO, 04-1-0003 and UIFS NO. 05-1-0033) 2 sper neers ware oF 2G (By: Noon, C.J. for the court?) Petitioner-respondent-appellant Shannon Jones" application for writ of certiorari filed on March 30, 2007 is hereby rejected. DATED: Honolulu, Hawai'i, April 26, 2007. FOR THE CouRT: & FR % Wi Justice \a J Vor ws ‘considered by: Moon, C.J., Levinson, Nakayana, Acoba SEAL and Duffy, Jy. 

dbea33eb14158a0b6304ce5bf57988895efcafcbb63d609cd38ec3f74857fa0c

2007-04-26T00:00:00Z

fb10a038-7f5b-48ad-ab51-6a44b98516d3

State v. Zorzi

hawaii

Hawaii Supreme Court

wo. 27323 IN THE SUPREME COURT OF THE STATE OF HAWAT'T a STATE OF HAWAI'I, Respondent/Plaintiff-Appellee vs. VILAYPHAN ZORZI, Petitioner/Defendant-Appellant a CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (FC-CR. NO. 05-1-1013) MIs: 2 NOR WRIT 108 (By: Acoba, J., for the court’) he Application for Writ of Certiorari filed on une 19, 2007 by Petitioner/Defendant~Appellant Vilayphan 2orzi is hereby dismissed as untimely. DATE! Honolulu, Hawai'i, June 21, 2007. FOR THE COURT: ‘SIMEON R. ACOBA, JR. Associate Justice Considered by Moon, C.J. jayana, Acoba, and Duffy, 39. aw 

1b4e62a363f5fe37e7a0d62e3919d07c44eb7affc76c745784076a9bd7f6f176

2007-06-21T00:00:00Z

2abd4065-b060-49f4-b0d1-1b97d13f3ce8

Ruley v. State

hawaii

Hawaii Supreme Court

No. 27668 7 IN THE SUPREME COURT OF THE STATE OF HAWAI‘T , Bi age Yay (002 JERRY RULEY, Petitioner-Appellant, Sant 37 Pi coi 82H oat STATE OF HAWAI'I, Respondent -Appellee. Se CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (S.P.P. NO. 05-1-0064) (cR. NO. 0-1-0548) JON FOR WRIT OF CERT ER REJECTING APPLY (By: Moon, C.J., for the court) Petitioner-appellant Jerry Ruley’s application for writ Of certiorari, filed March 22, 2007, is hereby rejected. april 27, 2007. FOR THE COURT: DATED: Honolulu, Hawai'i, Keith 8. Shigetoms, for petitioner-appellant, on the application son, Nakayars, Acobs, and Duffy, 37 : Coe, tes Considered by: moon, 

d5d592508bd98b981d6805ba56138901ada5ec08cf7226b4c212191eec1aff18

2007-04-27T00:00:00Z

d335551d-c1d3-4bc6-a9fb-679f629f6d3a

State v. Schmidt

hawaii

Hawaii Supreme Court

No. 26486 ea Lom STATE OF HAWAI'I, Respondent-Appellee, Me Hg sg; na vs. THOMAS SCHMIDT, Petitioner-Appellant. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (BC=CR NO. 03-1-266K) APPLICATION (By: Nakayama, J., for the court") Petitioner-Appellant’s application for writ of certiorari filed on March 12, 2007, is hereby rejected. + April 25, 2007. DATED: Honolulu, Hawai’ FOR THE COURT: Ruut On ewieqare Associate Justice R. Steven Geshell for petitioner-appellant on the application Moon, C.J-, Levinson, Nakayana, Acobs, and Duffy, JJ. considered by: 

7997bfa89d09d925e5ee8fc0e5b99ba468a745ec018e773a57c84f9b64721df0

2007-04-25T00:00:00Z

1fb1a265-bb57-4714-b2ca-77af4d2bcf0b

State v. Rippe

28225

hawaii

Hawaii Supreme Court

no. 28225 2 ‘TIMOTHY L, RIPPE, Respondent-Defendant-Appellee CERTIORARI TO THE INTERNEDIATE COURT OF APPEALS (CR. NO. 06-1-0223) ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI, VACATING ORDER DISUISSING AFFEAL ND (RRM SEE inschs Nakayama, Acoba, and Daffy. 20.) Petitioner-appellant State of Hawai'i applies for a writ of certiorari to review the Intermediate Court of Appeals January 19, 2007 order dismissing the State's appeal for lack of appellate jurisdiction. the Intermediate Court of Appeals concluded that the circuit court abused its discretion in granting the State's motion for an extension of time to appeal the circuit court's August 24, 2006 order suppressing evidence ‘he extension was sought and granted to permit the circuit court to hear the State's motion for reconsideration of the suppression order, but the Intermediate Court of Appeals concluded that the motion for reconsideration was not authorized by the Hawai'i Rules of Penal Procedure and therefore the filing of such motion id not constitute good cause for extending the time to appeal pursuant to HRAP 4(b) (5) and the Stat S appeal of the suppression order was untimely, ‘The circuit court had inherent power to reconsider its suppression order (see HRS § 603-21.9(6) (1993); Kawamata Farms v. United Aari Products, 86 Hawai'i 214, 242, 948 P.2a 1055, 1083 (1997)) and such power has been recognized by the Hawai'i appellate courts (see e.g. State v. Brandimart, 68 Haw. 495, 497, 720 P.24 1009, 1110 (1986); State v, Bohannon, 102 Hawai'i 228, 233-35, 74 P.3d 980, 985-87 (2003); State v. Ortiz, 4 Haw. App. 143, 148-49, 662 P.2a 517, 523-24 (1983), aff'd 67 Haw. 181, 683 P.2d 22 (1964); State v, Matsunaga, 62 Hawai'i 162, 165-66, 920 P.2d 376, 379-80 (App. 1996), cert. denied, 82 Hawai'i 360, 922 P.24 973 (1996). Reconsideration of the suppression order was sought by the State for the legitimate reason that suppression was granted on the point of law raised one day before the suppression hearing for which the State had no opportunity to respond. ‘The circuit court's inability to hear the motion for reconsideration before expiration of the time for appealing the suppression order constituted good cause for extending the tine for appeal pursuant to HRAP 4(b)(5). Extending the time for appeal was not an abuse of discretion and the State's appeal of the suppression order was timely. Therefore, 37 IS HEREBY ORDERED that the application for a writ of certiorari is accepted. 37 IS FURTHER ORDERED that: (1) the Janvary 19, 2007 order of the Intermediate Court of Appeals dismissing No. 28225 for lack of appellate jurisdiction is vacated and (2) No. 28225 ie remanded to the Intermediate Court of Appeals for disposition on the merits. DATED: Honolulu, Hawai‘i, April 26, 2007. fp = Dera Cree ne | * er 

2affeb037213af788ac45134fc3c54500fdbcf4e87f281f7890700245284fb2a

2007-04-26T00:00:00Z

bb03c79b-800f-413d-bae5-cd99f431b128

State v. Dennehy

hawaii

Hawaii Supreme Court

1#* NOT_FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER *** No. 26902 IN THE SUPREME COURT OF THE STATE OF HAWAI'I APPEAL FROM THE FIRST CIRCUIT COURT (CR. NO. 04=1-1807) SUMMARY DISPOSITION ORDER (By: Moon, C.J, Levinson, Nakayama, Acoba, and Duffy, JJ.) STATE OF HAWAI'T, Plaintif£-Appellee, 2 vs. Sr 3 2 JASON DENNEHY, Defendant-Appellant. gee SE 3S c s 8 Defendant-Appellant, Jason Dennehy ("Jason"), appeals from the first circuit court's! Septenber 24, 2004 judgment convicting him of the offense of Abuse of Family and Household Members, in violation of Hawai'i Revised Statutes (“HRS”) § 709- 906,? and sentencing him to one hundred eighty days of incarceration, two years of probation, and fees totaling $200.00 + the Honorable Patrick W. Border presided. in relevant part, a8 follows + ARS § 709-906 (Supp. 2004) provid 709-906 Abuse of fanily or household mesbere; penalty. (1) Te shall be unlawful for any person, singly or in concert, to physically abuse # family or household nenber or to refuse Compliance with the lawful order of @ police officer under Subsection (4). The police, in investigating any complaint of abvse of family or household member, upon request, may transport the sbused person to a hospital or safe shelter. For the purposes of this section, “fanily or household menber" means spouses of reciprocal beneficiaries, former spouses Of reciprocal beneficiaries, persons who have a child in common, parents, children, persons relsted by consanguinity, and persons Jeintly residing or formerly residing in the sane duelling unit.  NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER * for abusing? his wife, Shannon Elaine Dennehy ("Shannon"). On appeal, Jason presents the following points of error: (1) there is insufficient evidence to support his conviction of the offense of Abuse of Family and Household Members; (2) the circuit court erred by sentencing him without the benefit of a presentence investigation and report; and (3) the circuit court erred by precluding him from using a firearm in his military training, including target practice. Upon carefully reviewing the record and the briefs submitted by the parties and having given due consideration to a the arguments advanced and the issues raised, we hold tha the record contains sufficient evidencet to support Jason's 2 “(as ordinarily used(,] abused means to maltreat and connotes such treatment as Will injure, hurt or damage a person.” Seate ¥, Nomira, 79 Hawai'i (13,416, 903 P.2a 718, 721 (app. 1995) (citations omitted) (sone Brackets added and sone in original) + wren reviewing the sufficiency of the evidence, this court hi previously set forth the following standazd of review! We have long held that evidence adduced in the trial court must be considered in the strongest light for the prosecution when the appellate court passes on the Legal sufficiency of such evidence to support ® convsetion; the same standard applies ether the case was before a Judge or a Jury.” The test on appeal, is not whether guilt is established beyond a reasonable doubt, but whether there vas substantial evidence to support. the conclusion Of the trier of fact. "substantial evidence” as to every material Glenent of the offense charged 1s credible evidence which is of sufficiency quality and probative velue to enable s person of Feasonable caution to support # conclusion. State v, Vilielme, 105 Hawai'i 197, 202-03, 95 P.3d 952, 957-58 (2004) (block Guote formatting renoved) (internal citations omitted) (some internal Quotation marks omitted) (Brackets omitted) 2  NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER, conviction; (2) the circuit court did not abuse its discretion by refusing to consider a presentence investigation and report prior to sentencing Jason;* and (3) Jason failed to preserve an 5 Viewed in the Light most favorable to the pri the evidence adduced st trial demonstrates that! (1) Shannon and Jason got into fan argonent during the early morning hours of July 5, 2004; (2) Jason got Gpset when Shannon told him, "i'm really tired, Let's just go to bed. It's Feally late, and let's just go to sleep()"; and (3) Jason punched Shannon in the Back of the head, pushed her down the stairs, and choked her and held her own untél Jason's friend, William Milligan, intervenes, * of particular relevance is HRS § 706-601 (1993 6 Supp. 2004), waich provides as follows: 8706-601 pre-sentence diagnosis and report. (1) Except as provided in subsections (3) and (4), the court shall order «pre: Eentence correct ional diagnosis of the defendant and accord due Consideration to a written report of the diagnosis before imposing Sentence where: a)” The defendant has been convicted of a felony; or {b) The defendant {a less than twenty-two years of age and has been convicted of 2 crime (2) The court gay order a pre-sentence diagnosis in any other case. (3), wich the consent of the court, the requirement of « pre-sentence diagnosis may be waived by agreonent of both the Sefendant and the prosecuting attorney. (i) The court on its om motion may waive a pre: correctional diagnosis where: (ah A’ptlor pre“seatence diagnosis, was, conpleted within Ont year preceding the senvencing in the instant case? (o) The Sefentant ie Being sentenced for murder or Attempted aurder in any degrees oF (c) The sentence was agreed to by the parties and approved by the court under rule 11 of the Hawai! rules of penal procedure. [Emphasis added.) Insofar as the present matter does not involve 2 felony conviction of 8 defendant who is less than twenty-two years of age, the plain Tenguage of HRS § 706-601 (2) places it within the circuit court's discretion ko order presentence investigation and report. ‘Although Jason asserts that a presentence investigation and report would have afforded the court some information regarding vston’s "law-abiaing past, hie character and attitude, . . . need, availability and viability of Progtenning, counseling ond the hardship to (he) and his family with respect ko the effects on his allitary cereer and incepacitation while imprisoned(,]" the record ingéeates that the court was already aware that (1) Jasea hed no prior criminal history, (2) Jason was in the military, and (3) Jason was harried with at least one child, the court made clear that whatever Saditionel information s presentence investigation and report would have Uncovered would not have Outweighed or mitigated the punishment it felt was pecessary light of the seriousness of the offense = J.e., the fact that’ 3 (OT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ¢** adequate record on appeal and thereby waived’ his argument that the circuit court erred by precluding the use of weapons in his military training based upon 18 U.S.C. § 922(g)(9).* Therefore, Shannon's 1ife was placed in great peril. Accordingly, Jason has failed to Genonstrate that the circuit court sbused its discretion by refusing te consider a presentence investigation and report. 7 aasonts point of error is problematic insofar as he relies on the circuit court's minutes to establish that the circuit court's November 5, 2004 “Order Pertaining to Bail” was founded upon 18 U-5.C. § 822 (9) (9)- According ro Havai't Rules ef Appellate Procedure Rule 10(a) (2005), the record on appeal consists of the followin: (2) the original papers fled in the court or agency appealed from: (2) ‘eeitten jury instructions given, or requested and Fefused or modified over objection (3) Genibste admitted into evidence or refused: (G) the transcripts prepared for the record cn appeals (5) inva criminal case where the sentence is being appealed, a sealed copy of the pres Snvestigation report; ang (6) the indexes prepared by the clerk of the court appealed fron: Circuit court minutes are not considered @ part of the record on appeal, and they may not be cited.” See Doe v. Grosvenor Center Assocs., 104 Hawai'i 500, 505 n.3, 92 F.3d 1010, 1015 n.3 (App. 2006) (noting “that documents, such as clerk minstes and letters to snd from the court, that are in, attsched to, oF apprehended to the lower court record but which have not been *filed” in the IGner court record as evidenced by the court clerk's file stamp, ave not part of the record on appeal ()") (citing Hebb v. Harvey, 103 Hawai 63, 66, 79 F.3d 681, 684 (App. 2003)). ‘Hence, Jason has failed to crystallize nis argument’ by preserving an adequate record on appeal. absent the clerk Binutes, the record nerely indicates that the circuit court changed its mind and precluded Jason from possessing or controlling dangerous weapons, Effectively preventing him from participation in military eraining drills “nich regelre the use of such wespons. Jason offers no argunents cutside the Scope of 18 U.5.C. § 922(9)(3) as to why such s bail condition is improper. Accordingly, the point of ezror is not properly presented and may be deemed waives. + 28 u.s.c. § $22(g)(9) states as follows: (g) Tt shall be unlawful for any person... (9) who has been convicted in any court of @ miscencancr crime of conestic wiolence, to ship oF Eransport in interstate or foreign commerce, oF jess in or affecting commerce, any firesrm or 4  ‘+* NOT _FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER * IT IS HEREBY ORDERED that the judgment from which the appeal is taken is affirmed. DATED: Honolulu, Hawai'i, April 18, 2007. on the briefs: Stuart N. Fujioka of Nishioka & Fujioka for defendant appellant Jason Dennehy 7 sonja f. eculien, Deputy Prosecuting Attorney, iste CONC rre~ for plaintiff-appellee Stave of Hawal's OD ammunition; or to receive any firearm or ammunition Which has been shipped of transported in interstate or foreign 

d9af7dba47b31b685732c49f9e8751f38635d54372717ec2120cffe7188c3e21

2007-04-18T00:00:00Z

c39976f0-db23-40d8-846a-8a00db50e4ae

Hawaii Home Infusion Associates v. Befitel, Director, Department of Labor and Industrial Relations, State of Hawaii. Concurring Opinion by J. Acoba [pdf]. S.Ct. Order Denying Motion for Retention of Oral Argument, filed 04/16/2007 [pdf].

114 Haw. 87

hawaii

Hawaii Supreme Court

YOR PUBLICATION IN WEST'S WAWAI'T REPORTS AND PACIFIC REPORTER *** IN THE SUPREME COURT OF THE STATE OF HAWAT‘T -— 000 --- HAWAII HOME INFUSION ASSOCIATES, Plaintiff-Appellant, DIRECTOR, DEPARTMENT OF LABOR AND NELSON B. BEFITEL, INDUSTRIAL RELATIONS, STATE OF HAWAI'I; INC.; ADJUSTING SERVICES OF HAWAII, INC. KUHIO MOTORS, ‘and MAJESTIC INSURANCE COMPANY, Defendants-APpelppes, gz and = z - EDWARD SHEPHERD, Defendant. a = = b No. 27256 fe © APPEAL FROM THE CIRCUIT COURT OF THE FIRST CrapurT — (Civ. No. 04-1-0616-04) s APRIL 16, 2007 MOON, C.J., LEVINSON, NAKAYAMA, AND DUFFY, AND RCOBA, J., CONCURRING SEPARATELY OPINION OF THE COURT BY LEVINSON, J. ‘The plaintiff-appellant Hawaii Home Infusion Associates 33.5 (HHIA) appeals from the first circuit court’s March 28, 2005 judgnent, the Honorable Karen S. S. Ahn presiding,’ awarding summary judgment in favor of the defendants-appellees Nelson B. director of the State of Hawaii's Department of Labor “the director"), Befitel, and Industrial Relations (DLIR) [hereinafter, Kuhio Motors, Inc. (KM), Adjusting Services of Hawaii, Inc. (hereinafter, (ASH), and Majestic Insurance Company (MIC) Pollack presided through August 1, 2004, the Honorable Richerd # Ancluaing over the disposition of the notion to dismiss discussed antr. ‘04 FOR PUBLICATION IN WES: TUWATT REPORTS AND PACIFIC REPORTER + collectively, “the Appellees”] and against HHIA and dismissing “[a}11 other claims and all other parties.” On appeal, HHIA challenges the circuit court’s judgment insofar as it effectively barred its appeal from the director's decision to the Labor and Industrial Relations Appeals Board. For the reasons discussed infra in section 111.B, we hold that the first circuit court lacked subject matter jurisdiction over HHIA’s declaratory action and, accordingly, vacate the judgnent below and remand with instructions to dismiss HHIA‘s complaint. 1. BACKGROUND On April 2, 2004, HNIA filed a “petition”? for declaratory relief in the first circuit court, inter alia, challenging, on “substantive due process” and separation-of- powers grounds, the provision of Hawai'i Administrative Rules (HAR) § 12-15-94(d) (2001) that bars appeals from certain billing dispute resolution decisions.’ As bases for the first circuit We will treat the petition as @ complaint because civil actions are to be conmences by s complsint.” Inte Smith, 68 aw. ¢66, 468, 719 P.2d 4355, "399 (a9ee) (eiting Hawai's Rule of Civil Procedure 3) But gag Mawas'l Revises statutes § 91-7(a) (1983). (referring to the party bringing the declaratory actich ae “petitioner”). > iam § 12-15-94(¢) provides in relevant part: In the event a reascnsble disagreement relating to specific charges cannct be resolved, the . + Provider of service may Fequest intervention by the director’.".- The director shall Send the porties a notice and the parties shall negotiate during the thirty-one celengar caye following the date of the notice... . If the parties fail te cone to an agreement during he thizty-cne colendar caye, then fourteen calendar daye Eoliowing the thirty-one sey negotiating periea, either party may Tfe'ehe director to review the dispute . Send the parties # second notice requesting the parties file position statements The sirecter shail Feview the positions of : administrative (continued...)  ‘144 FOR PUBLICATION IN MEST’ HAWAI'I REPORTS AND PACIFIC REPORTER court’s jurisdiction, HHIA invoked Hawai'i Revised Statutes (HRS) §§ 91-7 (1993)* and 632-1 (1993) (concerning, inter alia, circuit courts’ jurisdiction over declaratory actions). According to its complaint, HRIA’s “principal offices” are located in Lihv'e, in Kaua'i County, which is coextensive with the fifth judicial circuit, see HRS § 603-1(4) (Supp. 1994). HIA “renders medical care, medical services, and medical supplies . . . to home-bound patients on the island of Kaua(‘]i” and, in particular, prepared and monitored the delivery of a “specially formulated” medicinal compound to a worker’s compensation claimant, the defendant Edward Shepherd. A billing dispute among HHIA, ASH, and MIC ensued, and the director “ordered the parties” into the billing dispute process described in HAR § 12-15-94(d). BIA asserted that the director’s resulting decision was adverse to it and that HAR § 12-15-94(d) unconstitutionally deprived it of the right to an appeal therefrom. On June 21, 2004, the director moved to dismiss HHIA’s complaint on the grounds that it “was filed in the wrong 2(.. .continued) eclosion without hearing, ‘The decision of the director is 1a] and not sppealable. «ass § dity of rules,” provides in relev 7, entitled “Declaratory judgment on part ceclaration (a) Any interested person may cbtein = Judicti fection (b) as to the valsaity of an soency Fule es proviged font, or exceeds the y of the agency, of was adopted without Compliance with etaeutory ruleraking procedures. (Emphases added. FOR PUBLICATION IN WEST'S HAKA'T REPORTS AND PACIFIC REPORTER **¢ circuit.” (Quoting HRS § 91-7(a).) (Citing HRS § 603-37.5 (concerning “[c]ure or waiver of [venue] defects”); Hawai'i Rules of Civil Procedure (HRCP) Rules 7 (concerning “form of notions”) and 12.") See also KW’s, ASH's, and MIC’s Answer at 4 (*[HRIA)’s claims are barred . . . because of . . . lack of jurisdiction.”). HHIA responded that the director's motion amounted to a challenge of venue rather than subject matter jurisdiction and was therefore untimely inasmuch as the director did not object to venue in his answer or in a pre-answer motion. (Quoting HRCP Rule 12(b) and (h), see supra note S.) HHIA argued in the alternative that, were the director to claim that his motion asserted a challenge of jurisdiction rather than venue, he would + the tite of the director’s motion and the substance of his accompanying memorandum seen to suggest transfer to the fifth circuit as an aiternative renecy. + nce Rule 12, entitled “Defenses and objections -- when and how presented -- by pleading or motion . ‘provides in relevane part: (b) How presented. Every defense, in law or fact, to a claim for relief in any pleading... shall be asserted in the responsive leading thereto if one is fequlred, except that the following Sefenses may at the opticn cf the plesder be made by motion? (1) Sack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue . aking any of these defensee shail be made before pil further pleading is perni 0h) Waiver or preservation of certain defens (2) Aefense of lack of jurisdiction over the persen{ or] improper venue ie vatved .. . (8) if it is neither made by notion under ‘this role nor included in a responesve pleading or an amendment. thereof permitted by Role is(e) to be mace ss a ratter of course. | Wihenever it appears by suggestion of the parties or otherwise that the court lacks jurieciction ef the subject matter, the court shall dismiss the action Inasmuch af the director cited HRCP Rule 12 generically, and based upon the substance of his motion, his esserted grounds for dismissal could be improper Venue, lack of jurisdiction over the subject matter, or Both. In ary case, the inprecision of the director's notion cannot blind oe to juriedictionel, Sefects, which we correct, sua sponte if necessory, ae infsa secticn 11.4. 4 44+ FOR PUBLICATION I WEST'S HAWAI'T REPORES AND PACIFIC REPORTER +++ be mistaken inasmuch as “venue is generally not a jurisdictional factor in Hawai(‘]i.” (Citing Life of the Land v. Land Use Comm'n, $8 Haw, 292, 294-95, 298, 568 P.2d 1189, 1191-94 (1977).) Construing ite argument generously, HHIA seems to have asserted that, rather than creating a territorial limitation on subject matter jurisdiction, HRS § 91-7(a) augments HRS § 603-36(5) (1993), granting the plaintiff the option to litigate in the plaintiff's own donicile notwithstanding the general venue rule to the contrary.” * obviously, thie merely begs the question whether the director moved for dlamissal on jurisdictional or venue grounde- In any case, sesuming there was s defect of cubject matter jurisdiction, the circuit court was empowered to netice it and dismiss the complaint aus sosnte. See, e.g.) RCP Rule 12th) (3), supga note 5. + RS § 603-36, entitled “Actions and proceedings, where to be brought," provides in relevant part: Actions and proceedings of civil nature within the Jurisdiction of the circuit courts isi <<. other than those specified above shall be Erdugntl)] o's if there is nore than one defendant, an fhe eircoit in unich the claim for relief ercee unless a majority of the defendants are doniciled in another circuit, Subereupen the action may be brought in the cireuit where the majority of the defendants are domiciled + WHIA's argument reads Pisinly, the phrase “by bringing an action against the agency! in the cireuit court of the county in wnien [the] petitioner resides of hae ite principsl place of tusinese(*) Soul have fo purpose if... agencies hielid the right to waive Senue as ether defendant] do... [T]he general vense provision(,] . « - (HRS $] 603-3615) | . . establishes the circuit Mbere the Cleim'of reilef arose or where the gefendant is Soniciles ae the proper cireuit for filing. Recoraingiy, (the Gjirecter . . - woule hold the power to waive venue were ie hot for tne venve provision in [HRS] §[ ]91~7(a)- The right te fle in the county in whieh [the pletitioner is domiciled plainly protects (che pletitioner’s convenience. - + + the Legislature intendes ERS § 91-7 to renove not create then. The defendant |] in a(n HRS) §{ 192-7 is always a governmental agency... - If the concept is applicable to state agencies, certeinly they must Teontinued. «1 ‘+ FOR PUBLICATION I WEST'S HAMAL'T REPORES AND FACIETC REPORTER #++ The director's July 2, 2004 reply countered “that HRS § 91-7 pertains to jurisdiction and is not a matter of venue.” He cited this court's observation, in Life of the Land, that “(t)he circuit court . . . has jurisdiction to render declaratory judgments under HRS §[} 91-7," 58 Haw. at 295, $68 P.2d at 1192 (emphasis added)." The director further implied that, inasmuch as BRS § 91-7 is distinct from HRS ch. 603, pt. IV (1993) and § 608-7 (Supp. 2002), concerning venue in the circuit and district courts, respectively, “it should not be assumed that [HRS] § 91-7 contains @ ‘venue’ provision.” Finally, the director seems to have argued that a geographic reference in the statute under scrutiny “does not automatically” preclude its construction as a limitation on jurisdiction. (Quoting Hawaiian Tel. Co. vs Agsalud, 67 Haw. 39, 40, 675 F.2d 777, 778 (1984).) On July 9, 2004, the circuit court conducted a hearing on the dizector’s motion to dismiss, the transcript of which is not in the record, cf. Hawai'i Rule of Appellate Procedure 10(a) “the record on appeal shall consist of ...: ... (4) the transcripts prepared for the record on appeal . (enphasis "1. seontinved) Spe donsciled . . . in the seat of government in (the City yet} Honeiviui, hence, in the firet circuit, see HRS 1954)]! The purpose underlying - Thue suet have been the elimination of @ barrier te ctions challenging the validity of agency rules. jer of the venue provision would create barriers hoceing the nest conventent cizeust for fling (Emphasis in original.) (Footnote omitted, “he decided Life of the Land on unrelated grounds, to wit, that SIA), ag the ciresie coure smplieitly founs, there [ve]ze indispensable parties,” tne circuit court should have enceavored to join such partiee, Possible, before dismissing the action outright. Seg 58 How. at 298, 568 F.2¢ elise  ‘#4 FOR PUBLICATION ZN WEST'S HAWAI'T REPORTS AND FACIFIC REPORTER ¢¥¢ added). In its July 21, 2004 order, the circuit court denied the Sirector’s motion. The circuit court proceeded to the merits and, on January 3, 2005, granted the director's December 2, 2004 motion for sunmary judgment, and denied HHIA‘s October 1, 2004 motion for sunmary judgment. Accordingly, on March 28, 2005, after disposing of HHIA’s motion for reconsideration, the circuit court entered final judgnent in favor of the Appellees and against HHIA and dismissed all other claims and parties. on April 26, 2005, HHIA filed its notice of appeal. II. STANDARDS OF REVIEW AL Subject Matter durisdict Inasmuch as we are guided by the principle that, “[i)¢ a court lacks jurizsiction over the subject apttor af’ a Proceeding, any judgment rendered in thet procesding 1 ¢ [and thet,) therefore, such a question 2 walle at y stage of the case, . . «(we ss are) obliged to firet [elnsure that (the carcult court) ‘hald subject steer) Jurisdiction. [*] Tamashiro v, Dep't of Human Servs., 112 Hawai" 368, 398-99, 146 P.3d 103, 113-14 (2006) (some brackets in original and some added) (quoting Bush v. Hawaiian Homes Comm'n, 76 Hawai'i 128, 133, 670 P.24 1272, 1277 (1994). B. Statutory Interpretation Ic]The interpretation of a stetute is a question of 1a reviewable ge nov. (")" State ve grees. S4uawsil 3 30, 928 P.26 843, 852 (1596){ Linternal guctetion signels omittea) | Furthermore, car statutory construction is guided by established’ rules: hen construing # statute, our forenost obligation is te ascertain snd give effect to the ure, which Sa to be obtained primarily from the language contained in the statute itself. And we must read statutory Language in’ the com statute ena construe it ins with ite purpose. nner consistent “tee pom PUBLICATION IN WEST'S IOWAS'T REPORTS AND PACIFIC REPORTER *** men there is doubt, doubleness of mesaing, or indistinetiveness or uncertainty of wettxpseseion used in # statute, en ambiguity ah Godetruing an ambiguous stetute, “[e]he neoning of the enbsguous words nay be sought by BeskiNiag the context, with which the ambiguous Berber Dicoses, and sentences may be compared, eee Ee Secertain thei true meaning.” HAS SUSIE) Tclgss |. Moreover, the courts mey Serort to extrinaie alge in determining LeGilative intent. One avenve is the use of TegLslative history ae an interpretive tool. sat rf J, €4 Hawai's (138+) EL Seas ieeo,} $50 (in9971) (quoting Skate ee G0 wawes's &, 1€-19, 90¢ P.zé 693, 503-08 THEE crackete and eiipeis points in original) [Eecthote omittes). this court may also consider ESR Heaton end gpirit of the law, and the cause CATR SSE05 fhe Tegisleture to enact ix... to SEE GP UES eros meaning.” HRS $1-2812) 972. = Sisto in gard materia, oF upon the sane subject IICtEAEREH Ee Sonetrve wath reference to each ‘Siker.' whet se clear in one statote may be called SEES Jn Mig'eo explain what is doubtful in another.” RE § 2-16 (3993). | 107 Hawei'i 215, 220, 112 F.3d 68, 74 (2005) Fae EEL aaded and sone in criginel) (one ellipsis LUSCH ES Ctne in cricinal)) (quoting state v. Kaua, 102 Wa 473,, 679-480 (20031) nt Sof unjust result, see State v. Haugen, 106 Hawad's {84 toe), this court is bound to give Uiiest' te the plain meaning of Unenbiguovs stavutery SESSSoeS se may cay sesort to the use of legislative Navery when interpreting en ambiguous statu Peseta "Se Rowell ses, 472, 24 Fe3d 662, 668 (2001) Courbat v. Dahane Ranch, Inc,, 111 Hawai'l 254, 260-61, 141 P.3d 427, 433-34 (2006) (emphasis omitted) (some brackets and ellipses added and some in original). A, Introduction tive issue before us is whether HRS The dispo: $ 91-7(a), se@ supra note 3 -- under which HHIA “may” challenge an administrative rule through a declaratory action “in the circuit court of the county in which [HHIA) . . - has its ‘t+ FOR PUBLICAPION IN WEST'S HAWAI'I REFORTS AND PACIFIC REPORTER +++ principal place of business,” i.e., the fifth circuit court (hereinafter, “the county rule] -~ (1) endows the fifth circuit court and only the fifth circuit court with subject matter jurisdiction over HHIA's action, or (2) merely expands the general venue rule set forth in HRS § 602-36(5), see supra note 7. If the latter is true, the director's motion was untimely ané, accordingly, any venue defect was waived. If, on the other hand, the county rule is a restriction on subject matter jurisdiction, we must notice the first circuit court’s lack of subject matter jurisdiction aua sponte and vacate its decision. The uncertainty of the meaning of the county rule springs from (1) its use of the word “may” rather than “shall” and (2) its silence with respect to whether the petitioner's domicile controls venue or jurisdiction. HRIA might argue that HRS § 632-1 confers jurisdiction that is not conditioned upon any geographic factor: “In cases of actual controversy, courts of record, within the scope of their respective jurisdictions, shall have power to make binding adjudications of right... . Relief by declaratory judgnent may be granted in civil cases...” However, the phrase “within the scope of [the courts’] respective jurisdictions” simply begs the question of whether, in the case of HRS § S7-I(a), @ given cixcuit court’s jurisdiction is contingent upon the plaintiff's domicile in the corresponding county. Illustrative authority from Hawai'i sources is succinct at best, but, in light of (1) the redundancy of the county rule Af interpreted as a venue provision, (2) our interpretation of @ + FOR PUBLICATION IN MEST’S HAWAI'I REPORTS AND PACIFIC REPORTER +++ similar statute in Hawaiian Tel. Co., and (3) the fact that the county rule accounts for only the convenience of the plaintiff, contrary to the usual purpose of a venue statute, we hold that, for purposes of declaratory actions brought pursuant to HRS § 91-7(a), the circuit court of the plaintiff’s domicile is the only circuit court that may exercise jurisdiction over the subject matter. B. Analveie Admittedly, the legislature could have drafted the county rule using the word “shall” rather than “nay,” so as to make its mandatory jurisdictional effect clearer. Nevertheless, we believe that “may,” in the context of the county rule, implies that bringing a declaratory action in the plaintiff’s home forum is an alternative to (1) seeking injunctive or monetary relief or foregoing litigation altogether, not (2) seeking declaratory judgment, but in another venue. When it drafted the county rule, the House Judiciary Committee took as its point of departure the Model State Administrative Procedure Act of 1961, § 7 (superseded 1981), 15 U.L.A. 262 (2000 & Supp. 2006), which provided that “(t]he validity or applicability of a rule may be determined in an action for declaratory judgment in the [District Court of . . . County]" (emphasis added) (some brackets added and some in eriginal) (ellipsis in original), 15 U.L.A. 262. See Hse. Stand. Comm. Rep. No. 8, in 1962 House Journal, at 654-55, 6587 Hse. Stand. Comm. Rep. No. 83, in 1959 House Journal, Ist Spec. Sess., -26, 229. The committee report, which is itself ambiguous ith respect to the significance of “may” and whether the 10  e+ POR PUBLICATION IN WEST'S HAWAI'T REFORTS AND PACIFIC REPORTER *** designated county is an optional venue or a mandatory situs of jurisdiction, reads in relevant part [Slection 7{) of the . . . Model [APA] has been amended to provide that an interested perecn may obtain a declaratory Socgnent where the rule is invalid en the grounds [now set forth in Wks § $1°7(b)]._ Ae to where a proceeding can be inetituced, an interested person may bring an action where he resides, or in the cese of 2 corporation where its principal place of business is located See Hse. Stand. Comm. Rep. No. 8, in 1961 House Journal, at 654-55, 658. We do not believe that the legislature, which retained the word “may” ae used in the Model APA, intended to bestow an extra benefit upon HRS § 91-7 plaintiffs that they “may” ignore if they prefer to sue outside of their own doniciles. Nevertheless, whether the county rule is “mandatory” or not, in and of itself, does not settle the question whether the plaintiff’s failure to file in the prescribed county is a fatal jurisdictional defect or a venue defect capable of being waived. We agree with the director's implicit position thet subject matter jurisdiction, not just venue, may be partitioned along county lines. In Hawaiian Tel. Co., we construed similar [plaintiff] may file X in the county in which ¥" syntax as mandatory and jurisdictional. In that case, we considered the first sentence of HRS § 363-38 (Supp. 1977), which provided that an unemployment benefits claimant “gay file an appeal from [a] determination or redetermination at the office of the department of labor and industrial relations in the county in which the claimant resides or in the county in which the claimant vas last employed” (emphases added), and expressly held that filing a notice of appeal in the wrong circuit wes @ defect of jurisdiction and not venue. See 67 Haw. at 40, 678 P.2d at 778. n ‘+44 FOR PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REPORTER ++ Accordingly, we upheld the circuit court’s dismissal of the appellant's appeals from decisions of the Department of Labor and Industrial Relations. 1 We likewise agree with HRIA that HRS § 603-36(5) delineates permissible venues and is not a geographic limitation on jurisdiction, which befits its codification in HRS ch. 603, pt. IV, concerning “venue” in the “circuit courte.” Kaus va County of Kauai, 47 Haw. 271, 386 P.2d 860 (1963), illustrates the distinction between HRS §§ 91-7(a), see supra note 3, and 603-36(5), see supra note 7. Kaui concerned 1957 Haw. Sess. L. Act 194, 47 Haw. at 272, 386 P.2d at 882, which was @ forerunner of HRS § 603-36(5). We construed Act 194 as a venue statute and, accordingly, remanded for determination of the factual question of whether the defendant county had waived its venue objection. See id. at 274, 276, 386 P.2d at 662-83. We opined that Act 194 “could not have been intended to go to jurisdiction over the subject matter as it permits an action to be brought where the defendant is domiciled without regard to the place where the cause of action arose.” Id. at 276, 386 P.2d at 883 that (emphasis added). The inverse is true of HRS § 91-7(a) the eppropriate forum for litigation under HRS § 91-7(a) is predicated solely upon the plaintiff's residence and without * Act 194 provided én subst ALL civil ection other than those specified (earlier in Revised Laws of Hawai § 218-21) shail be brought in the circust where the couse of ection arose or where the eft Gonicileds provides, however, if there be more than one defendant, then suen acticn shall be Brought in the cizesit in which the cause of action arcee unlese @ majority of uch cefendante are Goniciled in sncther circuit, whereupon such action ney be brought En the circuit where such mejoriey of defencante are comiciles ive part 1957 Baw. Sees. L. at 226 (emphasis omitted) w  ‘s+ YOR PUBLICATION IN MESI’S HAWAL'T REPORTS AND PACIFIC REPORTER regard to either the agency’s convenience or the nature or location of the parties’ interaction strongly suggests that the county rule is one of jurisdiction and not venue, Cf. id. at 276, 386 P.2d at 884 (“Considering the sweeping nature of [Act 194,] no policy other than protection of defendants from harassment can be discerned. . . . {ilJhat is for the protection of a defendant may be waived by him.”), followed by Alamida vs Wilson, $3 Haw. 398, 400-01, 495 P.2d 585, S88 (1972). IV. CONCLUSION In Light of the foregoing analysis, we hold that = plaintiff seeking “a judicial declaration as to the validity of an agency rule,” pursuant to HRS § 91-7, must “reside[] or halve] its principal place of business” in the county in which the adjudicating circuit court sits; initiating an HRS § 91-7 action in the wrong cireuit is a defect of jurisdiction mandating dismissal. Accordingly, we vacate the first circuit court's judgment and remand with instructions to dismiss HHIA's declaratory action. On the briefs: Gorm — Frank Yop, drs, and Arleen b. Joutson and : Rafael G. Del castillo Lem Pheer of Jouxson-Meyers & Del * fastiiic, for the Gane plaintiff-appellant Ceveces Co (are. Rawail Hone infusion Associates Staci 1. Teruya and Frances Boome Paes E. i, Lum, Deputy Attorneys General, for the defendant appellee Nelson 8. Befitel, Director of the Department of Labor end Industrial Relations, State of Hawas's  FOR PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REPORTER +1 Sidney J.¥. Wong and Darlene ¥. F. Itomura, of Wiong & Oshima, for the defendants-appellees Kuhio Motors, Inc., Adjusting Services of Hawaii, Inc., and Majestic Insurance Company 1“ 

e01123a43e6a3ed401b656ce651ac8fbf24216d0ecb45e30946ca729b69f6441

2007-04-16T00:00:00Z

cb938410-f40e-416e-9bad-0f26716f22c8

Grandinetti v. Oshiro

hawaii

Hawaii Supreme Court

No. 28407 12 aw Looe IN THE SUPREME COURT OF THE STATE OF HAWAL'T FRANCIS ANTHONY GRANDINETTI, IT, Petitioners 82:2 Hy STANTON C. OSHIRO and CIRCUIT COURT OF THE THIRD CIRCUIT, Respondents. ORIGINAL PROCEEDING (CR. NO. 93-141) RDF (By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 33.) Upon consideration of petitioner Francis Grandinetti, II's “application for an appellate injunction and supervisory da petition for a writ of mandamus remedy,” which is de mandamus and the papers in support, fails to demonstrate a clear and indisputable right to the relief requested and petitioner is not entitled to a writ of mandamus. See Kema v. Gaddis, 91 Hawai'i 200, 204-205, 982 P.2d 334, 338- 329 (1999) (A writ of mandamus is an extraordinary remedy that will not issue unless the petitioner demonstrates a clear and indisputable right to relief and a lack of alternative means to redress adequately the alleged wrong or obtain the requested it appears that petitioner action.). Therefore, IT IS HEREBY ORDERED that the petition for a writ of mandamus is denied. DATED: Honolulu, Hawai'i, March 21, 2007. Francis Grandinetti, It, prose, on the petition MiaGhdornse Piascien Canon Tt (CP Goren 6g + ase 

59dcdb6c2b71fd53fee85140c7942e7c983fc815eb9f856731022e595fa3df93

2007-03-21T00:00:00Z

9fa39ad1-7e8e-4a2d-9cd0-8ebe13be50f9

State v. Domingo

hawaii

Hawaii Supreme Court

No. 27295 IN THE SUPREME COURT OF THE STATE OF HAWAT'L OMns CERTIORARI TO THE INTERMEDIATE COURT OF APP! & (Crim. No, 03-1-0331) & ORDE! 2: (By: Levinson, J., for the court’) Upon consideration of the defendant-appellant- petitioner Craig Allen Domingo's March &, 2007 application for a weit of certiorari, the application is hereby rejected. DATED: Honolulu, Hawai'i, April 9, 2007. FOR THE COURT: STEVEN H. LEVINSOR Associate Justige™ Keith 8, shigetomi, for the defendant-appellant-petitioner Craig Allen Domingo, on the application Aceba, and Duffy, 33 Jered by: Moen, 

baacc2285960ba95f71fe704273f552a923bf832c12622128b644feb728e0fdf

2007-04-09T00:00:00Z

badc42a5-1279-4861-8c2a-7a621efb58db

Ranches v. City and County of Honolulu

hawaii

Hawaii Supreme Court

No. 27846 IN THE SUPREME COURT OF THE STATE OF HAWAI'I JERRY RANCHES AND RIZALINA RANCHES, Petitioners/Plaintiffs-Aappellants vs. CITY AND COUNTY OF HONOLULU, Respondent /Defendant-Appellee m and o DOE_CORPORATIONS. DOE PARTNERSHIPS 1-10; DOE NON-PROFIT ENTITIES 3-107 = JOHN DOES 1-10; JANE DOES 1-11 ‘and DOE GOVERNMENTAL ENTITIES 1-10, Defendants CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIV. NO. 04-1-1274) FOR WR: RE CEPTING Acoba, J., for the court) (By? The application for writ of certiorari filed by Petitioners/Plaintiffs-Appellants Jerry Ranches and Rizalina Ranches on May 16, 2007, is accepted and will be scheduled for oral argument. The parties will be notified by the appellate clerk regarding scheduling. DATED: Honolulu, Hawai'i, June 22, 2007. FOR THE COURT: SIMEON R. ACOBA, JR. Associate Justice + Considered by Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 37. Ian L. Mattoch and Mark F. Gallagher (Law Offices of Ian L. Mattoch), on the application, for petitioners/plaintiffs- appellants. Marie Manuele Gavigan, Deputy Corporation Counsel, City and County of Honolulu, on the for respondent/ No. 27846 - Ranches v, City Order Accepting Application for Writ of Certiorari - page 2 

4cb4dae126dbb1fefe5ee897a1e38173d01bbe3cfeefd4dce19f344b15365ff1

2007-06-22T00:00:00Z

05247003-19f0-4ef1-9a29-d30f554b722f

State v. Williams

hawaii

Hawaii Supreme Court

No. 27286 el IN THE SUPREME COURT OF THE STATE OF HAWAHE| STATE OF HAWAI'I, Respondent /Plaintif£-Appel 10:2 Hd O} Yai L002 THOMAS WILLIAMS, Petitioner/Defendant-Appellant CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CASE NOS. 00424005M and TB35: 04/08/05) ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI (By: Duffy, J., for the court’) Petitioner/Defendant-Appellant Thomas Willians’ application for @ writ of certiorar!, filed on March 15, 2007, hereby accepted and will be scheduled for oral argument. The parties will be notified by the appellate clerk regarding scheduling. DATED: Honolulu, Hawas's, April 10, 2007. FOR THE COURT: Gare racer th Associate Justice Matthew S. Kohn for petitioner/defendant- appellant on the application Considered by: Moon, C.J., Levinson, Nakayama, Accba, and Duffy, JJ. aad 

982f567d95790b7c76ac6f280b7121cf4603d8843a63ad30393d7e7403ca1bfb

2007-04-10T00:00:00Z

0534ec7d-2f0d-4aa7-b777-2fd072c837fd

State v. Laeda

114 Haw. 55

hawaii

Hawaii Supreme Court

wan LIBRAR No. 27134 IN THE SUPREME COURT OF THE STATE OF HAWAI'T STATE OF HAWAI'I, Respondent /Plaintiff-Appellee WAYNE C. LABDA, Petitioner/Defendant-Appellant CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS (CR. NO. 03-1-0382) (By: Duffy, o., for the cours") Petitioner/Oefendant-Appellant Wayne C. Laeda’s application for @ writ of certiorari, filed on March 20, 2007, is hereby rejected. DATED: Honolulu, Hawas‘i, april 17, 2007. FOR THE couRT: Come, Pays: Associate Justice Deborah L. Kim, Deputy Public Defender, for petitioner/defendant- appellant on the application GEOR Li dav Lou gas * considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ. 

23e1fae996809314535031e22cb07083466a44b1db701f9313303f781d95c34f

2007-04-17T00:00:00Z

bce281cb-9ddf-461f-aee7-e1d59b321ebc

Hawaii Home Infusion Associates v. Befitel, Director, Department of Labor and Industrial Relations, State of Hawaii

hawaii

Hawaii Supreme Court

No. 2726 IN THE SUPREME COURT OF THE STATE OF HAWAI'T HAWAII HOME INFUSION ASSOCIATES, Plaintiff-Appellant, vs. ang & EDWARD SHEPHERD, Defendant. (civ. No. 04-1-0616-04) ORDER DENYING MOTION FOR RETENTION OF ORAL ARGUMENT (By: Levinson, J., for the court’) This court having considered the April $, 2007 motion of the defendants-sppellees Kuhio Motors, Inc., Adjusting Services of Hawaii, Inc., and Majestic Insurance Company for retention of oral argument, the motion is denied. Therefore, XT IS HEREBY ORDERED that no oral argument will be heard in this matter. DATED: Honolulu, Hawai'i, April 16, 2007. FOR THE COURT: STEVEN B. LEVI Associate Justi On the motion: Leighton K, Oshima and Darlene ¥. F. Itomura, of Wong & Oshima, for the Gefendants-appellees Kuhio Motors, Inc., Adjusting Services of Hawaii, Inc., and Majestic Insurance Company ered by: Moor, Levingen, Na Acobs, and Duffy, 90. 

6775c24d0f50920a2d4afbd1651699c30315558174480e8e84717b62c031af67

2007-04-16T00:00:00Z

756dc3a2-266c-4142-ae16-102e88adb660

Jelks v. Hawaii Paroling Authority

hawaii

Hawaii Supreme Court

LAWL No. 28293 IN THE SUPREME COURT OF THE STATE OF HAWAT'T KENNETH JBLKS, Petitioner-Appeliant-appel lapis) aware psoLING ArTMoRIEY, enarz oF muaripels Respondent s-Appellees-Aappellees. ——_- APPEAL FROM THE CIRCUIT COURT oP THE FrRst crfturn = (CIV. NO. 06-1-0808) oF _ceRrr (By: Moon, C.J. for the court’) Petitioner-appellant-appellant Kenneth Jelks application for writ of certiorari filed on april 2, 2007 is hereby rejected. DATED: Honolulu, Hawai'i, April 26, 2007. FOR THE COURT: Considered by: Moon, ¢.J., Levinson, Nakayama, Acoba, and Duffy, 33 

889370bf2e9c8d2560d55769856a0d936d90d779cfb39102963d95e5fc9dd12c

2007-04-26T00:00:00Z

5d50ac8d-eb41-4bd4-bf85-94b1a1401267

Office of Disciplinary Counsel v. Blakley

hawaii

Hawaii Supreme Court

No, 28494 IN THE SUPREME COURT OF THE STATE OF HAWAT'Z OFFICE OF DISCIPLINARY COUNSEL, Petitioner, J.B. MAYLA BLAKLEY, Respondent . (ORIGINAL PROCEEDING) (ODC NOS. 02-026-7224, 05-127-8279, 06-05-8345, 06-066-8406) ORDER OF DISBARMENT (By: Moon, €.J., Levinson, Nakayama, Acoba, and Duffy, 33.) upon consideration of the Disciplinary Board's Report and Recommendation for the Suspension of J. E. Mayla Blakley and Respondent Blakley’s lack of objection thereto as exhibited by her failure to file an answer to the Petition as permitted by Rule 2.7(c) of the Rules of the Supreme Court of the State of Hawai'i (RSCH) or to request briefing as permitted by RSCH Rule 2.7(€), it eppeare that Respondent Blakley violated RSCH Rules 2.2, 1.2(a), 1.3, 2.4(a), 1.406), 2.28(a) (2), 1.250b), 1.158(e), 2,15(4), 2.25(9) (7), 2.18(h), 1.26(a) (2), 1.16(4), 3.2, 3.4(€), 8.1(b), 8.4(a), €.4(e), and 8.4(4) of the Hawai'i Rules of Professional Conduct. It further appears that Respondent Blakley has departed from the State of Hawai'i, and making discipline effective thirty (30) days after entry of this order, see RSCH Rule 2.16(c), would be pointless. See Office of Disciplinary Counsel v, DeMello, 61 Haw. 223, 225, 601 P.2d 1087, 1088 (1979). aan ‘Therefore, I? IS HEREBY ORDERED that the Disciplinary Board's Report and Recommendation is rejected, and Respondent J. E. Mayla Blakley is disbarred from the practice of law in this jurisdiction, effective upon entry of this order. See Office of ie! , 85 Hawai'i 212, 225, 941 P.24 295, 298 (1997) ("misappropriation of client funds by the client's attorney warrants disbarment absent strong mitigating circunstances*) . IT IS FURTHER ORDERED that, as conditions for reinstatement, 1. Respondent Blakley shall pay restitution in the amount of $9,440.80 to Wayne Brumfield. 2. Respondent Blakley shall pay any costs of these proceedings as approved upon timely submission of a bill of costs, and shall comply with the requirements of RSCH Rules 2.16 and 2.17. DATED: Honolulu, Hawai'i, August 14, 2007. carole R. Richelieu, ha chief disciplinary counsel “Sect Lcwise for petitioner < Pests Co Natagaven J.B. Mayla Blakley, respondent pro se a Gore. Dey th + 

650ba873241ef67a0f507d1e46ca7ae5b38c5ff32bd19524731215fdd9cd0887

2007-08-14T00:00:00Z

95123fce-9d9e-4fe6-b1f3-4b1892153636

State v. Pebenito

hawaii

Hawaii Supreme Court

No. 27598 IN THE SUPREME COURT OF THE STATE OF HAWAI'I STATE OF HAWAI'Z, Respondent/Plaintisf-nepellge vs. “2s ALEJANDRO M. PEBENITO, Petitioner/Defendant-Ay ant CERTIORARI TO THE INTERMEDIATE count OF APPEAS (CR. NO, 4-1-1532) 8 i API cen (By: Duffy, J., for the court) Petitioner/Defendant-Appellant Alejandro M. Pebenito’s application for a writ of certiorari, filed on September 26, 2007, is hereby rejected. Honolulu, Hawai'i, November 6, 2007. FOR THE couRT: Von €. Dotty = a Associate Justice \w Leon ws DATEI Shawn A. Luiz for petitioner/defendant- appellant on the application * Considered by: Mocn, C.J., Levinson, Nakayama, Acobs, and Duffy, JJ. aad 

aa640c7a2adce28d04b793b2909bab3b1d0907f22f8690d286716228de10d626

2007-11-06T00:00:00Z

dafbd963-b61c-4bbd-8c19-46850b388e92

State v. Steger

114 Haw. 95

hawaii

Hawaii Supreme Court

No. 26709 3 ays a 280 THE SUPREME COURT OF THE STATE OF HaNATIL' 216 We O4 Yav cooz Bn 2) HAWAI'I, Respondent/Plaintif£-Appelle: STATE KURTIS LEE STEGER, Petitioner/Defendant-Appellant. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO. 02-1-0557(1)) LICATH oF " (By: Moon, C.J., for the court") Pet itioner/defendant-appellant Kurtis Lee steger’s application for writ of certiorari, filed March 19, 2007, is hereby rejected, DATED: Honolulu, Hawai‘i, April 10, 2007. cynthia A. Kagiwada, FOR THE COURT: for petitioner/ defendant -appellant, Te on the application Lt DX £ duatig 2) Be op ws Levinson, Nakayama, acoba, and putty, ov. » considered by: Moon, ¢.J. O32 

931f3241d3f5cef3a27f5deaa362e4df30ccccd0bbcd0686da92717eac6fea1d

2007-04-10T00:00:00Z

88a111ff-7a37-4a2d-a1ab-862e782a7d5f

State v. Souza

hawaii

Hawaii Supreme Court

LAW LIBRARY no. 27599 IN THE SUPREME COURT OF THE STATE OF HAWAI'L STATE OF HAWAI'I Plaintif£-Appellee-Respondent, vs. ons ALBERTA K. SOUZA, befendant-Appellant-Pet itioner. g 5 CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO. 04-1-1183) B BE (By: Levinson, J., for the court’) upon consideration of the application for a writ of certiorari filed on February 23, 2007, by the defendant- appellant-petitioner Alberta K. Souza and the opposition to petitioner Alberta A. Souza’s petition for writ of certiorari filed on March 6, 2007, by the plaintiff-appellee-respondent State of Hawai'i, the application is hereby rejected DATED: Honolulu, Hawai'i, March 22, 2007. FOR THE CouRT: STEVEN H. Associate Eric A. Seitz for Alberta K. Souza, defendant-appellant-petitioner on the application Lawrence A. Goya, Senior Deputy Attorney General, for State of Hawai'i, plaintiff appellee-respondent ‘on the ‘opposition Considered by: Levinson, Nekayens, and Duffy, J3., Circuit Judge iison, in place of Moon, God-, recused, and Cirevit Jage Border, in place of 

54c3debffb9efc32544dd5d8980c0e208cbaad22aec49adea8b6b2a064f505d5

2007-03-22T00:00:00Z

cc9d5868-8150-463d-9463-6fa11578e97c

Bento v. Valley Isle Motors

hawaii

Hawaii Supreme Court

‘tee NOT FOR PUBLICATION TK WEST’ HAWAI'T REPORTS XND PACIFIC REPORTER * no. 26962 IN THE SUPREME COURT OF THE STATE OF HAWAI'I ee JOSEPH R. and ROSE A. BENTO, Plaintiffs-Appellees, VALLEY ISLE MOTORS, Defendant /Cross-Claimant-Appellant/Third-Party Plaintiff- Appellant, and SAFE-GUARD PRODUCTS, INTERNATIONAL, INC., Defendant /Cross-Claim Defendant-Appellee, |! and om RED SWAN, INC., ‘Third-Party Defendant-Appellee, 91:6 Wy 91 way ogg and DOE DEFENDANTS 1-50, Defendants/Third~Party Defendants. (los. 26961, 27004, & 27325) APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CIV. NO, 03-1-0114(2)) y DIS ORI (py: Moon, C.d., Levinson, Nakayana, Acoba, and Duffy, JJ.) In these consolidated appeals, defendant/ cross-claimant-appellant/third-party plaintiff-appellant Valley Isle Motors, Ltd. (Valley Isle) appeals in No. 27325 from the May 2, 2005 judgment of the circuit court of the second circuit, the Honorable Shackley Raffetto presiding, dismissing all of ‘44 NOT FOR PUBLICATION IN WEST'S HAWAT'T REFORTS AND PACIFIC REPORTER #44 Valley Isle’s clains against defendant/cross-claim defendant- appellee Safe-Guard Products International, Inc. (Safe-Guard) and third-party defendant-appellee Red Swan, Inc. (Red San). Valley Isle also separately appeals, in Nos. 26961 and 27004, from the November 8 and Decenber 6, 2004 orders of the circuit court, the Honorable Shackley Raffetto presiding, finding the two settlements between the plaintiffs-appellees Joseph R. and Rose A. Bento and Safe-Guard and Red Swan, respectively, to be in good faith,’ pursuant to Hawai‘ Revised statutes (HRS) § 663-15.5 (Supp. 2008).? On appeal, Valley Isle challenges the applicability of RS § 663-15.5 to the dispute, pointing out that Act 300° ~; + on January 26, 2006, this court consolidated Nes. 26961, 27004, and 27325 under No. 26961. covebligerss 2 as § 663-15.5, entitled “Release; joint tortfeasor: good faith settlenent,” provides in relevant part (b) For purposes of subsection (a) (setting forth the rights of nen=seteling Joint tortfeasors and co-cbligors with Fegara to Settlenent agreements], any party shall petition the Sure for a hearing cn the issue of good faith of » settlement guterea inte by the plaineif! dna one or more slleged fortfeasors|.) ig) “n' determination by the court that 2 settlenent was made tn good faith shail (1) Ber any other Joint tortfesser or comcbiicor from any. further clains ageinst the settling tort fessor or com celigor, except those based on a written indennsty agreenent; and (2) Rasule in a dismissal of 211 crose-clains filed against the settling joint tortfeasor or co-cbliger, ekcept those sased on @ uritten indennity agreement le) A party aggrieved By court Getersination on the sesue of good faith may eppeal the deterninetion. «+ > Act 300, section € provi his act shall apply to. . _ [ejny relesse, disnicesl or covensnt given after this act tenes effect, regerdless of the date of the occurrence of the underlying clain, except for clains arising out of a contract made pricr to January 1, (continted...)  ‘ses not FOR PUBLICATION 18 WEST! 8 HAWAI'T REPORTS AND PACIFIC REPORTER which was later codified as HRS § 663-15.5 -- states that the Act shail not apply to “claims arising out of a contract made prior to Janvary 1, 2002 and alleges that the Bentos’ claims arise out of a contract entered prior to that date. Valley Isle also argues that the settlements did not meet the good faith standard of HRS § 663-15.5 as set forth in Tover v. Adams, 102 Hewai"t 399, 77 P.3d 83 (2003). upon carefully reviewing the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised, we affirm the judgment and orders of the circuit court for the following In Troyer, this court considered the effect of Act 300, section 6(1). The Trover majority concluded: First, reading Act 300, § €(1) in card materia with Act 300, § 6(2), s8e gubra note [3], which Tneteuete that the Act applies to “contract clains Where. tne contract wae nade on or after January 1, bea," st ie reasonable to construe the exclusion’ of Seleine srising cut of a contract mace pricr to Sanvary 1, 2002" tinply to exclude from the purview of the Act the type of lsins thet the following Subsection includes, the only difference being the Gate ef the underlying contract. in Light of the foregoing, we conclude thet Act 300, § €(1) sinply excludes from the Act's purview Feleases, ciamissals with or without prejudice, oF Egvenenes pet te sve or net to enforce # judgment Siven toe co-obiiger on an alleged contract debt Gite the"contract wae nade pricr to January 1, 2002 fere ie ne logical reason to censtrue the exclusion nore broadly. (sescontinued 202.1" See 2O0T aw, Sens, L, Act 300, $6 € and 7 at 677, effective June 28, 2001, this persion of act 300 wes not included in the codified language of ns § cei-is+5, gen gucra note 2  {7+ NOT FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER + 102 Hawai'i at 412-13, 77 P.3d at 96-97. Therefore, because it is clear from the evidence in the record that neither the clains asserted by the Bentos against Valley Isle and Safe-Guard nor the potential claim of the Bentos against Red Swan were claims against co-obligors on an alleged contract debt, they are not excluded from the purview of HRS § 663-15.5 by Act 300, section 6(1). The circuit court did not abuse its discretion in determining that the settlenents reached by the Bentos with Safe-Guard and Red Swen were in good faith, inasmuch as: (1) there remained substantial questions of liabilitys (2) the settlement involved the disgorgement of all revenues received by the settling parties from the conduct in question: (3) the circuit court could have reasonably concluded that the amount paid in settlenent was in reasonable relationship to the relative fault of the settling parties: (4) there was no evidence that the settlement was collusive or intended to harm Valley Isle: and (5) Safe-Guard's promise to procure insurance naming Valley Iele as an additional insured did not comprise @ written indemnity agreenent by Safe-Guard within the meaning of HRS § 663-15.5(6) (1), see Vesta Ins. Co. v. Amoco Prod. Co., 986 F.2d 961, 986 (Sth Cir. 1993) (an indemnity clause in = contract for services does not make the indemniter an insurer); Kinney v. @ Lisk Cou, S86 N.E.24 1090, 1092 (N.Y. 1990) (“An agreement to Procure insurance is not an agreement to indennify or hold harmless, and the distinction between the two is well recognized.”) (emphasis in original) (internal citations +4 NoT FOR PUBLICATION 111 WEST'S HAWAI'T REPORTS AND PACTFIC REPORTER *** omitted); Robley v, Corning Cnty, Coll., 521 N.¥.S.2d 861, 863 (app. Div. 1987) ("A contract to procure or provide insurance coverage is clearly distinct from and treated differently then an agreement to indemnify.) . Therefore, If IS HEREBY ORDERED that the judgment and orders from which the appeals are taken are affirmed. DATED: Honolulu, Hewais, April 16, 2007. on the briefs: Grim Lisa Woods Munger (of Goodsill Anderson BlGLoaso Quinn & Stifel) and Renee M.L. Yuen for the defendant-appellant Bice Crete ture Valley Isle Motors Lane Hornfeck McKay and JO tN Terence J. O'Toole (ef Starn O'Toole Marcus Geer & Fisher) for the ~ rhe defendant-appellee Safe-Guard Products, Inc. charles R. Prather (of Deeley King & Fang) for the defendant-appellee Red Swan, Inc. Paul Alston, Bruce Wekuzawa, and Peter Knapman (of Alston, Hunt, Floyd s Ing) for the plaintitfs-appelle Soseph R. and Rose A. Bento 

d2f0af6ede93f8849682b76402a3cf3417779b9a917a30e916336ab2da21856a

2007-04-16T00:00:00Z

09798127-44b0-4b68-a18f-22125e15a503

Kilohana Resident Council v. Justice

hawaii

Hawaii Supreme Court

"* NOT_FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** No. 26412 IN THE SUPREME COURT OF THE STATE OF HAWAT‘T vs f KORENA K, JUSTICE, Defendant-Appellant, g#~ and We 6- Yd¥ LOZ CONCHITA C. SOMERA, Defendant. a ‘aohi¥a w APPEAL FROM THE DISTRICT couRT oF THE Frast cracHlr (CIVIL CASE NO. 1RC02=1-6802) (By: Hoon, ¢.9., Levinson Makayane, Reobe, and Duffy, 39.) Defendant-Appeliant Korena K. Justice (*Korena*) appeais tron the judgment of the District Court of the Firet Circuit (“district court”) filed September 18, 2003, pursuant to hich a writ of summary possession against her iesued.? On appeat, Korena argues that the district court erred by failing to credit her affirmative defense to sunmary possession, which vas chana Resident Council (*KRC*) violated certain provisions of the federal Fair Housing thet Flaintiff-appellee Amendments Act of 1988 (“FHA”), 42 U.S.C. § 3601 et seq., and Hawat’ Revised Statutes ("HRS") Chapter 515 (relating to discrimination in real property transactions) by refusing te svegnent to Flaines#! the appea y ane effective to appee! both 3008 sosment oad  *** NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER permit @ chihuahua named Biker to remain in her apartment as an emctional-support aninal to alleviete her mental illness. upon carefully reviewing the record and the briefs submitted by the parties and having given due consideration to the argunents advanced and the issues raised, we hold as follows: (2) Assuming without deciding that Korena may present en affirmative defense to summary possession by demonstrating housing discrimination under the FHAA, Korena hae not demonstrated @ violation of the FHAA, because she did not show that Biker’s presence was necessary to afford her an equal opportunity te use and enjoy her dwelling. ie first note that Korena asserts that the following portion of the district court's oral ruling is an erroneous conclusion of law subject to the right/wrong standard of review: timony, that's defendant the reports of beth gocters, the fet is helpful, but not # ropriate to create an ‘Such exception would oF tervice dog. See Aluminum Shake Roofing, Inc. v. Hiravasu, 110 Hawai'i 248, 252, 131 P.3d 1230, 1234 (2006). MWe disagree, and hold that the [clourt medical exception Sheluae district court's ruling is a conclusion of law presenting mixed Questions of fact and law because, inter alia, the district court's ultimate conclusion that Biker was “not a medical necessity nor reasonably appropriate te create an exception to the no pet [house rule] was intrinsically dependent upon the facts end circumstances of the case. Thus, the appropriate tandard of review is the clearly erroneous standard. luminum Shake Rooting, id. We observe that the U.S. Court cf Appe: for the Ninth Circuit has adopted @ four-prong test for determining whether @  ‘++ NOT_FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER * landlord has failed to reasonably accommodate a “handicapped” tenant under FHAA.’ Pursuant to United States v, California Mobile Hone Park Momt, Co., 107 F.3d 1374, 1380 (9th Cir. 1997) ("Mobile Home 11"), Lin oxcer} [e)e establish her claim, (Kerena] [was) required to show thet: (1). (Korena] suffers from a bandicap as defined in 42 Grsrc. $ $602 (hb) [ (2000) 7! (2). IKRC) knew of {Korena’s] handicep of should reasonably be expected te know of it; 3] accommodation eLine handicap “may be necessary” to afford [Kcrenalan equal Scpertunity to-tse snd entoy the auellings and (4) MRC] refosec fo nake such acconmedaticn (Emphases added.) (Footnote added.) (Citing, inter alia, 42 U.S.C. § 3604(£) (3) (B) (2000) and quoting the “may be necessary” language therefrom.) As to definition of “necessary,” the Mobile. Hone II court approvingly quoted the Sixth Circuit, which interpreted “necessary” “to mean that [claimants] ‘must show that, but for the accommodation, they likely will be denied an equal opportunity to enjoy the housing of their choice(.)'” Ide ‘The following FHAA provisions axe relevent to this appesl. 42 0.8.0. § 3608(£) (1) (2000) (relating to, inter alia, ‘riminaticn in the fentel or sale of mousing) makes’ Sf uniawfar [tle Giscrininate in the sale or rental, or to otherwise unevastebie er ceny, 9 swelling to ony buyer cx renter be handicap of (A) that buyer or renter, (8) 8 person resieing in er intending te reside in chat ouelling efter it ie so e016, rentes, or mede available: or irs ¥y perscn aesccistes with thet buyer or renter. MEephacis edded.) 42 U-8.c. § 360¢(4)( ake reasonable acccamodet i cefines “ctecrinination” es, policies, practices, or ‘eftora Such person  + NOT _FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER, (quoting vie parenthetical Smith § Lee Assocs., Inc, v, City of Taylor, 102 F.3d 781, 795 (6th Cir. 1996)) (emphasis added) . Turning to the third Mobile Home II prong (necessity of the reasonable accommodation), Korena argues that allowing Biker to remain in her household at the Kilohana Apartments was necessary to afford her an equal opportunity to use and enjoy the apartment because “the benefit to Korena of being allowed to keep Biker in her home was immense given the undisputed fact that Biker substentially ameliorated the effects of Korena’s disabilities.” However, assuming arguendo that this benefit to Korena was both “undisputed” and “immense,” said benefit is irrelevant to the question of whether Biker’s presence was “necessary” under the FHAA. In other words, Korena’s argument does not suffice as a showing that but for Biker being allowed to live at the Kilohana Apartments, Korena will likely be denied an equal opportunity to enjoy the housing of her choice. Mobile Home 11, 107 F.3d at 1380 (quoting via parenthetical City of Tayler, 102 F.3d at 795) Moreover, Korena does not challenge the following findings of the district court: The [clourt further notes] that (Biker) came into the Eictive only tho yeare age. Eases on Or, Marvit's testimony that the dog cr fet is Not reasonably of medically a necessity, futher, nis seeeSSony chee the liners (Emphasis added.) The district court expressly credited Marvit’s testimony and found that Korena’s mental illness (ise., her Gisebility) was responsive to medication with or without Biker.  (OT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER These unchallenged findings are binding on this court, and the district court’s finding of fact that Korena’s treatment did not depend on Biker’s presence negates the element of necessity under the FHAA. We are therefore not left with a firm and definite conviction that a mistake has been committed. See Aluminum Shake Roofing, 110 Hawai" at 252, 131 P.3d at 1234, Inasmuch as the district court did not clearly err as to the aforementioned conclusion of law pr inting @ mixed question of law and fact, S82 GuDKA at 2, we therefore hold that Korena’s first argument is without merit. (2) After careful review, we hold that Korena’s state law point of error (ostensibly based upon HRS Chapter 515) is waived. Korena’s azgusent on appeal is in all material aspects entirely premised upon her federel, FHAA claim. On the other hand, Korena does not present any discernible argument relating to her state law claim. See HRAP Rule 26(b) (7) (2004) (argunent must contain “the contentions of the appellant on the points [of error] presented and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on{)” or the predicate point of error may be deemed waived) Citicore Mortasce, Inc. v. Bartolome, 94 Hawai'i 422, 433, 16 P.3d 627, 838 (App. 2000) (“[e]n appellate court does not have to address matters for which the appellant has failed to present discernible argune: (citations omitted)). Therefore, the dist: court’s judgment for possession filed September 18, 2003 is affirmed. » thet ave net  NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER * (2) Because (a) we affirm the district court’s judgnent for possession filed September 18, 2003, and (b) Korena presents no challenge to the district court’s judgment filed January 15, 2004 awarding KRC attorney's fees and costs, we hold that the district court's January 15, 2004 judgment awarding KRC attorney's fees and costs is affirmed. Therefore, IT 1S HEREBY ORDERED that (1) the district court's judgnent for possession filed Septenber 18, 2003 is affirmed, and (2) the district court’s judgment avarding KRC attorney's fees and costs filed January 15, 200¢ is affirmed. DATED: Honolulu, Hawai'i, April 9, 2007. on the briefs: Michael , Kalish (of Legal Aid Society of Hawai'i) for Defendant-Appellant Korena K. Justice tiraRCeccuse Alvin 7, Ito for Plaine tt-nppellee Been 6 Teaco one Kiloha Resident Council 

ea65edfe68775dce14a3b8ec9673aca582bdf847d259c9929212e4a5f48961df

2007-04-09T00:00:00Z

769ead55-4e12-4b28-95c3-e0f70f86f0d4

Engel v. Administrative Director of the Courts

hawaii

Hawaii Supreme Court

‘+8 NOT FOR PUBLICATION IN WEST'S JAMAI'Z REFORTS AND PACIFIC REFORTER®*# No. 26852 uae IN THE SUPREME COURT OF THE STATE OF HAWAI'E:» veal TIMOTHY J. ENGEL, Respondent-Petitioner-Appellapt: ADMINISTRATIVE DIRECTOR OF THE COURTS, STATE OF HAWAT'L, Respondent-Appeliee. APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (Jud. Rev. No. 04-0013; ADLRO Case No. 04-01497; Arrest Rep. No. 04-164758) ‘SUMMARY DISPOSITION ORDER (By: Moon, C.J., Levinson, Nakayama, and Duffy, JJ, and Acoba, J., concurring ‘and dissenting separately) ‘The respondent-petitioner-appellant Timothy J. Engel appeals from the August 30, 2004 judgment of the district court of the first circuit, Honolulu Division, the Honorable William A. Cardwell presiding, affirming the Administrative Driver's License month revocation of his Revocation Office's (ADLRO) thr Griver’s license. on appeai, Engel contends that the district court erred in affirming the hearing officer’s decision inasmuch as: (1) notwithstanding the similarity of Exeites v. Admin, Dir, of the courts, $2 P.3d $93 (2004) [hereinafter, “Exeitas 1”), Engel was entitled “to his own hearing on the ADLRO access restrictions and . . . to public hearing” on the merits 04 Hawas's 4 of the administrative revocation; (2) “the lack of a uniform conmon procedure” in ADLRO hearings deprived Engel of “due Process of law. . . [and] viclated the mandate of (HRS (3) the field sobriety test ch.} 2918, [pt.] 111” (Supp. 200: (FST) results were inadnissible inasmuch as they “were [(a}] ‘+44 NOT FOR PUBLICATION IN WEST'S HAWAY'T REPORTS AND PACIFIC REFORTERS+® administered shortly efter Engel had been involved in a major accident” and (b) “not . . . in accordance with (National Highway (4) the Traffic Safety Administration (NKTSA)] requirenents’ Intoxilyzer supervisor's sworn statement wes inadmissible inasmuch as it does not “establish[] that the Intoxilyzer used in this case had been properly maintained”; (5) before consenting to the breath test, “Engel was never told that [(a)] he had a legal right to refuse,” (b) the ADLRO would have to find “reasonable suspicion te stop” and “probable cause to believe [the] respondent [operated 2 vehicle under the influence of an intoxicant (QVUII)]" as well as actual intoxication, and (c) the revocation of Engel’s driving privilege would extend to mopeds and vessels; and (6) the Notice of Administrative Revocation (NoAR) did not explain the difference between administrative revocation and criminal suspension. (Emphases in original.) (Citations omitted.) Upon carefully reviewing the record and the briefs and having given due consideration te the arguments advanced and the issues raised, ve affirm the district court’s August 30, 2004 judgment for the following reasons: (2) In Freitas 1, as in the present matter, the respondent Darcy C.K. Freitas alleged that, “[jJust before the hearing . . . , @ woman entered the ADLRO office and asked to attend [the] hearing. The receptionist told the woman that the woman would have to show identification and sign in or she would not be permitted to attend the hearing. The woman refused to either identity herself or sign in and, thus, was refused entry.” 104 Hawai'i et 484, 92 P.3¢ at 994. After temporarily remanding +44 Non FOR PUBLICATION IN WEST'S HAMAT'E REPORTS AND PACIFIC REPORTER**# to afford Freitas a hearing before the ADLRO, we hiel1d (1) that the ADLO's identification and sign-in Procedure serves an inportent government interest in Securing ADLAG hearings, (2) thet the eecurity procedure is Unrelated to the content of the information discicses. at ADLO hearings, anc’ (3) that there is no less restrictive ray te mect the goal of securing ADLRO hearings. As euch, the ADLAG'# identification and sign-in procedure Goes hot inpernssesbly infringe open Freitas’s constitution: Tight to public hearing Sco Freitas v, Admin, Dir, of the Courts, 108 Hawai'i 31, 33, 40, 126 P.3d 673, 675, 682 (2005) (hereinafter, “Ereitas I1”]. Both Engel and the ADLRO hearing officer effectively acknowledged in the July 12, 2004 hearing that the sign-in procedure imposed upon the unidentified wonan in the present matter is the same as that validated by the ADLRO and this court in Freitas II.! We see no reason to waste tine retreading Freitas Il, either theoretically or by granting Engel his own hearing on the same issue. See Minnich v. Admin. Dir. of Courts, 109 Hawai'i 220, 227, 124 P.3¢ 965, 972 (2005); y n. Dt 108 Hawas"s 78, 83, 117 P.3d 108, 124 (2008). (2) Regarding Engel’s cbjection to the ADLRO’s hearing procedure, we struggle to pinpoint the defect and its purported TENGE) Exeitas|_1) noted that there ie 2 right to nave alhearing on the Sorcalied secursty procedures bere. eksiNG OFFICER: . . . 1 om aware of the 6: reling in Ereitae|_I]. I an elec eware that the rene Court Lit woul be et ‘the matter er wilt ipethepe thet hearing wilt ‘Supreme Court a 1g interest of net being rereti Ereitas']) ie rescives beca Sdenve think it makes ser gin every cose ‘oh the fine issue lenphoses ecdes.) ‘4+ Nor FOR PUBLICATION IN MEST’S KAWAI‘: REFORTS AND PACIFIC REFORTER'#® harm. In his concise statenent of points of error, Engel does not allege any prejudicial consequences of the ADLRO's procedure. Eventually, in his argument section, he implies that the ADLRO erred in aditting Officer Robert Cavaco's April 24, 2004 arrest report inte evidence, but the means by which Engel’s own six-step procedure would have ameliorated the supposedly incorrect admission of evidence eludes us. He implies that this court faslure should draw a negative inference fron the legislatur: to enumerate “arrest reports” as a type of admissible evidence, but nowhere does he explain how his on procedural steps would preclude consideration of Officer Cavaco’s arrest report.? In any case, we disagree with Engel’s self-serving reading of HRS § 2918-38. HRS § 291E-38(d) (3) at least implies ceive” evidence and that the hearing officer has discretion to determine its weight. Accord Desmond v. Admin, Dir, of the Courts, 91 Hawai" 212, 218, 220, 982 P.2d 346, 352, 354 (App. 1998) (construing pricr law) ("*(T]he technical rules of evidence applicable to judicial proceedings generally do not govern agency proceedings, and need not be observed so long as evidentiary rules which are applied are not applied in an arbitrary or oppressive manner that deprives a party of his or her right to a -1") (quoting 2 Am. Jur. 2¢ Administrative Law § 345 (1994)), rev'd on cther grounds, 90 Hewei'i 301, 302, 978 P.2d fair hearin 738, 740 (1999). Moreover, subsections (g) and (h) do not purport to be an affirmative enumeration of admissible evidence Engel's underlining of “competent” in his he Goes not believe the arzeet report to De yikes us a: @ sonexhat substantive question, net only MOT FOR PUBLICATION IN WEST’ HAMAI'E REFORTS AND PACIFIC REFORTER®+# or to exclude evidence outside their purview, Even Engel’ argument seens to concede that, if its “evidentiary value” so warrants, the hearing officer is empowered to admit an arrest report. Ses also Dunavay, 108 Hawai'i at 84, 117 P.3d at 115 (where appellant “nade no showing that . . . the arrest report wlas) irrelevant or prejudicial,” holding that, “while the hearing officer is not required by statute to admit the arrest 108 Hawai'i at 46 n.19, 116 P.3d at 688 n.19 ("HRS § 2818-36 does report, she did not reversibly err when she did so” not prohibit the adnission of a police report... . Moreover, the fact that HRS § 291E-3(6] (h) refers only to sworn statenents «and not police reports(] does not necessarily indicate a legislative intent to [exclude] police reports . . . , assuming their relevance ané non-prejudicial nature.”). (3) (2) We are unpersuaded by Engel’'s argunent thet the accident rendered the ensuing FSTs utterly inadmissible. Aside from the vast prosecutorial obstacles that would spring from rule excluding all post-accident FSTs, such a rigid holding would (4) incorrectly divest the hearing officer of her or his avthority to “[rJeceive and determine the relevance of evidence,” gee HRS § 281E-38(d) (3), and (44) Sonore Minnich, in which we rejected the driver's argunent that his FST results were inadmissible, inter alia, because he “had been involved in a major car accident,” 109 Hawai'i at 226, 124 P.3d at 971. ret| insured) and thet he wee fine. the accident haa an effect cn the SFTE." Tn the present setter, while Engel o2d ‘ove that he woe unetarred by the aceise th Officers ie8) Be “Engel ois = {44 NOP FOR PUBLICATION IN WEST'S WAWAI'T REPORTS AND PACIFIC REPORTERS#® (b) At least with respect to the walk-and-turn test, the NHTSA manual directs that officers’ field notes may document “conditions that may interfere with suspect’s performance” alongside other factors indicating intoxication. Appending such qualifiers would cbvicusly be unnecessary if any such “condition{]” obliterated the test report's admissibility altogether. Admittedly, the Intermediate Court of Appeals (ICA), in State v. Ito, 90 Hawa‘ 225, 978 P.2d 192 (App. 1999), categorically rejected the district court's finding of probable cause inasmuch as (i) the language of the NHTSA manual disavowed the FSTe’ validity when the tests deviate from “standardized . . elements,” and (ii) the investigating officer admitted that the horizontal gaze nystagmus test (HGN) “nay have been sincomplete.'” See id. at 244-45, 976 P.2d at 210-11 (emphasis omitted). Nevertheless, in the present matter, it is undisputed that Officer Timothy Tenney held the HGN stylus “approximately 18 inches in front of [Engei's) face” and that he used some form of k-and-turn test, if only s naturally occurring Line for the one. The hearing officer was satisfied (1) that eighteen inches from Engel's face “approxinate(d]” twelve to fifteen inches fron his nose, and (4) thet Engel’s loss of balance would have occurred even with an “actual” line, whatever thet is. Moreover, Engel reads the NHTSA manual incompletely and inaccurately. The NHTSA menval adaite “that the (JFSTs will not always be administered under ideal conditions,” but notes that, “[e]ven then adninistered under less than ideal conditions, they will d useful indicators of impairment. generally serve as valid  s+ not FOR PUBLICATION IN WEST'S HAWAr'T REPORTS AND PACTPIC REPORTE Slight variations from the ideal . . . may have some (e]ffect on the evidentiary weight given to the results. However, this doe not necessarily make the [JFSTs invalid.” In regards to the walk-and-turn test, the parties overlook the manual’s express conment that the line used can be “real or imaginary,” although it must be “s designated straight line.” (4) (2) We disagree with Engel’s assertion that Kevin Bailey's April 21, 2004 sworn statement did not “establish[] that the Intoxilyzer . . . had been properly maintained” (emphasis in original), @ precondition to admissibility under HRS § 2918-36(a) (2) (C). In Park ys Tanaka, 75 Haw. 272, 279, 859 P.2d 917, 921 (1993), the ICA held that “the statement that ‘[t}he Intoxilyzer used ha[s] been in proper working order when the test wae conducted’ presupposes that the supervisor tested the machine and that it was working properly, thus fulfilling the requirenent cf HRS § 286-257(8) (2) (C)” (now HRS § 2916-36(a) (2) (C))- Id, at 278-79, 889 P.2d et 921 (emphasis added) (brackets in original); see also Miller v. Tanaka, 80 69, 910 P.2d 129, 140 (App. 1985). The same can be a's 358, said for Esiley’s statement that “(t]he Intoxilyzer was operating accurately in compliance with (HARI § 11-114-2" (emphasis added), which requires monthly accuracy verification irrespective of whether the Intoxilyzer’s use on an actual suspect is imminent. (b) Next, in his argument section, Engel urges that castro nin. D: rts, 97 Hawai'i 463, 40 P.3d 865 (2002), was wrongly decided and “makes 2 mockery of State v Wilson, 92 Hawal'l 45, 987 P.2d 268 (1999), and its progeny,” inaemuch eg “a valid chemical test or refusal [is] a... S04 NOP FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*#* prerequisite to ADLRO jurisdiction.” In the present context, Engel’s argument can only mean that the Intoxilyzer supervisor's failure to use a form of the word “maintenance” in his April 21, 2004 statement stripped the ADLRO of jurisdiction altogether. Ironically, Engel fails to even hint at this argunent in his concise statenent of the points of error as required by Hawai'i Rules of Appellate Procedure (HRAP) Rule 28(b) (4), compelling us to “disregard{]" it. In any case, Dunaway and Ereites 11 squ test result over 0.08 or a refusal to take a chemical test is not ely rejected this argument, holding “thet a valid a jurisdictional prerequisite for a(n] . . . administrative license [revocetion] hearing.” Dunaway, 108 Hawai"i at 64, 117 P.3d at 115 (quoting Freitas II, 108 Hewai'i at 46, 116 P.3d at 688). (5) (2) In Dunaway, we held that the HPD-3968 need not expressly inform respondents that they may refuse to be tested. See 108 Hawai'i at 60, &5 6 n.12, 86-87, 117 P.3d at 111, 116 & n.12, 117-18. “[T]he [HPD-396B] . . . adequately convey[s) that refusal [i]s the alternative and, thus, the opposing option to consenting to a test.” Id, at 8, 117 P.3d at 116. In the present matter, the HPD-396B contained the same language as that discussed in Dunawev. Consequently, we hold that Engel was fully apprised of his options and the associated consequences. (b) Engel appears to argue thet the HPD-3968 should have alerted him that revocation would require net only a “failed” breath test or @ refusal but also reasonable suspicion and probable cause. In Dunaway, we confronted this same argument and soundly rejected it. The “HPD[-)39€B need not notify drivers 4 oF FOR PUBLICATION IN WEST'S HIANAI'T REPORTS AND PACIFIC REPORTER'®* that the police must establish reasonable suspicion to stop and probable cause to believe a driver is O[V]UI(1] in an administrative license revocation hearing, in the absence of a statutory directive to thet effect." Id, at 86, 117 F.3d at 117. In the present matter, Engel plainly fails to identify such “a statutory directive.” (c) Dunaway alse azgued, as does Engel, that he was not Ja made aware that a “moped” or a “vessel” could be consid wvehicle” for administrative revocation purposes. We were unpersuaded: Under BRS § 261E-1, Ya ‘vehicle’ includes a motor, vehicle, moped, anc'a vessel." “Vehicle” ie defined as a "means of Cereying or ty: ing genething." Webster's Tenth Eellegiate Dictionary 1308 (1993). We believe the term “vehicle” se a term of croinery usage and i2 bread encugh te inform @ person of ordinary intel include a neane of ground transportation such as a Roped. Therefore, Dunaway's claim that he was unaware that 2 moped was 8 vehicle must fai) (the) HFD[~) 3865 S260 term “vehicle” includes a "ve thet the term yenicle also refers te “s'venicie. « haters of the crate.” Thie ie consistent with SRS § 2816-1, nich staves that “a ‘vecel’ neane all description of Metercraft that are ured and ere capable of berng used as teens cf transportation on or in the water.” fence, the HPo(=]396E|"e] referencee te “e venscle .. . in the waters” TMeula refer tee neons of transportation empleyed in ine hater. Therefore, Ounewey wae not exreneously interned ae to the word "venicie.” Dunaway, 108 Hawai'i at 66-87, 117 P.3d at 117-18 (footnotes omitted) (sone brackets and ellipses added and sone in original). (6) The NoAR patently distinguishes between an administrative revocation and s criminal OVUII proceeding. It explains, under the heeding “CRIMINAL PROSECUTION” (emphasis in original), that “[t]he administrative revocation process is a civil administrative proceeding that is separate and distinct from criminal prosecution, Criminal charges filed pursuant to + Nor FOR PUBLICATION 2% MEST’ S HAWAI'T REPORTS AK PACIFIC REFORTER!+# HRS §| )291E-61 may be prosecuted concurrently with the administrative proceeding.” We previcusly recognized the vacancy of the assertion “that [the] HPD[-]3968 does not adequately explain the distinction between administrative revocation and criminal suspension,” in the case of Dunaway, who was represented by the same counsel es Engel. See Dunaway, 108 Hawai'i at 60, 62, 87, 117 P.3d at 121, 113, 118. We find this argument to be ly and palpably without merit as to indicate bad faith on the pleader’s part such that argument to the court was quired," see, #.g., Child Support Enf, Agency v, Doe, 109 Hawai'i 240, 253, 125 P.3¢ 461, 474 (2005) (quoting Rhoads vy. Okamura, 96 Hawai'i 407, 414, 49 P.3d 373, 380 (2002), and, were it not for the fact that Dunaway was filed after Engel’s briefs, not we would consider this point of error “frivolous” so as to warrant notice under HRAP Rule 38. We hope that Dunaway has done away with this baseless challenge. Therefore, IP IS HEREBY ORDERED that the judgment from which the appeal is taken is affirmed. DATED: Honolulu, Hawai'i, March 28, 2007. on the briefs: Timothy J. Engel MAL eae~ S cee Le Pceea © Spawn ren Deputy Attorney Genered, for the respondent-appellee Boe Dale bo Administrative Director of the Courts, State of Hawai'i 10 

833a8d65c101d458f44d3b47da64f91965a58ac4d44a1339cd74b035bf59eecb

2007-03-28T00:00:00Z

737fd6b8-fd4f-4281-9996-b95eed39bcc9

In re United Public Workers, AFSCME, Local 646, AFL-CIO

hawaii

Hawaii Supreme Court

“** NOT FOR PUBLICATION *** no, 27962 3 IN THE SUPREME COURT OF THE STATE OF HAWAI'Y 2 eee © 0. 05-1-1388, In the Matter of UNITED PUBLIC WORKERS, AFSCME, Local 646, AFL-C10, Complainant-Appellant, Cross-Appeliee and LARRY J. LEOPARDI, Chief Engineer, Acting Director, Facility Maintenance, City and County of Honolulu; CHERYL OKUMA-SEPE, Director, Department of human Resources, City and County of Honolulu; and JEREMY HARRIS, Mayor, City and County of Honolulu, THOMAS LENCHANKO, District Road Superintendent, Department of Facility Maintenance, City and County of Honolulu; and CYNTHIA JOHANSON, Department Coordinator, Department of Facility Maintenance, City and County of Honolulu (2005-124), Respondent s-Appellees, Cross-Appellants, and HAWAIT LABOR RELATIONS BOARD, BRIAN K. NAKAMURA, ‘SPRINGER and KATHLEEN RACUYA-MARKRICH, Agency-Appellees, Cross-Appellees. EMORY J. SIVIL No. 05-1-1391, In the Matter of UNITED PUBLIC WORKERS, AFSCME, Local 646, AFL-CIO, Complainant-Appellant, Cross-Appellee and LAVERNE HIGA, Chief Engineer, Acting Director, Facility Maintenance, City and County of Honolulu; KENNETH NAKAMATSU, Director, Department of Hunan Resources, City and County of Honolulu; and MUF1 HANNEMANN, Mayor, City and County of Honolulu; THOMAS LENCHANKO, District Road Superintendent, Department of Facility Maintenance, City and County of Honolulus and CYNTHIA JOHANSON, Department Coordinator, Department of Facility Maintenance, City and County of Honolulu, Respondents-Appellees, Cross-Appellants, and ase *** NOT FOR PUBLICATION *** HAWAII LABOR RELATIONS BOARD, STATE OF HAWAII, Agency-Appellee, Cross-Appellee APPEALS FROM THE FIRST CIRCUIT COURT (CIV. NOS, 05-1-1388 and 05-1-1391) ORDER DISMISSING “yoTTc! 0 THE SUPREM! 7m Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.) Upon review of the “notice of appeal to the suprene court” filed on March 9, 2007 by United Public Workers, AFSCHE, cal 646, AFL-CIO (UPW), it appears that UPW purports to appeal to the supreme court from a March 7, 2007 order of the Intermediate Court of Appeals granting @ stay pending appeal Pursuant to HRAP 8. UPW purports to appeal pursuant to HRS $$ 380-10 (1993) and 602-5 (1993), but those statutes, as amended in 2004, do not authorize a March 7, 2007 order of the Intermediate Court of Appeals. See RRS $§ 380-10 (Supp. 2006) and 602-5 (Supp. 2006), Therefore, IT 18 HEREBY ORDERED that UPW's March 9, 2007 “notice appeal to the supreme court of the of appeal to the supreme court” is dismissed. DATED: Honolulu, Haws “4, Maren 29, 2007, 

77c2af0126452847ef5114336ea5f5c310423441f3948e8f81cb977caf5f0ac9

2007-03-29T00:00:00Z

398774ef-4fde-4602-8843-6b03c88bfd00

Tortorello v. Tororello

hawaii

Hawaii Supreme Court

No. 27459 IN THE SUPREME COURT OF THE STATE OP HAWAT'T Jd 91 a3 coa2 RENEE A. TORTORELLO, Petitioner/Petitioner-appel lee, Leu | WILSON TORTORELLO, JR., Respondent /Respondent-Appellant. ee CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (PC-DA NO. 05-21-1453) RDER NG APPLICATION IT OF CERTIORARI (By: Noon, C.5., for the court") Petitioner/petitioner-appellee Renee A. Tortorello’s application for writ of certiorari, filed January 16, 2007, is hereby accepted. DATED: Honolulu, Hawai'i, February 16, 2007. FOR THE COURT: ‘Theodore ¥. H. Chinn, for petitioner/petitioner- appellee, on the application * considered by: Moon, C.J., Levinson, Nakayama, Acobe, and Duffy, aJ. aa 

7639bc654997b1256fcc41539077de11bc3606baa0f683e5d3ff2b57320f5992

2007-02-16T00:00:00Z

aa0546fd-671e-4ea9-af15-15154debb064

In re Department of Human Services v. Luke

hawaii

Hawaii Supreme Court

No, 28436 IN THE SUPREME COURT OF THE STATE OF HAWAT'I In the Interest of ae Fz £ c DEPARTMENT OF HUMAN SERVICES, 3 STATE OF HAWAI'I, Petitioner, THE HONORABLE LINDA K.C. LUKE, JUDGE OF THE FAMILY COURT, FIRST CIRCUIT, Respondent. ORIGINAL PROCEEDING (FC=8 NO. 03-09189) ORDER DISMISSING PROCEEDING Moon, C.J., Levinson, Acoba, and Duffy, JJ., and 18 Judge Nakamura, (By: Intermediate Court of App® in place of Nakayama, J., unavailable} upon consideration of the stipulation withdrawing the petition for a writ of mandamus, which is deened a motion for dismissal pursuant to HRAP 42(b), IT IS HEREBY ORDERED that the motion is granted and this proceeding is dismissed. IT IS FURTHER ORDERED that the stay of the hearing that was scheduled for March 12, 2007 in FC-S No. 03-09189 is vacated: Hawai'i, March 20, 2007. ope Vic Phares [PL Cres «, bao ey Us Piehorrmen DATED: Honolulu, 

ef85bd78bacb3816e267ecb0c43f01091f4b42ba39f16de59defdeb3f04967e7

2007-03-20T00:00:00Z

017ac376-a586-4edb-9119-72f154ae0956

Savini v. University of Hawaii.

113 Haw. 459

hawaii

Hawaii Supreme Court

‘tee FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** ee IN THE SUPREME COURT OF THE STATE OF HAWAT'L — 000 —- Sees SOSAIETE L, SAVINI and BETTE SAVINI, Plaintiffs-Appell UNIVERSITY OF HAWAI'I, Defendant-Appellant, and JOHN DOES 1-10, JANE DOES 1-10, DOB PARTNERSHIPS 1-10, DOE CORPORATIONS 1-10, DOE NON-PROFIT ENTITIES 1-10, ‘and DOE GOVERNMENTAL ENTITIES 1-10, Defendants. —_—_— Sse wo. 26747 if cane APPEAL FROM THE FIRST CIRCUIT COURT (CIV. NO. 01-1-1052-04) MARCH 19, 2007 MOON, C.J., LEVINSON, NAKAYAMA, ACOBR, AND DUFFY, JJ. INION couar By LEVINSON, ‘The defendant-appellant University of Hawai'i (UH) appeals from the first circuit court’s July 12, 2004 order, the Honorable Gary W.B. Chang presiding, denying UH's April 7, 2004 (1993) and motion (citing Hawai'i Revised Statutes (HRS) § 662 Hawai" Rules of Civil Procedure (HRCP) Rule 12(b)"), to dismiss HRS § 662-4, entitled “Statute of Limitations,” provides: "A tort claim agsinst the State’ shell be forever barred unless action is begun within feo yeare after the claim accrues, ea 1 ee isis fin 1a ss aD te eit coded. |The legislature added the emphasized text on June HPibic. Sue 1976 aw, Ses. L. Act 219, $$ 16 anc 23 et 539, 541. ECE Rule 12(b] permite certain defenses or objections to be raised by notion rather than in ® responsive pleading, including "(1) lack of (Continued. . na FOR PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REFORTER *#* the June 5, 2001 first amended complaint of the plaintiffs- appellees Sosaicte L. and Bette Savini (hereinafter, “the Savinis"]. On appeal, UH asserts that the Savinis’ claim for relief is barred by HRS § 662-4 inasmuch as more than two years elapsed between the onset of the Savinis’ injuries -- which, UH asserts, triggered the “accrual” of their claim -~ and the Savinis’ initiation of their lawsuit more than three years later. As we hold dniza in section III.B.5, the Savinis’ claim did not accrue until the quantum of the medical care they actually received exceeded the medical-rehabilitative limit set forth in HRS § 431:10C-306(b) (2) (1993).* It follows that the 2(.,scontinued) jurisdiction over the subject matter” and “(6) failure to state = claim upon hich relief can be granted.” HRS § 431:10C-306, entitled "Abolition of tort Liability,” Provided in relevant part (2) Except as provided in eubsecticn (bi, [the Hawai'i Motor Vehicte insurance Lav, ilkS ch. 431, ert, 10G;] abolishes tort Hability of the following persons with ‘respect to accidental harm, arising from motor vehicle accidents oocureing An this Stats {1) ‘Ouser, operator, Sr user of an insured motor vehicles of (2) Operator or user of an uninsured motor vehicle uho operates of uses such vehicle without reason to believe st to be an Unineured motor vehicle. (b) Tort Liability is not abolished as to the following persons... in the following cireunstances: i2) injury occurs to such person in a motor vehicle accident in which the amount paid or accrued exceeds the medical Fehabilitative Linit established in [HRS §] ¢31:10¢-308 for expenses provided in [HRS §) 431:10C-103(10) {Al and (B)[) (eongerning personal injury protection benefits) | Effective January 1, 1998, the legislature repealed the floating medical- rehabilitative Limit, fixed the threshold st $5000.00, and further. snended HRS 5°431:106-306 in respects. inmatersol to the present matter. Sex 198? hax. L. Act 251, $843, 51, and 70 at 542, 551, 553. Effective July 20, the legislature defined nore preciaely the amounts to be included in the (continued...) ‘+4 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** circuit court correctly denied UH’'s motion to dismiss and, accordingly, we affirm the circuit court’s July 12, 2004 order. 1. BACKGROUND ‘The Savinis allege that, on Novenber 13, 1997, UH professor Thomas T. Bopp, while driving a vehicle owned by the State of Hawai'i (hereinafter, “the State”) at Honolulu International Airport, struck and physically injured Sosaiete and, hence, inflicted emotional distress on Bette. ‘These facts [hereinafter, “the accident”]* were alleged both in the Savinis’ April 3, 2001 complaint for damages against the State and Bopp and in their June $, 2001 first amended complaint, which was materially identical except that it changed the named defendants by substituting UH for Bopp and the state. on April 7, 2004, UH moved to dismiss the Savinis’ action pursuant to the State Tort Liability Act (STLA), HRS ch. 662, in particular HRS § 662-4, and HRCP Rule 12(b), see supra note 1. In particular, UH argued that the Savinis “were required to file their claim within two years of the date of the “ (Citing Waugh v. Univ, of Hawaii, 63 Haw. 117, 128, accident (continued) calculation of expenditures and, effective July 20, 1998 and January 1, 2002, further anended HRS § €31/10c~s06 in innaterial respects.” Seg 2001 Haw. Se L, Act 157, $6 31 and 39 at 401, 404; 1998 Haw. Sees. L. Act 275, §§ 22-23 and 33 at 934, "940. » Nowhere do UH oF the Savinis discuss any specifica of the accident alleged injuries, nor are they particularly relevant to this appeal. Inasmuch as UH raised the statute of limitations ae a defense and the Seviniz aio not produce any colorable evidence that their injuries were latent for a period following the accident, of that UK's torticus conduct was Continuing, we a#eune that the Savinis were injured and should have know they were injured, if at all, mediately upon the cecurrence of the accident. 3  ‘04 FOR PUBLICATION IN WEST’ S KAWAI'T REPORTS AND PACIFIC REPORTER 621 P.2d 957, 966 (1961); Bissen v, Fuiii, 51 Haw. 636, 638, 466 P.2d 428, 431 (2970); Rumball v. State, Civ. No. 04-1-0038K (Haw. 3d Cir. May 4, 2004); Brub v. Bedish, Civ. No. 03-1-0500-03 (Haw. Ast Cir. Oct. 22, 2003); Wollman v, Gross, 637 F.2d S44, 547 (8th Cir. 1980); Mendiola v. United States, 401 F.2d 695, 697 (Sth Cir, 1968); United States v. Webb Trucking Co., 141 F. Supp. $73, 575 (D, Del. 1956).) In their memorandum in opposition, the Savinis urged (1) that “accrue” and “occur” are distinct terns and concepts, as construed by this court and by the Mississippi Supreme Court, (2) that, regardless of the date of the accident, their “claim” did not “accrue,” within the meaning of HRS § 662-4, until the medical-rehabilitative limit set forth in HRS § 431:10C-306(b) (2), see supra note 2, was exceeded, and (3) that the medical-rehabilitative limit constitutes a threshold quantum of resultant medical expenses beneath which motor vehicle accidents are generally' characterized as “no-fault” such that, as a matter of law, tort liability does not attach to personal injuries. (Quoting Teller v, Teller, 99 Hawai'i 101, 110, 53 P.3d 240, 249 (2002) (quoting In re Akana, 42 Haw. 415, 444 (2958) (Stainback, J., dissenting) (“The dictionary gives the following definition for the word ‘accrue’: ‘To come into existence as an enforceable claim to vest as a right; as, a cause of action has accrued when the right to sue has become vested.’")); Stubbs v, Miss, Farm Bureau Cas, ins, Co., 625 So. < None of the parties discuss the “verbal threshold,” ARS § 431:100~306(6) 11) to. (3), (Supp. 2001), whereby sufficiently serious and Permanent injuries lof death) are deemed to trigger tore Liability without Proof that the sonetary threshold has been exceeded. We proceed on the Sscumption that the verbal ehreshols dese not apply to the present matter. 4 FOR PUBLICATION IN WEST’ S HAWAT'T REPORTS AND PACIFIC REPORTER +++ 2d 8, 15 (Miss. 2002) ("*Occur’ and ‘accrue’ are not synonymous, legally or otherwise . . . .”).) The Savinis noted that HRS § 431:10C-315* provides that the limitation period “runs from the date of the accident or . . . of the last no-fault payment, (*] whichever is later.” Further to the foregoing, the Savinis asserted that, as of April 3, 1999, two years prior to the filing of their original complaint, Sosaiete’s workers’ compensation carrier had expended only $1244.06 on his behalf, i,e,, less than the monetary threshold, which was $13,900.00 at the time of the accident, see Hawai't Administrative Rules § 16-23-10(c) (1999). The Savinis attached an “Exhibit A,” which appears to be a statement of workers’ compensation benefits paid on Sosaiete’s behalf, and 2 declaration of the Savinis’ counsel purporting to authenticate the exhibit. In its reply, UH added that, inasmuch as the legislature, in 1976, amended HRS § 662-4 expressly to protract the STLA’s limitation period te six years in medical malpractice cases involving a plaintiff's late discovery of the injury, see supra note 1, but did not create “any exception for RS § €31:100-315(b) (1993), amended py 1997 Haw. Sess. L. Act 251, $5 49 and 70 at 545, 853, provided in relevant part: No suit arising out of a motor vehicle accident shall be brought in tort more than the Later of: (1l'two years after the date of the sotor vehicle accident upon which the claim is bared; (or) ia) two years after the date of the last payment of workers! compensation benefits arising from the moter vehicle accident: Effective July 20, 1998, the legislature amended 2 different subsection in immaterial respects. S26 1998 Haw, Sess. L. Act 275, $6 28 and 37 at 935-36, 540. ‘Presumably, the Savinis mean to include workers’ compensation benefits," inasmuch aa their Exhibit A implies that they crossed the monetary. threshold by virtue of the workers’ compensation payment of October 23,2000. 5  + POR PUBLICATIGN IN WEST! S HAWAI'I REFORES AND PACIFIC REPORTER +4 + automobile accidents,” the legislature did not contemplate extending the Limitation peried beyond two years after the occurrence of the accident itself. At its June 1, 2004 hearing, the circuit court ruled in relevant part as follows: [tine cause of action does not accrue until... the plaintiff reaches the thresh Jold and this record does not Ingicate when the thresh [Jold was met. T'think st indicates that (the Savinis] halve] Ancurred at least $17,000... . of expenses, but 1t doesn’t show when in tine the tort chresn(Jole amcust of [#)13, (9100. - + was set... + Im interpreting that word ‘acerued” to begin » | | Gpon that point in tine when the plaintsff sneurs of ie pasa the thresh{Jolé amount of posfeult [sic =~ presumably, "workers" compensation,” 536 SUBEA note 6,) benefits. Accordingly, the circuit court's July 12, 2004 order denied UN's motion to dismiss, concluding that “[a] claim against [UK] arising out of a motor vehicle accident does not ‘accrue,’ and “the two-year statute of limitations . . . does not begin to run(,] . . + unt{l medical/rehabilitative expenses incurred by the injured person exceed the applicable tort threshold.” on August 5, 2004, the circuit court ordered that UM could pursue an interlocutory eppeal from its July 12, 2004 order, see HRS § 641-1() (1993). On August 9, 2004, UH filed its timely notice of appeal.  ‘+4 FOR PURLICATION IN WEST’ § HAWAI'I REPORTS AND PACIFIC REPORTER TT. STANDARDS OF REVIEW Denial Of Summary Judament? ie review the circuit court’s grant or denial of summary Jusgnent de nous. inion. Kens, 94 Hawaii 213, 221, 11 F.3d 1, 8 (2000) The standard for granting * motion for summary judgsent ie settles: (slummary judgment is appropriate if the pleadings, depositions, answers to Unterrogatories, and admissions on file, together with the affiaavits, 1f any, show that there ig no genvine issve as to any materia If, on motion to dismiss for failure of the Pleading to state 2 Claim upen which relief can be Srenteds matters outside the pleading are presented to ane not excludes by the court, tne notion shall be Treated as one for summary judgment and disposed of as provided in (MRCP) Rule 56 ss WRCP Rule 12(b). HRCP Rule 96, entitled “Summary Judgment,” provides in relevant port (e) . . . The Sudgnent sought shall be rendered forthwith if the pleadings, ‘depositions, enewers to interrogatories, and Sonisaions on file, together with the affidavits, if any, show that there is no genoine ‘sue as to any msterial fact and tht the moving party is entitied to's Judgment as a matter of Lew. ei | |. (oiefense required... . when 2 motion for sunnary Judgment 2 made and supported as provided in this rule, an adveree party nay not rest upen the mere allegations or denials Of the adverse perty's pleading, but the adverse party" s respons by afficarite or 2s otherwise provides in this role, must set forth specific facte showing that there is a genuine issue for tele + In the present matter, the Savinis’ on mencrandun in opposition to U8's notion £0 dianise drew the circust court's attention te facts beyond the scope Of thets complaint, and the circuit court relies upon the allegation that the Sovinis’ PIP benefits hed accrued pieceneal. Ch. Bently 29 Hawalt 215, 321, 972 F.26 1081, 1087 (i993) (where “there [wa]s no [nications . . that the cézcuit court... relied upon any facte that were hot alleged if the » - + complaint,” holding thet mere “references to facts, Soteide the plescings” in the defendant’s notion to dismiss did not Stransfore” it inte a motion for sunmary Judoment); Buw. Au, 62 Haw. 210, 214, 626 F.2d 173, 177 (1981) (where “ehere [wals no indication in the record Gf unether the trial court considered the interrogatories in making its String." holding that “notion to dismiss was not transformed into one for Sunnary judgment”). Accordingly, we apply the summary Judgnent standard of feview rather than Limiting ourselves to the allegations set forth in the complaint 04 FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER *** fact and that the moving party is entitled to Judgment as 2 matter of low. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential Glenents of a cause of action or cefense Seserted by the parties, The evidence must be Slewes in the Light nest favorable to the. ronvmoving party. In cther word#, we must view Sil of the evidence and the inferences drawn therefrom in the light most favorable to the party opposing the motion. Id, (citations and internal quotation marks omitted). Qusrubin z Thronas, 107 Hawai'i 48, 56, 109 P.3d 689, 637 (200s) (quoting Durette x. Alcha Plastic Recycling, Inc, 108 Hawai't 490, B01, 100 P-3a 60, 71 (2008) (quoting SAMRGHEe._Euu, 105 Hawai'i 112, 137-26, 94 P.3d 667, 672-73 (2004) (quoting Kahale v. Citys County of Honolulu,’ 104 Hawai'i 341, 344, 90 P30 233, 236 (2008) (quoting SCI Mant. Sore, ve Sima, 101 Hawai'i 438, 445, 71 P.3d 389, 396 (2O0sT (quoting Coon’. City ¢ County of Honolulu, 98 Hawai't 233, 244-45, 47 Pe3d 348, 359-60 (2002) TT) Willis v. Swain, 112 Hawai'i 184, 188-89, 145 P.3d 727, 731-32 (2006) (brackets in original). B. Statutory Interpretation “the standard of review for statutory construction is established. The interpretation of e statute is 3 wel uertion ef law which this court reviews de now.” Liberty Sit, Five Ine. co, -v, Dennison, 108 dawai'® 360, 304,120, Posgaiis, iis (200s) tqucting Geous, 103 Hana" 206, 211, 62 Pasa 386, 351 (2003)) internal quotation marks cmitted). In ‘so doing, this court must adhere to the well-established rule of statutory Senstruction that the “forenost obligation is to ascertain Gnd give effect. to the intention cf the legislature, which if to be cotained primarily fron the language contained in the statute itself.” Gravy, Admin, Diz. of [the] court, 84 Houal't 138, 148, 931 P-2a 580, S90 T1e87) (eltations oaitted) Wright v. Home Depot U.S.A., Inc., 111 Hawai'i 401, 407, 142 P.3d 265, 271 (2006). On appeal, UH begins with a disquisition on sovereign immunity, implying that to hold that the Savinis’ claim did not 8 ‘ee FOR PUBLICATION IN WEST’ § HANAZ'T REPORTS AND PACIFIC REPORTER ** accrue until they exceeded the medical-rehabilitative limit would exceed the scope of the State’s (and, hence, UH’) consent to suit get forth in the STLA, HRS ch. 662: = The Language of the no-fault statutes at issue here do not puspore to change the SILA's statute of Visitations(, HRS § 662-4, gee supre note 1] injhe two-year statate of Linstation { (iH presumably’ means “the Savinie’ cleis”)) “accrue(d]” at the Eine of the motor vehicle accident. Any attempt to manipulate (HRS § E62-4] by changing the legal meaning of Ngccrual” to accommodate one’s sense Of public policy offends (1s) plain language - . - (2]te protections Should not be watered down Sy anyone other than the state Legislature: (Quoting Haw. Const. art. x, § 5 ("[UH] is . . . established as the state university and constituted a body corporate.”); HRS §§ 304-2 (1993) (same), 304-6(a) (Supp. 1999) (*[UH] shall be subject to suit only in the manner provided for suits against the State... . All defenses available to the State, as well as all limitations on actions against the State, shall be applicable to (uH].“):* Tavlor-Rice v, State, 105 Hawai'i 104, 120-12, 94 P.3d 659, 665-66 (2004); Fought & Co., inc, v, Stee] Ena’a & Erection Co., 87 Hawai'i 37, $5, 951 P.2d 487, 505 (1998); Waugh, 63 Haw. at 125, 621 P.2d at 965; Oahu Ry, & Land Co, v, United States, 73 F. Supp. 707, 708 (D. Haw. 1947).) (Citing Chun we Bd_of Ts, of Emplovess’ Ret. Sys., 106 Hawai'i 416, 106 P.3d 339 (2005).) UK’s points of error reduce to @ single issue: whether the Savinis’ claim accrued at the time of the accident or when the amounts paid or accrued by virtue of Sosaiete’s injury * on ouly 1, 2006, the legislature effectively moved the quoted portions of HRS $§ 304-2 and -€{a) to the newly crested HRS $§ 304K-103 and PfoR (als respectively. See 2006 Haw. Sese. 1. Act 75, $§ 2 and 23 at 146-47, aie ‘+4 FOR PUBLICATION IN MEST’ S HAMAI'T REPORTS AND PACIFIC REPORTER ++ exceeded the $13,900.00 monetary threshold, see supra section Cc.’ UH argues: "at the tine [t]he two-year statute of Limitation “accrus Of the moter vehicle sceident fins § 662-4 does not provide for any delay of the enget of the. . period. - by .. «the Hawai'i Motor Venicie tasurance (Llaw(, sini Gh. 431, ave. 20c] Adniteadly, if thie Court were to reverse the ruling of the eizoust dourt |. . ana hold that the tuo year Statute of Linitation is strictly interpreted, there would bea "gap" for... persons who do not meet the dollar level Ehreshoid prior to the expiration of the two years. However, tne proper forum to address this gap is the Legislature UH contends “that it is obvious that the term ‘accrue’ in this context means th[e] date of the . . . accident.” (Quoting Wauah, 63 Haw. at 128, 621 P.2d at 968; Wollman, 637 F.2d at 547.) (Citing Bigsen: Mendiola, 401 F.2d at 697; Webb Trucking, 141 F. Supp. at 575.) Quoting Whittington v, State, 72 Hawai'i 77, 79, 806 P.2d 957, 958 (1991), UH adds that we have previously “refused to extend HRS § 662-4.” In their answering brief, the Savinis counter that HRS § 662-4's use of the term “accrues” contemplates that the two- year period began when they had a viable claim for relief over * ory as the State of Hawai'i, as amicus curiae, expresses it, Sidloes the tort threshold Lax, [HRS § 431:i0C-306(B) (2)y gee subKa note 2,] a law of general applicability that does not expressly incluse the state, iepiieaiy expand the waiver of sovereign innunsty snd spplicable statute of Limitatigns in the STA?” (Citing, e.gcy Tavlor-Rice; Vail v.Eaplovees’ Ret Sua 78 tow. 42, 58, 056 P28 1950, 1855 1299); Retecinatan Z-Seate, 7 Naw,’ 77, 78, 606 P.24 957, 958 (1991); Big teland Smaly Ranchers? Asera State, 60 Haw. 228, 236, $88 P.2d 430, 436 (1876)7 A.C. chock s. Kaneshiro, $1 How, 82, 451 F.2¢ 809 (1969); Marks v._AN tiga, 48 aw, "92, 96, 395 F.2d 620, 622 (3368); SOME efi F.20 474,477 (23 Cir. 1968)? 442 Fe20- 1299, 1303 (eh Csr, 1971); Qahe By & Leng ce, 73 f. Supp. at 108; Carter v. Cross, 373 So. ad E1, 82 (Fla. Dist. cee App. 1979); Stephens v. Dixen, S36 N.n.2a 755, 759 (wicn. 1995); Jackson eu pans. $30 NeEvza 1262, 2282 (NeY- 1986).) 10  FOR PUBLICATION TN WEST’ § WAWAI'T REPORTS AND PACIFIC REPORTER * which the cireuit court had jurisdiction, ise., when the workers’ compensation insurer's outlays exceeded the sum of $13,900.00. ‘hey reiterate that HRS § 431:10C-315, see supra note 5, provides that the applicable limitation period “runs from. . . the accident or . . . the last no-fault payment, (sic, see supra note 6,) whichever is later.” Furthermore, they urge that UH misconstrues Waugh, which “recognized” “the date when harm occurred and the date when a claim accrued . . . as being two potentially different dates.” (Quoting 63 Haw. at 127, 621 P.2d at 968.) B. analysis 1. Intreduction In general, “[a] cause of action for negligently harming a person . . . is complete when the harm occurs.” Restatement (Second) of Torts § 899 cmt. c¢ (1979 & Supp. 2006). However, a harmful incident and the “accru[ai]” of a resulting claim for relief may be temporally distinct under certain circumstances, such as where the tortious conduct is of a continuing character or the plaintiff's discovery of the cause of action is justifiably forestalled. See, e.g, Blair vs Ing, 98 Hawai'i 247, 264, 21 P.3d 452, 469 (2001) (quoting Havs v. City & County of Honolulu, 61 Hawai'i 391, 293, 917 P.2d 718, 720 (1996)). The question before us -~ whether the accrual of a tort claim, particularly against a sovereign defendant, is delayed until the accumulation of medical expenses exceeding the monetary threshold -- is one of first impression in Hawai'i. u  }+ FOR PUBLICATION IN WEST’ § WAMAI'T REPORTS AND PACIFIC REPORTER In other jurisdictions, “the statute of limitations may - run even if the . . . certain sum of money that must be exceeded before recovery may be had[] has not been attained.” Martin J. McMahon, Annotation, When Statute of Limitations Commences to Run on Automobile N u Claim, 36 A.L.R.dth 357, 362 (1985 & Supp. 2007); see also Lee R. Russ in consultation with Thomas F. Segalia, Couch on Insurance § 12) ‘even though the monetary threshold has not been fully satisfied, 2 (3d ed. 2006) (“The injured person may maintain suit provided it is clear that additional medical expense will be incurred and that the plaintiff will then exceed the threshold.”). Nevertheless, we conclude that, under Hawai"i lew, a plaintiff who relies on the medical-expense threshold as opposed to a verbal threshold, see supra note 4, has no claim at all, and the statute of limitations does not begin to run, until the plaintiff has actually received the requisite amount of “reasonably necessary” medical-rehabilitative treatment, as manifested through bills received or paid. 2. Fora viable tort claim to accrue under the monetary= x collateral source providing benefits to the plaintiff, must have actually incurred expenses that exceed the statutory Shreshold. ‘The plain language of HRS § 431:10C-306(a), see supra note 2, indicates the legislature’s intent to “abolish{]” tort liability derived from motor vehicle accidents except in cases of serious injury, leaving motor-vehicle-tort plaintiffs “generally” to “seek reparations from his [or her] own insurance company,” the insurer “of the vehicle in which [#/Jhe was a passenger,” or, 12  FOR PUBLICATION TN WEST’ § HAWAI'T REPORTS AND PACIFIC REPORTER + in the case of an injured pedestrian, “an insurance company covering any vehicle which caused injury to him” or her. See Sen. Conf. Comm. Rep. No. 4, in 1973 Senate Journal at 636; Hse. Conf. Comm. Rep. No. 13, in 1973 House Journal at 1219. In carving out the exceptions in HRS § 431:10c-306(b), the legislature created the monetary threshold so that, even without satisfying the “verbal threshold,” see supra note 4, tort Liability for a plaintiff's injuries would arise so long as the plaintif£ could denonstrate that the injuries were sufficiently costly.” See generally $-47 Damages in Tort Actions § 47.04(1] [a] (LexisNexis 2006) (“The theory is that, once an injury requires a certain amount of treatment, it will be deemed fa serious one even though it may not be specifically listed as a ‘serious injury’ under the verbal threshold.”). To that end, HRS § 431:10C-315(b), see supra note 5, which UH conspicuously omits 0c-306 (b) from its arguments, operates in tandem with HRS $ 43 extending the plaintiff’s limitation period until unrealized medical expenses have accumulated and the gravity of the plaintiff's injury and, hence, the presence or absence of a claim for which relief can be granted, is ascertainable. In other words, HRS § 431:10C-306 enables, indeed requires, would-be plaintifts to “wait and see” whether their expenses will be great enough to shift responsibility to another party. ‘The claim having “accrued” at such time after the accident as the monetary We said as much in Ho vs Leftwich, #8 Mawas't 251, 258, 965 F.2d 793, 800 (1998). ("[T]he provisions of HRS $ 451:10C-306 . . . permit() celculation of expenses for the purpose of satisfying the threshold Feguirenent either on the basis of those already aid or those merely acarusd.” (Eaphases acced.). 3  ‘+4 FOR PUBLICATION IN MEST’ S HAMAT'T REPORTS AND PACIFIC REPORTER threshold requirement is satisfied, HRS §§ 431:10C-315(b) generally allows the plaintiff to bring a lawsuit for up to two years after “(2) motor vehicle insurance(,] . . . optional additional benefits[,] . . . (3) . . - workers’ compensation|, and] public assistance benefits . . . have ceased.” In sum, construing HRS $§ 431:10¢~306(b) (2) (2993) and 431:10¢-315(b) 80 as to postpone “accrual” of claims based upon the medical-rehabilitative limit is necessary to effectuate the legislature’s “aboli(tion]” of most motor vehicle tort lawsuits. For a plaintiff to sue based on the mere expectation that expenses might exceed the medical-rehabilitative threshold would be to pursue a cleim that the legislature has expressly abolished. Moreover, the possibility of an eventually ripe claim does not justify a premature complaint: not even the best expert witness can ensure that such an inchoate claim will accrue before the plaintiff convalesces or dies due to causes unrelated to the alleged tort. 3. UB = crual date claim. Furthermore, the “wait-and-see” rule applies regardless of the sovereign status of the defendant. We agree with UM that, when the legislature amended the STLA in 1976 so as to lengthen the limitation period for medical malpractice claims, see supra note 1, it similarly could have extended, but did not, the life of motor vehicle tort claims. Nonetheless, this observation is of no avail to UH inasmuch as, until they reached the medical~ rehabilitative limit, the Savinis’ claim had not “accrued.” To construe the STLA’s usage of “accrue” any more narrowly would be a ses FOR PUBLICATION IN WEST'S HAWA'T REPORTS AND PACIFIC REPORTER *¥4 to resuscitate a class of tort claims that the legislature abolished. Nevertheless, the defendant's sovereign status could be relevant under circumstances not present in this case. Had the Savinis waited more than two years after the monetary threshold had been satisfied to file their lawsuit, UH could have relied on HRS § 662-4 as a statute of repose, regardless of whether two years had elapsed since “the last payment of workers’ compensation,” of, HRS § 431:10C-315(b) (3). In other words, HRS § 662-4 may accord a sovereign defendant some protection beyond that of HRS § 431:10C-315(b), but it is of no consequence in the present matter. Sosaiete having apparently exceeded the medical- rehabilitative limit on October 23, 2000, see supra note 6, HRS § 662-4 afforded the Savinis two years from the accrual of their claim Lue., through October 23, 2002 =~ within which to file their lawsuit. Accordingly, their April 3, 2001 complaint and June 5, 2001 first amended complaint were timely filed. 4. Ui's discussion of case law is unpersuasive, UH founders on extrajurisdictional interpretations of statutes that are materially distinct from those under scrutiny here. “Hollman stands on all fours with the instant case” is quite an overstatement; neither it nor Mendiola nor Webb Trucking involved a statutory tolling or delay provision, a medical threshold, or any comparable statutory exception to a general abolition of tort liability. In Wollman, the United States Court a5  "+ FOR PUBLICATION IN WEST’ S HAMAI'T REPORTS AND PACIFIC REPORTER ++* of Appeals for the Eighth Circuit" affirmed a federal district court's dismissal of the plaintiffs complaint on the grounds that it “had not been presented within two years of . . . the accrual of the claim as required by (28 U.S.C. 2401(b)).” 637 F.2d at 546. The plaintiff sought a judicial extension of the limitation period on the grounds that, while he knew that the defendant worked for the federal government, he did not know “of the legal significance of this fact,” i.e., that the government might have been liable. See id, at 547-49. Specifically, the plaintiff relied upon the “blameless ignorance” doctrine and the rule of United States v. LePatourel, $93 F.2d 827, 831-32 (8th Cir. 1979), which effectively delayed the onset of @ limitation period pending the resolution of a “novel question of law.” See Ad at 547-48. ‘The defendant's arguable sovereign status was irrelevant to the court's conclusion that the plaintiff's belated development of his respondeat superior theory did not constitute “blameless ignorance” or trigger the LePatourel rule. See id, at 548, 549 6 n.6. On the other hand, in the present matter, it is uncontroverted that Sosaiete was receiving workers’ compensation benefits through at least November 20, 2000, and would be entitled to a full two-year extension from that date pursuant to HRS § 431:10C~315(b) (3), see supra note 5, were UH's sovereign immunity not at issue.!? B Fedorel jurisdiction was predicated upon the defendants conduct as an employes of the federal government. See 637 F.2a at S46. Nor is Whittington pertinent to the present matter. In that case, we rejected the plaintift’s argument that the statute of limitations was teilea during his infancy, Lneamuch as the tolling provision linited itself te (continsed...) 16 [FOR PUBLICATION IN WEST’ § HAMAI'T REPORTS AND PACIFIC REPORTER +## Waugh is similarly inapposite. UH urges that, according to Waugh, because the Savinis “*knew or should have known’” about their injuries as soon as Sosaiete was struck, the claim “accrued” at that moment. (Quoting 63 Haw. at 128, 621 P.2d at 966.) Essentially, UH attacks a straw man by arguing that the “discovery” rule, see supra E.2.a, does not toll the Limitation period in the present matter. It is uncontested that the Savinis possessed immediate knowledge of their injuries. Their entitlement to a delayed onset of the limitation period did not spring from any ignorance of fact but, rather, from the delay between the onset of Sosaiete’s injuries and the accumulation of sufficient medical expenses to create an exception to the no- fault paradigm, thereby giving rise in the first instance to potential tort liability on UH's part. 5. Conclusion In the present matter, UH was not liable to the Savinis, if at all, until Sosaiete’s injuries had provoked more than $13,900.00 in actual, incurred expenses. According to Exhibit A, Sosaiete exceeded the medical-rehabilitative limit within the two-year period prior to the filing of the Savinis’ complaint. Consequently, the Savinis’ claim had accrued by the time they filed their complaint but not more than two years (continued) action(s) specified in [HRS ch. 657, pt. I,” expressly excluding the STLA, tnder which the Whistinaten pleinei#é Sued. ‘72 Haw. at 77-76, 606 P.2d at Se7sse. In contrast, SRS § 431:10c-218(p) (3), does net facially exclude STA aetiens. vv (++ FOR PUBLICATION IN WEST'S HANAI'T REPORTS AND PACIFIC REPORTER *#+ prior. That being the case, the complaint was timely in accordance with HRS § 662-4, gee supra note 1. We recognize that today’s holding might inconvenience future parties who would prefer to litigate early under circumstances where it is virtually certain’ that the plaintiff's injuries will give rise to medical expenses over $5,000.00 (the current threshold, see HRS § 431:10C-306(b) (4) (2005)}, but will not do so until considerable time has elapsed. Such a scenario would be exceptional and capable of amelioration by the legislature." See generally 2-19 No-Fault & Uninsured Motorist Auto Insurance § 19.60 (LexisNexis 2006); Stackhouse v Schneider, 559 A.2d 306, 308 n.5 (D.C. 1989) ("*{I]f there is a perceived need . . . to set ain] . . . outer time limit... , the proper way to do so is by a statute of repose.) (quoting Bussineau v. President 6 Dirs, of Georgetown Coll., 518 A.2d 423, 436 (D.c. 1986). Tv. CONCLUSION In light of the foregoing analysis, we hold that the Savinis’ two-year limitation period under HRS § 662-4, see supra note 1, began to run as soon as (1) the Savinis had incurred or 8 Again, sesuming neither tragedy nor cure intervenes. A few states' statutes currently permit the plaintiff to satisfy the monetary threshola based upon the expectation of future expences. fg, S94) Pansase in Tort Actions, gupta section £.2-b, $47.04 (a}{a] teiting Ky. Fev. Stat. Ann, § 304,39°060 (2) (b)7 Minn. Seat. § 668.51(3) (a) (1)); Montag yp Beraan Blusatone Coy, 366 A.2d 1363, 1362-63 (NJ. Super. Ct. Law Div. 57) (wnere ehreshola required that “expense incurred or equal or exceed $200.00, agreeing with plaintiff's position “that the cause of Sctlon dig not accrue Uistil she actually inevrred or should have knows She gould incor s 200 in ‘medical expenses” (emphases adced)); Correll v, Gasrelie, 404 N..8,26 636, 637-86 (Sup. Ce. 1378) 18  + FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER paid actual expenses sufficient to exceed the medical- rehabilitative limit and (2) Sosaiete’s workers’ compensation benefits had ceased. Accordingly, we affirm the circuit court's duly 12, 2004 order denying UH’s motion to dismiss. on the briefs: Francis 7. 0’Brien, for the plaintiffs-appellees Sosaiete L. Savini and Bette Savini Robert A. Nash, of the Office of the General Counsel of the University of Hawai'i, for the defendant-appellant University of Hawai'i Deirdre Marie-Tha, Deputy Attorney General, for the amicus curiae State of Hawai'i ore ML Rasta Coruna Ores Om Yan < Dudiys 

8324f81ffbc5e8e8d8621bc355ab87a91ad3eda5cab4b82aa35d79a85e194aa4

2007-03-19T00:00:00Z

ee52b56c-e3ae-427d-9d5e-c5bb0d288097

Taniguchi v. Association of Apartment Owners of King Manor, Inc.

114 Haw. 37

hawaii

Hawaii Supreme Court

‘s++POR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REFORTER®*# IN THE SUPREME COURT OF THE STATE OF HAWAI‘T 000. GLENN TANIGUCHI, Plaintiff-Appellant ASSOCIATION OF APARTMENT OWNERS OF KING MANOR, INC., ‘2 Hawai'S Non-Profit Corporation, IRVIN KING, BETTY TAKAHASHI, HENRY KENNEDY, LYNN SCHNEIDER, AUDREY ASAHINA, Defendants-Appellees and JOHN DOES 1-107 JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; and DOE ENTITIES 1-10, Defendants wo. 27500 4a 2 Be 3 APPEAL FROM THE FIRST CIRCUIT couRT 2212 (CIV. NO. 04-1-00403) aed ae 3 ge APRIL 12, 2007 a 8 MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ. OPINION OF THE COURT BY ACOBA, J. Plaintiff-Appellant Glenn Taniguchi (Appellant) appeals from the August 24, 2005 judgment of the circuit court of the first circuit (the court)’ granting the Motion for Summary Judgment of Defendants-Appellees Association of Apartment Owners + the Honorable Victoria S. marks presided aad  ‘+*4FOR PUBLICATION IM WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER of King Manor, Inc. (the Association), Irving King (King), Betty Takahashi, Henry Kennedy (Kennedy), Lynn Schneider, and Audzey Asahina (collectively, Appellees] end denying Appellant’s October 13, 2004 Motion to Set Aside the Order and June 14, 2008 Motion for Partial Summary Judgment as to Appellant's First Cause of Action. We hold that (1) Hawai'i Revised Statutes (HRS) § 514A- 82(a) (14) (Supp. 2005), which prohibited a resident manager of a condominium from serving on its board of directors, originally enacted as HRS § 514-20 on June 9, 1976, 1976 Haw. Sess. L. Act 239, §§ 3,7 at 758-59, does not apply to the Association inasmuch as the Association’s original bylaws were recorded prior to the enactment of HRS § 514-20, (2) the inclusion of Section 3.01 in the Association's First Restated Bylaws pursuant to HRS § S14A- 82 (a) (14), which prohibited a resident manager of a condominium from serving on the Board of Directors of the Association (the + Rs § $14A-82(2) (14) relating to “Contents of bylaws” « a] The bylaue should provide for at least the following {24)" No resident manager of a condominium shall serve on its board of directors{-J uns _§ $14R-82(a) (14) was subsequently repealed by 2004 Haw. Sess. L. Act 164, $26 at £13. Effective July 1, 2005, a similar restriction exists in HRS § 514B-107(b) (2006), sich pertains te "Sosrd: limitations.” 2004 Haw. Sess, L, Act 166, § 2 at 765. HRS’ § £14B-107(b) states, "No resident manager oF employee of § condominium shall serve on its board.” 2 ‘s+4f0R PUBLICATION IN WEST’ § HAWAI'T REFORTS AND PACIFIC REPORTER*#* Board), exceeded the purview of HRS § 514A-82.2(b) (1993)? eatoment of declaration and bylaws,” > ns § st4ncs2.2, entitied “ stated in pertinent part (a) Notwithstanding any other provision of this chapter or of any cther statute or instrument, an Sesociation of apartment owners may at any tine restate the Seclaraticn of condominium property regime of the project or tthe bylaws of the association to set forth all amendnente thereof by 8 resolution adopted by the board of directors. we) the declaration of condominium property regime of the project or th hs Geclarsticn or bylaws eg may be required in order te confors sith the provisions of this chapter ox of any other statate, brgimance, tule or reaulation enacted by any aoveromentel iinority bys resolution -adopred py the boars of ‘Gitectors. end the restated declaration or bylaws shall_be etuliy etfective tor ali curpases as if adopted by the Vote or written consent of the spartment owners; provided nat sny declaration of condominium property regime oF bvlsus Peststes pursuant to this subsection ehsil identity ‘Sach corticn so restated and-ahali contain a statement hat hese portions hal onses Of rainance, Fale, aindment ‘and that in the event of any conflict, the restated Sbelaration or bvlsve shall -be subordinate tothe cited Stscute, ordinance, rule, op reculetion. (emphases added.) HRS § S142-€2.2 was subsequently repealed by 2004 Haw. Sess. L. Act 164, § 26 at #13. ‘on duay 1, 2005, HRS § 5148-109 (2006), entitled “Restatement of declaration and bylaws,” took effect. 2008 Haw. Sess. i. Act 164, $2 at 767. Rs § siaB-109 sta 1a) Notwithstanding any other provision of this chapter or of any other stetute or instrument, an aececiation at any tine may restate the declaration or Bylaws of the asscclation to set forth all amendments thereto by a resolution adoptes by the boar (b) Subject to section $14B-25, an association at any tine may restate the declaration or bylaws of the ‘sockation to amend the declaration or bylaws as may be feguired in order to conform with the provisions of this chopter or of any cther statute, ordinance, or rule enacted by any governmental authority, or to correct the percentage of common interest for the project so it totals one hundred per cent, by a resclution adopted by the boerd. If the Eestated declaration is to correct the percentage of conon Ineerest for the project so that it toteis one mundred per cent, the proportion of each unit owner's percentage of Connon interest shell renin the sane in relation to the ‘other unit owners. The restated declaration or bylaws shall be as fully effective for all purposes as if adopted by @ vote or written consent of the unit owners ‘ny declaration or bylaws restated pursuant to this ction shall? subs (continved.-.) FOR PUBLICATION TH WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER**# relating to restatement of bylaws, (3) Appellant’s purported ‘material facts” pertaining to the Board’s failure to disclose to members of the Association (a) “the true nature of the controversy” herein, (b) “the exact language of the provisions in controversy," (c) “the rationale for each provision in controversy,” (d) the Board's position “against adoption of the provision in controversy," (e) the Board’s “inten{tion] to use any proxies granted to them,” and (£) that the “failure to ratify the bylaws could mean the (AJssociation would have to bring this controversy to the courts,” viewed in a light most favorable to Appellant, do not raise a genuine issue of material fact that the Board breached a fiduciary duty of disclosure owed to menbers of 21. seontinved) A) Identity each portion 20 restated: (2) Contains statement that those portions have been restated solely for purposes of information and convenience: (3) Tdentify the statute, ordinance, or rule implenented by the amenduent} snd (4) Contain a statenent that, in the event of any cenflict, the restated declaration or bylaws Shall be’ subordinate to the cited statute, Ordinance, or rule. {c) upon the adoption of 8 resolution pursuant to subsection (a) or (b), the restates declaration or bylaws Shall set forth all of the operative provisions of the Gecloration oF bylaws, a8 amended, together with a statement that ‘the restated declaration or bylaws correctly sets forth without change the corresponding provisions of the Geclaration or byla snded, and that the restated Geclaration or bylavs supersede the original declaration or bylaws and all pricr anendeents thereto. If the restated declaration corrects the percentage of common interest os proviced in subsection (b), the restated declaration shel] biso snend the recorded conveyance instrumente that govern the unit owner's interest in the unit (a) ‘The restated declaration or bylaws must be recorded and, upon recordation, shall supersede the original declaration Or bylaws and all prior anendnents thereto. In tthe event of any conflict, the restates declaration oF bylawe shall be subordinate to the original declaration or bylaws and all prior anendsents therete. 4 ‘s+4f0R PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERS the Association, (4) in any event, there is no effective remedy for Appellant's breach of fiduciary duties claims and the claim that the president of the board solicited proxies in violation of HRS § 514A-62(b) (4) (Supp. 2005),* (5) and, furthermore, such + was $ s14n-82,(b) (4) relating to “Contents of bylaws,” stated: (b) tn addition to the requirenents of subsection (al, the bylaws shell be consistent with the following provisions: isi" Wo resident manager or managing agent shall Boticit, for use by the manager oF managing agent, any proxies from any apartment omer of fhe absocisticn of ommers that employs the Fesigent manager or nanaging agent, nor shall the resident manager or managing agent cast any proxy vote at any associaticn meeting except for the purpose of establishing a quorum. Any board Of directors that intends to use association funds to distribute proxies, including the Stendara proxy form referred to in paragraph (Si, shall first post notice of its intent to distribute proxies in prominent locations within the project at least thirty days prior to its Gistribueion of proxies; provided that Sf the board receives within seven days of the posted request by any owner for use of Setoctation funds to solicit proxies accompanied By'a statenent, the board shall mail to all Sumers esther: Th). A’proxy form containing the names of all owners who have requested the use of sociation funds for soliciting proxies accompanied by their statements) or (B) Acprony’ form contssning no names, But accompanied by a list of names of al] omers who have requested the use of Staociatien funds for soliciting proxi and their statements, The statement shall not exceed one hundred words, indicating the owner's qualifications to Serve’ on the bosrd snd reasons for wanting to receive proxies(-) the provisions of this subsection shall be deened incerporated into the bylaws of 211 condominium projects existing as of January 1, 1988, and all condominium projects Greated efter that cate HRS § 514A-82(b) (4) was subsequently repealed by 2004 Haw. Sess. L. Act 164, § 26 at 623, Currentiy, HRS § 5148-123 (2006) entitled, "Association meetings: voting; proxies,” governs proxies:  FOR PUBLICATION 8 WEST’§ HAWAI'I REFORTS AND PACIFIC REPORTER: elaine do not fai1 under the exception to the mootness doctrine, and (6) viewed in a Light most favorable to Appellant, there is no genuine issue of material tact that the Second Restated Bylave, adopted without the provisions disputed, are defective. Therefore, the court properly granted Appellees! notion for summary judgment, and properly denied Appellant's notion to set aside the order and notion for partial summary judgaent. Accordingly, the August 24, 2005 judgnent of the court is attirned. h a on Septenber 8, 1968, the Association was created under the provisions of the “Horizontal Property Act,” chapter 1078, Revised Laws of Hawai'i 1955, with the filing of its Declaration of Horizontal Property Regine in the Bureau of Conveyances (the Bureau). Also on that date, the Association recorded its original bylaws with the Bureau. The original bylaws did not restrict a resident manager of the condominium from serving on the Board. on June 8, 1976, the Hawai'i legislature adopted Act 238, which anended the former HRS § 514-20 entitled “Contents of bylaws,” and added the following underscored language: indy ‘ua cenident mamacer of 1 condoniniun shalt serve 1976 Haw. Sess, L. Act 239, § 3 at 756-59 (emphasis added). The legislature specified that Act 239 “not affect rights and duties 6 ‘**+FOR PUBLICATION IN WEST'S RAWAI'T REFORTS AND PACIFIC REPORTERS that matured, penalties that were incurred, and proceedings that were begun, before [June 9, 1976).” 1976 Haw. Sess. L. Act 239, 85 5, 7 at 760. on January 1, 1978, the legislature repealed HRS chapter $14, “Horizontal Property Regines.” 1977 Haw. Sess. L. Act 98, $$ 3, § at 181. Also as of January 1, 1978, HRS chapter 514A, “Horizontal Property Regimes,” was enacted as a restatement cf HAS chapter $14, without substantive change. 1977 Haw. Sess. L. Act 98, §§ 1, $ at 162, 181. The former HRS § 514-20 was renunbered as HRS § 5144-82. Stand. Comm. Rep. No. 271, in 1977 Senate Journal, at 970. on October 7, 1985, the Association recorded its “First Amendment to the By-laws of King Manor” in the Bureau. On January 16, 2001, the Board resolved to restate its bylaws, entitled “Firet Restated sylaws,” pursuant to HRS § S14A- 82.2. on February 21, 2001, the Board recorded the First Restated Bylaws at the Bureau. The First Restated Bylaws organized into one document all existing provisions in the Agsociation’s original bylaws as well as the October 7, 1985 First Amendment. As pertinent here, these bylaws added Section 3.01 which provided, “No resident manager shall serve on the Board of Directors,” purportedly to comply with HRS § 514A~ 82(a) (14), which as stated previously, was originally adopted as s++70R PUBLICATION IN WEST’ § HAWAI'I REPORTS AND PACIFIC REPORTER*#* Act 239 on June 9, 1976.° 1976 Haw. Sess. L, Act 239, § at 758 59, Also on February 21, 2001, all pre-existing menbers of the Association were mailed a copy of the First Restated Bylaws. 8. on September 16, 2001, after the Association had experienced problens with several of its resident managers, the Board hired two of its existing mexbers, King and Ruby Clairmont (Clairmont), to share the job of resident manager. AS compensation, King was permitted to occupy the apartment provided for the resident manager, and Clairmont received the salary of the resident manager. While working as resident managers of the condominium, King and Clairmont continued to serve as members of the Board, with King continuing in his capacity as board president. Thereafter, Appellant, an attorney and menber of the Association, approached the Board about Section 3.01 of the First Restated Bylaws which as noted above states, “No resident manager shall serve on the board of directors.“ on September 28, 2001, the Association's attorney, John Morris (Norris), answered the Board’s inquiry as to “whether a resident manager of a condominium project can serve on its board 5 the First Restated Bylaws included other provisions that we purportedly added to comply with the requirements of HRS § 514A-B2(3)- Rowever, those provisions are not at issue < e noted above, this language was added to comply with HRS § 514A- eae)  s+4P0R PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER‘ of directors.” Morris opined that as applied to the Association, ‘a resident manager of a condominium project can serve on its board of directors.” Morris specifically concluded that (1) HRS § 514A-82(a) (14) only applies prospectively and, therefore, did not apply to the Association, and (2) because HRS § 514A~ 82 (a) (14) did not apply to the Association, it could not be included in the First Restated Bylaws, restated pursuant to HRS § 514A-82.2, as it was not required by law. on August 14, 2002, members of the Association were sent statements from William Enriques (Enriques), King,” Clairmont, and Kennedy, candidates for the Board. on September 17, 2002, Appellant sent a letter to the Board which stated that in his opinion, the Board should present the members of the Association with the First Restated Bylaws “for approval or disapproval at the next annual [A] ssociation meeting.” on October 3, 2002, the Board sent 2 letter to menbers of the Association pertaining to “amendment to bylaws.” The letter stated, ‘The Statement of King reads: This year’s election is a critical one for King Manor. Elther we continue the progress we have nade in recent years, of we Tisk returning to the days when the Board of Directors was plagued by fractious disagreements among its enters. The Curvent nenbers of Board of Directore are Gedicated to making King Menor a better building. I urge S11 omere to re-elect {Claimont], [Kennedy] and me to che board. If re-elected, I will pledge to continue my efforts to'nake King enor a better investment for everyone ° ‘*APOR PUBLICATION IN WEST! S HAWAI'T REPORTS AND PACIFIC REPORTERY# [Alssociation’s prior attorney in 2001, approved by the board, and recorded, y+ A problem hes now arisen because of certain changes which were made in the restated bylaws, The law permite. the board to restate the declaration and bylaws, without owner’ approval, only to include: (3) ali changes alzeady approved by the omners) and (11) any changes zequired Eplew., aay other changes mugt be approved by the ‘Unfortunately, the restated bylaws for Kina Manor sroent of the owners can vote to include those provisions in the restated bylaws. Since and [sic) several Owners have asked that the ommers be allowed te vote on those provisions at the annual eetingy and since the board has agreed to that request, the issue will be presented for 2 vote at the upcoming annual sesinar (on 15 Ecteber 2002), 20 the omners can decide. Hor your information. the following prov: pat can be aneroved by G5 percent of the cmners! oarg Sotins Stat ne-residentnanacei can senis_oa the B or against then at the \Se review those sections and be ready to vote for invel meeting. (Some enphases added and sone in original.) At the Aesociation’s annual meeting held on October 15, 2002, the menbership voted against including the provisions from RS § 514A-62(a) in the First Restated Bylaws, which as noted before provided that “(nJo resident manager shall serve on the board of directors.” Also at the October 15, 2002 annual meeting, King, Clairmont, and Kennedy were elected to the Board. On November 4, 2003, the Board resolved to restate the bylaws a second time in a document entitled “Second Restated Bylaws." As set forth by Appellant, the Second Restated Bylaws “stripp(ed] from the bylaws the ban [regarding a resident manager 10 ‘+++POR PUBLICATION I8 WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERS*# serving on the Board] at the center of this controversy and other provisions from HRS § 514-82(a) that were enacted into the statute after the King Manor was established in 1968.” In February 2004, Clairmont sold her apartment. she resigned from the Board and as resident manager effective February 7, 2004. on March 3, 2004, Appellant filed a Verified Complaint against Appellees praying for declaratory and injunctive relief in Counts I through IV as follows: 1. That, [the clourt issue 2 ruling declaring that {ihe Association's First Restated! By-Laws, recorded on February ci. 200L, te the leasl-and valid GyeLave thar Article iL “section 2.01, page $, restricting a resident funager trea servine on the posrd of directors = Jeaaily Ealid snd subsect to enforcement 21° “ohge (the cloure issue 2 ruling declaring that notwithstending the legality of the restated By-Lawe of [the Resociation), (Mina) az President of the Board of Directors and former board menber and resident manager [Clairpontl, 3s S'nenber|] of the Soard of Directors of (the Associstion], fers without authority to assume the positicn ef resident’ anAGers unless and uotil such time, that the most current Eecorded By-Lawe of ithe Besociation| permitted resident Si “that Tene cloure issue s ruling declaring that he bos d, in carrying out their duties for the reasons n'count IIT prior and, order the seats of board who sanctioned the pricr alleged acts vacated and the holding of 2 new election to fill the vacant seats. ao” hat [the cloure issue a ruling declaring that nal ind forner board member a = rior to the cctober 2002 annus] me Sng nullity the nomination for and election to board of Girector seat of [King] at the October 2002 annual meeting and, order that (Enrigues] is elected to the board of Gizectars as ne was one of only two Valid nominations for the three open seats on the board at the October 2002 annual cing. (Emphases added.) At the time of filing, the Association was regulated under HRS Chapter 514A, “Condominium Property a  FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERS Regimes, On March 11, 2004, the Board recorded the Second Restated Bylaws of the Assoctation at the Bureau pursuant to HRS § 514R-82.2. By March 22, 2004, the Board hired 2 new resident manager to replace King. on March 29, 2004, Appellant filed his First Amended Verified Complaint. Appellant prayed for the declaratory and injunctive relief as requested in his Verified Complaint in counts 1 through IV, and also added Count V in which he prayed that the court “issue a ruling invalidating [the Association’ s] ‘Second Restated By-Laws’ filed on March 11, 2004 and recorded after being served this declaratory action and, restoring as the lawful governing document of [the Association] the (First Restated Bylaws] recorded on February 21, 2001.” On August 18, 2004, Appellant filed five separate motions for partial summary judgment as to Counts I through V of his Verified Complaint (as amended in his First Amended Verified Complaint). + RS chapter 514A was scheduled for repeal on July 1, 2006, by 2005 Hew, Sess. Ly Act 3%, § 6 at 237, but 2006 Haw. Sess. Ly Act 273, $3) at 1145, repealed 2005 Haw. sess. 1. Act 93, § 6 at 237, deleting the repeal of RS Chapter 514h. parts and sections of HRS chapter’ S14A that were repealed by other acts remain repeale: Effective July 1, 2008, Act 164 sought to “vpdate, clarity, organize, deregulate, and provide for consistency and easy of use of the condoninium property’ regimes law," as directed by 2000 Haw. Sess. L. Act 213. 2004 Haw, Sess. L. Act 164, § 1 at 7S€.. Thus, the legislature ancnded the HRS by adding a new chapter, HAS chapter Si46, algo referred to as the "Condominium Property Act.” 2006 Haw. Sete. Le Act 164, § 2 at 156. 12 ‘seefOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER**# On September 14, 2004, the Association filed a ‘wenorandum in Opposition to (Appellants) Motion for Partial Sunnary Judgment.” on September 23, 2004, the court held a hearing on Appellant's motions. on October 13, 2004, the court filed its “Order Denying [Appellant's] Motions for Partial Summary Judgment as to [appellant's] First, Second, Third, Fourth, and Fifth Causes of Action filed on August 18, 2004.” In the order, the court 2. Summary judgment as to Appellant’ s] First Cause of Action is denied because a suche: tors te includ Stan Seiad iat, SLameteiah Oddy Stem gaa) (6), SAAB C0) 18) dn s-restatenent of the Dvlawe of (the Association Fecorded in the Bureau Of ‘a5 Document Nos 2001-023376 Zr Suamary jusgnent as to (Appellant's) Second Couse of Action is denied becu wweyances of the Stat ‘of Hawai 2 ns iste 3 Summary judgment of Action ie denied because the ‘to INppelient’s] Third Cause Ioteetine. they ask dated February 13, 2001 and recorded in the Bureau of Conveyances of the State of Hawsil se Document No. 2001~ 02534 Sumary judgment as to (appellant's) Fourth Cause of Action i denied because facts to prove that Tk 3. Summary Judgment as to (Appellant's) Fifth Cause of Action ie denied because the spartnent omers voted at Eovineluce TERS §) S14a-82(0) (22), Sidhee2(@) 10), s14R~ Sora) (6), or #14A-82(a) (18) in the restatenent of the Dulaws of” (the Assossation Ls c Kestatenent of the bylaws to inplenent that decisions and 13  FOR PUBLICATION IN WEST’ S HAWAI'T REPORTS AND PACIFIC REPORTER*+# 2 require thy rm Eelane-of (the Ressoistionl- therefore, Licland of the Arsociation of Apartment Owners of King Sonor, dated Maren 10, 200¢ and recorded in the Bureau of Conveyances of the State of Hevali as Cocument No. 2008 Os076E were properly restated by the Board and properly sisned by (King) on behalf of the Board. (Bmphases added.) On June 6, 2005, Appellees filed a “Motion for Summary Judgment” on the basis that because the court had “ruled against [Appellant] as a matter of law on his Motions for Partial Summary Judgment on [Appellant's] First, Second, Third, and Fifth Causes of Action filed herein on August 18, 2004” and “ruled against [Appellant] on his Motion for Partial Summary Judgment on his Fourth Cause of Action filed herein on August 18, 2004{,1” “{t)here {were} not remaining genuine issues of material fact and [it was] therefore entitied to the entry of summary judgment.” On June 14, 2005, Appellant filed his “Motion to Set Aside the Order Filed Herein on October 13, 2004 and [Appellant's] Motion for Partial Summary Judgment as to [Appellant’s) First Cause of Action (Restatement of Bylaws Effective on February 21, 2001, pursuant to HRS § 514A- 82.2(b))."* + subsequentiy, cn July 6, 2005, Appellant filed his "Henorandum in Opposition to {Appellees!) Motion for Summary Judgment .” Also'on July &, 2005, the Association filed its “Meorandum in Qpposition to {Appellant's} Motion to Set Acide the Order Filed Herein on obtober 15, 2008." On July 14, 2005, the Association f{led ite “Memorandum in Reply to [Appellant's] Memorandum in Opposition to [Appellees’) Motion for Summary Sodgnent Filed on June 6, 2005." On July 15, 2005, Appellant {led his “Reply Memorandum in Support, of [Rppellent"'s] Netich to Sét Asice the Order Filed Herein on October i3- 2004 ang for Partial Sunnary dodgnent ax to (Appellant's) First Cause of u ‘s+4P0R PUBLICATION IN WEST'S HAWAT'T REPORTS AXD PACIFIC REPORTERS+® on duly 19, 2005, the court held a hearing on (2) Appellees’ June 6, 2005 Motion for Summary Judgment, and (2) Appellant's June 14, 2005 Motion to Set Aside the Order and Notion for Partial Summary Judgment. on August 24, 2005, the court granted Appellees’ June 6, 2005 Motion for Summary Judgment, and denied Appellant’s June 14, 2008 Motion to Set Aside the Order and Motion for Partial Sunmary Judgment. Also on that date, final judgment was entered in favor of Appellees and against Appellant as to all claims." On Septenber 15, 2005, Appellant filed his Notice of Appeal. m. Rppellant raises the following four points of error on appeal: ay) 2 ‘By ruling ase setter of Lev, that the prospective provisions in HRS § 518\-82(a) do not’ apply to established associations that pre-date the enactrent of & provision therein and, that HRS §"518K-82(a) (14) does not apply to King Manor because the [A]ssociation was etablished in Septenber of 1968 before the enactment of the of 1976, gather than suing ona provision in Ju inpaized, 1(3)) the (court) erred in cranting summary iudament for [AaneLlessi as tc [Ropellants) [blreach of (fiduciary idluties claim a: there existed triable issues of material “on September 7, 2005, Appellees filed a ‘Motion for Attorneys? Fees and Costs.” Appellant responded on Septenber 15, 2005 with his “Memorandum in Opposition te Appellees” Motion for Attorneys” Fees and Costs.” on Septenber 27, 2005, Appellees filed its “Reply Menorandun” for their Septenber 7, 2005 noticn., On Septenber 30, 2005, Appellant filed his “First Supplenental Menorendum in Oppositicn to Motion for Attorneys’ Fees and. Costs.” On Novenber 30, 2005, the court denied Appellees" Motion for Attorneys’ Fees ana Coste as ‘se+f0R PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER*#* fact, such as whether the board acted with the utmost o HSnate anc-asad faith towerde the senberehip when they Sorpessiy and intentionally limites information to members bout the controversy and effectively blocked attenpts 2 {appeilane] to nave the matter ended by way of member Eatification of the bylaws on record at the (Bur ofthe st = prohibited « resicent manager from soliciting proxie: Snd/or voting those provies at an association meeting, for, there remained genuihe iasues of material fact, which ‘consisted of whether the jeter sent by the resident Eatusar, seating Ris qualifications and desire to be Feelected to he boars of directors for the contested election held at the October 15, 2002 annual meeting, that was included in the sane nailing as the notice of annual Reeting and blank proxy forns, T(4)] The tcourt! ered in oranting summery tudanent for_1appellensi as to (Appellant“al claim chat the so-called ‘Sikp Restated vlan were defective and should be stricken from the (Bureat), because there remained cenuine issues of Esterial fact to be sdiudicsted, suchas Ti) wnecher the sighing of the document by the oresident woo held 2 conflict ‘ot interest in the matter as resident aanacer, (21 whether ‘the Lack of prior board adoption of the restatenent, and (2) whether the lack of statutory authority for the changes: Eetlectag in the restatement, were fatal errors to che’ ‘document. (Bmphases added.) Appellant requests that this court *(1) reverse and vacate the [court's final judgment], (2) remand the case for entry of an order granting partial summary judgment in favor of [Appellant) as to Count I of the complaint . . . and {deny Appellees’) motion for sunmary judgment, and (3) remand the c for trial on all other counts.” ut, “an award of summary judgment is reviewed de nove unde: the same standard applied by the circuit court.” French v. Hawaii Pizza Hut, Inc, 105 Hawai'i 462, 466, 99 P.3d 1046, 1050 16  s+4P0R PUBLICATION IN WEST’ § HAWAI'I REPORTS AND PACIFIC REPORTER* (2004) (citing Amfac, Inc, vs Waikiki Beachcomber Inv, Co., 74 Haw. 85, 104, 839 P.2d 10, 22 (1992)) (other citations omitted). The standard for granting a motion for summary judgment is well settled: [Slunmary judgment 42 appropriate if the pleadings, Geporitions, answers to interrogatories, and adnissions on fhe. together with the affidavits, if any, show thae ghere 26 Sensing issue se-co-any material fact and that che ay fect iz material 1 proof of that fect would have the effect of establishing of refuting one of the essential elements of Scouse of action or defense asserted by the parties. Zhe Snoving earty. In other words, we mst view all of the Evidence and the inferences draun thererrom in the Light frost. favorable to the party opposing the motion. Rremer v, Weeks, 104 Hawai'i 43, $1, 85 P.34 150, 158 (2004) (quoting Fed, Credit Union v. Keka, 94 Hawai'i 213, 221, 11 P.3d 1, 9 (2000) (citations, internal quotation marks, and some brackets omitted)) (emphases added) . v. As to issue (1), applying his proffered definition of “prospective,” Appellant maintains that resident managers have been prohibited from serving on the Board (a) pursuant to HRS § 514-82) (14) since the statute's enactment on June 9, 1976, and (b) pursuant to Section 3.01 of the 2001 First Restated Bylaws, restated pursuant to HRS § 514A-82.2(b).'! He argues that . because no resident manager sat on the Board prior to June 9, 1976, and the right to do so was not granted in any of the bre appears that Appellant argues that Section 3.01 of the First Restated gylave wes properly included pursuant to the restatement procedure Th, specifically, HRS $ S1¢A-82-2(b) vv ‘*9F0R PUBLICATION IN WEST’S HAWAI'I REFORTS AND PACIFIC REFORTER*#* Association’s legal documents, no vested rights were impaired on June 9, 1976. Thus, Appellant contends that when King “assumed the resident manager position on September 16, 2001, without first relinguishing his board seat, he violated the ban in HRS § 514A-82(a) (14) and Section 3.01” of the First Restated Bylaws.” It is observed that “prospective” is defined as “[elffective or operative in the future[.]” Black's Law Dictionary 1259 (8th ed. 2004). On the other hand, Ag to issue (1), Appellant contends that “HRS § 514A-82(a) applies to established condoniniuns’ ‘prospectively’ so long as it dose not impair vested rights,” insofar as (1) "{appellees) entirely misconstrue(a) the meaning of the terms, ‘prospective,’” (11) “[tJhe Language of 28S § S1¢h- 62 (a), is unmistakably clear in requiring all associations to adhere to the bylaw provisions therein,” (1i1) “(llegisiative history does not grant a total exenption for established associations, unless one defines ‘prospective’ a Appellees,” (iv) "(t]he correct legal definition for ‘prospective’ is supplies by this Court in lecel precedent, (s) *(alpplying 63 Haw, 540, 692 P.2d 649 (2961) ] and T Bet Sug wT Chanal, €2'waw. $52 (1958),] to HRS § 514R-82, [Op. attn'y Gen. GS-6 [19951] Fela that estabiished associations are to comply with regulations i HRS § 514a-62 unless vested rights or past transactions are affected,” (vi) “[t]he recentiy enacted recodi fication of #RS Chapter Sita rejects (Appeliees’} detinition for ‘prospective,’” and (vil) “(Appellees'} definition Sor ‘prospective’ ust be rejected for it produces abeurd reavits(,]” inasmuch as (a) “[appeliees} will make it virtually impossible for the legislature to Fegulate practices in an established sesociaticn,” (b) *(Appeliees’] interpretation will balkanize condominium regines across the State. Appellant's arguments as to (i)-(1v) appear to be appropriately summarized by‘ issues (1) (a) and (b), as designated in the text. See supra. Ke to Appellant's argument (¥), it must be observed that “attorney General’s opinions are highly instructive but are not bindine upon 0 104 Hawal't 98, 207 n18, 88 Fad €23, 632 n-15 (quoting Kepoo v. wateon, 87 Hawai'l 31, 99 1-3, 952 P.2d'379, 387 n.8 (1998)) (emphasis added). In 1ight of the discussion intra, Depellant’s argument as to the attorney general opinion 48 cnpersuasive he to Appellant’ s argument (93), Appellant cites te wMilson, 85 Hawal'l 217, 221, 91 F.2d 300, 04 (1997), in a toctesee ae asuerts that this “court may look to subsequent amendnente of a statute to sid in the interpretation of @ pricr statute.” However, ‘oes not support Appellant's assertion. Moreover, in light of the Giscusaion iofra based on the plain language of HRS § S14h-82, as well az its legislative history, it 18 unnecessary to address Appellant’ s sesertion. For the sane easons es pertaining to argurent ivi), it is unnecessary to address Appellant's argument (vii) regarding “absurd ret ute. ae ‘s+ef0R PUBLICATION IN WEST'S HAWAI'I REPORTS AKO PACIFIC REFORTERM+* “retrospective” or “retroactive” is defined as “extending in scope or effect to matters that have occurred in the past.” Id. at 1343, This court has embraced Justice Story’s definition of a “retrospective law": Every statute which takes away or iapaize vested riche acouired under existing Javs, oF crestes a new obligation, imposes a new duty or attaches anew disability in respect transact one of considerations sifeady past. aust be desned xetroapective. Graham, 63 Haw. at $45, 632 P.2d at 652 (internal quotation marks and citations omitted) (emphasis added); see alsc Chang, 42 Haw. at 524 (stating that “[a] retroactive or retrospective law, in the legal sense, is one that takes avay or impairs vested rights acquized under existing laws, or creates a new obligation, imposes 2 new duty, or attaches a new disability in respect of transactions or considerations already past” and that a statute “is retroactive only when it is applied to rights acquired prior to its enactment” (internal quotations marks and citation omitted)). Here, assuming arquendo that no vested rights would be impaired as Appellant asserts, if HRS § 514A-82(a) (14) were applied as Appellant requests, the statute would nevertheless have “retrospective” application under this court’s established case law. See Graham, 63 Haw. at 545, 632 P.2d at 652; see also Chang, 42 Haw. at $31. Appellant's definition of prospective fails to consider that even if a statute does not impair vested rights, such 2 statute may have retrospective effect if it a9 '+FOR PUBLICATION IN WEST’ HAMAI'I REPORTS AND PACIFIC REPORTER*®# “creates a new obligation, imposes a new duty or attaches a nev disability in respect to transactions or considerations already past[.]” Graham, 63 Haw. at 545, 632 P.2d at 652 (internal 208 also quotation marks and citations omitted) (emphasis added) Chang, 42 Haw. at 534. As set forth by Appellees, “[a) condominium property regime is created when a developer executes and records a master deed, declaration, and bylaws pursuant to HRS §§ 514A-20 ((2006)"} and 514A~€2 [(1993)."J” Further, “(iJn drafting the bylaws for a project, the developer's attorney must review the section of the law that details what provisions must be written into the project’s bylaws (i.e., HRS § S14A-62).” Then, “[t}he developer's attorney writes into the project's bylaws every provision that HRS § 5148-82 requires to be included in the bylaws, as set forth at that specific time.” Appellees state HRS § 5144-20 entitled “Condominium property regimes,” states, lhenever the sole omer or sll of the ommers including all of the lessees of = property expressly declare, through the execution and recordstion of s master deed, Cogether vith 2 declaration, which declaration shall ses forth th Farticulars enumerated by section SI4AcI1, the sole owner's their desire to subsit the property to’ the regine ablished by this chapter, there shall thereby be established 2 condominium property regine with respect to the property, and thie chapter shall be applicable to the property. If the aster ceed 1g slresdy recorded, the recordation of the declaration if sufficient to achieve the ins § 514A-81 entitied “Bylaws,” stated, “The operation of the property shall be governed by bylaws, @ true copy of which shall be recorded in the same manner a= the declaration. No amendment to the bylaws 43 volia, bnless the anendnent is duly recorded." "ARS S S19M-€1 was repealed by 2004 Haw. Sess. L. Act 164, § 2€ at 813. Bylaws of condominiums are now governed by'lins § s14b-208 (2006) 20 “+*FOR PUBLICATION IN WEST'S HAWAL'T REPORTS AND PACIFIC REPORTERS+# that “[a]t that point, the provisions of the project documents, including the bylaws, are fixed, and once they are recorded, they are covenants running with the land that are agreed to by every member of the condominium association upon the purchase of their respective units.” If it were said that HRS § $14A-82(a) (14) applied to the Association, even though the Association was created on September 9, 1968, prior to the enactment of HRS $ S14A- 82(a) (14), such an application would “impose[] a new duty or attach{] a new disability in respect to transactions or considerations already past[.]" Graham, 63 Haw. at 545, 632 P.2d at 652 (internal quotation marks and citations omitted). Thus, the statute would be given retrospective effect. See id. vr. But it is well settled that “all statutes are to be construed as having only @ prospective operation unless the Purpose and intention of the legislature to give them a retrospective effect is expressly declared or is necessarily implied from the language used.” Robinson v, Bailey, 28 Haw. 462, 464 (1925) (internal quotation marks and citation omitted! sce also Ince Medeiros Testamentary Trust & Life Ins. Trust, 105 Hawai'i 284, 293, 96 P.3d 1098, 1107 (2004) (“The common law rule disfavors retroactive application of laws. This rule is codified in HRS § 1-3 (1993), which provides that ‘[nJo law has any retrospective operation, unless otherwise expressed or obviously 2 ‘++F0R PUBLICATION IN MEST’ HAMAI'T REPORTS AND PACIFIC REPORTERS intended.’ (Citation omitted.)); Graham, 63 Haw. at 546, 632 P.2d at 653 ("No law has any retrospective operation, unless otherwise expressed or obviously intended.” (Citations omitted.)). Former HRS § 514-20(15) and HRS § 514R-82(a) (14), on their face, do not “expressly declare(]” or “necessarily inpl{y]” a retrospective operation. Robinson, 28 Haw. at 464. Moreover, the legislative history of HRS § $14-20(18) and HRS § 514R- 82(a) (14) does not “expressly declare[]” or “necessarily implly]" a retrospective operation. Robinson, 2 Haw. at 467. The parties do not dispute that HRS § 514A-82(a) applies “prospectively.” Thus, HRS § 514A-62(a) is “[e]ffective or operative in the future{,]” Black's Law Dictionary at 1259, namely from June 8, 1976, the date on which the statute was originally enacted under the former HRS § 514-20. 1976 Haw. Sess. L. Act 239, § 3 at 758-59; see also Yamaguchi v. Queen's Ned. Ctr., 65 Haw. 64, 89, 648 P.2d 689, 693 (1982) (concluding that “the statute be given prospective effect only, as there exists no indication in either the statutory language or the accompanying committee reports that the legislature intended a different result” (citation omitted)). Accordingly, because the Association was created and its bylews recorded prior to the enactment of the former HRS § 514-20, the bylaw requirements of 22  “s+APOR PUBLICATION "8 WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER* RS § 140-82 (a) cannot be said to apply to the Association. ‘Thus, Appellant’s argument as to (1) (a) must be rejected. vin. As to Appellant’s argument (1) (b),"* as indicated previously, HRS § 514A-82.2(b) stated in relevant part, An association of apartment owners may at any tine restate the bylaws of the association : eas aay be der ‘sith éhe Provisions of thie chapter or of any otner statute .. . by adopted by the board of directors, fetered oe we for all as‘ if adopted by the vote or written consent of the Spaftnent owners) provided that any. - . bulges restated Porevant co thie sebsection shall adantify each portion so Festated and shall contain a statenent that these sortiens fave been restated solely for the curpases Of information & hat ia aay condi (Emphases added.) Pursuant to the plain language of HRS § 514A~ 82.2(b), an association’s bylaws may be restated “to amend the % —Contrastingly, HRS § S14A-€2(b), enacted on June 26, 1987, 1987 haw. Sess, tL. Act 277, $8 °2,,5 at €43-47, 16 to be applied “retrospectively.” ‘The final sentence of HRS §'514A-62(b) provides that [t]he provisions of this Subsection shall be deemed incorporated into the bylaws of ai] condominium es i ‘hd ali condoainium projects created EHler that cate. (Emphasis scded-) “Shall,” as used in BRS'§ 514A-82(b), 1s Usually construed a8 “must.” Haval, Jos Wewai't 364, 393, 126 Pe3a‘T071, 1020 (2006) (vas used In Hiatotes, contracts, of the like, this vord (‘shall'] is generally imperative Gr'nandatery.” (Citation omitted.)). Hence, by using the term “shall,” the Jegisiature mandated that the provisions of “this subsection(,]~ HRS § S14k- aSie], are “dened incorporated into the bylaws of all condoniniuns existing ae of Janvsry 2, 1988[.]" By virtue of this command, the statute Unequtvoeslly inatracts that HRS § £14A-82(b) apply retrospectively and stftend() in’ scape or effect to matters thet have occurred in the past.” Las ‘at 1343. “In this regard, because “(t]he statutory BASE iE Pisin end unambiguous, our sole duty 1 to give effect to its Plain. snd cbvicus meaning.” Kepo'o v. Kane, 10€ Hawai'i 270, 265, 103 F.3d B35, "ess (2008) (internal quotetion Barks and citation omitted). Ag to Appellant’ s argusent (1) (b), Appellant asserts that the prohibition against Fesident managers from sitting on the Board in the First Restoted bylawe "wos but a nere formality” and that the prohibition had been ineffect since June 8, 1976. 23 ‘s*470R PUBLICATION IN MEST’ S HAWAI'T REPORTS AND PACIFIC REPORTER*## + ++ bylaws as may be required in order to conform with the provisions of [HRS chapter S14A]." However, as discussed supra, HRS § 514A-82(a) (14) does not apply to the Association. For if it did, the provision would have retrospective effect, despite not “expressly declar{ing)" or “necessarily inpllying]" a retrospective operation. Robinson, 28 Haw. at 467. ‘Therefore, the addition of Section 3.01 of the First Restated Bylaws which prohibited a resident manager from serving on the Board vas not “required in order to conform with the provisions of [HRS chapter S14A].” HRS § 514A-€2.2(b). The addition of Section 3.01 in the First Restated Bylaxs exceeded the purview of the plain language of HRS § 514A-€2.2(b) and, thus, cannot be deemed to be included in the restatement. See Kepo'e, 106 Hawai'i at 285, 103 P.3d at 954. Accordingly, Appellant's argument as to (1) (b) must be rejected. vant. As to issue (2), Appellant essentially argues that the fiduciary duty that the Board owed to the members of the Association under HRS § 514A-82.4 (1993)" is “the same fiduciary © ps § s14n-82.4, entitied “uty of directors," stated, Each of epartnent owners a fiduciary duty in he performance of the director's respontibslities. \(Eapheses added] Tt eshoule be noted that SRS § 51¢A-82.4 was repesied by 2004 Haw. Sess. L. Act 164, 8 26 at as, As of July 1, 2005, HRS § £148-106(a) entitled “Board; powers and 1" contains the same tern, “élduciary duty,” and states, ut Except as provided in the declaration, the bylaxt subsection (bl, of other provisions of this chepter, the board may act in all instances on behalf of the association. In the performance of their duties, officers and menbers of the board shall owe the association « Ziduesary duty end (continued. ..) 24 ‘s+4FOR PUBLICATION IN WEST'S HAAI'T REPORTS AND PACIFIC REPORTERY*# duty . . . imposed on an agent towards his principal” and, thus, the Board was obligated to make “full, fair, complete and timely disclosure of all relevant and material facts.” Appellant argues that the following “material facts,” viewed in the light most favorable to Appellant, demonstrate the Board's breach of fiduciary duty: {The Board faiied) to [(a)] include an explanation 2s to the ‘Live nature of the contravergy, (BT) ‘acl Llenavage of the provisions in controversy, [el (i3)} inform nenbers of the (Bloare’s position on the matter, nanely, Provisions in controversies they were in solation at the Hine ct mas ¢ Sidaescias iat - = eli saz pembers chat esbers for the upeoning Resting, Se-eote coun ny Siete * katitication of the bulaua in order, to, end the Conbtoversy and, TT] inform sembere that ¢allure to ratify ing controversy inte the-course, and ((9)) bend se ehat_tn ag in the mi ang possibly held by other board meabers. (Emphases added.) 1x. vit is @ well established rule both in Hawaii and in a najority of the States that the relation of directors to the corporations they represent is a fiduciary one.” Hawaiian Int’) Eins. v. Pablo, $3 Haw. 149, 153, 488 P.24 1172, 1175 (2972) (citations omitted). Further, “[a] corporate officer is an agent for his corporate principal.” Wi sv. Ow 469 + scontinued) fenercise the degree of care and loyalty required of an officer of director of 2 corporaticn organized under chapter a0. (Bephasis added.) 25 ‘+*4f0R PUBLICATION JM MEST’ § HAWAI'I REPORTS AND PACIFIC REPORTER*+® P.2d $83, $85 (Wash. Ct. App. 1970). Inasmuch as a condominius’ s board of directors is similar to a corporation's board of directors, a condominium board menber is also an agent for his condominium principal (i.e, the membership of the association). See Courts at Beachaate v. Bird, 545 A.2d 243, 248 (N.J. Super. Ct. Ch. Div. 1988) (discussing “the modern corporate entity known as the condominiun” (citation onitted)). In this regard, Appellant asserts that “full, fair, complete and timely disclosure of all relevant and material facts is necessary for an agent . . . to meet his [or her] duty,” and quotes the following: Hawaii courts recognize that *(a]n agent's fiduciary duty watch carries with ie the duty of finely discleaize of eatecial cacch, 15 snong the most Emportant cbligations sn oor Tegal Hawai'i 162, 175, 931.26 604 thpp. (emphasis eased) ‘hs explained by the Hawaii Supreme Court, Wan agent 19 dubject to a duty to use reasonable efforts to give nis principal information which is relevant to affairs entrusted to him and whieh, as the agent has notice, the principal would desire to have.” use, The Kelisy, 68 Haw. 371, 377, 115 P.24 €08 (1986) (Quoting Matsuda v. Wada, 101 F. Supp. 2d 1315, 1324 (D. Haw. 1999) (emphasis added)). “Material fact,” in the context of fiduciary duti is not defined by either party. In general, a “material fact” is defined as “(a] fact that is significant or essential to the issue or matter at hand.” Black's Law Dictionary at 629. In this regard, as to purported material fact (a), disclosure of the “true nature of the controversy” (i.e., the issue itself) is apparently “significant or essential to the issue or matter at 26 [FOR PUBLICATION TN WEST'S HAWAI'I REFORTS AND PACIFIC REPORTERS** hand.” Id, However, the Board’s October 3, 2002 letter to the membership, on its face, included an explanation of the controversy. Fact (a), therefore, is not 4 material fact genuinely in issue for purposes of summary judgment. See Bremer, 104 Hawai'l at $1, 85 P.3d at 158. With regard to facts (b) and (c), HRS $ 514A— 82(b) (2) (B) stated in pertinent part, that “[t]he proposed bylaws, rationale, and ballots for voting on any proposed bylaw shall be mailed by the board of directors to the owners . . . for vote or written consent without change[.]" Contrary to Appellant’s argument, (b) is not a genuine issue, see Bremer, 104 Hawai'i at 51, 85 P.3d at 158, because the membership was directed to the language of the provisions in controversy, as indicated by the Board’s October 3, 2002 letter, stating, "You should already [sic] copies of the restated bylaws{.)” Similarly, (c) is not @ genuine issue, see id., because the menbership was also provided the rationale behind the vote within the same October 3, 2002 letter, which stated, “Several apartment owners have asked that the owners be allowed to vote at the upcoming annual meeting to approve the restated bylaws. The board has agreed to that request and authorized this letter to provide some background on the request.” With regard to purported factual issues (d), (e) and (£), Appellant fails to cite to any evidence in the record, any case law, or any statute to support his claims, nor to establish 2  how his allegations vould amount to “material facte” requiring disclosure. In that regard, “[t]his court is not obligated to sift through the voluminous record to verify an appellant's inadequately documented contentions.” Lanai Co. v. Land Use Comm'n, 105 Hawai'i 296, 309 n.31, 97 P.34 372, 385 n.31 (2004) (citations omitted). Accordingly, Appellant fails to demonstrate that genuine issues of material fact exist with respect to purported material facts (d), (e), and (f). See Bremer, 104 Hawai'i at 51, 85 P.3d at 158. x Finally, with regard to item (g), BRS § $14A-82(b) (5) (Supp. 2005) stated, A director who hee a conflict of interest on any sesue Before the bourd ull disclose the nature of the conflict si interest srior to ¢ vote on that issue at the Doara Binites of the meeting shall record the esting, and the act that disclosure wae BagsT) (Emphases added.) The phrase “conflict of interest” was not defined in the statutes in existence at the time of the October 15, 2002 Annual Meeting. However, the phrase is defined as “[al real or seeming incompatibility between one’s private interests and one’s . . . fiduciary duties.” Black's Law Dictionary at 319. Appellant argues King “{plersonally benefitted from his Tt should be noted that HRS § 5148-125(£) (2006), entitied eetings” states in relevant part, “conflict of interest”, as used in this subsection, means an issue in which s director has s dizect personal or pecuniary interest not conon to cther mesbers of the association general definition found in Black's Law This definition is consistent with Dictionary quoted above. 28  seepOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REFORTER® See dual roles as @ compensated resident manager and a board menber.” Although HRS § $148-82(b) (5) refers to a “board meeting,” the Board should have disclosed King's potential conflict of interest to the membership prior to the menbership’s vote on the issue. As Appellant argues, the Board’s October 3, 2002 letter to the menbership did not do this, and the minutes of the October 15, 2002 Annual Meeting failed to “record the fact that 2 disclosure was made.” xt, But in connection with purported material facts (a)- (g), Appellees contend that regardless of any alleged breach of fiduciary duty by the Board, “(t]he issue is now moot (because olver three years have passed and three elections for the Board have been held since the 2002 annual meeting of the Aesociation(.1" The court did not render @ decision as to Appellees’ mootness argument. Appellees cite Adams v. Nevers, 620 N.B.2d 1298 (I11. app. Ct. 1993), to argue that “{e]hallenges to a private association's election are generally mooted by the occurrence of subsequent elections." In Adams, the Appellate Court of Illinois noted that the plaintiffs did not disagree with the general principle that “challenges to a private association's election are mooted by occurrence of subsequent elections|[,]” but argued that “the ‘public interest exception’ to the mootness doctrine should allow them to pursue their claim.” Id. at 1305-06 (citing 29 ‘+APOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER'*# Kohan v. Rima children, 430 N.E.2d 139, 141- 42 (ILL. App. Ct. 1961) ("Since the 1981 election has already taken place, it has ineluctably rendered moot the 1980 controversy, which is the only election involved in this appeal.” (Citations omitted.))). ‘This court has said, Tt is established in Hawai'i that a case 1s moot where the question co be determined is abstract and does not rest on Seisting facts or rights. Thus, the mootness doctrine 13 properly invoked where evente nave so affected the relations Betheen the parties that the two conditions for Susticiability relevant on appeal ~~ adverse interest and tftective renedy ~~ have been conpronised. Okada Trucking Co, v. Bd, of Water Supply, 99 Hawai'i 191, 195- 96, 53 P.3d 799, 803-04 (2002) (brackets, internal quotation marks, ellipses, and citations omitted). Applying the foregoing in the instant case, subsequent events have “so affected the relations between the parties” that there is no longer an effective remedy for Appellant's claims.” Id, (internal quotation marks and citations omitted). By the time Appellant filed his complaint on March 3, 2004, almost one-and-a-half years after the October 15, 2002 Annual Meeting, the next annual % tn his Reply Brief, Appellant raises the following argument in response to Appellees’ mostness argunent Upon prevailing, {Appellant} in part will seek fines, Pegular and punitive damages, and an order removing (Sndividvel Appellees) from office end barring their participation fron board activities for a specified period SF tine. However, insofar as Appellant's statenent concerns procedural measures he intends to take upen the determination and completion of the teuis not a part of this appeal. Accordingly, whether the precesing statenent amounts to sn “effective tenady" need not be addressed. Eee Okada, 99 Nawel't at 195-96, 53 P.3d at 803-04 (internal quotation marks 30 POR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACEFIC REPORTERS+* ee meeting had taken place, King was no longer board president, and Clairmont had left the Board and the Association. Also, within 2 week of Appellant's complaint, the Second Restated Bylaws were recorded, and within a month, 2 new resident manager had been hired to replace King. For the foregoing reasons, Appellant's request for a “declaratory ruling stating that the individual [Appellees] of the Board failed to meet their fiduciary duties” with regard to the October 15, 2002 Annual Meeting is no longer an “effective renedy."* Id, (internal quotations marks and citations omitted). However, this court has said that “an exception to the noctness doctrine [exists] in cases involving questions that affect the public interest and are ‘capable of repetition yet evading review."" Id, at 196, 53 P.3d at 804 (citations omitted). Here, Appellant's second issue on appeal does not fall under the exception. See id, As to the public interest, first, the matter is apparently private in nature inasmuch as it concerns a dispute within a private condominium association. Second, it is not necessary in this case to decide Appelle alleged breach of fiduciary duty for the guidance of future public officers, Inasmuch as the question of @ breach is based on factual circumstances particular to every controversy, a determination in this case would likely provide only limited guidance to public officials in the future. Finally, any % —tnesmuch as there is no effective remedy, the other factors need 31  4s+470R PUBLICATION IN WEST! § HAWAI'I REPORTS AND PACIFIC REPORTER*** perceived ambiguity in HRS § 514A-82.4 is remedied by HRS § 5148~ 106 (2006),” which clearly delineates what a condominium board's fiduciary duty entails. Accordingly, Appellant's breach of fiduciary duty claim is moot. xrI. Ag to issue (3), Appellant contends that “[v]iewing the {August 6, 2002 ‘statement of Irvin King’) letter sent by [King] in his reelection bid to the board in the light most favorable to (appellant,] . . . [King] solicited proxies in violation of HRS § 514A-82(b) (4)." HRS § 514K-82 does not define “proxy” or “solicitation,” however, @ “proxy solicitation” is generally defined as “[a] request that a corporate shareholder authorize another person to cast the shareholder’s vote at 2 corporate meeting.” Black's Law Dictionary at 1263. on its face, King’s statement does not explicitly solicit proxies. However, Appellant asserts that “[a] communication to shareholders may constitute a proxy solicitation, even if it does not contain an express request for aproxy, if it is part of a continuous plan intended to end in solicitation and to prepare the way for success.” (Quoting ‘Shamrock Holdings, Inc, v. Polaroid Corp., 709 F. Supp. 1311, BRS § $148-106(a) (2006) entitled “Board; powers and duties,” states An relevant part, In the performance of their duties, officers and menbers of (Emphesie added.) 32 ‘sesfOR PUBLICATION IN WEST'S HANAI'T REPORTS AND PACIFIC REPORTER**1 a 1327 (D. Del. 1989) (internal quotation marks and citations omitted) (emphases added)). According to Appellant, “the purpose of the communication and the circumstances present, [also] need to be taken into account in determining if @ solicitation occurred{.]” In this regard, Appellant maintains that King submitted his statement specifically because he intended to solicit proxies in compliance with HRS § 514A~62(b) (4) (B).* As indicated supra, however, Appellees argue that “{zjegardless . . . of any alleged solicitation of proxies by . King in 2002, the issue is now moot [because o]ver three years have passed and three elections for the Board have been held since the 2002 annual meeting of the Association[.]” For the reasons stated supra, Appellant’s contention as to issue (3) is also moot. XIII. As to issue (4), Appellant contends that the Second Restated Bylaws are “premature and defective” inasmuch as the Second Restated Bylaws (a) “were not previously adopted by a majority of board members present at a duly called meeting of the board, as is required of all association actions, and HRS § 514A- 82.2(b)," (b) was “signed by the president/resident manager, who held an undisclosed conflict of interest” because “[hJe stood to personally benefit because the altered bylaws stripped the ® see gunra note ¢ this reflects Appellant's entire argument as to (4) (a) 33 "FOR PUBLICATION IN WEST’ § HAWAI'I REPORTS AND PACIFIC REPORTERS** provision banning him as the resident manager from sitting on the board,” and (c) “did not comply with HRS § 514A-82.2(b), which requires that any changes to bylaws pursuant to the board acting alone and without prior association approval, must include within the bylaws, the legal authority for the changes made to the bylaws. With regard to argument (4) (a), Appellant's contention that the Board had not previously adopted the Second Restated Bylaws prior to recordation at the Bureau is not properly preserved for review by this court, insofar as it is advanced for the first time on appeal. See State v, Moses, 102 Hawai'i 449, 456, 17 P.3d 940, 947 (2003) (“AS a general rule, if a party does not raise an argument at trial, that argument will be deemed to have been waived on appeal; this rule applies in both criminal and civil cases.” (Citations omitted.)). Moreover, Appellant's allegation is not supported by reference to the record. Accordingly, Appellant’s argument (4) (a) is waived. See Tauese State, Dept, of Labor & Indus. Relations, 113 Hawai'i 1, 26, 147 P.3d 785, 810 (2006) (stating that “[tJhis court may ‘disregard [2] particular contention’ if an appellant ‘makes no discernable argument in support of that position’” (quoting Norton v. Admin, Dir, of the Court, 80 Hawai'i 197, 200, 908 P.2d 545, 548 (1995) (citations omitted)) (brackets in original)). % this reflects Appellant's entixe argunent as to (4)(b). ‘This reflects Appellant's entire argument as to (4) (c) 34 ‘s+4POR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTERS** SSS As to argument (4) (b), Appellant asserts that King “stood to personally benefit because the altered bylaws stripped the provision banning him as the resident manager, from sitting on the board of directors.” Appellant does not cite any authority, statutes, or parts of the record to support his argunent. Thus, Appellant's argument as to (4) (b) is waived. see id. Moreover, as previously discussed, the provision restricting a resident manager from serving on the Board was included in the Association's First Restated Bylaws, but should not have been included pursuant to HRS § S14A~82.2, See supra. Lastly, with regard to argument (4) (c), HRS § 514- 82.2(b), to reiterate, stated in pertinent part, [ajny declaration of condominium property regime or bylaws restated pursuant to this subsection on eb pd ona stat tho Portions hive been festated solely tor curposss of Sforition ane convenience: identifying the statute She that in the event of any conflict, the Geclaraticn or bylaws shall be subordinate & Statute, ordinance, rule, or regulation. (emphasis added.) Contrary to Appellant's claim, the Second Restated Bylaws’ endnotes “identify each portion so restated” as well as “identifiy) the statute . . . implemented by the amendnent” (€.a4, “(4) This Section 3.05 was amended to comply with Section $14A-62(b) (1), Hawai'i Revised Statutes, as amended”). HRS § $14A-62.2(b). For the foregoing reasons, Appellant's argunent with respect to issue (4) fails to demonstrate @ genuine issue of material fact exists that the 35 ‘s*+F0R PUBLICATION I WEST’ § HAWAI'T REPORTS AND PACIFIC REPORTER*+# Second Restated Bylaws are defective. See Bremer, 104 Hawai'i at 51, 85 P.3d at 158. xiv. Accordingly, the August 24, 2005 judgment of the court is affirmed. on the briefs: It” Michael J. Park, Glenn 7. . Taniguchi, and Peter YL: Mie A Lamar Pong for plaintiff: appeliont. entee Care) sre John A. Morris and Gordon 'M. Arakaki (Bkimoto € Morris) for defendants-appellees. 

1462da06222ac8d792cdfc3ee901f2a10fd9bb46e0f4c53a2fad5516f45bd1e7

2007-04-12T00:00:00Z

0b036687-331b-41fa-8891-7cdb2ec162bc

State v. Kalai

hawaii

Hawaii Supreme Court

LAWLIBR No. 27217 IN THE SUPREME COURT OF THE STATE OF HAWAI'I and STATE OF HAMAY'E, Reepondent-Appeliee s ve. a RENNY K. RALAT, Petitioner-Appellant S82 SG BP op &F BoP PELE K, KOTANI, JR., Defendant. CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS (CR. NO. 03-1-1215) Po JECTING AP! ye WAIT OF (By: Nakayama, J., for the court’) Petitioner-Appellant's application for writ of ted. certiorari filed on February 27, 2007, is hereby ri Honolulu, Hawai'i, March 20, 2007. DATED: FOR THE COURT: Rua Orauensamor [2 Associate Justice Jeffrey A. Hawk for petitioner-appellant on the application Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, J ‘Considered by: 

868a6c06ec625334c975c892c5cd27c7a0a752f2b89a6a3b24a0f1b6981d5b77

2007-03-20T00:00:00Z

11d8c61c-6258-47d4-b77c-3c107d62edb7

Han v. Kang

hawaii

Hawaii Supreme Court

LAW LIBRA 8 E No. 27865 ams oats PAUL KANG, COLDWELL BANKER COMMERCIAL PACIFIC PROPERTIES, LTD., COLDWELL BANKER REAL ESTATE CORPORATION, Defendants-Appellees and DOES 1-10 and PARTNERSHIPS, CORPORATIONS and/or ENTITIES 1-10, Defendants. APPEAL FROM THE FIRST CIRCUIT COURT (Civil No. 03-1-0309) ~ for the court") (By: Hoon, C. upon consideration of plaintiff-appellant Son Gi Han’s *request to the Suprene Court of Hewaii to preside over this appeal," which is deened an application for transfer to the suprene court, the papers in support and the record, it appears that this case does not meet the criteria for mandatory or discretionary transfer. See HRS § 602-58 (Supp. 2006) . ‘Therefore, XT IS HEREBY ORDERED that the application for transfer is denied. Honolulu, Hawai'i, March 14, 2007. FOR THE COURT: Le Justice Levinson, Nakayama, Acoba, ané Duffy, 39 DATE! "considered by: Moon, ¢.3-, 

343fda442db01b7800ad6999e049f2f418185b7386ef0c1e0a5be3cb367e6c29

2007-03-14T00:00:00Z

2bb70a58-7496-485a-99b6-2ea137fe3cf4

Office of Disciplinary Counsel v. Woo

hawaii

Hawaii Supreme Court

No. 26441 IN THE SUPREME COURT OF THE STATE OF HAWAT'T CB HY £2 ui OFFICE OF DISCIPLINARY COUNSEL, Petitioner, i CHRISTOPHER S. B. WOO, Respondent. oDC 07-025-8485, 07-026-8486, 07027-2487 3 ° ORDER OF TRANSFER 70 INACTIVE STATUS Jd.) and (By: Moon, C.J., Levinson, Acoba, and Duffy, Intermediate Court of Appeals Judge Fujise, J. recused) sina 2 in place of Nakayam upon consideration of the Office of Disciplinary Counsel's Motion For Transfer Of Respondent To Inactive Status Due To Incapacity, the memorandum, affidavit and exhibit thereto, and the record, it appears that Respondent Christopher S. Woo, by submitting the letter of Boyd J. Slomoff, M.D., dated January 10, 2007, has asserted he is suffering from a disability that makes it impossible for him to defend himself in disciplinary proceedings. Therefore, IT IS HEREBY ORDERED thai (1) This case is remanded to the Disciplinary Board for institution of proceedings pursuant to Rule 2.19(b) of the Rules of the Supreme Court of the State of Hawai'i ("RSCH"); (2) Respondent Woo is immediately transferred to inactive status, pursuant to RSCH 2.19(c), due to disability until a determination is made of Respondent Woo’s capacity to continue the practice of law in the RSCH 2.19(b) proceeding: (3) The pending disciplinary investigations in op Nos. 07-025-8485, 07-026-8486, and 07-027-8487, may proceed, as provided in RSCH 2.19(h), provided that no disciplinary ante proceeding shall be commenced and any pending disciplinary proceeding against Respondent Woo shall be held in abeyance while Respondent Woo remains on inactive status pursuant to RSCH 2.19(¢); and (4) This oder shall be effective upon entry. DATED: Honolulu, Hawai'i, March 23, 2007. carole Ry Richelieu, Chief Disciplinary Counsel, Mie yinso— Borns Crane €, Bats he Bean hn rym 

f3a593146264276bf4b706384572e66a78e1a26f0276fdd763af20e9bab5618a

2007-03-23T00:00:00Z

85ef3574-7b4c-4549-96e0-c05c52dc47f0

State v. Wachi

hawaii

Hawaii Supreme Court

No. 26477 4 00a IN THE SUPREME COURT OF THE STATE OF HAWAT'T STATE OF HAMAZ'I, Respondent-Plaintif£-Appellee: YOUI WACHI, Petitioner-Defendant-Appellant CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (FC-cR NO. 03-12-1833) (By: Moon, C.J., for the court") Petitioner-defendant-appellant Yoji Wachi's application for writ of certiorari, filed February 5, 2007, is hereby rejected. DATED: Honolulu, Hawai'i, February 23, 2007. Earle A. Partington, FOR THE COURT: for petitioner defendant -appellant, on the application * considered by: Moon, C.J., Levingon, Nakayama, Acoba, and Duffy, ay. axis 

4656a6a3b72151dd2dd9d52cb448721c3357327d9818a1fe29c65681e45f16eb

2007-02-23T00:00:00Z

a9735b38-31d3-45e2-8488-c32294c250b8

Office of Disciplinary Counsel v. Cook

28300

hawaii

Hawaii Supreme Court

No. 28300 IN THE SUPREME COURT OF THE STATE OF HAWAT'Z OFFICE OF DISCIPLINARY COUNSEL, Petitioner, g vs. Se 2 ae OS RICHARD B. COOK, Respondent. ER oa ove 06-074-8414 65:8 (ay: Moon, C.J., Levinson, Nakayame, Acoba, and Duffy, JJ.) upon consideration of the Office of Disciplinary counsel's ex parte petition for issuance of reciprocal discipline notice to Respondent Richard B. Cook, pursuant to Rule 2.15(b) of the Rules of the Supreme Court of the State of Hawai'i ("RSCH"), the menorandun, affidavit, and exhibits thereto, and the record, it appears that: (1) on June 16, 2006, the Supreme Court of Louisiana suspended Respondent Cock for three years for his violation of Rules 3.1 (meritorious claims and contentions), 4.4 (respect for the rights of third persons), 8.4(a) (violation of the rules of professional conduct), and &.4(d) (engaging in conduct prejudicial to the administration of justice) of the Louisiana Rules of Professional Conduct; (2) RSCH 2.15(b) requires issuance of notice and entry of an order imposing the same or substantially equivalent discipline, or restrictions or conditions upon the attorney's license to practice law in the State of Hawai'i, unless Respondent Cook shall show cause under RSCH 2.15(c] as to why imposition of the same or substantially equivalent discipline should not be imposed; (3) Respondent Cook did not respond to our December 20, 2006 notice and order; and o2ts (4) a similar discipline in this jurisdiction is suspension for three years. Therefore, IT IS HEREBY ORDERED that Respondent Richard B. Cook is suspended in the State of Hawai'i for three years. Notwithstanding RSCH 2.16(c), Respondent Cook's suspension is effective upon entry of this order. IT IS FURTHER ORDERED that Respondent Cook’ s reinstatement in the State of Hawai'i ie conditioned (1) upon payment of all costs of this proceeding, (2) compliance with the conditions imposed by the Supreme Court of Louisiana, and (3) reinstatement to the practice of law in Louisiana. DATED: Honolulu, Hawai'i, March 6, 2007. Carole R. Richelieu, Chief Disciplinary Counsel, for petitioner Richard B. Cook, Bea., Gi Fespondent pro 3¢ Blo Dunc Ocean oro PS Yorn. Anitgs 

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2007-03-06T00:00:00Z

772f4242-d01c-4b95-9c15-dbfc44d34636

Taylor v. Winston

hawaii

Hawaii Supreme Court

No. 26433 IN THE SUPREME COURT OF THE STATE OF HAWAI'T MICHELLE L. TAYLOR, Petitioner/Plaintiff-Appellant aa HAMILTON WINSTON, M.D., Respondent /Defendant-Appellee 5 6:1 Hd S- BvH LUO and DOES 1-10, Defendants CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (cIV. No. 01-12-1489) (By: Acoba, J., for the court") ‘The Application for Writ of Certiorari filed on February 6, 2007 by Petitioner/Plaintiff-Appellant Michelle L. Taylor is hereby rejected. DATED: Honolulu, Hawai'i, March $, 2007. FOR THE COURT: IMEON R. ACOBA, JR. Associate Justice John $. Edmunds, Ronald J. Verga, and Joy $. Omonaka (Edmunds & Verga), on the application for petitioner/ plaintiff-appellant. Arthur F. Roeca, April Luria, and Jodie D. Roeca (Roeca, Louie 6 Hiracka), in ‘opposition, for respondent/ defendant-appellee. Considered by Hoon, C. sy Vevineon, Nakayans, Acobs, and Dvfty, 22. 

21c35db5d233f83e04adbe23f802be67861b430e52e2f96529dbdfea1cfcc46c

2007-03-05T00:00:00Z

799382b0-93cf-4c88-a059-bd87565244be

Dudoit v. Clifton

hawaii

Hawaii Supreme Court

No. 27933, IN THE SUPREME COURT OF THE STATE OF HAWAI'I Zhd 91 aaycome VIOLET YUEN SHIM DUDOIT, TRUSTEE, Petitioner/Plaintiff-Appellant arte FRANK CLIFTON and MARINA CLIFTON, Respondent s/Defendants-Appellees z S. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (crv. No. 05-1-0393) ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI (By: Duffy, J., for the court") Petitioner/Plaintiff-Appellant Violet Yuen Shim Dudoit, filed on Trustee's application for a writ of certiorari, January 16, 2007, is hereby rejected. DATED: Honolulu, Hawai'i, February 16, 2007. FOR THE COURT: Ween Dey fr Associate Justice Roger C. Lerud for petitioner/ plaintiff-appellant on the application Moon, C.J., Levinson, Nakaysna, Acoba, and buffy, 09. * considered by: 

d5f7cb92c04ff0c8817628300dd4732fc96312b4172875bb36f7dcc908bc931d

2007-02-16T00:00:00Z

c064b735-1b1b-4c53-acc1-2d67a36e6beb

State v. Murray

hawaii

Hawaii Supreme Court

No. 27549 Hd - NOP L002 IN THE SUPREME COURT OF THE STATE OF HAWAI'T. Be STATE OF HAWAI'I, Respondent /Plaintift-appellée JAMES MURRAY, Petitioner/Defendant-Appellant CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (FC-CR. NO. 051-0086) war: a for the court") (By: Acoba, J., Petitioner/Defendant-Appellent Janes Murray's application for writ of certiorari, filed on April 27, 2007, is accepted and will be scheduled for oral argument. The parties will be notified by the appellate clerk regarding scheduling. Honolulu, Hawai'i, June 4, 2007. FOR THE COURT: Aba R. ACOBA, JR, Associate Justice DATED: C.J.) Levinson, Nakayama, Acoba, and Dofty, JJ. * considered by Me gas 

0bf96300b41b60da916084cf854729fc9801ba9c7a2193ed77d03c86ddcfb28c

2007-06-04T00:00:00Z

bbe69821-d09d-4bc6-802f-78f50650aed1

Douglas v. State

hawaii

Hawaii Supreme Court

*** NOT FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter No, 27060 i Met ana an 2 i WS IN THE SUPREME COURT OF THE STATE OF HAAS SEI lid €2 634 092 KEITH SCOTT DOUGLAS, trustee, and BONNIE DOUGLAS, trustee, Plaintiffs-Appellante, ve. STATE OF HAWAI'I; EAST MAUI IRRIGATION COMPANY, INC., a Hawai'i corporation; Defendants-Appe! lee: and JOHN DORS 1-20) JANE DOES 1-20; DOB PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; DOE ENTITIES 1-10; AND DOE GOVERNMENTAL UNITS 1-10; Defendant: APPEAL FROM THE SECOND CIRCUIT COURT (CIV. No. 02-1-0006(3)) WY DISPOSITION ORDE (By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.) ‘The instant appeal arises out of a quiet title action involving disputed boundaries of adjoining parcels of real property owned by plaintiffs-appellants Keith scott Douglas and Bonnie May Douglas, as trustees of the Keith and Bonnie Douglas Living Trust (hereinafter, collectively, the Douglasesl, (the State), and defendant defendant-appellee state of Hawai'i East Maui Irrigation Company (EMI) Following a jury-waived trial, the on the north shore of the sland of Maui, Hawai'i Circuit Court of the Second Circuit, the Honorable Joseph &. ams *** NOTFOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter Cardoza presiding, entered final judgment on November 4, 2004 in favor of the state. The Douglases appeal from the final judgment, challenging the trial court’s July 27, 2004 findings of fact (Fors) and conclusions of law (CoLe). The Douglases also appeal from the trial court's Decenber 2, 2004 order denying their motion to alter or amend the final judgment. on appeal, the Douglases essentially contend that the trial court erred in its determination of the boundaries of the Douglases’ parcel of real property that adjoins the State’s parcel of real property. Upon carefully reviewing the record and the briefs submitted and having given due consideration to the argunents advanced and the issues raised by the parties, we resolve the parties’ contentions as follows. (2) The Douglases challenge FOF No. 3 (relating to the cultivation of taro on the subject property (i.e., the property awarded pursuant to Land Commission Award (LCA) 6510 U, apana 2)), claiming that this finding is erroneous because “the native and foreign testimony describe the land as both kalo and kula (taro and pasture).* However, there is substantial evidence, which the trier of fact found to be credible, that “kula’ describes a “field for cultivation” and not a pasture for See Ince Doe, 95 Hawai'i 183, 196-97, 20 P.3d 616, 629-30 (2001) (stating that testimony of a single witness, if *** NOT FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter found credible by the trier of fact, suffices as substantial evidence to support an FOF). (2) The Douglases next challenge FOF Nos. 7, 9, and 10 (relating to the peninsula). Inasmich as “[ilt is well-settled that an appellate court will not pass upon issues dependent upon the credibility of witnesses and the weight of the evidence(,]" Eisher v. Fisher, 111 Hawai'i 41, 46, 137 P.3d 355, 360 (2008) (internal quotation marke and citation omitted), and the foregoing findings are dependent upon credibility and the weight of the evidence, we conclude that FOF Nos. 7, 9, and 10 are not clearly erroneous. (3) The Douglases also claim that FOF No. 18 (relating to Registered Map No. 2377) is clearly erroneous. FOF No. 15, however, is supported by substantial evidence in the record Moreover, ‘it is axiomatic that reconciling conflicting testimony is beyond the scope of appellate review[.]" naka v. Onaka, 112 Hawai'i 374, 384, 146 P.3d 89, 99 (2006) (citations omitted). Accordingly, FOF No. 15 is not clearly erroneous. (4) The Douglases argue that FOF Nos. 27 and 18 (relating to the correct location of the poalima) are clearly However, there is substantial evidence in the record to support the trial court’s findings that (1) the correct jure John Gower's metes location of the poalima is needed to me and bounds description of the subject property on the ground (FOF No. 17) and (2) the correct location of the poalina is its *** NOTFOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter See Inte location as depicted on the 1926 EMI map (FOF No. Poe, 95 Hawai'i at 196-97, 20 P.3d at 629-30; aee also Shoemaker v. Takai, 57 Haw, 599, 601-02, 562 P.24 1286, 1288 (1977) (concluding that expert testimony of a land surveyor constituted substantial evidence to support the trial court's finding with respect to a boundary determination). Accordingly, POP Nos. 17 and 18 are not clearly erroneous. (5) The Douglases challenge FOF No. 19 (relating to Bruce Lee's depiction of the poalima). Hawai'i Rules of Appellate Procedure (HRAP) Rule 26 (2006) provides in relevant part that “[ploints not argued may be deemed waived.* RAP Rule 28(b) (7). Here, the Douglases do not elaborate as to how “sub- findings” A through B of FOF No. 19 are clearly erroneous. There is no mention of FOF No. 19 in the Douglases’ “argunent* section. Consequently, we conclude that the Douglases’ contention with respect to FOF No. 19 is deemed waived. (6) The Douglases challenge FOF No. 20 and COL No. 7 (relating to the movement of the subject property's boundaries as shown on the 1926 EMI map). As the State points out in its answering brief, however, it appears that the Douglases’ arguments regarding FOF No. 20 and COL No. 7 were made for the first time in the Douglases’ motion to alter or amend the final judgment (motion to amend). Indeed, the Douglases do not dispute such in their reply brief. tt is clear that their arguments made in the motion to amend “could and should have been presented by *** NOT FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter [the Douglases] at trial.” At trial, the parties presented extensive, conflicting expert testimony regarding the precise location of the subject property. During re-cross examination, Randall Hashimoto testified that the northern boundary of the subject property “falls very close to the top of the sea cliff.” At that point, the Douglases’ counsel could and should have developed Hashincto’s testimony as to the exact location of the northern boundary. Cf, State v. Hashimote, 47 Haw. 185, 210, 389 P.2d 146, 159-60 (1963) (stating that cross-examination is “a leading and searching inquiry of the witness for further disclosure touching the particular matters detailed by him in his Girect examination, and it serves to sift, modify, or explain what has been said, in order to develop new or old facts in a view favorable to the cross-examiner") (internal quotation marks and citation omitted). Moreover, the parties presented conflicting expert testimony as to the paraneters of Hanawana Stream, which concerned the location of the western boundary of the subject property. Consequently, the Douglases’ argunents relating to FOF No, 20 and COL No. 7 were untimely made for the firat tine in their motion to amend. Accordingly, their challenge to FOF No. 20 and COL No. 7 fails. (7) Lastly, the Douglases contend that the trial court erred in denying their motion to anend. Although not entirely clear, the Douglases appear to argue that the State improperly *** NOT FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter changed its position during the trial and that the state is judicially eatopped from changing ite position. We have previously noted that a purported motion to amend is “a de facto motion for reconsideration,” when such motion fails to raise (1) any new arguments that could not have been presented or made in the earlier proceeding or (2) newly discovered evidence. Leslie v. Estate of Tavares, 91 Hawai'i 394, 396 n.1, 984 P.2d 1220, 1222 n.1 (1999) (citations omitted). However, “(t]he purpose of a motion for reconsideration is to allow the parties to present new evidence and/or arguments that could not have been presented during the earlier adjudicated motion." Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Hawai'i 85, 114, 839 P.2d 10, 27 (1992) (citations omitted). Moreover, “[rleconsideration is not a device to relitigate old matters or to raise arguments or evidence that could and should have been brought during the earlier proceeding." Sousarie v. Miller, 92 Hawai'i 505, 513, 993 P.2d 539, 547 (2000) (Zootnote and citations omitted) Here, the Douglases are utilizing their purported motion to amend as a device to relitigate old matters and to raise arguments that could and should have been brought during the earlier proceeding. First, the Douglases had previously raised the argunent that the State "should not attempt to proffer evidence implicating that it is entitled to any affirmative relief in this action” in their fourth motion in limine prior to *** NOTFOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter trial. The trial court, however, already fully addressed the Douglases’ contention at the hearing on the Douglases’ fourth motion in limine, essentially stating that it was unnecessary for the State to have filed a counterclaim in order to defend its position in the instant quiet title action initiated by the Douglases. Second, as the State points out, the Douglases failed to object to Hashinoto’s testimony on moving the subject property seventy-three feet eastward on the basis of judicial estoppel. Consequently, the Douglases are utilizing their purported motion to amend as a device to raise an argument that could and should have been brought during the earlier proceeding. Accordingly, we hold that the trial court did not abuse its discretion in denying the Douglases’ motion to amend. Therefore, IT IS HBREBY ORDERED that the trial court's Novenber 4, 2004 final judgnent and December 21, 2004 order denying the motion to amend are affirmed. DATED: Honolulu, Hawai'i, rebruary 23, 2007. on the briefs: Janes P. Brumbaugh and Brien R. Jenkine, for . plaintiéfe-appeliante Bt Ph canis Pamela K. Mateukawa and Santa or ares Sonia Faust, Deputy “ Attorneys General, for defendant -appellee state of Hawai men €. Buty 

3a68f909dae96e02e511b257f9d9d25f78496fa82dec9e43fb6fcfff546a4f4e

2007-02-23T00:00:00Z

7aad22f4-f77e-4278-8827-9d14ae703082

Kanekoa v. Kanekoa

hawaii

Hawaii Supreme Court

LAW LIBRARY No, 28202 IN THE SUPREME COURT OF THE STATE OF HAWAT'Z KAHIKINA M. KANEKOA, gi 8 Plaintite/Third-Party Plaintift-Appeitee.g8), MUBERT U. KANEKOA, Defendant-Appellant $5/ a= § e a end GRACE INTERNATIONAL CORPORATION, a Nevada corporation, Third-Party Defendant. APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-D No. 03-1-2405) (By: Moon, C.J. for the court") Petitioner-appellant Hubert Kanekoa’s application for writ of certiorari filed on February 2, 2007 is hereby rejected DATED: Honolulu, Hawai'i, March 14, 2007. FOR THE COURT: ‘considered by: Moon, C.J-, Levinson, Nakayama, Accba, ané Duffy, JJ 

b69289a280540c4b11d43333232ec38ea4137ed6a2dc783b923fa2bc9f7c521c

2007-03-14T00:00:00Z

514ed207-0c61-47b1-a884-b9accd094505

State v. Dunbar

hawaii

Hawaii Supreme Court

No. 27424 IN THE SUPREME COURT OF THE STATE OF HAWAT'T — STATE OF HAWAI'I, Respondent-Appellee, JOHN P. DUNBAR, Petitioner-Appellant. ~:/ — CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO, 04-1-0450) 5- @2jpoaz nme (By: Nakayama, J., for the court’) Petitioner-Appellant’s application for writ of certiorari filed on January 12, 2007, is hereby rejected. February 8, 2007 DATED: Honolulu, Hawai'i, FOR THE COURT: Pecaes OOo say te Associate Justice John ®. Dunbar, petitioner-appellant Pro se, on the application ‘considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 33 

fa3b104975e80b8e28631509d41b0526dc35ad53020dd3e42818b7cee646c0e7

2007-02-09T00:00:00Z

3ccbe43f-6549-4937-b634-5e87a2577201

Office of Disciplinary Counsel v. Noguchi

hawaii

Hawaii Supreme Court

No. 23979 IN THE SUPREME COURT OF THE STATE OF HAWAI'I OFFICE OF DISCIPLINARY COUNSEL, Petitioner, GEORGE K. NOGUCHI, Respondent. & Se a EP = Ese my 5 & In re Application for Reinstatement of Sua GEORGE K. NOGUCHT, Petition (ove 97-09-5203) (sy: Moon, C.J., Levinson, Nakayama, ‘Acoba, and Duffy, JJ.) upon consideration of Petitioner George K. Noguchi’s “petition for reinstatement,” it appears that: (1) Petitioner Noguchi resigned from the practice of law in lieu of discipline fon January 16, 2001; (2) RSCH 2.17(c) provides that petitions for reinstatement by a disbarred attorney shall be filed with the rved upon Counsel; and (3) Petitioner Disciplinary Board and Noguchi filed his petition for reinstatement with the supreme court, Therefore, IT IS HEREBY ORDERED that the petition for reinstatement is dismissed without prejudice to Petitioner Noguchi filing the petition with the Disciplinary Board and serving it upon Counsel, as provided by RSCH 2.17(c). DATED: Honolulu, Hawai'i, Pebruary 22, 2007. or Lei friise— Prssctes CON encay are emo Cae deegon- 

9c2d5661db8f93b824fbca5d720df44f20174490b3c3995bc9709fa90c25d720

2007-02-22T00:00:00Z

1f4222a4-80c6-48af-9f65-85dd5811cbcf

State v. Davalos. ICA s.d.o., filed 07/11/2006 [pdf], 111 Haw. 73. S.Ct. Order Accepting Application for Writ of Certiorari, filed 12/01/2006 [pdf].

113 Haw. 385

hawaii

Hawaii Supreme Court

‘s++F0R PUBLICATION IN WEST'S HAWAI'I REFORTS AND PACIFIC REPORTERS#* IN THE SUPREME COURT OF THE STATE OF HAWAI‘T ‘o0o--- STATE OF HAWAI'I, Respondent/Plaintiff-Appellee vs. HANIN DESWYN DAVALOS, Petitioner/Defendant~Appellant and PATSY B. KAHAUNAELE, Defendant 8 Wo. 27270 CERTIORARI TO THE INTERMEDIATE COURT OF APPEAtS (CR. NO, 04-1-0844) FEBRUARY 28, 2007 MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ. OPINION OF THE COURT BY ACOBA, J. Petitioner/Defendant-Appellant Hanin Deswyn Davalos (Petitioner) filed an application for writ of certiorari? on Pursuant to Hawai" Revised Statutes (HRS) § 602-59 (Supp. 2006), fa party may appeal the decision of the intermediate appellate court (the ICR) only By an application to this court for s wit of certiorari. Seo HRS § 602~ 59(a).. In determining whether to accept or reject the application for writ of Certiorarl, this court reviews the ICA decision for! (2) Grave errors of law of of facts or (2) Gbvious inconsistencies in the decision of the [ICAI ith that of the supreme court, federal decisions, or its own ‘decision, land the nagnitue of such errors or inconsistencies Gictating the need for further sppesl (continued...) qa  ‘s+4POR PUBLICATION IN MEST’ § HAMAI'T REPORTS AND PACIFIC REPORTER October 23, 2006, requesting that this court review the Summary Disposition Order (SDO) of the Intermediate Court of Appeals (the IcA),? affirming the April 4, 2005 judgment of the first circuit court (the court)? convicting Petitioner of promoting a dangerous drug in the second degree (PD02), Hawai'i Revised Statutes (HRS) § 712-1242(2) (c) (1993). Respondent/Plaintiff-Appellee state of Hawai'i (Respondent) did not file a response to Petitioner's application. On February 15, 2007, oral argument was held. We hold that (1) there was substantial evidence upon which to conclude that Petitioner was a distributor of drugs, see. HRS § 712-1240 (1993),? in violation of HRS § 712-1242(1) (2): (2) however, Petitioner was entitled to a procuring agent defense instruction inasmuch as (a) a jury instruction must be given on every defense if there is any support in the evidence “no matter how weak, inclusive or unsatisfactory the evidence may be,” State \(, seontinued) biks § 602-59(b)." “The grant or denial of a petition for certiorari is Giscretionary with this court. ggg HRS § €02-£9(a)- + the Summary Disposition Order was Sssued by Chief Judge Janes 8. nd Associate Judges John §.K. Lim and Craig #. hekamus >The Honorable Virginia Lea Crandall presided. «ins § 722-2242(2) (c) stated as follows (2) A person commits the offense of promoting = Gangerous Grug in the second degree if the person knowingly: (c) ° Distributes anv danserous drug in any amount. (Esphesis added.) + RS § 712-1240 states in pertinent part “To distribute” means to sell, transfer, prescribe, give, of deliver to another, ox to leave, Derter, oF exchange with snother, or £0 offer of sgree to co the some. 2  ‘s++fOR PUBLICATION IN MEST’S HAWAI'I REPORTS AND PACIFIC REPORTER! vs O'Daniel, 62 Haw. 518, 527-28, 616 P.1d 1383, 1390 (1980); (b) @ defendant’ s participation in the negotiation of a drug traneaction or in the touching of the drugs or money involved does not in and of itself foreclose a procuring agent defense; (c) the determination of whether a defendant is considered to be an agent of the buyer is @ factual question ordinarily for the fact finder; and (d) there was support in the evidence for a procuring agent defense in the instant case. I Initially it may be observed that under the procuring agent defense, “‘one who acts merely as a procuring agent for the buyer is a principal in the purchase, not the sale, and, therefore, can be held liable only to the extent that the purchaser is held liable.’” State v. Balanza, 93 Hawai'i 279, 264, 1 P.3d 281, 286 (2000) (quoting State v. Reed, 77 Hawai'i 72, 18, 881 F.2d 1218, 1225 (1994)).* A buyer or the agent of ‘the procuring agent defense ie not an affirmative defense. see uns § 701-115(3)" (1999) explaining thet "[a) defense is an affirmative defense if: (a) [i]t de specifically #0 designated by the (Hawal'l Penal) Code or ancther statute; or (b) [i]f the Code or ancther statute pleinly Fequires. the defendant to prove the defense by « preponderance of the evidence”). Hence, like all nenvaffirnstive defenses, tne prosecution must Gisprove the defense beyond a reasonable doubt. ges Commentary to HRS § 701- {15° (2583) "explaining that the Hawai'i Penal Code “places an initial burden on the defendant to cone forward with tone credible evidence of facts Consticuting the defence, unle "those facts ere suppiied by the prosecution's witnesses. he to the burden of persuasion, =. + (1]n the ca Of defenses which are not affirmative, the defendant need Cniy ra: Feasonsble doubt es to the defendant's guilt.” ‘Thereafter, “the prosecution must prove beyond @ reasonable doubt fects negotiving the defense.’ The prosecution in fact does this when the jury believes its case and disbelieves the cefense.” State v, Gabrilla, 10 Haw. Bop. 446, 455, 677 P.24 891, od-95 (2994) [internas qootataon marke, citation, and’ ellipses points caitted) (concluding that “[i)f affirmative Gefenaes’ are not involved and the defendant introduces evidence of » defens the Gefendant becomes “entities to an acquittal if the trier of fact finde (continued...) ‘*+0¥0R PUBLICATION I8 MEST’ HAWAI'I REPORTS AND PACIFIC REPORTERS#* the buyer cannot be convicted of distributing a dangerous drug, HRS § 712-1242(1) (c), since “‘to buy’ [or to offer to buy] clearly falls outside the meaning of ‘to distribute’ as that term is defined in HRS § 712-1240." State v. Auli, 76 Hawai‘ 317, 323, 993 P.2d 168, 174 (1995) On April 30, 2004, Petitioner was charged by complaint with PDD2, HRS § 712-1242(1) (c). ‘The matters following were adduced at trial. Officer Wilson Atud (Atud) related that on April 21, 2004, he was involved in an undercover operation at the Jack-in-the-Box restaurant in Wahiawa and had been given “buy money” to purchase illicit drugs. Atud testified that he approached Petitioner and asked, “You get?” or something to that effect which, according to Atud, is street vernacular for “£iguring out if someone’s got drugs to sell.” Petitioner then asked, “How much?” and after Atud responded “$20,” Petitioner instructed Atud to wait. Petitioner saw codefendant Patsy Kahaunaele and asked Af she had any drugs to sell. Kahaunaele replied that she had a “quarter gram [bag] for $30." Kahaunaele owed Petitioner $10, so Petitioner offered to contribute the $10 that Kahaunaele owed him with the $20 from Atud to purchase the $30 bag, to which Kahaunaele agreed. According to Atud, Petitioner returned and instructed Atud to follow him around the corner. Petitioner told *{..-continuea) thet the evidence, when considered in the light of any contrary prosecution evidence, raises a reasonable coubt 22 to the defendant's guilt’= (quoting, HRS 701-115 (2) (31) ‘s*4FOR PUBLICATION IN MEST’ S HAWAI'I REPORTS AND PACIFIC REPORTERS** the officer he knew somebody with a $30 bag and that he wanted $10 worth of drugs out of that bag. Atud and Petitioner agreed that the officer would “get the 20” and Petitioner would “get the 10” “breakdown of the bag.” Atud testified that Petitioner pointed out Kahaunaele. Atud handed the $20 bill to Petitioner, which Petitioner then passed to Kehaunaele. Kahaunaele then handed a napkin to Petitioner, which Petitioner passed to Atud. A ziploc packet of crystal methamphetamine was wrapped in the napkin. Petitioner testified that after speaking to Kahaunaele, he returned to Atud and explained to him that he knew a person who was selling a $30 bag, but that he would put in $10 of his own money so that they could jointly purchase it. Atud agreed. When they walked over to Kahaunaele, Petitioner introduced Atud as “the person I’m putting in with.” Atud gave Petitioner the $20, which he handed to Kahaunaele, Kahaunaele then handed the d it to Atud. napkin containing the drugs to Petitioner, who pas: As they were walking away, Petitioner testified that he asked Atud for his $10 worth of drugs. Atud told Petitioner to follow him to his car, where Petitioner was arrested. At the close of the case of Respondent and at the close of evidence, the defense moved for judgments of acquittal, which were denied. During the settling of jury instructions, the defense proposed an instruction on the procuring agent defense. The court refused the instruction over objection. The jury found  '*FOR PUBLICATION IN WEST’ S HAKAI'T REPORTS AND PACIFIC REPORTER*** Petitioner guilty. On April 4, 2005, Petitioner was sentenced. on May 3, 2005, Petitioner filed his notice of appeal. qr. Before the ICA, Petitioner argued that (1) Respondent “failed to adduce sufficient evidence to prove that [Petitioner] knowingly distributed a dangerous drug as required by HRS § 712- 1242(1) (c) because HRS § 712-1242(1) (c) does not proscribe the act of buying crystal methamphetamine” and (2) the “court reversibly erred by refusing to instruct the jury on the procuring agent defense.” ‘The ICA affirmed the conviction, stating in its July 11, 2006 SDO as follows: After a cedulous review of the record and the briefs submitted by the parties, and giving careful consideration ‘goments Scvanced and the iseues raised by the lege we resolve (Petitioner's) pointe of err on appeal i. "Evigence was adduced at trial sufficient to enable person of reasonable caution to conclude that [Petitioner] Exansferrea crystal methamphetamine to an undercover police officer on behalf of the seller~ 2.."mne circuit court oie not err in refusing (Petitioner's) jury instruction on the procuring agent Gefense because the evidence aadyced st tris] did not prove only 2 sale. S00 at 1, 2. qn, In his application Petitioner raises two questions: 1. wether the ICA gravely erred in holding that there mag sufficient evidence adduced at trial to enable @ person of reasonable caution to conclude thet (Petitioner) had distributed crystal methanphetenine to an undercover police officer on Behalf ef the seller? 2. Whether the ICA gravely erred in holding that the circuit court oid not ext in refusing [Petitioner's] Jury instruction on the procuring agent defense, besed on the ICK's determination thet the evidence saduced st trial did ot prove cnly Sele? ‘*++F0R PUBLICATION IN WEST'S KAWAI'T REPORTS AND PACIFIC REPORTER*## wv. As to the first question Petitioner contends (1) “HRS § 712-1242(1) (c) states that a defendant commits the offense of promoting a dangerous drug in the second degree if the person knowingly *(d]istributes any dangerous drug in any amount”; (2) “*[d}istribute’ is defined as ‘to sell, transfer, prescribe, give, or deliver to another, or to leave, barter, or exchange with another, or to offer or agree to do the same’"; (3) “the act of buying is not included in distributing,” citing Aluli, 78 Hawai'i 317, €93 P.2d 168; (4) “[aJt the close of [Respondent's] case, [Respondent] contended that the ‘hand-to-hand transfer’ of the drugs from [Petitioner’s] hand to Atud constituted the ‘distribution’; (5) “[hJowever, . . . no distribution occurs when drugs are physically transferred from one joint owner to another,” (citing State v. Moore, 529 N.W.2d 264, 266 (Iowa 1995) (citing United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977))7 People v. Edvards, 702 P.2d 555, 561 (Cal. 1985) (en banc); (6) “[Petitioner] was a joint purchaser of drugs with Atud . . . using the $20 cash from Atud and the $10 IOU he contributed”; and (7) “even Atud’'s testimony establishes that immediately after Kahaunaele gave the drugs to Atud, [Petitioner] asked for his $10 share.” Hence, Petitioner maintains that “the . . . court erred as a matter of law in denying (Petitioner's) motion for judgment of acquittal because the act of purchasing drugs does not constitute an act of distribution under HRS § 712-1242(1) (c)." ‘*#4OR PUBLICATION IN MEST’ HAWAI'I REPORTS AND PACIFIC REPORTERS+® vy. Respondent argues that (1) “Atud testified . . . he asked [Petitioner] if he had any crystal methamphetamine to sell, [Petitioner] inquired, “How much?”; (2) “Atud handed [Petitioner] 2 twenty dollar bill, which [Petitioner] gave to Kahaunaele”; (3) “Kahaunaele then handed [Petitioner] a napkin containing the crystal methamphetamine, which he gave to (Atud]”; (4) “a juror could have reasonably inferred that [Petitioner] was the Gistributor or seller of the drugs.” According to Respondent, “{Petitioner] participated in the negotiation of the purchase price and quantity, when he asked [Atud) how much he wanted[,) + + + [he] subsequently proceeded to acquire the . . .drugs and in the process physically handled both the money and the crystal methamphetamine[,] . . . suggest{ing] that [Petitioner] was a partner with Kehaunaele[,]" and, “[a]s such, no reasonable juror could have found that [Petitioner] did not, at the very least, act on the seller's behalf.” vr. On appeal the test for the denial of a motion for judgment of acquittal is that applied to determine sufficiency of ‘the evidence to support the conviction. See State v, Okumura, 78 Hawai" 363, 403 n.15, 894 P.2d 80, 100 n.15 (1995) (stating that “[alithough different language is sometimes used to describe the standard of review when the denial of a motion for judgment of acquittal is appealed, the test on appeal is actually identical--  HAWAL'T REPORTS AND PACIFIC REPORTER ‘++470R PUBLICATION IN WES: if there was sufficient evidence to support the conviction, the motion for judgment of acquittal was properly denied; if there was insufficient evidence, the denial of the motion was error” (citation omitted)). “Substantial evidence as to every material elenent of the offense charged is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support conclusion.” State v. Aplaca, 96 Hawai'i 17, 21, 25 P.34 792, 796 (2001) (citations omitted). Viewing the evidence as stated above, i.e., in a light most favorable to Respondent, and in full recognition of the trier of fact’s role, it may be concluded that the evidence was sufficient to enable a reasonable juror to conclude guilt. Id, at 21, 25 P.3d at 796 (citations omitted). Inasmuch as there was evidence sufficient to convict Petitioner of PDD2, we consider whether there was trial error, as posited in Petitioner's second question. See State v. Wallace, 80 Hawai'i 382, 413, 910 P.2d 695, 726 (1996) (stating that “[rjeversal for trial error, as distinguished from evidentiary insufficiency, . . . is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, Sug. . . . incorrect instructions” (quoting Burks v. United States, 437 U.S. 1, 15 (1978). vit. As to the second question, Petitioner argues that the court’s refusal of the procuring agent defense instruction was  ‘**47OR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER* error. Petitioner reasons that (1) “[t]he principle behind the procuring agent defense is that ‘one who acts merely as a procuring agent for the buyer is a principal in the purchase, not the sale, and, therefore, can be held liable only to the extent that the purchaser is held liable(,]’ Balanza, 93 Hawai'i at 285, 1 P.3d at 287"; (2) “[Petitioner] testified that he had been a joint purchaser of the drugs from Kahaunaele, not her agent”? (3) “it was Atud who approached [Petitioner] and solicited the purchase”; (4) “(Petitioner) said that he would try to find someone who was selling”; (5) “there was no evidence that [Petitioner] made any profit off of the sale or that he received a ‘cut’ from Kehaunaele”? (6) “Atud confirmed that (Petitioner) asked him, not Kahaunaele, for his $10 share of the drugs”; (7) “a reasonable juror could have concluded that [Petitioner] was not acting on behalf of the seller, Kahaunaele”; (8) under Daniel, 62 Haw. at 527, 616 P.2d at 1390, a defendant in a criminal case “is entitled to an instruction on every defense or theory of defense having any support in the evidence[.]” As to the second question, Respondent maintained in its (1) “*{wJhen jury instructions or the answering brief that: omission thereof are at issue on appeal, the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading’” (quoting State v, Valentine, 93 Hawai'i 199, 204, 998 P.2d 479, 484 (2000)) (citations omitted); (2) in State v 10  **47OR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER®} Kim, 71 Haw. 134, 136, 785 P.2d 941, 942 (1990), “the defendant + admitted to accepting money from the agent and delivering a napkin which she knew ‘maybe contained cocaine’” (brackets omitted); (3) in Reed, 77 at 75-77, 881 P.2d at 1221-23, “the defendant negotiated the terms of the deal with the undercove officer, took the officer’s money, delivered the cocaine... , and . . . admitted to providing the officer with cocaine”; (4) in Balanza, 93 Hawai'i at 289, 1 P.3d at 287, “[this c]ourt opined that ‘under the evidence adduced in Kim and Reed, a reasonable juror could have found that the defendants were, at 2 minimun, acting on behalf of the sellers” (brackets omitted); (5) in Balanza, in which this court deemed the evidence insufficient to convict, this court had noted that “the defendant ‘did not participate in the negotiation of the purchase price and quantity, nor did he come into contact with the money or the drugs’” (quoting Balanza, 93 Hawai'i at 289-90, 1 P.3d at 287-88) (footnote omitted); (6) in this case Petitioner did participate in negotiations and delivery of the drugs and, thus, (7) “the [court’s] instructions . . . were not prejudicially insufficient, erroneous, inconsistent, or misleading.” vii. The instruction requested by Petitioner was as follows: It is a defense to Promoting 2 Dangerous Drug in the Second Gegree that the defendant war merely acting 2 the procuring Ripe: a procuring agent for the buyer is'a principal in the purchase, not the sale, and, therefore, can be held 2iable only to the extent thet the purchaser is held liable. ua  FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REFORTER**+ If you find that the defendant was merely acting as the procuFing agent for the buyer, then you must find th Gefensant not guilty of Promoting’ Dangerous Orug in the Second degres According to Respondent, “(during the settlenent of jury instructions, . . . [Petitioner] conceded he did come into physical contact with the money and the drugs in this case. [Respondent] maintained that the procuring agent defense was unavailable to [Petitioner] insofar as: (1) [Petitioner] and the undercover officer agreed on a price and quantity, and (2) [Petitioner] physically handled the money and the drugs.” ‘The court refused the instruction on such grounds: THE COURT: Court refuses the instruction over the objection of [Petitioner] having reviewed ang the factors set forth therein and the facts of this case With respect to [Petitioner] == negotiated the purchase with jotermined the anount the officer wanted those negotiations and dia actually physically touch both the money and the drug. Respondent asserts, again relying on Balanza, that “the evidence adduced at trial proved [Petitioner] participated in the distribution and/or sale of crystal methamphetamine. . [Petitioner] was, at a minimum, acting on behalf of Kahaunaele.” Respondent argues that because (Petitioner! proceeded to acquire the desired drugs ang in the process, aa in Ein ond Bese ee we) Feasonable jurcr could have found that [Petitioner] did not, athe very least, act on the seller's behalf{]. =. (and) the procuring agent defense wes not available to [Peefesoneri= (Emphasis in original.) In opposition, Petitioner in his opening brief had maintained that “[Petitioner] was entitled to instructions on the ‘+#+FOR PUBLICATION IN WEST’ S HAWAZ' REPORTS AND PACIFIC REFORTERY+# procuring agent defense because a reasonable juror could have concluded that [Petitioner] merely acted to purchase drugs.” Petitioner points out that “in (Balanzal, the (court held, ‘in the absence of a bill of particulars, where the evidence adduced at trial proves only a sale and a reasonable juror could find that the defendant did not act on the seller's behalf, the defendant is entitled to @ jury instruction on the procuring agent defense.’” (Quoting Balanza, 93 Hawai'i at 288, 1 P.3d at 290.) Petitioner concedes that in Balanza this court said: Unser the evidence adduced in Kim and Bead, a reasonable Juror souls have found that the defendants wer Aininuns acting on behalf of the sellers: However in the Present case, Ealanza did not participate in the negotiation SL the purchase price and quantity, nor did he come into Physical contact with the money or the cocaine. Under these Edgeunstances, the procuring agent defense should have been available to hin. (Quoting Balanza, 93 Hawai" at 287, 1 P.3d at 290.) However, Petitioner argues that “evidence that [Petitioner] ‘was involved in. . . negotiations end did actually physically touch both the money and the drug,’ does not mean that a reasonable juror could not find that [Petitioner] was not acting on behalf of the seller and thus, was not grounds for depriving [Petitioner] of the defense.” Petitioner maintains that the question is one of fact for the jury, citing the following: It is inportant to note thet the determination of whether @ defendant is considered to be an agent of the buyer is generally # question for the jury, not the judg Therefore, as long ss there is “some reasonable view of the evicence”’ that s defendant acted purely on behalf of a buyer of drugs, & judge is required to submit the agency defense fo the jury in those Jurisdictions accepting the defense. (Quoting Scott W. Parker, An Argument for Preserving the Agency 13  }FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*+# Defense as Anplied to Prosecutions for Unlawful Sale, Delivervia nd Possession of Drugs, 66 Fordham L. Rev. 2649, 2657 (May 1996).) Within that framework Petitioner argues that negotiation and contact with the money and drugs would not be inconsistent with Petitioner acting as an agent for the buyer: The evidence showed that [Petitioner] physically handled the rugs and the money because he was acting as a Duyer of ‘drugs along with [Atud), The ssaue of whether (Petiticner) negotiated the price and quantity on behalf of Fahaunasle showld have been up to the jury as the trier of fact to decide, not the judge. A reascnable juror could have concluded that (Petitioner) dia not act on the seller's behalf, and merely acted to purchase drugs m In Balanza, this court stated that in Kim and Reed “the respective trial courts were correct, based on the evidence adduced at trial, to refuse @ procuring agent instruction.” 93 Hawai'i at 287, 1 P.3d at 289 (emphasis added). According to this court, “(u)nder the evidence adduced in Kim and Reed, @ reasonable juror could have found that the defendants were, at a minimum, acting on behalf of the sellers.” Id. Referring to the facts in Balanza, it was said, “However, in the present case, Belanza did not participate in the negotiation of the purchase price and quantity, nor did he come into physical contact with the money or the cocaine. Under these circumstances, the procuring agent defense should have been available to him.” Ide at 287-86, 1 P.3d at 289-90. This court did state that “where the evidence adduced at trial proves only a sale and a reasonable juror could find that the defendant did not act on the seller's behalf, @ 14 /#*FOR PUBLICATION IN WEST’ HAMAY'I REPORTS AND PACIFIC REFORTERS** defendant is entitled to @ jury instruction on the procuring agent defense.” Id. at 288, 1 P.3d at 290.” However, the > th Ate S00 the ICA affirmed the court “because the evidence adduced at trial did not prove gnlya sale.” S00 at 2. (emphasis added). $8 Haw. 834, 298, S6 P.2d 1370, 1373 (1979), this court Retnowledged that “appellant hed acted not for himself, but for the undercover police officer in purehsring the cocaine (and) invoke(4) as a defense, the theory of the procuring agent.” Tt was nevertheless held that the procuring agent defense ‘would be inapplicable aginst a charge of knowingly snd Oniawfully distributing a dangerous drug in violation of Section 1242(1) (c) of the Code-” “Id, at 240, $66 Pi2a at 1573 (emphasis added) (citation omitted) Subsequently, State v. Erickson, 60 Haw. 8, 9 S86 P.2d 1022, 1023 (1978), inaicated that where the prosecution had given’a bill of particulars thet. "Confined the State to proof that appellant ‘offered or agreed to Sell(,}’" “the State is Limited to proving the particulars specified in the BLL." (citations omitted.) Recognizing that "to sell does not mean to buy fand that one who acts es the agent of the buyer... does not commit the cefense of selling the crugl,]* id. at 10, S86 P.2d at 1024, this court Goncluded that because “the State wes limited by the bill of particulars to proving a ‘sale',” ig. at il, “the ‘procuring agent’ defense which we held in (kelsey), supra st 235, 566 P.28 et 137%, to be unavailable under a charge of distributing @ drug Le evailable to appellant(,)" Exickaan, 60 Haw, at 10, 586 Pda at 1028. ‘Kim confirmed that Exickson decided that in light of the bill of particulars, "he charge [of distribution} could net be proved by evidence of Sny act other than a sale” and, thus, this court “accept (ed) the procuring Agent defense where a sole ie charged(.J”" However, in Baad, 77 Wawa at. 73, Ge1 F.2d at 1225, it wes said that “we held in Kelgcy that the procuring agent defense, which negates aolya sale, was inapplicable to a charge of Gistribsting a dangerous drag.” (Esphases onitted and enpheels added.) (Citation caitted.) Bead indicated that “the procuring agent defense becomes available only when a bill of particulars alleges that the defendant Sietributes a dangerous drug exclusively by selling it(.]” Id. st £0, 881 Pda at 1226 ‘he view that the procuring agent defense wee available only if the defendant wes charged with a sale, however, was altered by Aluli- held that the term "co cistribute in ARS §-712-1240 [(which included “to feli"}} die not include ‘to Buy’ or ‘to offer to buy.'” luli, 78 Hawai at 525, 099 Pr2d at 17. Because distribution in ite various prescribed forms (including selling) did not include buying or offering to buy prohibited Grogs, the purchase of such contraband waa catside the scope of conduct failing within the definition of distribution. Consequently, the purchase of Gruge, shether by the principal of the principal's agent (Lies, the procuring agent), could be raised as 2 defense to's charge of cistribution under HRS § ‘erizko. tn Balanag, this court reiterated that “[t]he procuring sgent Gefense rensins svaileble where the efendant 1s charged with the sele of Sroge|+]" 93 Hawel's at 267, 1 P.30 at 269, and ebrogated the requirement that S'biil of particulars alleging » sale was a necessary prerequisite to the Considerstion of the defense at trial he reiterated in the text, Balanza did declare that “where the evidence acguced at trial proves only'e sale and a ressonable juror could find that the defendant did not act on the seller's behalf, the defendant i entitled to's jury instruction on the procuring agent defense.” 1d. at 286, 1 P.3d at 290. That statenent, in light cf Alull, was not = limitation on the Consideration cf the defense by the fact finder, but a vestige of the “ale” fSnguage stening from the bil) of paresculars context in Ersckson and Teontinved. -) In  /"FOR FUBLICATION IN WEST’ § HAMAI'T REPORTS AND PACIFIC REPORTER’ holding referred to “these circumstances,” making the outcone rest on the specific facts of each case. In analyzing Kim and Reed, this court also referred to “the evidence received at trial.” Id. at 269, 1 P.3d at 291. Acting conscientiously, the court in the instant case apparently viewed the reference in Balanza to Balanza not participating in the negotiation of the transaction, or coming into contact with the money or the drugs as precluding the defense. x. To clarify, the question of whether a defendant was acting on the seTler‘s behalf or on the purchaser's behalf rests on the specific facts of the case. Generally these are questions of fact for the fact finder -- in this case, for the jury. See 2.02, People v, McGhee, 677 P.2d 419, 422 (Colo. Ct. App. 1983) (stating that “the jury, as the sole judge of credibility, must determine the validity of the procuring agent defense” (citing People v. Smith, 623 P.2d 404 (Colo. 1981)); People v. Lam Lek Chong, 379 N.£.2d 200, 206 (N.¥. 1978) (stating that “(t]he determination as to whether the defendant was [an agent of the buyer] is generally a factual question for the jury to resolve on the circumstances of the particular case”); People v, Foskit, S64 N.¥.8.2d 912, 913 (N.Y. App. Div. 1990) (concluding that “[w)hether defendant was @ seller of narcotics or merely a *(.. continues) reiterated in subsequent cases. Moreover, that the stotenent Sle” rested on the specific facts ef Belansa is undersesred by ebservation thet “the evidence sdduced st trial proved only & 16 to “only @ ‘chis court’ Ta ide ‘S*4FOR PUBLICATION IN WEST'S HAMAI'I REPORTS AND PACIFIC REPORTERS purchaser assisting a friend presented a factual issue for the jury to resolve under the circumstances of this case” (citing People v. Scott, $20 N.Y.8.2d 856 (N.Y. App. Div. 1987)). But if the court refuses the instruction as to the procuring agent defense, the jury is precluded from determining such questions. ‘The evidence arguably conflicted as to whether Petitioner was acting on behalf of Atud and himself as buyers when he handed the drugs to Atud, or on behalf of Kahaunaele as fan agent of the drug seller. At the least there was support in the evidence no matter how weak, inconclusive or unsatisfactory it may be thought to be, for the jury to find that “the [Petitioner] did not act on the sellers behalf” but on behalf of Atud and himself. See State v. Locaviao, 100 Hawai'i 195, 205, 58 P.3d 1243, 1252 (2002); State v, McMillen, 83 Hawai'i 264, 265, 925 P.12d 1088, 1089 (1996); State v. Maeleaa, 60 Hawai'i 172, 178-79, 907 P.24 758, 764-65 (1995); State v. Pinero, 70 Haw. 509, $25, 778 P.2d 704, 715 (1989); Q*Daniel, 62 Haw. at 527-28, 616 P.2d at 1390. For that reason it appears the instructions were “prejudicially insufficient.” Valentine, 93 Hawai'i at 204, 998 P.2d at 484. Therefore, the court was wrong in refusing the procuring agent instruction and the ICA gravely erred in affirming the conviction. xr. Based on the foregoing, the ICA’s SDO is reversed, the court’s April 4, 2005 judgment is vacated, and the case is Vv  FOR PUBLICATION IN MEST’ S HAWAI'I REPORTS AND PACIFIC REFORTERS+® remanded to the court for proceedings consistent with this opinion, Summer M.M. Kupau, Deputy Gi Public Defender (Jon N. . Tkenaga, Deputy Public Blan vce Defender, on the application), for Aesetes CV certae te= pet itioner/defendant- Prosecuting Attorney, City & County of Honolulu, for Yowene, Duster + respondent /plaintiff- appellee. 18 

360f61fa39babc2d56ae206c49a765954b7a761bb12efdd98214d3948e5050f9

2007-02-28T00:00:00Z

7a298135-3d85-48ee-ac8a-a036bd9897de

Rees v. Carlisle.

113 Haw. 446

hawaii

Hawaii Supreme Court

++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** IN THE SUPREME COURT OF THE STATE OF HAWAI'I 00" KEENE H. REES, Plaintiff-Appellant, vs. PETER CARLISLE, City and County of Honolulu Prosecuting Attorney, in his official and individual capacities, Defendant-Appellee. No. 26996 APPEAL FROM THE FIRST CIRCUIT COURT (CIV, No, 03-1-1075) MARCH 12, 2007 MOON, C.J., LEVINSON, ACOBA, AND DUFFY, JJ., AND CIRCUIT JUDGE CRANDALL, IN PLACE OF NAKAYAMA, J., RECUSED OPINION OF THE COURT BY DUFFY, J. Plaintif£-Appellant Robert Rees’ appeals from the November 23, 2004 final judgment of the Circuit Court of the First Circuit,? granting summary judgment in favor of Defendant~ Appellee Peter Carlisle, City and County of Honolulu prosecuting attorney, and against Rees on all counts, in a suit over the legality of Carlisle's use of public funds and other public keene #. Rees, widow of Robert Bees, following the death of Mr. Fi While thie cose wee on opt woe aubetituted ae Flaintiff-Appel ‘The Honorable Gary W.B. Chang presided over this matter, “OR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** resources to advocate in a state-wide general election for passage of an amendment to the Hawai'i Constitution. (2) the On appeal, Rees makes the following arguments: circuit court erred in ruling that Carlisle's use of public funds and resources to advocate for a particular election result is authorized by state laws (2) the circuit court erred to the extent it determined that Carlisie’s actions constituted government speech; (3) the circuit erred in ruling that carlisie’s actions did not viclate the First Anendnent to the united states Constitution or article I, section 4 of the Hawai't Constitution: (4) the circuit court erred in finding that carlisie’s actions did net vielate the equal protection clauses of the Fourteenth Anendnent to the United States Constitution and article 2, section § of the Hawai'l Constitution; and (5) the circuit court erred in ruling that it did not have jurisdiction to consider whether Carlisle's conduct violated Revised Ordinances of Honolulu (ROH) § 38.6. Based on the following, we vacate the circuit court's Noverber 23, 2004 final judgment, and remand to the circuit court with instructions to grant Rees's motion for sunmary judgment on his declaratory judgment claim that Carlisle acted without legal authority when he used public funds and resources to advocate for a proposed constituticnal amendment in a general election.  FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER 1. BACKGROUND A. Factual B peter Carlisle has been the elected prosecuting attorney for the City and County of Honolulu since January 1997. In 2001, Carlisle promoted a bill in the Hawai'i legislature that proposed an amendment to the Hawai'i Constitution thet was intended to “permit prosecutors and the attorney general to initiate felony criminal charges by filing 2 written information signed by the prosecutor or the attorney general setting forth the charge in accordance uith procedures and conditions to be provided by the state legislature.” §.B. No. 996, H.D. 1, C.D. 1 (Haw. 2002). Thie bill ds often referred to as the “direct filing” bill. Following legislative approval of the bill in 2002, carlisle sought the opinion of the City and County of Honolulu Ethics Commission a¢ to whether it would be appropriate under the city and County ethics laws to use City and County resources, including personnel, to work for approval of the proposed anendnent. The Executive Director of the Commission, Charles W. Toto, responded, in an e-mail correspondence dated June 7, 2002, that “the short answer is yes, with sone restrictions.” The e-mail continued: You informed me th Attorney] souls like to advocate en benalf of © m (che Cepartment of the Prosecuting sure thet  WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER, ** FOR PUBLICATI wide election ballot this Novenber The issue is uhether the state constitution should be feended to permit the process of “cirect filing” as an Eiternetive means to begin felony prosecutions. You Envision using. [the Department’ s) rescurces, such as fersennel, facilities ano equipment, to werk for the Epproval of cirect filing on the pellet. wil be on the stat OH Sec. 3-0.6 sete forth certain restrictions on the Conduct of elty officers and employees regarding “Campsign Seeistance.” “Cespaign azcistance” includes any service Seed to seciet the effert to place # question on an election Ballet or to approve er relect such ¢ question. ROH Sec. See.ib) (2), Ae 8 result there are restrictions on the Géticere and employees who are involved in supporting the Elzect filing propoes!.” These restrictions are statec in fol sec, 3-8:€{c)- They focus on protecting city perscanel Exon coercion, genial sf expleyment, cischerge or Gencticn, haracenent for failing to render canpaign assistanci Porther, the limitations ben pronction and other advantages Sig sesuit cf or officer's of employee's rendering campaign Seeietance, You nay want to familiarize yourself with the specific restrictions: ‘The ethics laws co net prohibit [the Department of the Fresecuting Attorney) fron ueing city resources to advocate For passage of the direct filing amendnent. However, appears that ROH Sec. 3-6.6(c) gives officers and employees ERe"right to refuse to resder campaign assistance regercing b questicn on an election Bellot withect eny cisadvantage to thelr employment resuiting form [eic) such # refusal, It Sise ensure® that personnel sho render assistance will not Ee treates faversbly compares with those who do net Therefore, 1 reconnens that you inform each officer or Gepleyee that he cr she Ray Opt cut of the werk related te fhe cirect filing amendment without concern for any Eesulting reward of reprisal. Thereafter, Carlisle canpaigned extensively to promote the proposed anenduent, identified as Question 3 on the Novenber 2002 ballot, in various ways, including the expenditure of public resources and utilization of enployees in his office in that effort. Carlisle admits to the following: (1) that he canpaigned for the passage of Question 3 in his cepacity as prosecuting attorney and not as a private citizen; (2) that he  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND. and other representatives of the Office of the Prosecuting Attorney actively advocated for passage of Question 3 in speaking engagements on sixty-six (66) separate dates between April 25 and November 4, 2002 (3) that he and fifty-seven (57) other representatives of his office sign-waved in support of Question 3; (4) that his office used public resources, including paper, copying equipment, telephones, and a website te promote .ge of Question 3; (5) that the website of the Office of the Pa Prosecuting Attorney encouraged viewers to “Vote Yes” on Question 3 (6) that in addition to the time that he and his office employees spent advocating for passage of Question 3, his office expended public resources of at least $2,404.27 in the campaign for passage of Question 3; (7) that he sent an e-mail to all employees in his office calling for their support in advocating for passage of Question 3 in their interactions with members of the public and asking for suggestions on “how to sell this concept to the public”? and (6) that while all of his office employees who participated in the campaign te promote the passage of Question 3 were volunteers, some of the volunteers were asked to work on proncting Question 3 on official work time. The City and County wes not reimbursed for the time, labor, and resources utilized by the Office of the Prosecuting Attorney in advocating for the passage of Question 3.  FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER Rees filed suit against Carlisle in his personal and official capacity on May 21, 2002, stating the following legal claims: (1) that Carliele's activity viclated Rees’ s constitutional free speech rights under article I, section 4 of the Hawai'i Constitution and the First Amendnent to the United States Constitution and that such violation is actionable pursuant to 42 U.S.C. § 1983; (2) that Carlisie’s activity violated Rees’s constitutional right to a free and fair election under the due process clauses of article I, section 5 of the Hawai'i Constitution and the Fourteenth Amendment to the United States Constitution, actionable pursuant to 42 U.S.C. § 1983; (3) common law qui ten; and (4) that Rees is entitled to a declaratory judgment under Hawai'i Revised Statutes (HRS) § 632-1 (1993) that Carlisie’s actions (a) exceeded any authority granted to the prosecuting attorney by the City Charter and were not authorized by HRS § 28-10.6, (b) were in violation of ROH $ 3.8-6, and (c) violated Rees’s free speech and free and fair election rights under the Hawai'i and United states Constitutions, as previously alleged. In addition to requesting 2 declaratory judgment regarding Carlisle's activity, Rees also requested: (1) an injunction ordering Carlisle to compensate the city for (a) all taxpayer resources used to promote passage of ‘+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** the amendment and (b) the portion of the salaries paid to employees of his office for time spent campaigning for passage of the amendment; and (2) an injunction prohibiting Carlisle from sistance of city employees, or campaigning, requesting campaign a using taxpayer funds to campaign on ballot questions in the future. on Novenber 4, 2003, Carlisle filed a motion to dismiss or for summary judgment, in which Carlisle argued: (1) that Rees (2) thet lacked standing to challenge Carlisle's conduc’ Carlisle’s actions did not constitute a “forced speech” claim actionable under 42 U.S.C. § 1983; (3) that Cerlisle’s actions did not constitute infringement of fundamental voting rights actionable under 42 U.S.C. § 1983; and (4) that Hawai'i law does net recognize a connon lew qui tam claim. on August 6, 2004, Rees filed a motion for summary judgment and declaratory relief on the constitutional claims? and for declaratory relief as described earlier herein. Both dispositive motions were argued on August 24, 2004. Disclaiming the validity of the constitutional issue raised by Rees, Carlisle's counsel esserted at the hearing that the issue of Carlisie’s authority to use public funds to advocate Rees’ s summary judgnent motion did not raise the qui tam claim that was part cf the complaint) only the ehree counts reseed in the notion remained In the action  +++ FOR PUBLICATION IN WEST"S HAWAI'I REPORTS AND PACIFIC REPORTER *** for a ballot question was the only real issue: “[s]o you've seized on the absolute issue when you ask about authority ‘cause that’s really where it is... . [WJhat we have here is just 2 good old garden variety case of gee, did this public official have the authority to spend this money for this purpose?” Carlisie’s counsel clained that Carlisle's authority te so advocate using public funds and resources came from the City Charter, which empowered him te prosecute ali offenses under the authority of the attorney genezal of the State: “The ordinance dally the authority of the [sic] confides to Mr. Carlisle essen attorney general with regard to activities within the City and county of Honcluls concerning crime.” Following the hearing, the circuit court tock the matter under advisement. On Septerber 24, 2004, after concluding that Rees had standing to prosecute the action on the basis of his statue as @ taxpayer, the circuit court granted Carlisle’s notion for summary judgment and denied Rees’s motion, end rendered the following oral ruling: turning firet_to the question regarding whether the cefendant viclated Secticn 3-£.6(c) of the Revises Grdinances of Acneluls, that section prohibits certain Behavior relating to the coercion or solicitation of public exployeer in connection with campaign activities. The sEeletion of Section S-€-6(c] ie 8 petty misdeneancr Section 3-€-6(¢) ‘does not appear to create @ private right of action in saver of a taxpayer's challenge to the expenditure cf public funds, The adjudiertion of an slleced ssoletion of Section 3-8.€(c) is properly addressed to 3 Eininel prosecution, not a civil action, Therefore, +++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** plaintiff se not entitled to any relief pursuant to Section Erevelc) of the Revises Ordinances of Honciula. ‘The gravemen of the xensining claims relate to the alleged unconstitutional expenditure of public funds. The Prosecutor 1s an elected efficial who is charged with the Fesponsibility to prosecute alleged violations of she Hawaii Fenei code, This responsibility is delegated to the Prosecutor by the Attorney General. The duties of the Prosecutor is {eici to lobby the Legieisture regarding bills Ehot inpact upon the prosecution of criminal defendants ‘The Prosecstor is sige peraitted to utilize public resources fo educste the public regerding issues that Felate to the Eepie of eine in Honclvit and cther matters relating to the Ecbiness of the Prosecutor's Office. Courts have recognized that public funde and rescurces expended in furtherance of these poredite are not unconstitutional. The objection plaintsf# raises is that the Prosecutor did not simply educate the public regarding question 3 on fhe beitot, bur he went tec fer when he urged voters to vote Yer on question 3. The lew not only tolerates public BEACL Ie thpending putiie funce ond resources fo address political issues that are germane to the business porposes Ge the office, but it expects such conduct. Question > Ghich related to the criminal sndictnent process i clearly Qermane te the business cf the Prosecutor's Office. Public Seiieisis often neke renarks cr public statenente or take positions on matters that are germane to the business of Ehtir offices whicn etatenents or positions are objected te of disagreed with by taxpayers. This ie not unusual. hen» public officisl fron en office such as the Prosecutor's Office, which is charged with a specitic Rlesien to prosecute criminal defendants, maker a public Btatenent oh a Ballot question, there ie no doubt which way the Prosecstor wants the public to vote. Se to draw Bright line between constitutional and unconststutione Of public sescurces based upon whether or not the Prosecutor Geys vote yer would be an artificial and arbitrary Gistineticn and flies in the face of the reality that every Voter snows how the Prosecutor wants the public te vote ona matter such as question 3. Therefore, if the law tolerat the Prosecutor speaking on matters that are germane to the presecuticn of criminal defendants, then the Constitution ust allow the Prosecutor to urge Goth the passage of Tegisiaticn pending before cur Legislature and the adoption ef ballot questions. Therefore, for these and any other Good cause shown in the record, the court will respectfully Grant the defendant's moticn for susmary Judgnent and deny the plaintsff'e motion fer sursary judment. +++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** A final Judgment was entered on Novenber 24, 2004, and Rees filed a timely appeal. 11. STANDARDS OF REVIEW |. Motion for Summary Judanent Me review the circuit court's grant or dental of sumary “Gdgnent de nove. fiauall isicl Community federal Cress pier v, Keke, 94 Havel 21%, 201, 11 Poa ty 3 12000), The standera for granting e notion for summary judgnens is settiea: (S)urmery judgnent is appropriate if the pleadings, depositions, snewere te interregstories, en Baniseione cn fSle, together with the affidavits, if Shy, how that there ie no genuine issue as to any hatérie: fact ana that the moving percy is entitled to Suagment ass matter of law. A fact if material if preat of thet fect would have the effect of ‘ablishing or refuting che of the essentiai elenente bf s ceute of action oF defense asserted by the parties. The evidence must be viewed in the light Rost favorable to the nonsneving party. Jn cther rors, we must view al of the evicence and the Inferéncee drawn therefrom in the Light sest favorable to the party opposing the motion. Id. (citations and internal quotation cose Honoluly, 96 Hawal'l 233, 244-48, 47 Bolg Se, Suse) (ees) lesson alteration sn original! Kau v. City and County of Honolulu, 104 Hawai'i 468, 474, 92 P.3d 477, 483 (2004). B. Interpretation of Municipal Charter and Ordinances Statutory interpretation is “a question of law reviewable de nove.” State v, Levi, 102 Hawai'l 262, 265, 75 P.3d 1173, 1176 (2003) (quoting State v. Arcec, #4 Hawai'i 1, 10, 928 F.2d 843, 852 (1996)). This court’s statutory construction is guided by established rules: 10 ++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** Firat, the fundamental starting point for statutory Interpretation se the language of the statute itself. Second, where the statutory language is plain end Grenbiguous, cur sole duty 18 to give effect te its plein and obvious meaning. Thiré, implicit in the task of statutory construction is oor foremost obligation te ascertein and gave effect to the intention of the Legislature, watch is to be obtained primarily from the Language contained in the statute itself. fourth, when there 1s coubt, doubleness of meaning, oF indistinctiveness br uncertsinty of an expression used ine statute, an anbsgusty exists. Peterson v. Hawaii Elec, Light Co., Inc., 85 Hawai'i 322, 327-28, 944 P.2d 1265, 1276-72 (1997), superseded on cther arounds by HRS § 269-15.5 (Supp. 1999) (block quotation format, brackets, citations, and quotation marks omitted) . “When interpreting @ municipal ordinance, we apply the same rules of construction that we apply to statutes.” Weinberg city & County of Honolulu, 62 Hawai'i 317, 322, 922 P.2d 371, 376 (1996) (quoting Bishop Souare Assoc, v. City & County of Honolulu, 76 Hewas's 232, 234, 673 P.2d 770, 772 (1994) (quoting Waikiki Resort Hotel v. City & County of Honolulu, 63 Haw. 222, 239, 624 P.2d 1353, 1365 (1981)}). “The purpose of the ordinance may be obtained primarily from the language of the ordinance itself[.J" Id. III, DISCUSSION A. Bagic Claims and Defenses Rees’s legal claims are three-fol (2) that Carlisle acted without legal authority when he used public funds and resources to advocate for passage of the proposed constitutional +** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** amendment Question 3;‘ (2) that Carlisle's conduct violated Rees’s constitutional rights; and (3) that Carlisle's conduct was in violation of Revised Ordinances of Honolulu (ROH) § 3-8.6. Carlisle denies that he viclated Rees’s constitutional rights, and claims thet Section 6-104 of the Revised Charter of Honolulu and HRS § 26-10.6 give him the legal authority to use public funds and resources to advocate for passage of the proposed constitutional amendment Question 3. In addition, Carlisle asserted a number of affirmative defenses, including: lack of standing, mootness, and failure to state @ claim upon which relief can be granted. The cizcuit court ruled that Rees had standing to assert the claim, and Carlisle did not challenge this finding on appeal. Since the issue of legal authority for the conduct at issue is fundamental to our analysis, we will begin with a review of Carlisle’s claimed authority. Authority to Use Public Funds to Advocate for an Election The Revised Charter of Honolulu (RCH) sets out the Prosecuting attorney's “powers, duties, and functions” in Section + In addition to challenging this claim on the nerits, Carlisle argues that thie point should be disregarded because che circuit court never made the “finding” in question ang therefore the point of error viciates RU 26h) (2) (c) of the Howai'i Rules of Appellate Frocedure (HRAF)- We disagree: The circuit court implicitly feune ‘Conduct wae authorized by statute, end Rees" = Opening ‘here in the record the sileged error cccurres.” HRAP 28 (3) (4  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER 8-104 (Supp. 2003), in accordance with authorizing state law. ‘See HRS § 46-1.5(27) (1993) ("Each county shall have the power to provide by charter for the prosecution of all offenses and to prosecute for offenses against the laws of the State under the authority of the attorney general of the state.”). RCH § 6-104 provides thet ‘the prosecuting attorney shall a) Attend ail courte in the city and cenduct, on behalf of ‘the people, oil prosecutions therein fer offenses against the laws cf the state and the ordinences and roles and regulations of the ciey (b) Frosecute offenses against the lave of the etate under the authority of the attorney general cf the state. c) Appear in every crininel case where there ie 2 change of venue fron the courts in the city and prosecute the same in any juriseiceion tc which the came if enanoes cr Fencved. The expense Of auen preceeding shell be pasa by the city. {id} Institute proceedings before the district judges for the arrest of perscne charged with or resecnably suspectes of public offenses, when the prosecuting attorney has information thet any Such effenses have been comitted, anc for thet purpose, take Charge of erininal cases before the district Judges esther in person or by 2 deputy or by such other prosecuting officer or in ‘Such other Banner ex the prosecuting atterney shell dei hen approval of the district court er in accorsance with 8 eran alt indicteents and attend before and give advice to the grand jury wnenever cases are presented to it for ite consideration; and investigate ali matters which may properly cone before the prosecuting attorney. Nothing herein conteines shell prevent the Conduer of proceedings by private counsel befere ceurts of record Unger the direction of the prosecuting attorney. RCH § 8-104 (citations omitted). Ae the most general statement of the prosecuting attorney’s powers, RCH § 8-104 provides the proper starting point for enalyzing the extent of Carlisle's authority. See, e.c. mt ing, 11 Haw. 140, 76 P.2d 943 (1990) (analyzing language of Honolulu Charter, section 8-104, to determine that +++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ** prosecuting attorney is empowered, in his discretion, to employ private counsel te prosecute particular cases). RCH § 6-104, which is focused on the prosecution of offenses, the institution of arrest proceedings, and court appearances, clearly lacks any express grant of power to use public funds te advocate for changes in the law. See Marsland v. Fang, § Haw. App. 463, 472, 701 P.2d 175, 184 (1985) ("The prosecutor's powers and functions are limited to those expressly accorded to his office by the statute creating it.” (Citing 638 An. Jur. 2d Prosecuting Attorneys § 20 (1984).) (Emphasis added.)). Conceding that express authority is not provided by section @-104, Carlisle “power to comment on non-partisan ballot measures argues that th x in which he can initiate prosecutions that impact upon the man: is fairly implied fron” his power and duty to prosecute crimes. We agree with Carlisle that the power to publicly comment on ballot measures that implicate the manner in which he can initiate prosecutions is fairly implied from his power and duty to prosecute crimes.’ The problem in this case is that Carlisle’s conduct went far beyond providing information to the public on how the criminal justice system can be improved; he ading a battle campaign using public became 2 partisan advocate ele may “comment” on such iseues by the First Anendwent not at for & specific election cutcone of couree, whether Car feat prove  +4 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER funds and other resources to tell voters how to vote. As noted earlier, Carlisle mobilized the Office of the Prosecuting Attorney and together they collectively advocated for the passage of Question 3 in speaking engagements on sixty-six (66) separate dates between April 25 and November 14, 2002, sign-waved on twenty (20) separate dates, prepared campaign materials in the office during business hours, urged voters to vote “Yes” on the website of the Office of the Prosecuting Attorney, and utilized public funds, labor, and resources in this overt advocacy campaign. ‘The distinction between providing information and blatant advocacy was made by the New Jersey Supreme Court in Citizens to Protect Pub, funds v. Bd. of Educ., 98 A.2d 673 (N.J. 1953), a case that concerned the legality of @ school board’s expenditure of public funds on a booklet promoting a school building program, which was to be funded by a bond measure if approved by the voters in a local referendum election. In an opinion written by then New Jersey Supreme Court Justice and future United States Suprene Court Justice William Brennan, the court ruled that while express advocacy was not permitted, the school board had implied power under its budgeting powers ~~ which included @ provision regarding school building -- that “plainly embraces the making of reasonable expenditures for the a FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER purpose of giving voters relevant facts to aid them in reaching an informed judgment when voting upon the proposal.” Id. at 676. But rather than a fair presentation of facts, the court stated, “the board made use of public funds to advocate one side only of the controversial question without affording the dissenters the nt their opportunity by means of that financed medium to pre side, and thus imperilled the propriety of the entire expenditure.” Id. at 677. This was improper, Justice Brennan explained, because (che public ed to the belong equally te the proponents ong opponents of the proposition, and the use of the funds to finance not the presentation of fects aerely st gorente to perevade the votere chat only one #ide has merit, gives the dissenters Just cause fer complsint, The expenciture se then net within the implied power and de ot lawfui in the absence of express authority fron the Ia ‘The New Jersey Supreme Court analysis is consistent of with that of other jurisdictions that have considered the u public funds to advocate in elections. In Stenson v. Mott, the caligornia Suprene Court ruled that while the Celifornia Department of Parks and Recreation may have disseminated neutral information relating to the bond election without running efoul of the law, it was not authorized to “expend public funds to promote @ partisan position in @ general election." 17 Cal. 3¢ 551 7.26 1, 3 (1976). The 206, 208-10, 130 Cel. ptr. €97, 69 California Supreme Court stated: )N IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER *** FOR PUBLICA’ Indeec, every court which has addressed the Sesue to date has fsund the use of public funds for partisan compas Purposes isproper, either on the grouné that such use wea Rot exeiicitiy authorizes or on the brosder ground thet such Capencitures tre never appropriates = ‘Underlying thie snisorm sedicial ‘reluctance to sanction the se of public funds fer electicn cempaigne EIECS Sh Sgaiele Setcgnstson enae sven expenditures raise potentiolly serious constiturienal questions. 17 Gal, 3d at 217, 130 Cal. Aptr. at 704-05, S51 F.2d at 8-9, Having concluded that the Revised Charter of Honolulu provides neither express nor implied authority to use public funds to advocate for a proposed constitutional amendment in a general election, we now consider Carlisle's argument that such authority is provided by HRS § 26-10.6. c. HRS § 28-10.6 0. r isle's ix Does Net Apply to the Prosecuting Attorney. Chapter 28 of the Hawai'i Revised Statutes is entitled wattorney General.” HRS § 28-10.6 provides es follows: Ceine research, prevention, and education: adainistrator and staff. (2) The cepartrent of the attorney general shall initiate, develop, and perform cr coordinate Prograns, projects, and activities, as determined by the von the subject of crise, snciuding But net arch, prevention, end education. The y ‘arch, evaluate, and make reconnendetions criminal justice system to the governor, the Tegisleure, the judiciary, criminal justice apencies, of the general public, 2= pprepriate: (2) Develop and implement er coordinate statewide Grine preventien progrene end ectavities, Snetuetng: (Bh) Providing erine prevention training prograns for law enforcenent agencies, Eltizens, Businesses, anc civic sroupe: one (B) Resisting in the organizetion of crine Breventign teams in communities ts  + FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER, encourage the development of comunity chine prevention provrersy (3) Develop public education programs through various broadcast or print media to provide to the general public information that will assist citizens in Seveloping the knowlesge and Confidence te prevent crine and to avoid . Becoming victine of ezine: (4) " Establish, ae dened by the attorney general to be necessary or eppropriate, citizen and Sovernment agency representative seudy teams to Beudy epecific etine eubject® or erimnal Justice eyster problens, in order to obtain input or advice from e more specializes sesnent of the erinins! Sustice or public community on those specific matters; and 3 (b) The attorney chapter 76, and 8: the feral nay enpioy, without regard to ‘Stney generel's plessure disniee, Sn astinsetravor and ‘Suppers staff necessary for the Performance er cocrdination ef the prograns, projects, and Eetivities on the subject of crine HRS § 28-10.6 (1993 and Supp. 2002). Carlisle argues that because section 8-104(b) of the Revised Charter of Honolulu gives him authority to “prosecute offenses against the law of the state under the authority of the att "RCH § 8-104 (b) (emphasis added), he enjoys the same authority given to the attorney general by the legislature in HRS § 2€-10.€, at least with respect to subsections (1)- (3 «tn nie snended anewer ang mencrensun in opposition to Rees’® summary judgnent motion in the circuit court, Carlisle stared that “[ulnder the authority of the attorney general, af it concerne the subject of crine, the Prosecuting ties aise may include Grime research, prevention, and education, snciudins ivities discueseo in HAS © 26- Fores" wndee enumeration wae quoted cirectly from HRS § 26-106  FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ** The statutory language in question does not support Carlisle's argunent. HRS chapter 26 is entitled “Attorney General.” HRS § 28-1 provides, among other things, that the attorney general shall appear for the State personally or by Geputy, in all cases criminal in which the State may be a party or be interested. HRS § 26-2 is entitled “Prosecutes offenders, enforces bonds” and provides, among other things, that the attorney general shall prosecute offenders against the laws of the State. HRS § 28-10.6 is entitled “Crime research, prevention, and education: adninistrator and staff.” A review of this statutory language shows that the language is indeed specifically directed to the departnent of the attorney general, and its duties with respect to crime research, prevention, and education. There is no mention of the prosecuting attorney in the statute indeed the language refers only to the attorney general's powers. Subsections (1), (2), and (3) cited by Carlisle are prefaced with “The attorney general may:” and subsection (2) refers expressly to “statewide crime prevention programs and activities,” HRS § 28-10.6, although the prosecuting attorney is not a statewide officer.” Although we need not cor neening ie plain, Petersen, 85 Mawes's at 327-28, 944 F.2d at 127 Tegielative hietory of BRE § 26-10.¢ etrengthens the conclusion only applies te the attorney generai. The original bill that © $'26-10.6 was entitied "A fill for an Act Relating to the Department of the eont inveds -) 18 #+* FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** ye, it cannot be With this clear statutory leng seriously contended that the legislature intended to vest the office of the Frosecuting Attorney of the City and County of Honolulu with the same powers as were granted to the state attorney genersl in HRS § 28-10.6.' The Revised Charter of Honolulu section 8-104(b) language granting the prosecuting attorney the power to prosecute offenses under the authority of the attorney general refers to the prosecutor's authority to prosecute offenses, and not the attorney general's powers given by the legislature with respect to crime research, prevention, and education. The enabling HRS provision also supports this conclusion. See HRS $ 46-1.5(17) ("Each county shall have the power to provide by charter for the prosecution of all offenses and to prosecute for offenses against the laws of the State under the authority of the attorney general of the Stete.”); see also (..continued) astorney General.” 8.B, No. 2800, 18th. leg, Reg. Sese. (1989). In addition tothe grovisions regarding crime research, prevention, and education, the Bit"Sibe adged theo sections to HRS chapter 26, eetabliching the Hawais Exininal justice commiseien within the departeent of the attorney general and Eloviing rolesneking authority for thet Sepertment. Furtnerrore, a6 2 report EF the Senate Juciciary Comnsttee atated in part, "the purpose of thie bili Sas to incluge the progress, provecte, and activities on the subject of crime Tesearch, prevention, and education, . Ee Eneral” Sen. Stang. Conn. Hep. No. 28, in 196s Senate Journel, at HGStiSisasis sddea). This legisiecive history makes clear that the Tegisistore enly had’ in mind the department of the atterney generé posed the Jew giving rise to HRS § 2620.6. when se 1 has pursuant te mas § 21 20  pmemiva v. Sapienze, 63 Haw. 424, 427, 629 P.24 1126, 1129 (1961) (stating that the prosecuting attorney shell “prosecute offenses against the laws of the State under the authority of the attorney general of the State.”) (citing predecessor of RCH § 8-104). Stated simply, the powers granted to the attorney general by the legislature in HRS § 28-10.6 do not apply te the prosecuting attorney.” Having held that neither the Revised Charter of Honolulu nor HRS § 28-10.6 authorize the prosecuting attorney to use public funds to advocate for a proposed constitutional election, we need not address the constitutional issues raised by Rees. “A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.” City and County of Honolulu v, Sherman, 110 Hawai'i 39, 7 n.7, 129 P.3d $42, 589 n.7 (2006) (quoting Lyna v, NW indian Cemetery Protective Ass'n, 485 U.S. 439, 445 (1968)). + te is noteworthy that the Hewes" Attorney General, in an opinion letter dated October 24) 2002 and directed to the Office of the Public Pelender, she counterpart to the prosecuting attorney, concluded that the Public Oefencer’s office did not have express statutory autherity te make reelasendations tc the criminal justice aysten and thus stated "you er your  +++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***_— D. s Claim Is Within the Doctrine. Carlisle asserts thet Rees’s claim for declaratory " relief is moot under Hawai'i law as “the conduct complained of has already occurred and there is no concrete dispute between the parties.” However, there is an exception to the moctness doctrine “in cases involving questions that affect the public interest and are ‘capable of repetition yet evading review.‘ Okada Trucking v. Bd. of Water Supply, 99 Hawai'i 191, 196, 52 P.3d 799, 604 (2002). Rees’s claim falle squarely within the exception as it affects the public interest and is capable of epetition yet evading review. Ee. the a ees Does Not Hav Right of Action Under Aevised Orcinances of Honolulu Section ‘SCE. € Was Not Erroneous While we have held herein that Carlisle's conduct was without authority, which is dispositive of this case, we also pass on Rees’s contention that the circuit court erred in finding that it did not have jurisdiction to consider whether Carlisle's conduct violated ROH § 3-8.6 (2002), a violation of which W that section, entitled “Additional standards of conduct concerning cempaign contributions ang canpaign assistance,” provides in relevant part: le) An exempt officer or employee shall not: (2) "coerce, denanc, oF ctherwise reqcire 2 cenpaign contribvtion Gr campaign astistonce from another officer oF employ (2) Deny enploynent toa person who will not agree, a6 @ condition ef the enployrent, te RI Make 2 caspaign contribution cr request @ cenpaign centinsed. 2 +4 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** » a continued) a we a @ contribution from snother person? or (B) Render campaign assistance or requ to render campaign assistance: Discharge, demote, secrease the cenpensation of, haress, or Otherwise ponseh anther officer cr enployee because chat officer or employee: (A) Refused to make a campaign contribution or render campaign assistance when requested cr cenanded by the euenpt officer or enployee cr # third person: (B) Sought or received an eavisory opinion fvom the ethics Commission ons possible viclation of this subsections (Cl Filed with a public agency cr officer » complaint alleging @ velation of this subsection Promise cr threaten te discharge, dencte, decrease the Compensation of, harass, of ctherwise punish encther officer or exployee unless thst officer cr encloyee! Ta) ‘Makes » campaign contribution cr renders campaign Beeistance so requested oF cemandes by the exense officer cr employee or a thire person: (B) Refraine from seeking en acviscry cpinion from the ethice commission cn e possible viistion of this subsection: oF (c) Reseeine from filing with # public agency ox officer @ Conpleint alleging « vielation of this subsectsony Fronote or increase the compensation of another officer or employee because thet officer oF employee nace @ campaign contribution or rendered campaign assistance when requested or denanded by the exenpt officer or enployee or a third persons Eolicit or request a specified or minimum campaign contribution ancunt. from another officer oF expieyee? Request ancther officer or employee to provide @ specified ef minim anount of canpaign assistance; or Solicit er receive any campaign contribution from # person, including ancther officer or enployee, in s building er facility during ite use for official city functions, te another person kn exenpt officer or employee aise shall not request or direct another exempt officer or eaployee to engage inan activity, prohibited under this subsection. The activities prohibited under subsection (c) shail not preclude an exenpt officer or employee. from: a a 8) w i Voting as the exespt officer or employee chooses: Voluntarily expressing an opinion on any political candidate, question, ex issuer ily erving ase menber of ¢ politicel party, yn conmsttee, or other politics: organization; ily making a campaign contribstien or rendering campaign assistance; or Voluntarily seliciting or requesting = cenpaign contribution oF canpaigh assistance from ancther persons se Long a= the FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** would carry different penalties. In particular, Rees argues that HRS § 632-1" vests the circuit court with jurisdiction to issue |. continued) Seligstation or request does not viclate subsection (cl. (e) An exenpt ofticer of employee who violates any provisicn of Subsection (c) shall be guilty of a petty misdenesncr. The prosecution of a violation pursuant €o this subsection shall Ee commenced within tuo yeare after commitment of the violation. Ne vielation shail be prosecuted efter the expiration of the two year pericd. The prosecuting attorney shall be reepensible for prosecution of a ‘eletion. If the prosecuting attorney becomes disqualified, the tate attcrney general shail have the respensibilicy for prosecution. The penalty of thos subsection shall be in edaition to che penalty provised onder Secticn 3-£.5{e). Both penelties may be inposed for fhe sane vielaticn. 1H yng § 632-1, the first section of HRS Chapter 632, “Declarstory, yudgnente,” is iteel¢ entities “Joriecieticn? controversies subject to,” end provices, In cases of actual controversy, courte of record, within the scope of thelr fespective jurisdictions, shall have pouer to make binging Sdjsdicaticns of right, whether of net consequential relict is, or at the time could be, clained, and no ection or preceeding shell be cpen to Shjecticn en the ground shat a jucgnent or crder merely declaratory of fight ie preyes for) provided that declaratory relief may not be Soteines in any distesee coure, or in any controversy witn respect te Sixes, or in eny case where 2 Givorce or annuinent of marriage is Sought, Controversies involving the intezpretation ef deeds, wills, Sther instrunente of writing, statutes, municipal ordinances, and other Governmental regslatione, nmoy be so determined, and this enueration Sees nos exclude cther instances of actus! antagonistic assertion and Senial of right Relief by declaratory judgment may be granted in civil cases where lan actusi controversy existe between contending parties, or where the lore ie satisfied that antagonistic claims are present between the farties invelvec which indicate imminent and ineviteble litigation, or Ehere in any such cese the court ie aatiefied thet e party asserts a Jegel relation, states, right, er priviiege in which the party has Concrete interest and that there is challenge or denial of the Sceertes relation, statue, right, or privilege by an adversary party who aise hee or aseerte a concrete interest therein, and the court is Eatisfied also that @ declaratory judgment will’ serve to terminate the Gncerteinty ov controversy giving rise to the preceesing. Where, However, # sratute provides # special form of renedy for a specific type Gf ease, that svatutery renesy ensll be fellowee; ut the mere fact fhot an actual cr threatenes controversy is susceptible of relief Ehrcugh ¢ genere: coanen Jaw renedy, a remedy equitable in nature, or an Gntracrdinary ea) renedy, shether such renedy is recognized or Heguiates by statute or not, shel not ebar a party frem the privilege Ieontinsee. ==) 2 FOR PUBLICATION IN WEST'S HAWAT' REPORTS AND PACIFIC REPORTER *** a declaratory judgment thet Carlisle’s conduct was illegal. Rees is incorrect as a matter of law. As the circuit court noted, a violation of ROH § 3- 8.6(c) is properly addressed in a criminal prosecution, as the ordinance itself specifies. The court also stated that the ordinance “does not appear to create a private right of action in favor of a taxpayer's challenge to the expenditure of public funds." The declaratory judgnent statute, HRS § 632-1, grants courts of record the power to make “binding adjudications of right” in justiciable cases, in three types of civil cases: [2] where an actual controversy existe between contending parties, G2) Fi "inere the court is setisfied that antagonistic cleins ere Present between the parties savelved uhich incicate imminent end Thevitable iitigstion, or (3) where sn any such case the court ie setistied that a party ssserts a lege: relation, status, right, ci Privilege in which the porty hae 2 concrete interest and that Flere ig a challenge or ceniel of the asserted relation, status, Hight, or privilege by en adversary party whe also has or asserts 2 Eoncrete interest therein, HRS § 632-1. In each case, the court must be “satisfied also that a declaratory judgment will serve to terminate the uncertainty or controversy giving rise to the proceeding.” Ids As the declaratory judgment statute thus makes clear, there must be some “right” at issue in order for the court to issue relief. In Reliable Collection Agency v. Cole, 59 Haw. (-sscontinued) cf detaining # declaratory judgment in any case where the other Slsentiais to euch relle! are present FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** 503, $84 P.2d 107 (1978), this court incorporated the United States Supreme Court's approach from Cort v, Ash, 422 U.S. 66 (1975), to determine whether “s private remedy is implicit ina statute not expressly providing one” -~ an analysis that also involves the determination of whether a statute creates a right upon which a plaintiff may seek relief. Reliable, 58 Haw. at 507, 584 P.2d at 109 (quoting Cort, 422 U.S. at 78). The Reliable Court discussed three relevant factors used in Cort to make this determination: Firet, de the plaintiff ‘one of the Benefit the statute was enacted(?) «+ te on eke in few o econe, fe there eny sndicotion of Legislative intent, expiicie oF implicit, either to create such @ renecy. Thins, if St conesstent with the underlying purposes of the Legislative echene to imply such & renedy for the plaintifr? r whose especie) that is, Id. at $07, $84, P.2d at 109 (first emphasis in original) 78). Subsequent to Cort, decisions of (quoting Cort, 422 0.8. the United States Supreme Court have emphasized that “the key inquiry is whether Congress intended to provide the plaintiff with a private right of action.” Whitey's Boat Cruises, Inc. v. Napali-Kauai Boat Charters, Inc., 110 Hawai'i 302, 313 n.20, 132 P.3d 1213, 1224 n.20 (2006) (quoting First Pac. Bancorp, Inc. v, Helfer, 224 F.3d 1117, 1121-22 (Sth Cir. 2000)). Therefore, es we recognized in Whitev's Boat Cruises, “we apply Cort’s first three factors in determining whether @ statute provides a private right of action though understanding that legislative intent 26 +++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** appears to be the determinative factor.” id. See alse Gonzaga Univ. v. Doe, 536 U.S. 273, 264 (2002) ("For a statute to create private rights, its text must be phrased in terms of the persons benefited.” Alexander v. Sandoval, $32 U.S. 275, 286 (2001) (The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just 2 private right but also a private renedy.”)- Nothing in the text of ROH § 3-8.6 appears to create a right protecting menbers of the public from the activities it prohibits. Rather, it is in the nature of “standards of conduct” for public officers. Although the public clearly benefits from the existence of such stendards, it does not eppear that the ordinance was passed for the special benefit of taxpayers as @ group. See Reliable, 59 Haw. at 507, $84 P.26 at 109 ("First, is the plaintiff ‘one of the clase for whose especial benefit the statute was enacted{?"” (Quoting Cort, 422 U.S. at 78.)). More importantly, the ordinance clearly states that: “[t]he prosecuting attorney shall be responsible for prosecution of a violation. If the prosecuting attorney becomes disqualified, the state attorney general shall have the responsibility for prosecution.” ROH § 3-€.6(e). The ordinance also states that vieyne penalty of this subsection shall be in addition to the penalty provided under Section 3-8.5(a),” which provides for +##* FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER *** impeachment and lesser discipline by the appointing authority, upon recommendation of the ethics commission, if the standards of conduct of Article XI of the ROH are violated. ROH § 3-8.5(a). Private enforcement of ROH § 3-8.6 by way of declaratory judgment would not be consistent with the legislative scheme inherent in the ordinance. See Reliable, $9 Hew. at 507, S84 P.2d at 109 (othire, is it congistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintif£?” (Quoting Cort, 422 U.S. at 78.)). ‘These considerations make clear that ROH § 3-8.6 does not create @ right for taxpayers, like Rees, to enforce; rather, enforcenent is mandated through the prosecutor, attorney general, ethics comission, and appointing authority. Therefore, a declaratory judgment that the ordinance was violated is inappropriate, and dismissal of this claim was not erroneous. Iv. coNeuusron Based on the foregoing, we vacate the circuit court's Novenber 23, 2004 final judgment, and remand this matter with Instructions to: (1) grant Rees’s motion for summary judgment in favor of Rees and against Carlisle, in his official capacity only, on Rees’s declaratory judgment claim that Carlisle lacked legal authority fer his conduct; and (2) deny Carlisle's motion to dismiss and for summary judgment. However, because this is a 2  ‘s+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER case of first impression in this jurisdiction, and Carlisle ostensibly relied upon an opinion of the City and County of Honolulu Ethics Commission, ve believe as 2 matter of equity that the renedial injunctive relief requested by Rees should not issue under the circumstances of this case. Further, the prospective injunctive relief requested by Rees would not appear to be necessary in view of our explication of applicable law herein. We therefore instruct the court to enter an order accordingly. on the briefs: Lois K. Perrin (of American Civil Liberties Union of Hawaii Foundation) and Earle A. Partington . (of Law Office of Earle A. Bl ifoZaemee— farcington!. for plaintit? sppellane Robert Rees ow Jonn F. Perkin and Brandes ek Faria (of Perkin & Faria, LLLC) Games €, Bua Orv {58 defencant~eppeliee . Peter Carlisle, city and & Qandill County of Honoiute Yregenen fea Prosecuting Attorney, in his official and individual capacities 

78a58ffa00f580ebe942d97655243e345048a0bb69cf62aeadd55e6306c34c77

2007-03-12T00:00:00Z

5899ef71-eb77-4eb4-8128-3254c5b57eb7

Estate of Moore

hawaii

Hawaii Supreme Court

LAW LIBRARY No. 26474 THE SUPREME COURT OF THE STATE OF HAWAI'I The Bet: ARABELLA AE ILTHTA ROBERTS MOORE, Deceased, avait so aim aaus 62:2 Hd 61 BYW LOZ CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (P. No, 03-1-0253) court") Petitioner-appellant William Moore’s application for weit of certiorari, filed February 26, 2007, is hereby rejected. DATED: Honolulu, Hawai'i, March 19, 2007. Philip L. carey, FOR THE COURT: for petitioner- appellant William Moore, on the application © consiat fed by: Woon, C.J., Levingon, Nakayama, Acobs, and buffy, ov 

aee12fd85de23412fa3c5456849e29aee3796581bc69be16cfeddd90d25386e0

2007-03-19T00:00:00Z

20853d45-20c1-476a-b33d-0170a7c58c46

Brooks v. Dana Nance & Co.

113 Haw. 372

hawaii

Hawaii Supreme Court

LAW LIBRARY see Nor FOR PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REPORTER +++ IN THE SUPREME COURT OF THE STATE OF HAWAI'I 00 === _ CHARLES BROOKS and DONNA BROOKS, Plaintiffs-Appellees, DANA NANCE & CO. and FIDELITY NATIONAL FIELD SERVICES, INC., ‘successor to CHICAGO TITLE CO., INC., Defendants- Appellant s/Cross-Claimants-Appellants/Cross-Claim Defendants, and SEASONS MORTGAGE, INC., Defendant~Appellee/Cross-Claim Defendant~ Rppellee/Cross-Clainant, and fka COMPUTER DATA SYSTEMS, INC. aka ACS GOVERNMENT SERVICES, INC. cpst, Defendant. ee No. 26736 APPEAL FROW THE secon crecur? court 4g} (eiv. Wo. 01-1-0660) gk og gs Ss 2 JANUARY 31, 2007 See 2 = worton FoR reconsrorrationn «= ESO ae oS 3 MOON, C.J.) LEVINSON, NAKAYAMA, AND DUFFY, AND ACOBA, J. DISSENTING upon consideration of the motion for reconsideration filed by the defendant-appellee/cross-claim defendant appellee/cross-claimant Seasons Mortgage, Inc. on January 22, 2007, requesting that this court review its published opinion  [NOP FOR PUBLICATION IN WEST’ S HAMAI'T REPORTS AND PACIFIC REPORTER filed on January 12, 2007, IT IS HEREBY ORDERED that the motion is denied. Gopi ler hlaccner~ Ruta Chnerenjose on «Ouch DIssENr (By: Acoba, J.) I would grant the motion for reconsideration, but on the grounds set forth in my dissent herein. AN on the motion: E. Mason Martin III of Kessner Duca Unebayashi Bain and Matsunaga for the defendant-appellee/cross-clain defendant-appellee/cross-clainant Seasons Mortgage, Inc. 

165ca54a94850b34a085b7ff9bde60490d6f925150cc3afcfca0e36283d47d47

2007-01-31T00:00:00Z

07798bba-1eed-47e7-ae2a-5fe7379199f2

In re di Domenico

28361

hawaii

Hawaii Supreme Court

No. 28361 IN THE SUPREME COURT OF THE STATE OF HAWAT‘S| 3 “IN RE PHILIP DI DOMENICO, Petitioner. =| ORIGINAL PROCEEDING ON 70 RESIGN AND SURRENDER L! Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.) upon consideration of Petitioner Philip di Domenico’ s Petition to Resign and Surrender License, the attached affidavits, and the lack of objections by the Office of Disciplinary Counsel, it appears that the petition complies with the requirements of Rule 1.10 of the Rules of the Supreme Court of the State of Hawai'i (RSCH). Therefore, IT IS HEREBY ORDERED that the petition is granted. IT IS FURTHER ORDERED that Petitioner di Domenico shail return his original license to practice law to the Clerk of this court forthwith. The Clerk shall retain the original license as part of this record. Petitioner di Domenico shall comply with the notice, affidavit, and record requirements of subsections (a), (b), (a), and (g) of RSCH 2.16. IT 1S FINALLY ORDERED that the Clerk shall remove the name of Philip di Domenico, attorney number 5455, from the roll of attorneys of the State of Hawai'i, effective with the filing of this order. DATED: Honolulu, Hawai'i, January 31, 2007. Ter Ahern PhEormion Pesce Or otey GOH Kone, ously, oaws 

ff9361fd6f12a8c5a5f99ca31fa55ca486778a3535b846c916fb4939b363e256

2007-01-31T00:00:00Z

4dd5991a-98ec-4c40-a57d-6d4fae073ef1

Leslie v. Estate of Tavares

hawaii

Hawaii Supreme Court

LAW LIBRARY No. 28273 IN THE SUPREME COURT OF THE STATE OF HAWAT'T — HOWARD K. LESLIE, JR., Petitioner-Plaintiff-appellant, and LBIMOMI LESLIE PRESCH, individually, and as next friend for and HOWARD K. LESLIE, §R., HOWARD E, LESLIE, JR. Respondents-Piaintiffs-appeilees, E} ve. dz og SIE 2 ‘THE ESTATE OF JAMIE K. TAVARES, Deceased;"/¢ OF = Respondent Defendant Appellee, FS om fF OG and m8 3 oh JOHN DOES 1-10, JANE DOES 1-10, DOE PARTNERSHIPS {10; CORPORATIONS 1-10; and DOE ENTITIES 1-10, Defendants STATE OF HAWAI'I, DEPARTMENT OF HUMAN SERVICES, Respondent-Lien Holder-Appellee, and JOSEPH L. WILDMAN and SIBILLA & WILDMAN, Intervenors-Appellees. SSS CIV, NO. 98-5468 MEGAN LESLIE and MALYSSA LESLIE, minor: HOWARD K. LESLIE, JR., through their Guardian Ad Litem MARLENE L. ANDUHA, Plaintiffs, JEFFREY K. KANUI, personal representative of THE ESTATE OF JAMIE K. TAVARES, Defendant, and JOHN DOES 1-10, JANE DOES 1-10, DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; and DOE ENTITIES 1-10, Defendants. SS  UBFFERY K. KANUI, personal representative of THE ESTATE OF JAMIE K. TAVARES, Third-Party Plaintiff, UBIMOMI L. PRESCH and HOWARD K. LESLIE, SR., ‘Third-Party Defendants. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIV. NOS. 97-0448 and 98-5468) ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI, VACATING ORDER DISMISSING APPEAL AND REMANDING APPEAL TO THE INTERMEDIATE COURT OF APPEALS (gy: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.) Petitioner-plaintiff-appellant Howard Leslie, Jr. applies for a writ of certiorari to review the Intermediate Court of Appeals’ Pebruazy 12, 2007 order dismissing his appeal for lack of appellate jurisdiction and the March 2, 2007 order denying reconsideration thereof. The Intermediate Court of Appeals determined that the August 22, 2001 order affirming the apportionment of the settlement proceeds in Civ. No. 97-0448, certified as final pursuant to Hawai'i Rules of Civil Procedure (HRP) Rule 54(b) on October 11, 2006, is not appealable because the order was not reduced to a separate certified judgment pursvant to HRCP Rule 58. However, the suprene court determined in Leslie v, Estate of Tavares, 109 Hawai'i 8, 12, 122 P.34 803, 807 (2005), that the August 22, 2001 order would be a “final order” appealable pursuant to Hawai'i Revised Statues (HRS) § 643-1(a) (Supp. 2006) upon the circuit court‘s designation of the order as final pursuant to HRCP Rule Sé(b). The supreme court's determination is the law of the case. See Thompson v AIG Hawaii Ins. Co., Inc., 111 Hawai'i 413, 423 n.14, 142 P.3d 277, 287 n.14 (2006) (*[A] determination of a question of law made by an appellate court in the course of an action becomes the lew of the case and may not be disputed by a reopening of the question at a later stage of the litigation." (citation comitted.)). The August 22, 2001 order, certified as final pursuant to HRCP Rule $4(b) on October 11, 2006, is an appealable final order, and the Intermediate Court of Appeals has jurisdiction to review the order. See HRS § 641-1(a). Therefore, I? 18 HEREBY ORDERED that the application for a writ of ertiorari is accepted. YT 18 FURTHER ORDERED that: (1) the February 12, 2007 order of the Intermediate Court of Appeals dismissing No. 26273 for lack of appellate jurisdiction and the March 2, 2007 order denying reconsideration thereof are vacated; and (2) No. 26273 is remanded to the Intermediate Court of Appeals for disposition on the merits. DATED: Honolulu, Hawai'i, June 25, 2007. power Wont Dat ty 

e45e2a86f19423bc26614fad161b233534eb9c78e0b309f702cc6b7068fce0ea

2007-06-25T00:00:00Z

f5e3e410-7162-4452-b6ab-67927551d58a

Kearney v. Administrative Director of the Courts

hawaii

Hawaii Supreme Court

LAWUBhARY ‘s+6 NOP FOR PUBLICATION IN WEST'S HAWAI'I REFORTS AND PACIFIC REPORTER ++* wo, 26919 ae IN THE SUPREME COURT OF THE STATE OF HAWAT'TD =D Soa OF Zz = a PAUL J. KEARNEY, Petitioner-Appellant, =| = c ADMINISTRATIVE DIRECTOR OF THE COURTS, STATE OF HAWAI'I, Respondent-Appellee. —_—— APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (Jud, Rev. No. 04-0022; ADLRO Case No. 04-02281) (HPD Rep. No. 04-246276) ors ono (By: Moon, C.J., Levinson, Nakayama, and Duffy, 99.7 and Acoba, J, dissenting) ‘The petitioner-appellant Paul J. Kearney appeals from the October 4, 2004 order of the district court of the first circuit, the Honorable Willian A. Cardvell presiding, affirming the Administrative Driver's License Revocation Office (ADLRO)'s Lifetime revocation of his driver's license. on appeal, Kearney contends that the district court erred in affirming the revocation inasmuch as (1) Kearney was denied his right to a hearing on the constitutionality of the ADLRO security procedures requiring signature and identification {hereinafter, “the I.D. procedure”], pursuant to Freitas v Admin. Dir, of the Courts, 104 Hawai" 483, 92 P.3d 993 (2004)  [NOT FOR PUBLICATION IN MEST’S HAMAI'T REPORTS AND PACIFIC REFORTER © (Exeitas I), and (2) the 1.0. procedure denies Kearney his right to a public hearing.! Upon carefully reviewing the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised, we affirm the judgment of the district court for the following reasons: In Exeitas I, this court stated that “the ADLRO denied [the petitioner] @ hearing on his objections to the identification and sign-in procedures. Because he has a right to a public hearing, . . . he is entitled to show that the procedure Limiting public access was not warranted.” Id, at 489, 92 P.3d at 999. This court did not hold that a hearing on the I.D. procedure was required regardless of whether the petitioner requested it or not. ‘The record reflects that Kearney failed to request @ hearing on the I.D. procedure at the July 30, 2004 hearing. ‘Therefore, his argument on appeal to this court that he “was denied his hearing” (emphasis in original) which, he maintains, is required by Freitas I and State v, Coffee, 104 Hawai'i 193, 199, 86 P.3d 1002, 1008 (App. 2004), is unsupported by the record: he made no such request, and no denial was issued. Moreover, in contrast to Coffee, this court fails to apprehend any error in the reasoning of the district court in its ruling. Kearney also argues that, by denying him a public hearing, the ADLRO hearing officer also denied him Ris right to assert “the public's rights Under the (fliest, [£]sfeh, and. [flourteenth (almendnents to the United States Constitution and Article I, §§ « ana S{] of the Hawaii Constitution.” Inasmuch as (1). Kearney’ s argument presupposes @ violation of his right tos public neering and (2) we concisde thet Kearney’ s right £0 a public hearing wes not violated, gee infra, his argument lacks merit. 2 [NOT FOR PUBLICATION IM WEST’ HAWAI'T REPORTS AND PACIFIC REPORTER *** ‘The district court concluded that, pursuant to HRS § 2918-40 (Supp. 2000), the basis for its appellate jurisdiction, it could not remand the matter to the ADLRO for @ hearing on the 1.0. procedure but, rather, could only affirm or reverse the ADLRO’'s revocation of Keazney’s license.’ Recognizing that the final adjudication of the constitutionality of the ADLRO’s 1.0. procedure was pending before this court at the time of its decision, the district court stated: it seams clear that ££ the Suprene Court determined that reversal of the administrative Tevocation for fatlure to provide = fccurity procedures was the appropriate remedy, 1€ Could have done so in Exeitas (Il. Instead, Sppareneiyts). the Court intends to answer the question OP ihe validity of those procedures in that case. there is nothing in the fecord that indicates that there was any difference in the procedures used In thie case and those used in Therefore, this court concludes that it would be Inconsistent with the intent of the Supreme Court as Tn Exeleae {11 to reverse petitioner's ‘Gn based upon either the Hearing Officer’ s fellare to hols a hearing ss to the validity of the Brocedures of his conclusion that the procedures are Meiid, under the specific circumstances of this case, Kearney did not contest the district court's finding that the ADLRO 1.0. procedure is identical to the procedures reviewed in Freitas I. The question whether those procedures violate @ petitioner's right to 2 public hearing has since been settled by this court in ve pir Courts, 108 Hawai'i 31, 37, 116 P.3d 673, 679 (2005) (Freitas 11). 2 Rs § 2926-4016) provides that “the court shall not remand the matter back to the director for further proceeaings consistent with its order.” 44% NOT FOR PUBLICATION IN WEST'S HAWAI'T REFORTS AND PACIFIC REFORTER +++ Accordingly, Kearney’s arguments that he was improperly denied a hearing on the ADLRO 1.0. procedure and that the ADLRO 1.0. procedure violates his right to a public hearing lack merit. Therefore, IT IS HEREBY ORDERED that the judgment from which the appeal is taken is affirmed. DATED: Honolulu, Hawai‘, February 6, 2007. On the briefs: R. Patrick McPherson (law Offices of Paul Cunney), for the petitioner-appellant Paul J. Kearney Girard D. Lau, Deputy Attorney General, for the responcent-appellee Adninistrative Director of Nectee ON etiuey ~ the courts Yon c. Duty » 

b36c3044cadd06c31e78f702f4d06b3ba644ca1fac561da51602e81a192b59fe

2007-02-06T00:00:00Z

b9032273-97ca-47ae-b992-d6ea8fd6a00d

State v. Lopez

hawaii

Hawaii Supreme Court

ANE toag wo. 25767 IN THE SUPREME COURT OF THE STATE OF HAWAI'I. =! Se : F STATE OF HAWAT'T, Respondent/Plaintiff-appellee: = PB OE MICHAEL LOPEZ, Petitioner/Defendant-Appellant CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO. 02-1-0171) 8 u OR WR. sTIORART (By: Duffy, J., for the court’) Petitioner/Defendant-Appellant Michael Lopez’ s application for a writ of certiorari, filed on January 4, 2007, is hereby rejected, January 30, 2007. DATED: Honolulu, Hawai'i, FOR THE COURT: Gene cnc + Associate Justice Earle A. Partington for petitioner/defendant~ appellant on the application and buffy, 39. Moon, C.J, Levinson, Nakayama, Reobs, 

edbf68c2ca24ae205cbd4e9a9853e56fa4d5ab6b81ebe8c04aa9d37234b89be9

2007-01-30T00:00:00Z

fb56afcb-7ee1-4ff0-88c3-ff96079d8d9c

Tortorello v. Tortorello. ICA Opinion, filed 06/30/2006 [pdf], 112 Haw. 219. Dissenting Opinion by J. Fujise [pdf]. ICA Order Denying Motion for Reconsideration, filed 08/07/0006 [pdf], 111 Haw. 325. S.Ct. Order Accepting Application for Writ of Certiorari, filed 02/16/2007 [pdf].

113 Haw. 432

hawaii

Hawaii Supreme Court

LAWLIBRARY *** FOR PUBLICATION *** West’s Hawai'i Reports and the Pacific Reporter IN THE SUPREME COURT OF THE STATE OF HAWAI'I 000 --- RENEE A. TORTORELLO, Petitioner/Petitioner-Appellee, WILSON TORTORELLO, JR., Respondent /Respondent -Appellant No. 27459 CERTIORARI TO THE INTERMEDIATE COURT OF APP! (FC-DA NO. 05-1-1453) g oats : e MARCH 7, 2007 Lvs sun dS MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ. OPINION OF THE COURT BY MOON, C.J. on February 16, 2007, this court accepted petitioner/petitioner-appellee Renee A. Tortorello’s (wife) timely application for writ of certiorari, filed January 16, 2007, requesting this court to review the Intermediate Court of (Ica) opinion in Tortorello v. Tortorelle, 112 Hawai'i Appeals’ filed June 30, 2006, and the ICA's 219, 145 P.3d 762 (App. 2006), order granting respondent /respondent-appellant Wilson Tortorello, Gx.’ (iusband) request for coste in the amount of $628.41, filed eptenber 13, 2006. In its published opinion, the ICA reversed the Family Court of the First Circuit’s August 1, 2005 order for *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter SS protection’ in favor of Wife and against respondent /respondent- appellant Wilson Tortorello, Jr. (Husband) .* In her application, Wife contends, inter alia, that the ICA erred in applying the doctrine of reg judicata to the instant jexts that the ICA‘s decision should be case. Wife also applied prospectively. Lastly, Wife maintaine that the ICA erred in awarding costs incurred on appeal in favor of Husband. For the reasons discussed below, we affirm the ICA's October 18, 2006 judgment on appeal with respect to the merits of Husband's appeal. We vacate, however, the ICA’s award of costs to Husband and, instead, award costs in the amount of $280.80 in favor of Husband as against Wife. 1. BACKGROUND AL Petition At all times relevant herein, Husband and Wife were married and have two minor children. On June 28, 2005, wife filed an “Ex Parte Petition for a Temporary Restraining Order for Protection and Statement’ in the family court, pursuant to Hawai'i Revieed Statutes (ERS) chapter 586 (relating to domestic ble Darryl ¥.C. choy presided over the underlying Cthervise indicated. The ICA's judgeent on appeal was entered on October 18, 2006. we note that the judgnent on appea: does not include any reference to the Jex'e avard of coste in favor of Husband and as against Wife *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter abuse protective orders)’ [hereinafter, Petition I].‘ The ICA eunmarized Wife's allegations in Petition I as follows (Husbana) chr he, finel,] Ti ened that (,] "if 1. on gune 24, 2 make it twice you take a hard 1ine wi ip hard on you." 2. Uhusbend) subjected her to vextrene xyehological abuse by: sereaming at {her,] calling (her) @ ‘fuckin Bien’ repeat r) enilat. s . {fusband) attacked [her] sister(] . «in front of (wife's five year] old (child) -- pushed & nit her (sister! . (Husband) hse displayed extreme irrationality & violence. The last date (Musband) wiureAia was on June 14, 2005 3. “She ie in immediate danger of (Husband) abusing hher “because of hie extrene irrational & violent behavicr” and the fact that "(hje is very insecure and tries to Soninate & invalidate (Wife) .” ‘. “She Believes that [Husband] would very soon physically harm, injure, of assault her, burt her family, Bnd take Her children to Brazii without her permission. (*] Tortorello v, Tortorello, 112 Hawai'i 219, 220, 145 P.3d 762, 763 (2006) (some brackets and ellipses in original) (bold emphai added). on the same day (June 28, 2005), the family court, the Honorable Paul T. Murakami presiding, granted a temporary restraining order (TRO) to Wife, with an expiration date of September 26, 2005. > RS § 586-4 (2006) provides in relevant part: (a) Upon petition 22 2 family court Judge, an ex parte temporary restrsining order nay be granted without notice to ‘either or both parties from contacting, (tening, oF physically abueing each other, notwithstanding that a complaint for annulment, diverc Separation has not been filed. ici ie family court judge may issue the ex parte temporary restraining order orally, if the person being festrained is present in court. The order shall state that there 1e probable cause to Believe that a past act or acte Sf abuse have occurred, or that threate of sbuse make ie probable that acte of abuse may be imminent that Wige completed the form utilized as Petition 1 + according to Wife, Husband “hse dual citizeaship in Brazil.- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter on duly 12, 2005, a show cause hearing as to why the TRO should not continue was held by the family court.‘ At the hearing, the following colloquy ensued when Wife commenced her eimony [By Mife’s counse2) [Wife], how long have you been sarried to "[xuebend]? Ar [By Wife) Eight yeare. Q: okay. And during that time, has there been any physical abuse in your relationship? And what has been the frequency of the abuse and ‘Ai About three tines a year when an issue vould cove up and I wanted to discuss it, 1t would {counsel for susband) + I’m Going to object to this line of questioning. The restraining order ~~ we're talking about three years. ago ‘THE COURT: a cions in -here reaarai 2 fon [ii.-Becsuas ‘0: (By Wife's counsel) “i'd Tike eo turn your attention to .”.'. Petition [1]. HE COURT: “so anyways =~ pardon me -- the objection sustained! ‘Q: iy Wife's counsel! I'd like to turn your attention to the reason behind the filing of .- . Petition [1]. could you explain to the judge the purpose of the tiling of . <. Petition {1], why you felt you needed to He. Ay Iny Mitel June 14th on the evening, 4 ‘An altercation took place on jpproximately 11:25 p.m (Bmphases added.) At the conclusion of the hearing, the family court ruled that Wife had “not met her burden of proving that an order for protection is necessary to prevent a donestic abuse or a recurrence of donestic abuse. And that [Husband] has shown cause as to why the [TRO] should not continse.* Consequently, the family court dissolved the TRO. ‘The Honorable Matthew J. Viola presided over the instant hearing. *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter B. Petition Ir on July 19, 2005, Wife filed a second “Ex Parte Petition for a Temporary Restraining Order for Protection and Statement in the family court (hereinafter, Petition II]. In Petition 11, Wife essentially alleged the same “facts, fears, and beliefs” that ehe alleged in Petition 1. Id, at 221, 145 P.3d at 764. Wife, however, included additional allegations in Petition II that were not made in the earlier Petition I, The ICA summarized Wife's further allegations in Petition II as follow: 5. Many times in the Last six years (husband) hurt and shoved her. {Susband) maliciously damaged her property by changing all three locke on ehe doors to her hone and the howe was a nese. The last date this occurred was July 2008. Id. (bold emphases added).” On the same day, the family court entered a TRO against Husband, with an expiration date of October 17, 2008. on duly 27, 2005, Husband filed a menorandum in opposition to Petition 1. Husband contended that: Petition [11] is [W)sfe’e attempt to revisit and gelitigate the unfoundea allegations alzesdy heard and Fejected by the family court. All satter [sic] previously Iitigated cn 7/12/05 should be excluded from evidence at the [upcoming] Bearing on [Petition 11). Further, as the ‘ifegatione contained in. Petition (11) have had a full Rearing and have been found wanting, this matter is ree dudicata(.1 + Me note that the ICA numbered the additional allegations contained in petition Tr ae ws" and "6" to continue from the initial four allegations made Tn Petition 2. We Believe the ICA numbered the allegations ae such in order £0 refer to the allegations by nunber in its opinion. *** FORPUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter Wife} alleges no new contact in her written filings which would provide the basis for a new Order for Protection. [Wife] hes had ample opportunity to litigate the cizcunstances prior to the 7/22/0s hearing, and her request for an() Crder of Protection was found wanting. she how files a second request for lan) Order of Protection yet alleges no new contact with [susband) vhick provide the basis for the Order, she simply wante a second bite at the ‘apple. on August 1, 2005, a show cause hearing as to why the TRO should not continue was held by the family court. At the hearing, the family court initially ruled that “[tloday’s proceeding will not involve the allegations of June 241, 2005, ise., allegation No. 2]." As such, there was no evidence admitted with regard to allegation No. 1 at the hearing. The parties presented evidence with respect to allegation No. 5, specifically focusing on one incident occurring in May 2005. Id. (stating that, “[w]ith regard to allegation [Nlo. 5, . . . there was evidence of only one incident, and it happened in May 2005"). At the conclusion of the hearing, the family court entered an order for protection, set to expire on August 1, 2015. On August 23, 2005, Husband filed a timely notice of appeal. C. IGA Appeal and Disposition On appeal before the ICA, Husband maintained that the family court “erred in allowing [Wife] to proceed with [Petition 32] because such re-1itigation was barred by rea judicata Husband asserted that the fanily court reviewed Petition I and Petition IT and decided that whatever allegations were not made in the text of [Petition I] were permissible as claims to be *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter eee decided in the hearing on [Petition 11]. The [family clourt did not take into consideration whether any of the claims made in [Petition 11] could have been asserted in [Petition 1].* Husband argued that: ples judicata requires that # (pletitioner is required to aetert all elaine that "might have been properly ssserted in the fixet action," or risk the bar of zen judicata in any Subsequent action involving the same parties. The idea Behing the rule ie to avoid multiple suite and to enc Parties to resolve all of thei disputes in as few ci Rossibie, so ae to encourage proper use of judicial ‘Permitting multiple petitions will wreak havoc on our judicial system, ‘Claimants can, and will, after losing «| {pletition, re-tile it, ae (wife) did bere (within three weeks), adding a few new facts or allegations, and clain That’ they had forgotten co make ouch allegations and claims, and be allowed, ae the (fectiy clourt aid in this case, ited result. put into [Petition 12) could have Been asserted in (Petition 1]. The ‘new claim for the most part, occurred in May() 2005. [Petition I] fied on Sune 26,2005. Thus, as of the filing date of [Petition i, ali of the new and unasverted clei [petition 1}, were known to [hife] [Petition #1 and failed to make the appropriate allegations. ‘As such, iG judicata precludes relitigation of an application for [a] restraining order, based upon allegedly wTingfol conduct that wae supposed to have taken place pricr YOrthe date of execution of (Petition 1] on June 28, 2005 All of the ‘nev claims" pre-dated June 28, 2005. Hence, all Claims in [petition I1] should have been barred. Husband also contended that the family court erred “in allowing [Wife] to proceed with [Petition IT] because such re-litigation was barred by collateral estoppel.” Finally, Husband contended that the family court erred in “restricting the trial time of each party because to do so unduly restricted (Husband's) ability to present evidence and make appropriate and cogent argument, and thereby properly present a defense.” *** FORPUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter on June 30, 2006, the ICA issued ite published opinion, reversing the family court’s August 1, 2008 order for protection. ‘The majority held that the doctrine of ree judicata ‘applies to successive HRS [cJhapter 586 . . . protective order cases filed by the same petitioner against the same respondent where the second case is based on events that occurred, and that the petitioner knew about, prior to the filing of the first petition|.J* Id, at 222, 145 P.ad at 765. Specifically, the ICA stated: In the June 28, 2005 petition {, Petition 1], (wite] alleged that ah ineident on Jute 14, 2005, and other actions by [Musband] made a protective order necessary to prevent Gonestic abuse or 4 recurrence of abuse. At the hearing on uly 32, 2008, (iveband) showed cause why the order should hot be continued and that a protective order was not Fy to prevent domestic abuse oF a recurrence of In the July 19, 2005 petition{, i.e., Petition IJ), [Wife] re-alleged the allegations stated in {petition 1) and added allegations of events happening pre-June 26, 2005, and post-June 28, 2005. The post-cune 28, 2005 events are Tasugeieient to support a protective order. With respect to the evente happening pre-dune 28, 2008, ali of the reasons for the rag judicata doctrine are applicable. (Petition T) presented [Wife] with ber one opportunity to request an folder for [plrotection for acts and threats of abuse occurring, and that [wife] knew about, prior te the filing of [Petition 1], and subjected (Musband| to his one duty to defend againat that request. {Petition 1] could (Wife's) allegations 8 of abuse that made a Protective order necessary to prevent domestic sbuse oF @ Fecurrence of abuse. Id, Lastly, the majority stated that the family court form utilized by Wife to file Petitions I and IT supports its position of applying xes iudicata to the instant case and replicated the on of the form in ite opinion. Id. relevant po: *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter ynting opinion, ICA Associate Judge Fujise issued a dij stating that she would affirm the August 1, 2005 order for protection (the dissent). According to the dissent, ‘this appeal turns, not on whether the May 2008 incident should have-been itigated in (Petition I), but whether, having effectively prevented her fron presenting evidence of any incidenta not included in [Petition 1), (Husband) Gifectively waived reliance on the defense of reg iudicata fo prevent the consideration of (Petition II) which relied primarily on the May 2005 incident of physical abuse. Id, at 222-23, 145 P.3d at 765-66 (Fujise, J., dissenting). The dissent maintained that: ke appears that [susband) waived his res iudicats Getense insofar as he now argues It ie « complete bar to [petition Ii], for two reasons: (1) the record does not Feveal that he argued for a complete bar below(;] and (2) a party who actively prevents the litigation of certain claims Tn the firet action should not be heard to complain when a second action is brought to litigate those clains. Id. at 223, 145 P.3d at 766 (Fujise, J., dissenting) (footnote omitted) - on July 32, 2006, Wife moved for reconsideration of the ICA's published opinion. The ICA entered an order denying wife's motion for reconsideration on August 7, 2006. On August 25, 2006, Husband moved for an award of costs incurred on appeal in the amount of $626.41. On September 12, 2006, Wife filed her objections to Husband's request for costs, contending that Husband’s request was untinely filed and that Husband failed to ‘provide any statenents of authority for the requested items for cost and. . . failfed) to provide copies of invoices, bills, vouchers{,] or receipts.” On September 13, 2006, the ICA entered an order granting Husband’s request for costs in its entirety, *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacifie Reporter 1.0, $628.41. The ICA’s order expressly indicated that it objections to Husband’s request considered wife On October 38, 2006, the ICA entered its judgment on appeal. See also supra note 2, Wife timely filed her application for writ of certiorari on January 16, 2007. Husband did not £1le a reeponse IT. STANDARD OF REVIEW ‘The acceptance or rejection of an application for writ of certiorari is discretionary. HRS § 602-59(a) (Supp. 2006). In deciding whether to accept an application, thie court reviews the decision of the ICA for (1) grave errors of law or of fact or (2) obvious inconsistencies in the decision of the ICA with that of the supreme court, federal decisions, or ite own decision and whether the magnitude of such errors or inconsistencies dictate the need for further appeal. HRS § 602-59(b) . IIT. DISCUSSION As previously mentioned, Wife contends that the ICA erred in applying the doctrine of xes judicata to the instant case. Wife also argues that “the form promulgated by the Judiciary under BRS [c]hapter 586 failed to explicit [sic] warm [Wife] that she had only ‘one opportunity’ to petition for a protective order.” Moreover, Wife asserts that the ICA’s decision should be applied prospectively. Finally, Wife alleges fusband. Each that the ICA erred in awarding costs in favor of of Wife's contentions will be addressed in turn. n10- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter —— A. Res dudicata preliminarily, Wife asserts that Husband waived the defense of reg judicata. Wife also argues that “the ICA erred in failing to apply the proper res judicata analysis as set forth by the Hawai" Supreme Court." And, Wife argues that “(t]he application of rea judicata has been soundly rejected in other jurisdictions in domestic abuse protection order proceedings.” a. Waiver Wife maintains that thie court’s decision in Solarana v. Industrial Electronics, Inc., 50 Haw. 22, 428 P.2d 412 (2967), “compels a conclusion that [Husband] had waived the ree judicata defense.* In Solarang, this court held tha me defense of ree judicata will be deened to have been Waived when based ch a judgment of disnissal ina prior suit Yn which, on defendant's insistence, the subject matter of the second sult was excluded from consideration as being utedde the scope of the pleadings and laintitt wae ‘snendin the implication being Ent another suit would lie Id. at 22, 428 P.2d at 412 (emphasis added). At the July 12, 2005 show cause hearing on Petition I in this case, Husband objected to Wife’s attempt to introduce of physical abuse -- the subject matter of evidence of instance Petition II -- on the basis of relevance. The family court sustained the objection, stating that, I read. . . Petition (2), there are no allegations in here regarding physical abuse so i'm constrained to limit the hearing to the matters that are identified in. . . Petition [I]. Because, otherwise, [Husband] eine  *** FORPUBLICATION ** in West's Hawai'i Reports and the Pacific Reporter didn’t have notice of those allegations.” As such, the family court excluded from consideration the instances of physical abuse ae being outaide the scope of the pleadings, i.e, Petition I. Wife, however, was not precluded from amending Petition I to include the instances of physical abuse. tn fact, Wife does not point to anywhere in the record to indicate that she sought leave from the family court to amend Petition I in order to include the instances of physical abuse. See Hawai'i Family Court Rul (HPCR) Rule 15 (2007)." Consequently, under the circumstances of this case, the doctrine of reg judicata has not been waived by Husband. 2. Applicability of Res Judicata Wife next contends that “the May and June abuse incidents were not the sane transaction or series of transactions, as the term ‘transaction’ is used and defined in applying the doctrine of res judicata." (Emphasis in original omitted.) Although not entirely clear, it appears that Wife is arguing that, because the instances of physical abuse that * MERC Rule 25 provides in relevant part: (a) amendmente. A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no, Fesponsive pleading i¢ permitted and the action har not been placed upon the trial celendar, the party say so amend it at any tine within 20 days after it is served. Otherwise & party say anend the party's pleading only by leave of court, Or by written consent of the adverse party; and leave shall Be freely given when justice so requires: (Bephasie in original.)  *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter ee allegedly occurred in May 2005 did not arise from the “same ction or series of transactions” as the instances of trai psychological abuse of Wife and physical abuse of Wife’s sister that allegedly occurred in June 2005, rea judicata is inapplicable to this case. Res judicata, or claim preclusion, ie a doctrine “that Limits] a litigant to one opportunity to litigate aspects of the case to prevent inconsistent results and miltiplicity of suits and to promote finality and judicial economy." Bremer v. Weeks, 104 Hawai's 43, 53, 85 P.34 150, 160 (2004) (citation and footnote omitted). Res judicata “prohibits a party from relitigating a previously adjudicated cause of action." Id. (internal quotation marks and citation omitted). In addition, che judgnent of a court of competent jurisdiction is a bar Seele"StiS fee Contetelog the sane sublece master, and precludse the selitigation, not only of the issues wnich Sere actually litigated inthe firee action, but also of all Grounds of clais and defense which aight have ‘but vere sot litsgates oF Geeidea- Id. at 53-54, 85 P.3d at 160-61 (citation, brackets, and some emphases omitted) (some emphases added). Finally, [edhe party asserting claim preclusion has the burden of Getabliching that. (1) there was a final judgment on the Serite, (2) both parties are the sane or in privity with the Parties in the original suit, and (3) the claim decided in Id, at 54, 85 P.3d at 161 (emphasis added). In her application, Wife does not dispute that the first and second prongs of res judicata are met in the present -13- *** FORPUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter case. Instead, Wife appears to believe that the claim decided in the “original suit,” i.e., Petition I, is not identical with the one presented in “the action in question,” ive., Petition 12, However, as Husband-aptly pointed out in his reply brief on appeal, “[t]he claim in both Petitions is based upon entitlement to a restraining order/{o]rder of [p]rotection.* Inasmuch as both Petitions sought an order of protection against Husband, the claim decided in Petition I is identical with the one presented in Petition IZ. Accordingly, we do not believe the ICA committed “grave errors of law or fact" or that the ICA’s decision contains any “obvious inconsistencies” dictating the need for further appeal with regard to this issue. 3. Domestic Abuse Protection Order Proceedings in other Jurisdictions Wife also contends that “other jurisdictions have soundly rejected the application of zea dudicata when the enforcement would reault in defeating the primary purpose of to prevent harm.* In support, Wife relies on four cases: (1) Liu, striuli, 36 P. pplying Rhede Island law); (2) Hott domestic abuse protection orders Supp. 24 452 (D.R.T. 1999) Brown, No. 2000CA00325, slip op. (Ohio Ct. App. 2002) (unpublished); (3) Skiles v. Dearth, Nos. 2000-CA-30, 00-DR-0252, slip op. (Ohio Ct. App. 2000) (unpublished); and (4) Muna v. Muma, 60 P.3d 592 (Wash. Ct. App. 2002) -16- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter In her answering brief on appeal, Wife relied on the aforementioned four cases in support of the same proposition she advocates in her application, i.e., that res judicata should not be applied when it ‘would result in defeating the primary purpose of domestic abuse protection ordera -- to prevent harm.” Clearly, the ICA either (1) considered the four cases but rejected their application to the instant case or (2) did not consider the four cases in rendering its decision. As previously mentioned, in deciding whether to accept an application for writ of certiorari, we review the decision of the ICA for, inter alia, obvious inconsistencies in the decision of the ICA with that of the suprene court, federal decisions, or its own decision and whether the magnitude of such errors or inconsistencies dictate the need for further appeal. Three of the four cases cited by Wife were rendered by the Ohio and Washington Courts of Appeals and, thus, are not binding on the ICA. Although Liu is a federal decision, the United states District Court for the District of Rhode Island applied Rhode Ieland law in its analysis of res judicata to the facte of that case. Consequently, the ICA was not obligated to follow any of these four cases because none of them are considered controlling authority. Accordingly, it cannot be said that the ICA’s decision contains any “obvious inconsistencies” with that of the suprene court, federal decisions, or ite own decision that dictate the need for further appeal with regard to this issue -1s-  *** FOR PUBLICATION ** in West's Hawai'i Reports and the Pacific Reporter B. The Family Court Form Utilized as Petitions 1 and it As previously indicated, Wife asserts that “the form promulgated by the Judiciary under HRS [eJhapter 586 failed to explicit [sic] warn [Wife] that she had only ‘one opportunity’ to petition for a protective order." Specifically, Wife argues that the ICA’s decision establishes “a bright line rule that petitions for orders of protection filed under [HRS cJhapter 586 must include a11 acts or threats of abuse committed prior to the filing of the petition and that any failure to do go will result in an absolute bar from raising them in a subsequent petition to support the issuance of an order for protection." (Emphases in original omitted). Wife asserts that such “an absolute bar" was vnever made clear in either on the Judiciary form itself or by Judiciary personnel." (Bnphasis in original omitted). wife argue: In HRS [elhapter 586, the Legislature promulgated « statutory requirement that ‘petitioners for order(s] of protection are required to use forns provided by the Susiciary. “Im eftect, thie statutory requirenett charged the Judiciary with the task of creating forms upon which petitioners must use to petition the court for orders of Protection. “Additionally, che Legislature charged the Sudiciary to provide assistance to petitioners in completing these forms. "HRS § 586-3 [(2006)] (epetition for relie! shall be in writing upes forms provided by the court” and the “family court shail designate an enployee or appropriate honjudieial agency to ‘he person in completing the petition.” (Buphasis added.)) Consequently, ‘the forms or ust properly and adequately advise & petitioner, especially 2 pro se petitioner, of her one Spportunity. In this context, [wife] submits that (.) in effect (,) the Legislature has charged the Judiciary to Perforn'a function that is analogous to an agency function, (Emphases in original omitted). Accordingly, Wife maintains that, “[iln the context of agency actions, the Hawai'i Supreme -16- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter court has ruled that{,] ‘{blefore a right to relief is barred 1, the agency process ought to be of such a nature as to impress fully on the litigant the opportunity for recourse it supplies and the consequence of failure to seek such recourse.'* (citing Hawai'i Blind Vendors Ass‘n v. Dep't of Hunan Serve., 72 Haw. 367, 374, 791 P.2d 1261, 1265 (1990) [hereinafter, Hawai't Blind Vendors], overruled on other grounds by Tamashixo v. Dep't of Human Serve,, 112 Hawai'i 388, 146 P.3d 103 (2006) .) As previously stated, the majority opinion concluded that Petition I “could have and should have included all of Wite’s} allegations about all past acts of abuse and threats of abuse that made a protective order necessary to prevent domestic abuse or a recurrence of abuse.” Tortorello, 112 Hawai'i at 222, 145 P.3d at 765. The majority opinion also stated that the family court form utilized by Wife to file Petitions t and If ‘eupports [ite] position{.]* Id. Indeed, a review of Petition t indicates that Wife left that portion of the form requesting information on “incident (s) of domestic abuse [that] has/have happened" blank. 11 Petition II, however, Wife completed that portion of the form to indicate that she was physically abused in that i May 2005. To conclude as Wife desires in this ca to allow the filing of successive petitions based on alleged p: acts of abuse that could have been indicated in the earlier petition, would result in clogging the family courts with excessive hearings and straining the resources of not only the -17- *** FOR PUBLICATION *** in West's Hawaii Reports and the Pacific Reporter parties, but of the family and appellate courts of this state. such potential problems are recognized in the policies behind res Gudicata, which, as previously mentioned, is a doctrine “that Limit [s] a litigant to one opportunity to litigate aspects of the case to prevent inconsietent resulte and multiplicity of suite and to promote finality and judicial economy.” Bremer, 104 Hawai'i at 53, 85 P.3d at 160 (citation and footnote omitted) (emphasis added) . Moreover, we cannot agree with Wife's implicit assertion that domestic abuse protection order proceedings are somehow transformed into agency actions because “the Legislature has charged the Judiciary [with] performling] a function that is analogous to an agency function." Wife does not present any argument as to how the legislature’s directive in HRS § 586-3 that the family court designate an employee or appropriate non- judicial agency to provide court users with what seemingly amounts to clerical assistance with court forms “is analogous to an agency function.* Moreover, domestic abuse protection order proceedings, like the present case, are governed by ERS chapter 586. Nore specifically, under HRS § 586-2 (2006), entitled “Court jurisdiction,” “[aln application for relief under this chapter may be filed in any family court in the circuit court in which the petitioner resides. Actions under this chapter shall be given docket priorities by the court.” (Emphases added.) Thus, the present domestic abuse protection order proceeding is -10- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter clearly an adjudication by a court of law, not by an agency. Consequently, Hawai'i Blind Vendors is not applicable to this case. Accordingly, the ICA did not gravely err with respect to this issue. Cc. Prospective Application Wife next contends that the ICA's “tone opportunity’ to petition for a protective order” rule should be applied prospectively. This court has previously stated that, “where substantial prejudice results from the retrospective application of new legal principles to a given set of facts, the inequity may be avoided by giving the guiding principles prospective application only." State v. Ikezawa, 75 Haw. 210, 220-22, 857 P.2d 593, 598 (1983) (footnote omitted). In Ikezawa, this court considered whether: (1) “the decision establishes a new principle of law’; (2) “retroactivity furthers or retards the purpose and effect of the rule in question"; and (3) “retroactive application produces substantially inequitable results.” Id. at 221 n.i1, 857 P.2d at 598 n.11 (citation omitted). decision in this Here, it cannot be said that the Ica case “establishe (a) a new principle of law." id, Tortorelle aid not overrule any clear precedent as set forth in any decision made by this court or the ICA. Cf. Lindinha v. Hiilo Const Processing Co., 104 Hawai's 164, 170, 86 P.34 973, 979 (2004) (applying its deciaion prospectively *[blecause the law at the time appeared to mandate” a different course of action); Ikezawa, -1s- *** FORPUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter 75 Haw. at 221, 857 P.3d at 598 (stating that a decision “establishe[d] a new principle of law because it overrule [4] [this court's] clear precedent as set forth in [a prior decision]*). Rather, Tortorello essentially confirms the notion that a petition ‘could have and should have included all of [the petitioner's) allegations about ali past acts of abuse and threats of abuse that made a protective order necessary to prevent domestic abuse or a recurrence of abuse." Id, at 222, 145 P.3d at 765. Indeed, common sense dictates that, the more instances of abuse that are included in the petition, the greater Likelihood of success that 2 TRO and/or order of protection would be issued. Thus, the ICA did not gravely err by not applying its decision prospectively. In sum, based on the foregoing, Wife fails to establish grave error on the part of the ICA with respect to the merits of the case. We next address the ICA's award of costs incurred on appeal in favor of Husband. D. Award of Costs Finally, Wife contends that the ICA erred in awarding costs in favor of Husband. As previously mentioned, the ICA awarded Husband's request for costs in its entirety, iie., $628.41. Specifically, Husband had sought reimbursement of: (2) $298.42 for photocopies and postage; (2) $255.00 for filing fees; and (3) $75.00 for transcript fees. As more fully discussed below, Wife asserts that: (1) Husband’s request for -20-  *** FORPUBLICATION * in West's Hawai'i Reports and the Pacific Reporter costs wi and (2) the request failed “to provide untimely filed, copies of invoices, bille, vouchers or receipts” and the costs requested are “either unauthorized or are excessive." We discui each assertion in turn. 2. Timeliness Wife asserts that Husband untimely filed his request for costs on August 25, 2006, four days after the deadline for submission. Hawai'i Rules of Appellate Procedure (HRAP) Rule 39(@) (2) (2007) provides in relevant part that a} request for fees and costs or necessary expenses must be Hied with the appellate clerk, with proof of service, 0 [ater than i4 daye after the tine for filing a motion’ for jaration hae expired or che motion for been decided. (Emphases added.) Here, the ICA decided Wife’s motion for reconsideration on August 7, 2006. As such, Husband’s request for costs should have been filed no later than fourteen days after August 7, 2006, that ie, August 22, 2006. However, Husband did not file hie request for costs until August 25, 2006, four days after the deadline for submission. Nevertheless, HRAP Rule 39(d) (2) expressly indicates that an untimely request for costs “nay be denied." (Emphasis added.) Thus, the ICA was not required to deny Husband’s request for costs due to + although the appellate courte are not required to deny « request due to untinelinens, the appellate courte have exerciged that discretion in Genying outright an untimely request for fees and/or costs. Thus, ve take this opportunity to caution counsel co comply with RAP Rule 39(a) (2)'s (continued...) -21- *** FORPUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter Wife's Remaining Objections to the Award of Costs Wife argues that usband’s request] should be summarily denied for ite failure to provide copies of invoices, bills, vouchers or receipts, as required by (HRAP] Rule 39(4) (2) {(2007)] Further, ‘the costs listed in his schedule are either unauthorized or are excessive. — [MRAP] Rule 39(c) {(2007) .) The rule only authorizes rel 3 forthe cost of ‘copying briefs, nothing else. Coste for copying of briefs Should be reduced to $24.64, if they were not stricken aa not having been properly supported and verstied.[l The Sther fees should pe complet a2 they are either ndacimented or are not authorized by Rule. Osher than her rule ‘and argunent are act forth in ‘The basis, authoriei aetaii in [isfe's] [olojections to (Husband's) Bill of Cot tnd Request. for Payment filed on Septenber 12, 2006 and are Incorporated by reference. ‘Consequently, [Wife] gubmite that the $628.42 approved by the Tek fe in contravention of (MRAP) Rule 39(-] (emphases added.) *(. continued) mandate that such requests for fees and/or costs be filed no later than fourteen days after the tine for filing a notion fer reconsideration has expired or the notion for reconsideration has been decided % tn her opposition to msband’s request for costa at the ICA level, ige explained more fully why coste for copying of Briefs should be reduced to $24.64, asserting that: [the Opening Brief ie 30 pages. 7 sets of 30 paces at & cents per page would anount to $16.80" the Reply Brief Eotales 14 pages. So that should anount to $7.64 Accordingly, the permissible (HRAP) Rule 39(e) copying Charges should only anount £0 $24.64, if they were not Stricken ae not having been properly supported and verified. Wite apparently chose eight cents per page as the rate because, according to the "declaration of counsel” affixed to ner opposition, counsel deciarea that (2) "Kinko's Office an Print Center located at 590 Queen St., Honolulu, Havai't, charges §.068 to §.08 per copy, depending oa volume” and (2) Newtech Inaging locates ae 333 Queen St-, Honolulu, Hawaii, charges §-07 per copy.” Although not entirely clear, it appeare chat Musbard chose thirey vente per page ae the rate. However, as stated infra, HRAP Rule 39(c) expressly states Phat “copying costs shail tot exceed 20 cence per page(.]" (Brackere in original onieeed.) -2a- +** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter HRAP Rule 39 provides in relevant part: (e) Conte defined. costs in the appellate courts are defined as: (1) the cost of the original and one copy of Sen he-appealy (2) the premiums paid tor jopersedeae bonds cr_other bonds to preserve rights pending appeal; (3) the fee for filing the appeal; (4) the cost of ints roduc ary copies of brie: 0 [eente| per pase, (5) necedsary poatase, cost of faceinsie, interstate travel, ong distance telephone charges; and (e) any other costs authorized by statute or rule (@) Request tor Fees and conte: objections. (3) A party who cesives an avard of - .- costs shall. reguest then by submitting an itemized and verifies bill of coats, together with 2 statement of authority for each Gaiegory of itens and, where appropriate, copies of {hvolees, Bille, vouchers, and receipts. .- (Some emphases in original and some added.) (Brackets in original.) As previously mentioned, Husband had sought reimbursement of: (1) $298.41 for photocopies and postage; (2) $255.00 for filing fees; and (3) $75.00 for transcript fe a. photecony costs In his request for costs, Husband sought $254.70 for photocopying numerous documents, including his opening and reply briefs, pursuant to HRAP Rule 39." As previously stated, HRAP Rule 39(c) defines costs in the appellate courts as, inter alia, “the cost of printing or otherwise producing necessary copies of briefs and appendices[.]” This court has stated that, “[alssigning a duly broad scope to ‘briefs and appendices’ as © Ag stated intra, musbend’s postage costs totaled $9.71. As such, usband’s total costs for photocopies and postage should be $264.42 (5254.70 + 29.71). Nowever, as stated gpra, Musband had sought reinbureenent of for photocopies and postage. Thus, it appears that Husband overstated hie Feguest for veinbureenent of photocepien and postage by 434.00 (9380.43 = 5264.42) -23- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter used in HRAP Rule 39(c) (4) . . . [this court) need not reimburse @ prevailing party for filings other than those briefs Jed by HRAP Rule 28, including the number of copies encomp: quired by HRAP Appendix A.* Kamalu v, ParEn, Inc., 110 Hawai'i 269, 279, 132 P.3d 378, 388 (2006). HRAP Rule 28(a) (2005) provides that *[a]11 briefs shall conform with Rule 32 and be accompanied by proof of service of two copies on each party to the appeal.” (Emphasis added.) HRAP Rule 32.1 (2005) further states in relevant part that: ‘the original of all docusents shall be filed with the appellate clerk and copies shall be subsitted as follows: (a) Opening, ansvering, and reply briefs. two copie are required when filing. After Briefing ie completed, th appeliste clerk will notify the parties of any additional copies required. ic) there directed by the appellate clerk. In all ‘the appellate clerk may direct that a epecific number tional copies be furnished on oF before a specified (underscored emphases in original and bold emphasis added.)" See, 2.¢., Mikelson v. United Serve. Auto. Ass'n, 108 Hawai'i 358, 120 P.3d 257 (2005) (determining that “the HRAP states that two copies of the answering brief must be submitted to the appellate clerk at the time of filing, two copies must be served on each party to the appeal . . ., and an additional nunber of ® ks previously stated, Husband's appeal was filed on August 23, 2005 Inasmuch #8 Husband's flied before the new MRAP Rules took effect on July 1, 2008, we re 2008 version of the MRAP Rules for the Gerermnation ag to the number of briefs necessary for the appeal © MRAP Appendix A merely confirna that two copies are required in addition to the Griginal decunent submitted co the appellate clark for filing o28- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter copies . . . may be directed by the appellate clerk") (footnotes omitted) . In this case, Husband's opening brief contained a total of thirty (30) pages and Husband's reply brief contained a total of fourteen (14) pages, for a total of forty-four (44) pages. on April 27, 2006, the appellate clerk notified the parties of the sorder of Assignment," which indicated that three additional copies of the briefs previously submitted to the appellate clerk for filing were required. Consequently, as Wife aptiy calculated, see supra note 10, Husband was entitled to reimbursenent of seven copies of the opening and reply briefs (five copies for the ICA and two copies for Wife). Contrary to both parties, however, Husband is entitled to ‘copying costs . not exceed[ing] 20 cents per pagel.]* HRAP Rule 39(c) (4) (brackets in original omitted); see supra note 10. Thus, Husband could have sought $61.60 (44 pages x 7 copies x §.20) in photocopying costs for his opening and reply briefs. However, a review of Husband's request indicates that he only sought $55.80 in photocopying costs for his opening and reply briefs. Noreover, with respect to the other copying charges, Husband did not cite to any “statute or . . . rule which authorizes reimbursement for costs for which he seeks,” as Wife pointed out to the ICA, Thus, Husband's copying costs should be Limited to the requested $55.80 for photocopying the necessary briefs, Accordingly, the ICA gravely erred in reinbursing -25- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter Husband (1) $198.90 (the requested $254.70 minus the allowable $55.80) for his photocopying costs and (2) the additional $34.00 for no apparent reason. See supra note 11. b. costs for postage ‘Ae previously etated, Husband sought $9.71 for postage. Husband’ s request indicated seven entries for posta: (08/23/05 | Postage file marked Nee of 2 | 6a.66 Appeal; Bx i CoS to Renee & Elen 08/23/06 | Postage mail titc of Appeal to | 2 [6 -60 Ellen Politano, Beq. Ret 32/01/08 | Postage ier to Supreme cout | 2 [8 .74 Re 30 day ext, for Opening Brief | 07/17/06 | Postage ti to Renee A. a [snes Torsorello re: Respondent appellant's Opening Brief; Statement of Respondent & COS (03/02/06 | Postage ti to Theodore Chinn, | 2 [6 .27 Eng. fe: 1 file marked Petitioner-Appeliee’s Response fo Supplemental Meno of Law in Reply to Respondent Appellant's Meno in Opp £0 Petitioner Appellee'a Men fo Dismiss for Failure to File Opening Brief and for Lack of Juriediceion ana cos (02/08/06 | Postage to Theodore chinn, 2 | s2.30 Filed copies of pleedings transmittal dated 2/8/06 04/12/06 | Postage ti to Theodore chinn, | 2 | 61.1 Fe: 1 file marked Respondent Appellant's Reply Brief 6 COS RAP Rule 39(c) (5) defines costs in the appellate courts as, inter alia, “necessary postage(.]” Here, no receipt or proof of the amount being charged was attached to the request. Nor did -26- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter ee Husband file a response to Wife's application in order to provide any documentation for this court to conclude that the requested jnably and necessarily incurred in amounts in postage were r the appeal to the ICA. Consequently, Husband did not reasonably denonstrate hie expenses for postage. Accordingly, the ICA gravely erred in reimbureing Husband $9.71 in costs incurred for postage. filing fees As previously mentioned, Husband sought $255.00 for reimbursement for filing fees. Specifically, Husband’s request indicated: 0/23/05 _| Piling Fee $225.00 $225.00 03/26/06 | Filing Fee $30.00 (client paid by | 30.00 Check 3/1/08) Ze: Men to Suppineent Record; Dec of NSK) Bx 11 COS HRAP Rule 39(c) (3) defines costs in the appellate courts as, inter alia, “the fee for filing the appeal." This court has Inesmuch as appeals by non-indigent parties generally require prepaynent of fees, the "why," “when,” and *to whom” are selfvevident as to. $225.00[.] See HRAP Rule 45(e) (5) Ti200s)] (supreme Court filing fee of $100.00); HRS $8 607- Stel (23) (supp. 2004) (eireule court fee of $100.00 upon filing of novice of appeal), 607-5.7 (Supp. 2002) (525.00 Surcharge for indigent legal services); MRAP Rule 3(a), (f) (consequences of failure to pay, including disnissel of appeal) Kamau, 110 Hawai'i at 279, 132 P.3d at 388. Consequently, the 9225.00 requested by Husband is reimbursable, pursuant to HRAP Rule 39(c) (3). However, inaemich as Husband did not cite to any 227+  * FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter authority which permits reimbursement for the $30.00 filing fee allegedly incurred on January 26, 2006 for filing a motion to supplement the record, Husband's request for reinbursement of filing fees should be limited to $225.00, Accordingly, the ICA gravely erred in reimbursing Husband $255.00 in costs incurred for filing £ 4. transcript fees Finally, Husband requested $75.00 for transcript f HRAP Rule 39(c) (1) defines coste in the appellate courte a Anter alia, "the cost of the original and one copy of the reporter's transcripts if necessary for the determination of the appeal.” In Kamau, this court concluded that the prevailing wonably demonstrated” ite tranecript fees over the party had * losing party's objection of inadequate documentation, noting that: (the prevailing party] Liste two charges apparently ‘to transcript production, to wit, $112.60 for Ekristine Jordan," and $210.94 for jukayana." [The prevailing party] also ai ‘co be a photocopy of ite Gua leager, recording che outlays to Jordan (December 6, 2001) and Teuksyana (Decenber 24, 2001). consequently, (the prevailing party] has reasonably demonstrated expenses of $210.84, which equals $323.54 Id, at 279 n.13, 132 P.3d at 386 n.13. In this case, however, Husband’s request merely listed the following: [Tone 03/03/08 | Tranecript Fee £75.00 $75.00 (eltene pass by check #345) -28  * FOR PUBLICATION * in West’s Hawai'i Reports and the Pacific Reporter Husband did not attach any documentation in his request nor did Husband file a response to Wife’s application in order to provide any documentation for this court to conclude that the requested was reasonably and nece transcript f ry incurred in the appeal to the ICA. Consequently, Husband did not jonably for transcript fees. Accordingly, demonstrate []* his expen the ICA gravely erred in reimbureing Husband $75.00 in costs incurred for transcript fees. IV. CONCLUSTON Based on the foregoing, we affirm the ICA's October 18, 2006 judgment on appeal with respect to the merits of Husband's appeal. We vacate, however, the ICA’s award of costs to Husband and, instead, award costs in the amount of $280.80 in favor of Grr Theodore ¥. Hl. Chinn and BBL ntore Edie A. Feldman, for titioner/petitioner- a ‘ are Husband as against wife. on the brief appellee Mark 8. Kawata and Qa ort—m Craig T. Dela Cruz, we for respondent /respondent- Une appellant Dates -29- 

bf62e652a77d6b5848a1f2423c856ee67af3d463633a9a9d880b2a8f801c9650

2007-03-07T00:00:00Z

a3d8208f-7e1e-4788-a194-5d7be4447604

In re King

hawaii

Hawaii Supreme Court

No. 28360 IN THE SUPREME COURT OF THE stare or wawaré| = & IN RE ANGIE KING, Petitioner. 3 = ORIGINAL PROCEEDING oN TO RE: (By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.) Upon consideration of Petitioner Angie King's Petition to Resign and Surrender License, the attached affidavits, and the lack of objections by the Office of Disciplinary Counsel, it appears that the petition complies with the requirements of Rule 1.10 of the Rules of the Supreme Court of the State of Hawai'i (RSCH). Therefore, IT IS HEREBY ORDERED that the petition is granted. IT 1S FURTHER ORDERED that Petitioner King shall return her original license to practice lav to the Clerk of this court forthwith, The Clerk shall retain the original license as part of this record. Petitioner King shall comply with the notice, affidavit, and record requirements of subsections (a), (6), (a), and (g) of RSCH 2.16. IT 1S FINALLY ORDERED that the Clerk shall remove the name of Angie King, attorney number 1929, from the roll of attorneys of the State of Hawai'i, effective with the filing of this order. DATED: Honolulu, Hawai'i, January 31, 2007. er... Shea se Bsus bi Nance ere Came ouseys rs 

6164c07fba13628ae8c345606b34aff61cbffd42e248d38289327c3b78b1c688

2007-01-31T00:00:00Z

e2e633d1-1598-4915-9207-02a05acc6394

State v. Ramano. Dissenting Opinion by J. Levinson [pdf]. S.Ct. Order of Amendment, filed 03/08/2007 [pdf]. S.Ct. Order of Amendment, filed 03/30/2007 [pdf].

114 Haw. 1

hawaii

Hawaii Supreme Court

‘s+4fOR PUBLICATION ON WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*#* IN THE SUPREME COURT OF THE STATE OF HAWAT'T 00" I L234 woe STATE OF HAWAI'I, Plaintiff-Appellee —_ 5 suai PAME ANN MARY LEILANI ROMANO, Defendant-Appellant No. 26110 APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (CASE NO. 1P103-00755 OF 8/26/03; HPD CR. NO 03024777) FEBRUARY 27, 2007 MOON, C.J., NAKAYAMA, ACOBA, AND DUFFY, JJ.+ AND LEVINSON, J., DISSENTING OPINION OF THE COURT BY ACOBA, J. We hold that Defendant-Appellant Pane Ann Mary Leilani Romano (Defendant) has not established, as she argues on appeal, that (1) “[Plaintiff-Appellee State of Hawai'i (the prosecution) } failed to support a prima face [sic] case of prostitution because the [prosecution] failed to prove . . . that Defendant was not a law enforcement officer,” (2) the [prosecution] failed to present sufficient evidence to support a prima face [sic] case of prostitution,” (3) “there was insufficient evidence adduced to support a finding of guilt,” and (4) “Laurence v. Texas[, 539 U.S. 558 (2003),)] renders Hawai'i Revised Statutes [(HRS)] § 712- aa “S*4FOR PUBLICATION ON WEST'S HAMAI'T REPORTS AND PACIFIC REFORTERS*# 1200 et. seq. unconstitutional as applied in this case.” (Capitalization omitted.) ‘Therefore, Defendant’s August 26, 2003 judgment of conviction and sentence by the district court of the first circuit (the court)! for the offense of prostitution, HRS § 712-1200(1) (Supp. 2006),* is affirmed. A Trial began on August 13, 2003, and the evidence following was adduced. On January 18, 2003, Officer Jeffrey ‘Tallion was on duty with the Narcotics/Vice Division of the Honolulu Police Department Morals Detail. He testified he was on assignment investigating prostitution in the Waikiki area. Tallion related that the investigations involved “checking into hotel rooms and then . . . either go[ing] on to the street or - set[ting] up appointments either in the telephone book or ‘Pennysaver,’ ‘Midweek,’ or internet cases.” In preparation for his undercover operation, Tallion obtained a hotel room at the Aston Waikiki Beach Hotel and + the Honorable Faye Koyanagi presided “cion HBSS 72222000) stares that Ia) parson commita the offense of prostitution Lf the person en or agrees or attere to engage in, sensed Sencuct ith angther’ person Zor's fee. ike 112-2800(2) Sefines Seenaal conduct,” Snker ala, es “senvel contact.» AAS § 701-700 (2993) defined sexual contact as intimate parte of a person yroal or other sntumate parte rectly of through the Inlay touching of the sexsi or othe not matried to the actor, cf of the (Of the actor sy the person, whether Glgihlog of other material" sntended fo cover the ual contact An HRE § 707-700 was amended in 2004, 88 Haw. S43 lding the phrase “other than acts of ‘sersal peneeration = ‘The anenanent dows not aftect oor Eovaet 61, $3 at 30%, F tany touching” in the first sentenc ‘++FOR PUBLICATION ON WEST'S HAWAI'T REFORTS AND PACIFIC REFORTERS® dressed in civilian clothes. He browsed through the “Pennysa’ newspaper and called the phone number on a massage advertisement. When Defendant answered the phone call, Tallion asked if she did “out calls.” At this time, there was no discussion of any Alliest conduct or sexual acts. ‘Tallion set up an appointment with Defendant and they met on the street in front of the Aston Waikiki Beach Hotel, but then moved to Tallion’s hotel room. In court, Tallion positively identified Defendant as the individual he met outside on January 18, 2003. Upon arriving in the room, Tallion confirmed that the price of an out call was $100 and then asked Defendant whether “she did anything else.” Defendant responded, “Like what? Dance?” Tallion responded, “No,” so Defendant asked, “Well, what do you have in mind?” Tallion then answered, “Well, I was referring to a blowjob.”? Defendant replied, “No, hands only.” Tallion clarified, “So no blowjob, so handjob.” Defendant responded, “Yeah, I can do that.” Tallion asked the cost and Defendant responded, “Add 20." Tallion reconfirmed with, “Oh, $20 for a handjob?" and Defendant replied, “Yes.” Tallion testified that a handjob is street vernacular commonly used in prostitution for “assisted masturbation.” 2 oe gal GSNEea Humcasnd, 66, tm. 935496657, 666 0.28 508, 5911989), this court said the term “bioweb" ss “recognized by » large segnene of the adult popuistion in Hawaii se (an expression] seseribing sersal conduct in slang” snd the Ferm could be found in Under Both Sblow Jeb" and *tellatier™ FOR PUBLICATION ON WEST'S HAWAI'I REPORTS AND PACIFIC REFORTERS*# Following Defendant’s reply, Tallion “gave a pre determined signal” and the arrest team entered the hotel room. Tallion apprised Honolulu police officer William Lurbe of the facts and Lurbe placed Defendant under arrest. Tallion testified that he had been with the Morals Detail for three years; he was involved in 400 prostitution cases in 2002 as either the undercover or arresting officer: maybe five of the prostitution cases were initiated from “Pennysaver” ads; and after the talk about “handjob,” Defendant added $20.00 to her quoted $100.00 charge for the out-call service. On cross examination, Tallion recounted that he found Defendant’ s advertisement in “Pennysaver! s” Nassage/Acupuncture Section and not the Adult Section. He also related that “hands only” could have meant what a masseuse actually does. In his testimony, Lurbe testified that he arrested Defendant for prostitution on January 18, 2003, after being “informed by [Tallin] that he [had] obtained a prostitution violation from [Defendant], which was assisted masturbation for $20.” On cross-examination, Lurbe indicated that Tallion notified him of the violation via cellular phone. Following Lurbe’s testinony, the prosecution rested. Defendant moved for a continuance “to subpoena, investigate and talk to witnesses who were in the room adjoining this, this room.” Over the prosecution's objection, the court continued the case to August 26, 2003.  on August 21, 2003, Defendant filed a “Motion to Dismiss.” In the memorandum attached to the motion, Defendant asserted that Lawrence “invalidate(d] Hawaii's prostitution statutes (and) thus{,] the [prosecution's] case [against Defendant] must necessarily fail.” At the start of the proceedings held on August 26, 2003, Defendant moved for a judgment of acquittal, arguing that the prosecution had failed to prove (1) that there was an offer and agreement to engage in sexual conduct for @ fees and (2) that Defendant was “not a police officer, @ sheriff, works for the sheriff's department or law enforcenent acting in the course or scope of her duties.” After hearing fron the prosecution, the court denied Defendant's motion. Defendant's “Motion to Dismiss” was then heard. The court denied the motion, stating that it “[did) not agree with the applicability of (Lawrence) to the instant situation.” Defendant took the witness stand in her own defense and testified that she was a self-employed license massage therapist, she had been a licensed massage therapist for “19 years, going on 20” and her license was current and up-to-date on January 16, 2003, She testified that she placed her ad under the “Body, Mind and Spirit,” “Massage,” or “Health and Fitness” sections and not under the “Personal” or “Adult” sections. Defendant also recounted that on January 18, 2003, ‘Tallion inmediately asked for a blow job when she entered the ‘**4FOR PUBLICATION ON MEST’S HAWAI'I REPORTS AND FACIFIC REPORTERS** hotel room. She explained that she was “caught off guard” because she was “not the typical person that men want this fron,” as she was “overweight” and “old.” She reported that after Tallion asked for the “blow job," she put her hands up and stated, “Hey, I only do hands only.” she also declared that she was shaking her head “no” at the same time. Defendant then indicated that Tallion repeated his question again and also asked how much it would cost. Defendant again said, “No, hands only.” Defendant also maintained that Tallion was “loud,” “demanding,” and “boisterous.” After Defendant repeated “hands only” again, Tallion asked about handjobs. Defendant claims that she had no intent to conmit any kind of sexual contact with Tallion. She explained that she only gave Tallion a figure of $20 because she felt threatened and because of Tallion’s loud demands. She then testified about 2 1983 incident where “[she] got beat up real bad by this person who [she] had gone to for a job for telephone soliciting.” On cross~exanination, Defendant admitted that she n Tallion and herself) “couldn't remember [the conversation betwi word for word." She also stated that Tallion did not block her way to the door leading to the hallway, Tallion did not tell her she could not leave the room, and she did not attempt to use the telephone or walk out of the room. Furthermore, Defendant indicated that she said “yes” when Tallion asked for @ handjob, FOR PUBLICATION ON MEST’ S HAWAI'T REPORTS AND PACIFIC REFORTER**# she knew that handjob could mean assisted masturbation, she told Tallion that the handjob would cost $20.00 extra, and she said yes” when Tallion reiterated $20.00 for a handjob. On redirect examination, Defendant claimed that she felt trapped because it was not her room, the room “didn’t have much room in it,” and “she was within arm's reach of [Tallion] Following Defendant's testimony, the defense rested. ‘The court found Defendant guilty of the charged offense. Defendant was sentenced to six months’ probation and fined $500.00. Judgment was entered on August 26, 2003. Imposition of sentence was continued for thirty days for perfection of appeal. The court instructed the prosecution to prepare written findings of facts and conclusions of law. The “Findings of Fact, Conclusions of Law, and Order Finding Defendant Guilty After Jury-Waived Trial” were filed on September 26, 2003. Notice of appeal was filed on September 19, 2003. um. As noted previously, Defendant raised four issues on appeal.* In regard to issue (1), an exception to the offense of + the prosecution answered (1) the prosecution did not have to prove chat Defendant wae a law enforcement officer acting in the course and scope of her duties, (2) there was sufficient evidence adduced at txial to support Defendant's prostitution conviction, (3) Defendant failed to prove by a preponderance of the evidence that she acted under “duress” when she agreed to Ehgoge in sexual conduct with Tellicn fers fee, and (4) Hawaii's prostieation Statute se not rendered unconstitutional by Defendant reitersted in her reply brief that the application of RS § 712-1200 to this case was unconstituticnal.. We must note that it appesrs ¢ substantial part of the reply brief corresponds verbatim to the Boblished opinicn of the New York City Family Court sn Bey 400 N.Y.8.24 E55, 462-68, 467-69 (Fam. Ct. 1977), zev'd, 418 N.Y.S.26 597, 605 (App. Div. 1878).  ‘**4FOR PUBLICATION ON WEST’ § HAWAI'I REPORTS AND PACIFIC REPORTER prostitution applies under HRS § 712-1200(5) for “any menber of a police department, sheriff or other law enforcement officer acting in the course of and scope of duties.” State v, Nobriaa, 10 Haw. App. 353, 357-58, 873 P.2d 110, 112-13 (1994), overruled nother arounds by State v. Macleaa, 80 Hawai'i 172, 178-79, 907 P.2d 758, 764-65 (1995), is instructive. According to that case, “[t]he general and well-settled conmon law rule is that where an exception is embodied in the language of the enacting clause of a criminal statute, and therefore appears to be an integral part of the verbal description of the offense, the burden is on the prosecution to negative that exception, prima facie, as part of its main case.” Ig, at 357, 873 P.2d at 112-13 (footnote and citation omitted). The Intermediate Court of Appeals (the ICA) further noted that “when the exception appears somewhere other than in the enacting clause, and is thus a distinct substantive exception or proviso, the burden is on the defendant to bring forward evidence of exceptive facts that constitute a defense” and, in such an instance, “[t}he prosecutor is not required to negative, by proof in advance, exceptions not found in the enacting clause.” id, at 358, 873 P.2d at 113 (citations omitted) .* Further, the ICk noted that the general rule does not apply “when the facts hypothesized in the exceptive provision ere peculiarly within ene knowledge of the defendant, or the evidence concerning them is within the Gefendant’s private control.” Nabriga, 10 Kaw. App. at 356, 673 Pr2d at 113 (internal quotation marks, brackets, and citation omitted) « _ ‘*++FOR PUBLICATION ON MESI’S HAWAI'I REPORTS AND PACIFIC REPORTERS#® In Nobriga, the defendant was cited under Revised Ordinances of Honolulu (ROH) § 7-2.3 (1990),* “animal nuisance,” for keeping numerous roosters at his home, resulting in complaints from neighbors. Id, at 385, 873 P.2d at 112, At trial, the defendant moved for judgment of acquittal on the premise that the State had failed to prove defendant's conduct did not fall within the exceptions to the animal nuisance law set forth in ROH § 7-2.4(a).7 Id, at 356, 873 P.2d at 112. The district court denied the motion. The ICA affirmed the denial, stating that the general prohibition against animal nuisance as set forth in ROH $§ 7-2.2 and 7-2.3 govern the elements of the case and “does not incorporate ROH § 7-2.4" as “the exceptions are located in a separate and distinct section of the ordinance.” Ad. at 389, 873 P.2d at 113. ‘The ICA also indicated “the burden of proving exceptions to a criminal statute appear to be codified in the ‘RoW § 7-2.3 provides, in pertinent part, that “[iJt is unlawful to be the owner of an animal, farm aninal or poultry engaged in aninal nissance a2 defined in Section 7-2.2." ROM § 7-2.2 (1990) defines “Aninal nuisance,” partly, as follows “animal nuisance,” for the purposes of this section, shall ineluse but not be limited to any snimal, farm animal or poultry which: (2) "Makes noise continuously and/or incessantly for S perios of 10 minutes or intermittently for Snechalf hour of sore to the disturbance of any person at any tine of day or night and Fegardiess of whether the animal, farm animal or poultry is physically situated in or upon Private property] + ROH § 7-2.44a) (1990) provides that “InJothing in this article applies to animals, farm aninals or poultry raised, bred or kept asa Consercial enterprise or for food purposes where connercial kennels or the Keeping of livestock is a permitted use.”  ‘+*470R PUBLICATION OM WEST’ § HAWAI'I REPORTS AND FACIFIC REPORTER: Hawai'i Penal Code” pursuant to HRS §§ 701-114(1) (a) (1985) and 702-205 (1985). Id, at 358, 873 P.2d at 113, The ICA declared that HRS § 701-114(1) (a) requires that “the State’s burden is to prove, beyond @ reasonable doubt, each element of the offense,” Adi at 358, 873 P.2d at 113; “the elements of an offense” include vaRs § 702-115(1) that which “[njegative(s) a defense,” idu; (2985) defines a ‘defense’ as ‘a fact or set of facts which negatives penal liability,’" ids but “*{nJo defense may be considered by the trier of fact unless evidence of the specified fact or facts has been presented,’ ids (quoting HRS § 701- 115 (2) (1988)), In regard to the penal code requirenents, the ICA reiterated that the prosecution “has the initial burden of negativing statutory exceptions to an offense only if the exceptions are incorporated into the definition of the offense.” Id. at 359, 873 P.2d at 113. However, as the ICA explained, “Li]f @ statutory exception to an offense constitutes a separate and distinct defense, . . . the State's burden to disprove the defense beyond 2 reasonable doubt arises only after evidence of the defense is first raised by the defendant.” Id. im. Applying the foregoing formulation, the enacting clause for the offense of prostitution is HRS § 712-1200(1), because this clause “contains the general or preliminary description of the acts prohibited; i.e., proscribes the offensive deed.” state wales, 90 Hawai'i 130, 138 -n.7, 976 P.26 444, 452 n.7 (1999) -10-  ‘s+F0R PUBLICATION ON MEST’ S HANAI'T REPORTS AND PACIFIC REPORTER: (citations omitted) (defining the term “enacting clause”). HRS $ 712-1200(5) does not prescribe the offense, but states an exception to the offense for law enforcement officers acting “in the course and scope of duties.” Similar to Nobriga, then, the exception here, HRS § 712-1200(5), is not located in the same section, HRS § 712-1200(1), as the definition of the offense." As the exception in HRS § 712-1200(5) would negative the prostitution offense, it constitutes a defense. See Nobriaa, 10 Haw. App. at 359, 873 P.2d at 113. In order to claim the benefit of this defense, then, evidence that Defendant fell within the exception must have been adduced. See id, However, Defendant did not adduce any such evidence at trial. Under Nobriga, the prosecution is not required to disprove the defense until there is evidence that the defendant falls within HRS § 712-1200(5). Id, Thus, the prosecution was not required to negate the defense. See HRS § 701-115(2) (1993) ("No defense may be considered by the trier of fact unless evidence of the specified fact or facts has been presented|.]”). There was, then, no defect in the proof of a prima facie case. wv. As to issue (2), the prosecution must prove every element of a crime charged and the burden never shifts to the defendant. Territory v. Adiarte, 37 Haw. 463, 470-72 (1947). 1 in reviewing the We recently stated that “*[t]he test on app + woreover, S¢ may Be noted that Sf Defendant was a law enfo: officer, this fact would be peculiarly within Defendant” knowledge oF the Sten titnin Defendant's privete control ae FOR PUBLICATION ON WEST'S HANAI'T REZORTS AND PACIFIC REPORTERS legal sufficiency of the evidence is whether, when viewing the evidence in the light most favorable to the prosecution, substantial evidence exists to support the conclusion of the trier of fact.’" State v. Agard, No. 27219, 2007 WL 198725, at *3 (Haw. Jan. 23, 2007) (quoting State vs Bui, 104 Hawas'l 462, 467, 92 P.34 472, 476 (2004)) (other citation omitted). “Substantial evidence” is defined as “‘credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to reach a conclusion.’* Id. (ellipses points, brackets, and citations omitted)). As indicated previously, HRS § 712-1200(1) provides in relevant part that prostitution is committed “if the person... agrees . . . to engage in. . . sexual conduct with another person for a fee.” Under HS § 712-1200(2), “sexual conduct” includes “sexual contact,” as that term is “defined in section 707-700." In pertinent part, “*sexual contact’ meant any touching of the sexual or other intimate parte of a person not married to the actor{.]" HRS § 707-700. ‘The evidence demonstrated that Defendant agreed to give Tallion 2 “handjob” for a fee of $20.00. Tallion confirmed with Defendant that the charge for the “out-call” was $100.00. when Tallion said, “So no blowjob, so handjob,” Defendant responded, wYah, T can do that.” Tallion then asked whether “that cost extra,” and according to Tallion, Defendant answered, “Add 20.” Tallion testified he confirmed, “Oh, $20 for handjob,” and a2 ‘s++FOR PUBLICATION ON MEST’ HAWAI'I REPORTS AND PACIFIC REPORTERS*® Defendant replied, “Yes.” This testimony indicates that the $20 added fee was’ for the handjob. Defendant argues that agreement for a handjob does not necessarily involve sexual conduct. She contends that Tallion never defined “assisted masturbation” and that although Tallion equated @ “handjob” with sexual contact, he did admit that another Licensed masseuse had given him a hand massage and, thus, the meaning of “handjob” is not always sexual in nature. The phrase “assisted masturbation” would appear susceptible to conmon understanding. “Masturbation” is defined, inter alia, as “the stimulation, other than by coitus, of another's genitals resulting in orgasm.” Random House Dictionary of the English Languace 883 (Unabr. ed. 1973). Genitals describe “the reproductive organs, especially the external sex organs.” The American Heritace Dictionary of the English Language (4th ed. 2000), available at http: //www.bartleby.com/61/. Tallion testified that “*{hJandjob’ is street vernacular conmonly used in prostitution for assisted masturbation.” Defendant also testified that she knew that the term “handjob” could mean assisted masturbation." As noted, the meaning of “sexual contact” in HRS § 712-1200(1) included “any + aulson also testified he had never been marcied to Defendant and the had never “lived together at man and wife with (Defendant].” See supra’ note 2 defining sexual contact. on cross-exanination, the prosecution asked Defendant, “Did you know that ‘handjob’ could nean sgsicted masturbation?” and she replied in the aftizmetive n13- {*4P0R PUBLICATION ON MEST’ S HAWAI'I REPORTS AND PACIFIC REPORTERS#* touching of the sexual . . . parts of a person{.]” HRS § 707- 700, Plainly, the reference to “hand” in the term “handjob connotes physical contact with genitals. Hence, considered in the strongest light for the prosecution, substantial evidence was adduced that would enable a person of reasonable caution to conclude, ste Acard, 2007 WL 156725, at +3, that Defendant agreed to engage in sexual contact with Tallion for a fee. v As to issue (3), HRS § 702-231 (1993) provides in relevant part: Duress. (1) It iz a defense toe penal chara thet the ‘Sr caused the result aiieges Bs Sessat couse, “onlanful force gainst his person or the oh of another Bi‘ siverion wauid'hase been unable to restate (si in’ prosecutions tor any offense descrsbed in this Gade, the Sefense asserted under this section shall ‘Soutiiute ap atfiimative defense, “The defendant shall have fhe burden of soins torwarg with the evidence te prove The facts constituting such defence, oniese such facts are supplied by the testinony of the prosecuting witness or circumstance in such testinony, and_of proving such facts by a-rependerance of the svigense pursuant fo section Tite, added.) “the preponderance standard directs the factfinder to decide whether ‘the existence of the contested fact is more Probable than its nonexistence." Kekona v. Abastillas, No. 24051, 2006 WL 3020312, at *6 (Haw. Sept. 26, 2006) (quoting E. Cleary, McCormick on Evidence § 339, at 957 (3d ed. 1984)) (other citation omitted). Accordingly, “[t]o prevail, (the defendant] need only offer evidence sufficient to tip the scale slightly in his or her favor, and [the prosecution] can succeed by merely nee  ‘s++FOR PUBLICATION ON MEST’S HAWAI'I REPORTS AND PACIFIC REPORTER: keeping the scale evenly balanced.” Id. (internal quotation marks and citations omitted). Defendant contends her claims “meet the elements of the affirmative defense of duress by a preponderance of evidence.” She argues that because the duress claim was “unchallenged by the (prosecution) ox the (cJourt[,] preponderance of the evidence is indeed established.” However, the court considered Defendant's affirmative defense of duress and concluded that Defendant did not meet her burden. specifically, in its oral finding, the court stated, “[ale far as the duress defense, the burden--it becomes an affirmative defense and the burden then shifts to the [Dlefendant to prove that the duress did in fact occur by preponderance of the evidence, which the [cJourt does not feel the [DJefendant has met that burden.” In its written findings, the court found “Defendant failed to present an adequate defense to the charge.” “‘A trial court’s findings of fact are reviewed under the clearly erroneous standard.’ State v. Keliiheleua, 105 Hawai'i 174, 178, 95 P.3d 605, 609 (2004) (internal quotation marks and brackets omitted) (quoting Dan vs State, 76 Hawai'i 423, 428, 879 P.2d $28, 533 (1994)). “YA finding of fact is clearly erroneous when (1) the record lacks substantial evidence to support the finding, or (2) despite substantial evidence in support of the finding, the appellate court is nonetheless left with a definite and firm conviction that a mistake has been made.” foo v, State, 106 nase ‘#4F0R PUBLICATION OM WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER'#+ Hawas's 102, 112, 102 P.34 346, 356 (2004) (quoting State vs Okumura, 78 Howai'i 383, 392, 894 P.2d 0, 89 (1995)). The record indicates that there was substantial evidence to support the finding and that it is not clear that 2 mistake has been made. See id. at 46, 137 P.3d at 360. Defendant related that Tallion was “loud” and “demanding” and she only agreed to Tallion’s request for a “handjob” because she felt threatened. However, upon cross- examination, Defendant conceded that (1) Tallion had not blocked her egress from the hotel room; (2) Tallion was not holding a weapon when he asked about the “blowjob”? (3) Tallion never told her that she could not leave the room; and (4) she never attempted to use the phone or walk out of the room. Matters of credibility and the weight of the evidence and the inferences to be drawn are for the fact finder. see Acard, 2007 WL 158725, at *3 (stating that “*appellate courts Will give due deference to the right of the trier of fact to determine credibility, weigh the evidence, and draw reasonable inferences from the evidence adduced’ (quoting In re Doe, 107 Hawai'i 12, 19, 108 P.3d 966, 973 (2005) (other citation omitted)) (internal quotation marks omitted). Defendant did not testify to any “use of, oF a threat of use, with unlawful force against (her) person[.]” HRS § 702-231(1). Defendant acknowledged Tallion did not block her exit and she did not attempt to leave. Under these circumstances and giving due deference to the court as fact finder, it cannot be said the n16- ‘S*4FOR PUBLICATION ON MEST’ S HAMAI'T REPORTS AND PACIFIC REPORTER**1 court's finding that Defendant failed to establish duress by a preponderance of the evidence was clearly erroneous, See Fisher, 111 Hawas's at 46, 137 P.36 at 360. vr. As to Defendant's last issue, the dissent agrees with Defendant and argues that (1) “at the time of this court's holding in (State v. Mueller, 66 Haw. 616, 671 P.24 1351 (1983)], there was no federal precedent addressing whether the criminalization of an utterly private sexual activity (and its associated monetary component) abridged an individual's right to privacy[ but] Laurence created just such a precedent, confirming that individual decisions by married and unmarried persons ‘concerning the intimacies of their physical relationship . . « are a form of “Liberty” protected by the Due Process Clause of the Fourteenth Anendnent{,]’” dissenting opinion at 8, and (2) “article 1, section 6 does not abide the criminalization of wholly private, consensual sexual activity between adults without the state’s having demonstrated a compelling interest by way of Minjury to a person or abuse of an institution the law protects,’ 539 U.S. at S6B[,]” dissenting opinion at 10. We must respectfully disagree with these propositions and discuss then herein vin. The dissent’s first position is not tenable because it runs into the specific qualification in Lawrence that excludes -10- ‘*+FOR PUBLICATION ON WEST’ § HAWAI'I REPORTS AND PACIFIC REPORTER*#* prostitution as part of protected “liberty” under the federal due process clause. not involve minors. It does not injured oF coerced oF who ar aiay be ‘The present case dot Persons who might be din relationships where consent might not. Avo refused. It does not involve public conduct or Erogtinueian. Tt does fot invelve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. Tifestvie. the petitioners ore entitied to respect for Their private lives. The State cannot demean chest existence of control their destiny by making their private Sexual conduct a crime. Their right to liberty under the Due Process Clause giver then the full right to engage in their conduct without intervention of the government: 539 U.S. at 578 (emphases added). Additionally, despite this clear exclusion, the dissent argues that a logical extension of Laurence precludes the states from exercising their police power to curb prostitution. (Where two consenting adults susp money for sex in transaction undertaken entirely in seclusion, the analysis of the Laurence majority, auoid the action, leads inexorably to the conclusion that She state nay not exercise its colice power to criminalize a Eiiuate decision between two consenting adults to engage in semual activity, whether for remuneration os not. Dissenting opinion at 9-10 (emphasis added). But, the dissent’s position is not supportable on this premise. The Court has in the past drawn legal boundaries around its decisions, despite the fact that arguably logic would “lead{] inexorably” beyond such strictures, ‘Thus, in State v. Kam, 69 Haw. 483, 748 P.2d 372 (1988), this court recognized that although the Court had held a state “would not be able to prohibit an individual from possessing and viewing . . . pornographic materials in the at 489, 748 P.2d at 376 privacy of his or her own home(,]” id. (citing Stanley v. Georaia, 394 U.S. 557 (1969), “(t)he - n18-  |FOR PUBLICATION ON WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER* court hald) effectively ruled that the protected right to possess obscene material in the privacy of one’s home does not give ri to a correlative right to have someone sell or give it to others{,]” Kam, 69 Haw. at 490, 748 P.2d at 376 (internal quotation marke and citation omitted), leading to the paradoxical conflict of a “citizenry(’s] . . . right to read and possess material which it may not legally obtain[,]” id. at 491, 748 P.2d at 377. Hence, although the Court's language may seemingly point to broader application, that does not portend an extension of a given proposition especially when, as here, the Court expressly limits the scope of the liberty interest protected.” Furthermore, the dissent misreads Lawrence. As mentioned above, prostitution, i.e., “swap[ping] money for sex," dissenting opinion at 9, is expressly rejected as a protected Liberty interest under Lawrence. Laurence did not involve an exchange of money for sexual relations but focused on the specific sexual conduct, i.e., sodomy, as being outside the scope of legitimate government concern. It is important to remember that “[t]he question before the Court [was] the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexval conduct [,]” 539 U.S. at 562, described as “(A) any contact between any part of the genitals of fone person and the mouth or anus of another person; or (B) the nts atatenent, see dissenting opinion at 9 Svate solicited ming, arquenda, public contrary to the at 10, the Court gid not draw the Gistinction between prostitutions ond public solicited prostitutions, Eelicitstion ig sbeent in this case’ -19- ‘+*4FOR PUBLICATION ON WEST’ § HAWAI'T REPORTS AND PACIFIC REPORTERS+# penetration of the genitals or the anus of another person with an object (,]” ids (quoting Texas Penal Code Ann. § 21.01(1) (2003)). Lawrence thus contains a lengthy dissertation on homosexual conduct and sodomy dating back to 1533. Id. at 568-77. As the Court stated, the case involved “two adults who . . . engaged in sexual practices common to a homosexual lifestyle.” Id. at 578 (emphasis added) . Assuming, arauendo, that “Lawrence presupposed private sexual activity between two adults fully capable of giving valid consent [,]" dissenting opinion at 22, that does not mean Lawrence sanctioned prostitution in the “(nJarrow[er]," dissenting opinion at 21, form advocated by the dissent. Lawrence simply placed no qualification on excluding prostitution from its holding. vinr. In Lawrence, the Court reconsidered its earlier holding in Bowers v. Hardwick, 478 U.S. 186 (1986), where “Hardwick, in his own bedroom, [was observed] engaging in [sodomy] with another adult male.” Lawrence, $39 U.S. at 566. In doing so the majority adopted the dissent of Justice Stevens in Bowers, where a sodomy statute similar to that in Texas was upheld by the Rowers majority. In his dissent, Justice Stevens rested on two % the Georgis statute criminalizing sodomy at issue in Bowers, Georgia Code Ann. § 16-6-2 (1964), provides in pertinent part (2) A person comits the offense of sodony when he performs or submite to any sexual act involving the sex organs of one person and the nouth or anus of another» (b) A person convicted of the offense of sodomy shall be punished by inprisonnent for not less than one ner more then 20 years{.] 20" ‘s++F0R PUBLICATION ON WEST'S EAMAZ'T REPORTS AXD PACIFIC REPORTERS+# contentions. First, the fact that the governing majority in 9 state has treditionally vieued @ cayticular gractica as immoral is not # sufficient reason for upholding = 1aw prohibiting the Practice; neither history nor tradition could save « lav Prohibseing miscegenation from constitutional attack Second, individual decisions by married persons, concerning fhe Intinacies of thelr phvsies) relaticnshio, even when not Protected by the Due Process Clause of the Fourteenth Amendment. Moreover, ten Bowers, 478 U.S. at 216 (Stevens, J., dissenting) (footnote and citations omitted) (emphases added). ‘The majority in Lavrence decided that “Justice Stevens’ analysis . . . should have been controlling in Bowers and should control here.” $39 U.S. at 578. ‘Thus, Lawrence invalidated a criminal statute prohibiting the “particular practice” of sodomy because it involved the “intimacies of . . . physical relationship” and such “intimate choices” should be left to unmarried as well as married persons. Id, at 577-78 (emphasis added). Lawrence, then, was concerned with specific conduct seemingly aimed at persons engaged in homosexual relationships. Consequently, Lawrence precludes government interference or regulation of intimate sexual practices or conduct with respect to homosexual as well as heterosexual adults. Such intimate practices or conduct are not at issue in the instant case or prohibited by HRS $ 712-1200, the prostitution statute. Laurence, then, is not federal precedent for the proposition that “private sexual activity” “associated 470 v8 ae TREE bad, -21-  ‘**POR PUBLICATION ON WEST’ § HAWAI'I REPORTS AND PACIFIC REPORTER? [with a] monetary component," “abridged” the “right to privacy” ‘as the dissent argues. Dissenting opinion at Ix. As to the dissent’s second position, in our view Lawrence ae construed above does not vitiate the holding in Mueller. In Mueller, the defendant wi in, or agree[ing] to engage in, sexual conduct with anoth charged with “engag[ing] person, in return for a fee, in violation of [HRS §) 712-1200(,1" 66 Haw. at 618, 671 P.2d at 1354, as Defendant was so charged in the instant case. Somewhat similarly the question posed there was “whether the proscriptions of (HRS) § 712-1200 may be applied to an act of sex for a fee that took place in a private apartment.” Id. at 619-20, 671 P.2d at 1354. In affirming the conviction, this court said that “we are not convinced a decision to engage in sex for hire is a fundamental right in our schene of ordered liberty, . . . [therefore] ve affirm [the defendant’ s] conviction.” Id. at 618, 671 P.2d at 1353-54. Unlike in the instant case, in Mueller “the activity in question took place in [defendant's] apartment, the participants were willing adults, and there were ‘no sians o ‘* 66 Haw. at 618-19, 671 P.2d at 1354 (emphasis added). Despite the dissent’s assertion “that the charged transaction,” dissent at 22, was “wholly private,” ida, it is arguable in this case that “public solicitation” was implicated, inasmuch as contact with Defendant was made by way of a newspaper ad soliciting members of the public and the assignation took place in a hotel 22+ FOR PUBLICATION ON WEST'S HAWAI'I REPORTS AND PACIFIC REFORTER**# as opposed to “the privacy of her own hone.” Mueller, 66 Haw. at 618, 671 P.2d at 1354, x. As to the right of privacy in article I, section 6 of the Hawai"l Constitution, the Mueller majority noted that (1) “a party challenging the statute has the burden of showing unconstitutionality beyond a reasonable doubt (,]" ida at 627, 671 P.2d at 1958 (internal quotation marks and citations omitted), (2) “only personal rights that can be dened fundanental or implicit in the concept of ordered liberty are included in this guarantee of personal privacyl,]” id, at 628, 671 P.2d at 1359 (internal quotation marks and citations omitted), and (3) {t]he defendant has directed us to nothing suggesting @ decision to engage in sex for hire at hone should be considered basic to ordered Liberty[,]" ida Mueller is precedent. “Precedent is an adjudged case or decision of # court, considered as furnishing an example of authority for en identical or similar case afterwards arising or a similar question of law{] . . . and operates as @ principle of self-restraint . . , with respect to the overruling of prior decisions.” State v, Garcia, 96 Hawai'i 200, 205, 29 P.3d 919, 924 (2001) (brackets, internal quotation marks, and citations omitted) (ellipses points in original). In this regard, “(t)he policy of courts to stand by precedent and not to disturb settled points is referred to as the doctrine of stare deciais(.J" Id. (brackets, internal quotation marks, and citation omitted) . -23- "FOR PUBLICATION ON WEST'S HANAI'T REPORTS AND PACIFIC REPORTER*#* While not having ike “force . . . in the context of constitutional interpretation,” 4d. at 206, 29 P.3d at 925, “(t]he benefit of stare decisis is that it furnishes a clear guide for the conduct of individuals, to enable them to plan their affairs with assurance against untoward surprise; eliminates the need to relitigate every relevant proposition in every case; and maintains public faith in the judiciary 2s a at 205-06, 29 source of impersonal and reasoned judgments[,]” id. P.3d at 924-25 (brackets, internal quotation marks, citations, and ellipses points omitted) . Consequently, “a court should not depart from the doctrine of stare decisis without some compelling justification.” Id, at 206, 29 P.3d at 925 (internal quotation marks, citations and emphasis omitted). “[WJhen the court reexamines a prior holding, [then,] its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling @ prior case.” Id, (internal quotation marks, citation, and brackets omitted). There is no denying that “*[wjhile the outer limits of this aspect of privacy have not been marked by the Court [or this court), it is clear that among the decisions that an individual may make without unjustified government interference are personal jecisions relating to marriage . . . , procreation. . contraception . . . , family relationships . . . , and child -24- ‘*+f0R PUBLICATION ON WEST’ S HAWAI'I REPORTS AND PACIFIC REPORTER®: rearing and education(,]'" Mueller, 66 Haw. at 627, 671 P.2d at 1359 (quoting Carev v, Population Servs, Int'l, 431 U.S. 678, 684-85 (1977) (other citations omitted) (some internal quotation marks omitted), and now qualified intimate sexual conduct between or among consenting adult. The right to privacy has been expanded by the Court in discrete situations. See, e.a., Kyllo v. United States, $33 U.S. 27, 34, 40 (2001) (concluding that the government’s use of a thermal imaging device from a public street to detect relative amounts of heat within a private home, which would have been previously unknowable without physical intrusion, constitutes “a search” within the meaning of the Fourth Amendment, and is presumptively unreasonable without a warrant, in order to “assure(] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted”); Rog _v. Wade, 410 U.S. 113, 154 (1973) (concluding that “the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation”); Stanley, 394 U.S. at 568 (holding that “the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime” because although “the States retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual in the privacy of his [or her] own home"); Griswold v, Connecticut, 381 U.S. 479, 485-86 (1965) (holding that a law which forbade the use of contraceptives -25-  ‘*+POR PUBLICATION ON WEST’ S HAWAI'I REPORTS AKD PACIFIC REPORTEI unconstitutionelly interfered with the “notions of privacy surrounding the marriage relationship"). This court has also extended privacy rights under our own constitution. See, e.g. State v, Cuntapay, 104 Hawai'i 109, 120, 85 F.3d 634, 635 (2004) (holding that “under Article 1, section 7 of the Hawas't Constitution, a guest of a honedveller is entitled to a right of privacy while in his or her host's home” (footnote omitted) ); State v. Detrov, 102 Hawai'{ 13, 20- 22, 72 P.3d 485, 492-94 (2003) (holding that Kvllo, $33 U.S. 27, was dispositive of the defendant's federal constitutional claim and, additionally, that the use of a thermal imager to measure heat emanating from the interior of the defendant's apartment violated article I, section 7 of the Hawai'i Constitution because “[4]t nas long been recognized in Hawai'i that generally, a person ‘has an actual, subjective, expectation of privacy in his or her hone’ (quoting State v. Lopez, 78 Hawai'i 433, 442, 096 P.2d 897, 898 (1995); State v. Bonnell, 75 Haw. 124, 146, 856 P.2d 1265, 1277 (1993) (holding that “the defendants had an objectively ‘reasonable privacy expectation that [they] would not be videotaped by government agents’ in the employee break room” (quoting United States v. Taketa, 923 F.2d 665, 677 (Sth Cir. 1991))+ Kam, 69 Haw. at 496, 748 P.2d at 380 (declaring » statute that prohibited the promotion of pornographic adult magazines unconstitutional under article I, section 6 of the Hawai'i Constitution “as applied to the sale of pornographic materials to 26 ‘++FOR PUBLICATION ON WEST'S HANAI'T REPORTS AND PACIFIC REPORTERS ** a person intending to use those items in the privacy of his or her hone”). ‘Thus conduct once denominated criminal has later been afforded constitutional protection under the privacy umbrella. See, e.g., Kvllo, $33 U.S. at 34, 40; Roe, 410 U.S. at 1547 ‘Cuntapay, Stanley, 394 U.S. at $68; Griswold, 381 U.S. at 485-8 104 Hawai'i at 110, 85 P.3d at 635; Detrov, 102 Hawai'i at 20-22, 72 B.3d at 492-94; Bonnell, 75 Haw. at 146, 856 P.2d at 12777 Kam, 69 Haw. at 496, 748 P.2d at 380. And while such expansion may not be without controversy, prostitution seems almost singularly unique in historical and social condemnation. XL. Mueller acknowledged the resiliency of prostitution laws as noted by the drafters of the penal code.'? This court outer referred to (tlhe commentary on HRE § 72-1200. . . in pertinent par Our study of public attitude in this area revealed the Widespread belief anong these interviewed that prostitution should be suppressed entirely or that it Ehould be so restricted as not to offend those menbers of society who do not wish to consort with prostitutes of to be atfronted by then. Making prostitution 8 Grimins! offense sz one method of controlling the Scope of prostitution and thereby protecting those Segments of society which are offended by its open Sristence. this “abolitionist” approach ie not without ite vociferous detractors. There are those that contend chat the only honest ond workable approach to the problen 12 to legalize prostitution Ghd confine it to certain localities within a ives Community. While such a proposal say exhibit foresight end practicality, the fact renains that 2 Srae-seqment of society is not presenely wiiuing to Recoonising this fa ‘andthe need for public order, the Code makes Eroatitution and ite associate enterprises criminal pitenses,. (continves. -27- ‘*#FOR PUBLICATION ON WEST’ S HAWAI'I REFORTS AND PACIFIC REPORTER*#* declared that “[t]he drafters of the Hawai‘ Penal Code justitied the enactment of HRS § 712-1200 on ‘the need for public order.’ [Thus this court) would not dispute that it was reasonable for the legislature to act on that basis.” 66 Haw. at 628-29, 671 P.2d at 1359-60 (footnote omitted). It was recognized that “[a] large segment of society undoubtedly regards prostitution as Smmoral and degrading, and the self-destructive or debilitating nature of the practice, at least for the prostitute, is often given as 2 reason for outlawing it. [Accordingly, wle could not deem these views irrational." Id, at 629, 671 P.2d at 1360. 4, oneinues) 66 Haw. Gt 629 n.8, 671 P.2d at 1360 n.8 (emphasis added). “ Relatedly, there is a general consensus in the international community that prostitution has negative consequences, The Convention for the Suppression of the Traffic in fersen and the Exploitation of the Prestitseion of Others states that “prostitution and the accompanying evil of the traffic in person for the purpose of prostitution are incompatible with the dignity, and Worth of the hunah person and endanger the welfere of the individvel, the family and the community." Dec. 2, 1949, 96 U.N-T.8- 271. [herednatter th Convention) The partice to the Convention agrs prostitution of ancther person, even with the consent take or to encourage, through their poblic and prival social, economic and other related to punish any person who *(e)xploite the that person” and “to ‘education, health, ‘The United States has agreed to “take 11 appropriate messures, including legislation, to suppress sll forms of traffic in women and exploitation of prostitution of wonen.” Convention on the Elimination of ALL Forms of Discrimination against Women, Dec. 18, 1979, 1269 U.NeTeS._13, 19, I-L.M. 39 (1960) {hereinafter the Convention on Discrimination], The Convention on Discrimination was adopted in 1979 by the ON General Assenbly ang as of Nov. 2006, 165 ccuntries (over 90% of the menbers of the OM) are Parties to the Convention. several of the countries thet have ratified che treaty are Afghanistan, Australia, Austria, Cubs, China, Germany, Issel, Italy, Mexico, Netherlends, and the United States. gag United Netions, Division on the Advancenent of Women, hetp://me.un.org/wonermatch/daw/cedsu/states.htn (last visited Feb. 21, 2009) « ‘This court has cited international authority in resclving appeals. Seg Almeida vs Correa, 51 Haw. 594, 602 0.9, 603, 465 Pr2d Sel, 510 e.9e 21) (S70) tholaing “thst the exnibieion of 2 child to the finder of fect in 2 Paternity case is not to be permitted,” but that “expert testimony concerning (continued. -26- ‘s++ROR PUBLICATION ON WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER**# XII. It may be that non-injurious sexual conduct by consenting adults in a private place for a fee preceded by (veiled) public advertising may one day be drawn into the protective shelter of Haweii’s privacy provision, as has other conduct once thought of as illegal. But “(t]he sum of experience,” id., as elucidated in the penal code presently, seems to the contrary. See supra note 13; cf. Janra Enters... ne. v. Ci ) 107 Hawai'i 314, 322, 113 P.3d 190, 198 (2005) (holding that “viewing adult material in an enclosed pancran booth on commercial premises is not protected by the fundamental right of privacy enshrined in article I, section 6 of the Hawai'i Constitution”). Hence, “prudential and pragmatic considerations” do not compel a departure from the doctrine of stare decisis, Garcia, 96 Hawai'i at 206, 29 P.3d at 928, so as to justify overruling Mueller, much less based on the Court's present express holding in Lawrence. Of course the legislature may alter the law to allow non-injurious sexual contact by consenting adults in a private (.--continued) the resenblance of an child to the person alleged to be the father is Admissible to prove or disprove the paternity ef the child” and relying on a United Nations Edvestional, Scientifse snd Cultural Organization (UNESCO) ‘document for the proposition that "individuals belonging to different major ‘groups of mankind are distinguishable by virtue of their physical characters, But individual wenbers, or small groups, belonging to different races within the sane major group ave Usually fot so distinguishable’ (quoting Statement fon the lature of Race snd Race Difference by Physicel Anthropologists and Geneticists, Sept. 1982 (UNESCO) quoted in A. Montagu, Wan" s Host Dangerous Muth the Pudacy of Race 368 (ath ea. 2964))). -29-  'FOR PUBLICATION ON WEST’ S HAWAI'I REFORTS AND PACIFIC REPORTEI place for a fee, conduct that is presently proscribed by HRS $ 712-1200(1). For, (als a general rule, the role of the court in supervising the activity of the’ leatelsture is confined to seeing that tthe actions of the legislature do not violate any We will not interfere with the Conduct of legislative affairs in absence of Constitutions! mandate to do go, oF unless the procedure or Fesult constitutes a deprivation of constitutionally Guaranteed rights Schwab v. Arivoshi, 58 Haw. 25, 37, 564 P.2d 135, 143 (197) (citations omitted). We only decide that the considerations before us do not compel the legal conclusion that, on constitutional grounds, HRS § 712-1200 must be ruled invalid. XIII. Based on the foregoing, the court’s August 26, 2003 Gor— WiLlfam A Harrison Rancta Orca aes (Harrison & Matsuoka) City « county of Honolulu, Gort, Desig br: for plaintiff-appellee. judgment is affirmed. on the brief: =30- 

064deb98bde6badaf706f7e969658cf680f39ae625e639507296f1572a7c3e92

2007-02-27T00:00:00Z

ce6c14b3-9764-4ed6-91c3-296c9fb2d417

State v. Nishihara

hawaii

Hawaii Supreme Court

No. 27837 IN THE SUPREME COURT OF THE STATE OF HAWAT'T STATE OF HAWAI'I, Respondent-Appellee, TODD NISHIHARA, Petitioner-Appellant. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO. 05-1-0709) (By: Nakayama, J., for the court and Acoba, J., dissenting) Petitioner-Appellant’s application for writ of certiorari filed on January 2, 2007, is hereby rejected. DATED: Honolulu, Hawai'i, February 16, 2007. FOR THE COURT: Psacua COT ace Or Associate Justice Jonathan Burge for petitioner-appeliant on the application aaw jeez ng 94 eal ‘considered by Moon, C.2.) levingon, Nakayama, Acobs, and Duffy, JJ. 

686cd67330b888db6a99ecc3c85adf054f16c528beb853820ea81f01d10010b0

2007-02-16T00:00:00Z

57a5871e-0a70-4e4d-9759-eb2711ab4c6f

Kim v. Pacific Guardian Center

hawaii

Hawaii Supreme Court

LAW LIBRARY Wo. 27430 o3ns g = 3 = & TOK CHA KIM, TOK CHA INVESTMENTS, INC. i Petitioners/Plaintiffs-Appellents 3 PACIFIC GUARDIAN CENTER, MEIJISEIMEI REALTY (USA) INC., BISHOP STREET ASSOCIATES LUC., Respondents/Defendant s-Appellees CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIV. NO. 04-1-0052) TING WRIT OF (By: Duffy, J., for the court’) Petitioners/Plaintiffs-Appellants Tok Cha Kim and Tok Cha Investments, Inc.'s application for a writ of certiorari, filed on December 20, 2006, is hereby rejected. Honolulu, Hawai'i, January 29, 2007. DATED: FOR THE COURT: Yarn €. Dabigithy Associate Justice R. Patrick Jaress and Robert K. Matsumoto for petitioners/plaintiffs~ appellants on the application and Duffy, 2J., and Circuit C.J. Levinson, Nakayens court: Moon, ‘in place of Aeebay Ju, recused Sadge Lee, 

55a26491ab03cf5efc1faa805a08668600ce4e0d12f0e5a5724b53ae0af8221a

2007-01-29T00:00:00Z

b894a67b-7f20-4313-810c-a2e419190bcf

Tierney v. District Court of the Fifth Circuit

hawaii

Hawaii Supreme Court

gl no. 28374 - ix 10 THE SUPREME couRT oF THe stare oF wawaxE Bie oN = oF ea MICHAEL C. TIERNEY, Petitioner, 2 6 vs. 3 DISTRICT COURT OF THE FIFTH CIRCUIT, Respondent. ORIGINAL, PROCEEDING 0504068K, COSO40E8K) (CASE NOS. 00504068K, A0504068K, JI, and (By: Levinson, Nakayama, Acoba, and Duffy, in place Intermediate Court of Appeals Judge Watanabe, of Intermediate Court of Appeals Judge Nakamura, previously assigned in place of Moon, C.J., recused) upon consideration of petitioner Michael Tierney’s “petition for writ of habeas corpus,” which is deemed a petition for writ of mandamus and the papers in support, it appears that the district court correctly instructed petitioner to seek relief through petitioner's counsel of record and petitioner makes no assertion that his counsel of record has refused or ignored Therefore, petitioner is not See Kema_v. Gaddis, 91 Hawai'i (A weit of mandamus is petitioner’s request for relief. entitled to a writ of mandamus. 200, 204-205, 982 P.2d 334, 338-339 (1999) an extraordinary remedy that will not issue unless the petitioner demonstrates a clear and indisputable right to relief and a lack of alternative means to redress adequately the alleged wrong or obtain the requested action.). Accordingly, IT IS HEREBY ORDERED that the petition for a writ of mandamus is denied. The denial is without prejudice to seeking relief from the district court through counsel of record. DATED: Honolulu, Hawai'i, February 20, 2007. Michael C. Tierney, pro se on the petition 

12fa1cb56fe653cfe9e8d64fe10eec0b05bac6deef9ea3d006948dc38d2d8df2

2007-02-20T00:00:00Z

8d4d4c92-dde6-40a1-a829-2aa1b1f0109d

Wailuku Agribusiness Co., Inc. v. Ah Sam. ICA Opinion, filed 08/01/2006 [pdf], 112 Haw. 241. S.Ct. Order Accepting Application for Writ of Certiorari, filed 01/16/2007 [pdf], 113 Haw. 153. S.Ct. Order of Amendment, filed 04/12/2007 [pdf]. S.Ct. Order Denying Motion for Reconsideration, filed 04/19/2007 [pdf], 114 Haw. 55.

114 Haw. 24

hawaii

Hawaii Supreme Court

FOR PUBLICATION IN WEST’ § HAMAI'T REPORTS AND PACIFIC REPORTER*#* IN THE SUPREME COURT OF THE STATE OF HAWAT'L 00" cana WAILUKU AGRIBUSINESS CO., INC., Respondent /Plaintiff-Appellee HARVEY AH SAM, PATRICK AK SAM, FREDERICK K. BAILEY, JR., KENNETH D. KAHCOHANOKANO, RICHERT M. KAMAIOPILT, SUSAN K. KOEHLER, MAEBELLE M. LIBRANOO, TRADAY U. BAILEY, PATRICK E.K, BAILEY, PETER L. BAILEY, ROBERT ALLEN BELL, PATRICK K.T. CHU, ROCHELLE J. GARDANTER, CHARLES KAULUWEHI MAXWELL, SR., JUDITH L. NAGAMINE, JACQUELINE KUAHINE AMINA RAPOZA, JANICE L. REVELLS, CLOVIS GYETVAI, ELIZABETH KEALA HAN, GLENN F. KAHOOHANOHANO, HELENE R. SARONTTMAN, HANNAH E.H. SOUZA, LILLIE LANI BAILEY MUNDON, CHARLES E. ST. GERMAIN and WAYNE CHUN, Petitioners/Defendants-Appellants and KALAPUNA (k) and his wife, KEKUI (w), KAHOLOLIO (w), also known as HOLOLIO HENNESSEE (w), HEIRS OR ASSIGNS, CAROLINE K. GROWN, GAYLE J. SILVA, ELLEN P. PARKER, AYIEESHYA BONNIE MAPUA MURPHY, JULY SIMEONA, ‘CAROL A.K. GAYLORD, PEARL LEINOMI KAMAIOPILT, CHARLES PILA, EDAARD K. AMINA, JOYCE L. ACIDERA, JADE V. MIYAMOTO, HARMON AH SAM, JOAN L. POWELL, PAMELA ROE, BENEDETTA L. DAVIDSON, FREDNA YIM COBE-ADANS, MABEL E.H. GRIFFIN, HERBERT HALUAU SR., SHIRLEY MAILE ‘BELL, BONNIE A. MEYERS, AND ALL WHOM IT MAY CONCERN, Defendants No. 25930 CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIV. NO, 02-1-0071(3)) MARCH 30, 2007 MOON, C.J., LEVINSON, NAKAYAMA, ACOBR, AND DUFFY, JJ. FOR PUBLICATION IN WEST'S HAKAI'T REPORTS AND PACIFIC REPORTERS+# OPINION OF THE COURT BY ACOBAL J. Petiticners/Defendants-Appellants (Petitioners)* filed an application for writ of certiorari* on December &, 2006, requesting that this court review the published opinion of the Intermediate Court of Appeals (the ICA),” affirming the March 7, 2003 and April 28, 2003 grants of summary judgment and the June 2, 2003 final judgment by the second circuit court (the court)‘ in favor of Respondent/Plaintiff-Appellee Wailuku Agribusiness Co., Inc. (Wailuku or Respondent) on its quiet title action. See Wailuku Agribusiness Co, v. Bh Sam, 112 Hawai'i 241, 260, 145 P.3d 784, 803 (App. 2006). Wailuku filed a memorandum in opposition to the application. + Fetiticners are Harvey Ah Sam, Patrick Ah San, Frederick K. Bailey, Je., Kenneth D. Kahcchanchanc, Richert #, Konalopiis, susan Koehler, Macbelie N. Librando, Iraday U. Bailey, Patrick E-K. Bailey, Peter 1, Bailey, ‘Robert Allen Gell, Fatrick K.T. Chu, Rochelle J. Gardanier, Charles ulowehi Maxwell, sr., Jugith lL. Nagamine, Jacqueline Kuahine Aina Rapoza, nice L. Revelle, Clovis Gyetvai, Elizabeth Keala Hen, Glenn F. Kahcehanchano, Helene R, Saronitnen, Mannah En, Soura, Lillie Minden, Charlee E. St. Germain, and’ Wayne Chun. Pursuant to Hawas"t Reviced Statutes (HRS) § 602-59 (Supp. 2006) & party may appesl the decision of the antermedsate appeliace court (tne Ich) baly ey an application to this court fora writ of certiorari. See HRS 8 602~ 59(a).. In detersining whether to accept or reject the application for writ of Certicrari, this court reviews the ICh decision fer (1) Grave errors of Jaw or of facts or (2) Gheious Inconsistencies in the decision of the (ZCK) with that of the suprene court, federal decisions, or Tee" oun decteson, and the nagnitode of such errore or inconsistencies dictating the need for further appeal. HRS § €02-59(b). The grant oF denial of a petition for certiorari ss Giecretionary with thie court: Ser HRS § 602-59(8) fon was authored by Fresiding Judge Corinne K.A. Watansbe 2 the op: He Rakamure and wae Joined by Associate Judgee Daniel R. Foley and Cr: ‘the Honcrable Joseph £. Cardoza presided.  ‘+4F0R PUBLICATION IN MEST'S HAWAI'T REPORTS AND PACIFIC REPORTER®' We hold that (1) the ICA gravely erred in its determination that sunmary judgment was proper as to Apane 1 of the subject property because, viewed in a light most favorable to Petitioners, there are genuine issues of material fact as to whether a cotenancy exists among Petitioners and Wailuku and, if a cotenancy does exist, whether Wailuku acted in good faith towards its cotenants, City & County of Honolulu v. Bennett, 57 Haw. 195, 852 P.2d 1360 (1976); (2) the ICA did not gravely err in determining that no genuine issues of material fact exist as to Mailuku's adverse possession of Apana 3; and (3) the ICA did not gravely err in admitting and relying on the affidavits of Chuck Cando (Dando), Clayton Suzuki (Suzuki), and Avery Chumbley (Chumbley) 1 ‘The following matters are taken from the submissions of the parties, some verbatim, and from the record. This ie a quiet title action filed by Wailuku concerning two parcels of real property located in Waikepd, Maui, Apana 1 and Apana 3 of Land Conmission Award (LCR) 8672, Royal [collectively, subject property]. Wailuku Patent (RP) 64 claims, among other matters, title to Apane 2 of the subject property based, alternatively, upon paper title or adverse possession, and title to Apana 3 of the subject property solely through adverse possessiot  {FOR PUBLICATION IN WEST'S HAWAT'Z REPORTS AND PACIFIC REPORTER Originally, pursuant to LCA 8672 dated Septenber 27, 3852, Kaluau (k)* (Kaluay) acquired three parcels of land in Waikeps, Maui, Apana 1, Apana 2, and Apana 3. Apana 2 is not at issue in this case. In 1855 or 1856, Kaluau died intestate. There is no evidence in the record of any transactions, conveyances, deeds, probates, or court orders transferring cunership of Apsne 1 or Apana 3 price to Kaluau’s death. Thus, it appears that when he died, Kaluau was still the owner of Apanas 1, 2, and 3. Prior to his death, Kaluau did net apply for a RP for the three parcels granted to him by the Land Conmissicn 852, Only Kalua or his legal heirs could have applied for a RP.’ Kaluau’s survivors included his father, Kalapuna (k) (Kalapuna), his mother, Kekiu (w) (Kekiu), his sister, Haleamau (w), alse known as Kahaleamau (Haleamau), his sister Kahololio (#), also known as Hololio Hennessee (Kahololic), and Kalvau-opio (k) (Haluau-Opio), his deceased brother's son. According to Wailuku, @ deed dated October 13, 1855 purportedly transferred Apana 1 to # John Richardson (Richardson). The deed states that “Kalapuna, the own father of Kaluau whe is deceased, and Piena [(k) (Piena)], his brother-in- Herein, (i) indicates ® female nane ond stands for “wahine,” the Hawaiian werd for woman, ané (k) indiestes 0 male name ond etands fer “ane,” the Wowesien word for mo joky maintains thet Kelvay in thet he oie not aie unt) + tae year of oeath Se in dispute. ta: Sieg intestate in 1855, while Petitioners mas Tese. Bt is unclear who applied for the, apparently poethuncusly-seeued, RP. A copy of AP G43 de not Sneluded in the reserd cn appeel 4  {FOR PUBLICATION 10 WEST’ § RAMAI'T REPORTS AND PACIFIC REPORTERS*# law, the heirs of Kaluau mentioned above, Puweuweu [(w) (Puweuweu)), the wife of Plena mentioned above, sell and convey absolutely this land descended to us from the deceased person nentioned above.” This deed was executed by Kalapuna, Piena, and Puweuweu. The 1855 deed does not specifically identity the property as Apana 1 or define the metes and bounds of the land being conveyed. No mention is made of Apana 3, nor is the deed executed by Kekiu, Kaluau’s nother.’ Petitioners’ translation states that the property being conveyed was “all of that piece of land situate at Kusiwa, Waikapy, Maui,” whereas, Wailuku’ s rendition purports that it is conveying “the entire piece of land situate at Kuaiwa, Waikapu, Maui.”* The deed was not recorded in 1855.18 According to the law at the tine of Kaluau's death: If the intestate shall leave no seve, his estate shall Geecend cre half te hie widex, and the other half te his er ano mother ae tenanee in cenmons and if he leaves no iden, nor esue, the whole ehall coseend to nie fether and other, er to either of them if only ene be elive 1¢ the Gescent of Property both Real and Person, 1850 Penal San Jelende, st 161. Thue, because Reluau died without ‘Sppeare to be the case, Nie nother ang fether would inherit his yreguslly 22 tenants in common. See Hasluky Aorsbusiness Co., 112 148 Psd at 788 (brackets emitted) Fetitionere quote fron 9 translation of the Richardson deed by roneletion by Franess N. Frasier except where noted above bavid (Frazier). 4s the ICA notes, the deed was not recorded until 1878. tthe deed was signed by Kalepune, Piena, and Pouweumeu by x" parks, witnessed by Aga Hope. (Hops) and Nelly Richardech Telly), bot not recorded tmtsl June 10, 1878, after Nelly personaly appeared before Hawai'i Suprene Court Justice & fancies Dose nd acknowledges that! (2) cf Cotober 13, identinved. .)  s*9FOR PUBLICATION IN WEST’ HAWAI'T REPORTS AND PACIFIC REFORTER* It appears that Richardson died intestate." Fursuant to an order filed in Probate No. 1210, the administrators of his estate conveyed, by deed dated September 7, 1660, what Wailuku alleges is Apana 1, to James Louzeda (Louzada) From August through November 1873, Second Circuit Court Probate No. 649, In Re Estate of Kaluau, wae pending. Witnesses testified that at Keluau’s death, he was survived by both his mother and father who were both since deceased. The decree issued by the Second Circuit designated Kahololic, Haleamau, and Kaluau-Opio, as Kaluau’s heirs. On December 15, 1873, eighteen years after Kaluau's death, RP 6463 was issued to Kaluau for LCA 8672 (Apana 1, 2, and 3). By deed dated January 7, 1875, recorded in the Bureau of Conveyances, Haleanau, Kaluau’s sister, and Kaluau-Opio, Kaluau's nephew, and their spouses, conveyed all of their title in LCA 8672 to Kshololio, Fetitioners are the descendants and heirs of Kehololio, sister to Kaluau. "(.. scont smues) Tess, she wae léving with her brother, Richardeon, who was ow deceased; (2) she saw Kalapuna, Plena, and Pooweuweu, ow seceaced, place their "x" marks to the deed? and (3) he and Hopu, she wor now deceased, signed their nanes to the Seed af subscribing witneeces: Heiluks korspusiness Cox, 122 Ha The date of Richardson's desth is not clear but it apparently took ine between 1855, when he received the deed, and 1860, ahen the Jolt allegée ie apona 2. SL at 245, 145 P.3e at 768 ftrators of his estate conveyed the property ii ‘The deed fron Richardson te Leuzeds se not contained in the record on eppeel. ‘se4v0R PUBLICATION IN WEST'S HAMAT'T REPORTS AND PACIFIC REPORTER! Petitioners argue that, as a result, as of 1875, all of Kaluau's real property, including Apana 1 and Apana 3, belonged to Kshololio or her heizs and assigns. Through mesne conveyances, Wailuku acquired the property it alleges is Apana 1 fon Novenber 20, 1894 n. a. on February 7, 2002, Wailuku commenced its quiet title action. Thereafter, Petitioners filed their answer. On october 7, 2002, Wailuku filed a motion for sunmary judgment on matters not pertinent to this petition. on December 31, 2002, Petitioners filed a memorandum in opposition te that sunmary judgment motion and attached 2 declaration (first declaration) from Patsy Moana Kamaleiiani, also known as Patey M.K. Kai (Kai). Kai related that she had a Master’ s Degree in Library Studies and a Certificate in Archives from the University of Hawai'i at Manos. she also stated that she “nals} conducted research into land, tax, court, genealogical, historical, vital statistic records in order to put together a report/history concerning [LCR] 8672, [RP} 6483, to [Kaluau), situate at Waikepu, Maui, Hawai'l.” She recounted thet as 2 result of her investigation, she discovered that the Second Circuit Court, Probate No. 649 declared “Kaluau’s heirs as two sisters) and (Kaluau-Opio}, [kahololio] and [Haleamau) ( (hig nephew) since Kaluau’s parents are dead” and that “the document refers to all three properties of LCA 8672.” She ‘s++¥0R PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTERS+# further stated that “(iJ January 1678, (Haleamau) and (Kaluau- opio] conveyed their interests in [Keluau’s] property to (Kaholelio]." Finally, Kai stated that she “found no information contained in Wailuku's records which clearly and specifically articulates the manner in which Wailuku has acquired an interest in Apenas 3 and 3, when such interest was acquired, from whom the interest was acquired or other information which would support its claim to both parcels” and claimed that additional time wes neceseary to gain more information from Wailuku concerning its elaine. B. On February 4, 2003, Wailuku filed its summary judgnent Notion on Apana 1, In that motion, Wailuku argued that it was vested with paper title or title by adverse possession to Apana 2, Wailuku claimed that the declarations of Katsumi Tadakuma (Tadakuna), Kenao Nochizuki (Mochizuki), Dando, Suzuki, and Chunbley evidence that (1) “{Wailuku) and ite predecessors epenly, netoricusly, continuously, and exclusively used Apana 1 for sugar cane cultivation from as early as 1936 to the late 1980's, and for pineapple cultivation from the late 1980's to 1997"; and (2)"[Wailuku’s) lessee, Mavi Pineapple Company Ltd., has openly, notoriously, continucusly, and exclusively used Apana 1 for pineapple cultivation from 1997 te [the] present." the articovste ed at. (Wastuks) £ Pando, Susubl, or the prt 26 and Chuntley, years and. neved a Apena 1.” He further Geciared what he Knowledge” that "(Z]rom as early a 1974 to the (eontinded. =)  ‘s++TOR PUBLICATION IN MESH’ ® HANAT'T REPORTS AND PACIFIC REPORTER‘+# Petitioners thereafter filed their opposition to the sunmary judgment motion on Apana 1. In their opposition, Petitioners clined thet there were “genuine issues of material fact concerning (Wailuku’s] clim to Apana 1” and that “ (Wailuku) is not entitled to judgment as a matter of law.” Petitioners aiso “rel(Jed) upen and incorporated) by reference . . . all evidence and argunents previously raised and filed in opposing ieiluku’s October 7, 2002 Summary Judgment Motion” and attached a new declaration of Kai (second declaration) .* In this opposition, Petitioners also included the declaration of Taira, a Hawaiian language translator, certifying Dp. continued) ate 1966s Ikadlona) and ite predecessors openly, notoricusly, continuously, snd exclusively used the land for sugar cone cultivation” and *(f]rom the late isso" to 1987, (Wailuku) and ite predecessors openly notoriously, iuouslyy, and exclusively eeed the lend for pineapple cultivatios ys he stevec that “{f]¥om 1987 to [the] present, Maui Pineapple Company, Lids, Lessee of [Mailake,| nee openly, notoriously, continuously, and Chclusively used the land for pineapple coltsvation.” Chunbley, as president Of Fallukuy made the zane assertions ae Cando as te the aqverse postession Cleneate and clained “knowledge of the facts... based ch recoras end maps Eegeraing land use.” Suzukiy who deciarea ne had’ “worked at (wailuke) for the poet 24 years and (was) familiar with the Land seeignated as Apana 1,” also 20. Dano’ ¢ seatenent: “tn ite decision, the ICA refers to one of Kai's declarations, which appears to be the second declaration, and states: The declaration ef [Kai], whe stated that che has a Master's Degees in Library Studies and s Cersifscate in Archives from the University of Hawaii at Nance end thet, Based on her id other government records, Raluso's mother’s came wae Kekiu, ‘not Mekt. Kai referred fo number of exhibite attoened te her declaration which fhe clained raises genuine iseues ef material fact regarding the validity of the Deed to Richardson from which Malik Elsined paper title te Apana 1. Koi claimed that these Socumente Gencnstrated that the Oeed tc Richaraeon wae not Signed by Kekiu, a2 required fer a valid paper title, and the dead else did not describe the land being conveyed a= pans 1 of {LCk] 6092, thut calling into questsen wnich perce of land was actually conveyed to Richardson, at 600, tinese Con, 112 Hawal"l at 287, 148 P.  ‘++F0R PUBLICATION IN WEST'S HAMAT'T REPORTS AND PACIFIC REPORTER* to the truth and correctness of his Hawailan-to-English translation of (a) the LCA 8672, RP 6483 grant of the subject property to Kaluaus (b) the deed from Kalapuna and others to Richardson, dated October 13, 1855; (c) the application by Kehololio te the Circuit Judge of the “Second District,” seeking to be appointed as administrator and heir to “all the estate of [Kaluay], the deceased”; and (d) the deed from Haleanau and Kaluau-Opio to Kahololio, granting Kahololio all of their “Joint and individual interests in all the estate of (Kalueu) of Waikapu, Maui,” dated January 7, 1878, recorded at the State of Hawai'i Bureau of Conveyances at Liber 51, pages 305-306, all of which were attached to his declaration. on March 7, 2003, the court's order granting Wailuku's motion for summary judgment and directing entry of final judgment on Apana 1, was filed, In its order the court ruled that, “{hjaving reviewed the menorands and other material submitted, and having heard oral argument, the [clourt finds that there is no genuine issue as to any material fact as to (Wailuku’s} title to the land by adverse possession and concludes that (Wailuku) is entitled to judgment as a matter of law.” (Emphasis added.) c. on March 19, 2003, Wailuku filed its Summary Judgment Motion on Apana 3. Wailuku argued that it was the owner of Apana 3 by adverse possession because the testimony referred to supra “evidences that [Wisiluku] and its predecessors openly, notoriously, continuously, and exclusively used Apana 3 for sugar 10 FOR PUELICATION IN WEST! § HAKAZ'T REPORTS AXD PACIFIC REPORTERY+# cane cultivation from as early as 1938 to the late 1980's, and for pineapple cultivation from the late 1960's to 1997."* Petitioners filed their opposition to the summary judgment motion on Apana 3 and argued thet “(1) (Wailuku) failed to meet its burden of proof in presenting evidence of notice to all cotenante not in possession . . . [of its] intent to adversely possess the subject property"; "(2) {Wailuku} has not complied with Hawai'i law in establishing quiet title by adverse possession, and (3) [Petitioners] have a strong interest in controlling Apana 3.” on April 28, 2003, the court's order granting Respondent's sunnary judgment motion and directing entry of final judgnent on Apana 3 was filed and stated that, “{hlaving reviewed the memoranda and cther material submitted, and having heard oral azgunent, the [clourt finds that there is no genuine issue as to any material fact as to (Wailuku's) title to the land by adverse possession and concludes (Wailuku) is entitled to judgment as a matter of lew." (Emphasis added.) The orders granting summary judonent regarding Apana 1 and Apana 3 were reduced to a final Judgment on dune 2, 2003. attached to the sunmary judgnent motion for Apsna 3 we declarstions of Danse, Suauki, ond Chinbley. Ae with Apsna 2, Cando #imiJerly testified that ne use equally’ familiar with Apena’2 ang thet *[f]rom a2 eefly 551994 [Wsisko) one $= predecessors cpenly, notoriously, continously, and Geclusively usea the land for suger cane cultivation” and *[f]rom the lave TSe0"s to 1997 (Waiiuko} and ite prececessors, openly, netericusiy, Sontsnvouely, ane exclusively uses the land for pineapple cultivation.” Susukd end Chuabley also affimmed Dando'e declarations as to Apans  ‘*4FOR PUBLICATION IN WEST! § HAMAI'T REFORTS AND PACIFIC REPORTER* on June 27, 2003, Defendants filed their notice of appeal. Wailuku did net cross-appeal. mt. Before the ICA, Petitioners argued that (1) Wailuke failed to establish all elements of its clain of adverse ion as to Apana 1; (2) Wailuku failed to establish all poss elenents of its claim of adverse possession as to Apana 3 and (3) Wailuku relied on inadmissible hearsay evidence in its claim of adverse possessicn of Apana 1 and Apana 3. On August 1, 2006, the ICA affirmed the court's grant of summary judgment as to both Apana land Apana 3. Wailuku Agribusiness Co., 112 Hawai'i at 260, 145 P.3d at 603. wv. In their application Petitioners raise two questions: 1, Did the ICA er in concluding that summary judgment was properly granted By [the court) to [Wasloks) wath respect fo Apana J and Apana 3 of [LCA] €€72, (RP) eeeze 2, Did the Ick incerzectiy opply the principles of (Benneti gupeal, in concluding that’ {Watluka] was entities toApana and Apana ® by adverse posseseion? In its opposition motion, Wailuku does not directly respond to the specific questions but argues that (1) “[t)he [ICA] theroughly addressed the principles of [Bennett)"; (2) “this appeal does not deal with any issue of first impression... {but} deals with the elements of adverse possession, which have been addressed cn numerous occasions by the Hawaii Supreme Court”; and (3) “this case does not deal with any issue of public interest.” “s4B0R PUBLICATION TN WEST'S HAMAI'T REPORTS AND PACIFIC REPORTER'+# Petitioners’ questions together raise the issue of whether the court correctly granted summary judgment and the ICA was right in affirming the court. The discussion following, then, centers on the evidence pertaining first, to Apana 1 and second, to Apana v. As to Apana 1, Petitioners contend in their application that the ICA erred because “(1) [Wailuku failed) to establish by clear and positive proof ali elements of its claim of adverse possession to Apana 1” and "(2) genuine issues of material fact” exist. They maintain (a) “[t]he initial conveyance of Apana 1 from Kalepuna, Piena and Puweuweu to [Richardson] was defective since none of the grantore had proper right, title or interest te convey to [Richardson,]” (b) “[a]seuming arguende that (Richardson properly) acquired {the} iands(,) . . . (t]he (dJeed conveying ‘all that piece of land situate in Kuaiwa, Waikapu, Maui,’ arguably, conveyed Apane 2, and not Apana 1[,]” (c) “there is 2 genuine issue of material fact on the issue of whether {Wailuku} and/or [ite] predecessors in interest were aware and knew, or in the exercise of reasonable care, should have been aware and should have known of the presence of cotenants to Apana 2” and “[Wailuku) failed to provide credible, probative evidence of any efforts made to notify al] cotenants net in possession of ntent to exercise adverse possession|.]” Emphasizing the last proposition, Petitioners, relying on Morinove vy, Rov, 86 Hawai'i 76, 83, $47 P.2d S44, 951 (1987), /++FOR PUBLICATION IN WEST'S HAMAI'T REFORTS AND FACIFIC REPORTER®+# Bennett, §7 Haw. at 209, 552 P.2d at 1390, and Petran v Allencastre, $2 Hawai'i 545, 548, 985 P.24 1112, 1215 (app. 1999), argue (1) “Haleamau’s and Ksluau-Opic's Deed dated January 7, 1875, recorded in the Bureau of Conveyances, State of Hawaii, at Liber 51, pp. 305-306, which legally transferred all of their Fight, title and interest in LCA 6672 to Kahelolie, effectively served as notice to all of Kaholclic’s ownership interest”; (2) “Kahololic’s heirs and descendants, as title owners of public record to Apana 1 and 3, are and were cotenants who were entitled to notice”; and (3) “{Wailuku] and/or its predecessors in interest were aware and knew, or in the exercise of reasonable care, should have been evare and should have known that Kahololio was the owner of Apana 1 and 3." According to Petitioners, “{Wailuku] argued that there were no cotenants a a matter of law[,] . . . contendiing) that ‘{Waituku] and its predecessors had no reason to suspect that a cotenancy existed.'" As Fetiticners note, Kailuku points “to the 1855 (a)eed purportedly conveying Apana i from Kalapuna, et al., to [Richardson] as proof because the conveyance of ‘that entire piece of land at Kuaiwa, Waskepy, Maui’ would not have (led) it to suspect s cotenancy."" Petitioners assert that, consequently, “ino evidence supporting [Wailuku's} position was submitted{, thus t)he ICA and the trial court erred{.]" Petiticnere further maintain that, contraetingly, “Kahclolic’s descendants, Jade Miyamoto and Wayne Chun, expressed in declarations submitted to the [court] the absence of any uu  FOR PUBLICATION IN WEST! HAWAI'T REPORTS AND PACIFIC REPORTER knowledge or notice that [Wailuku] was intending to exercise adverse possession over Apana 1” while “[Wailuku’s) claims that pana 1 and 3 were used . . . ‘openly, notoriously, continuously, and exclusively . . . for sugar cane cultivation’ [are based on} statements (that) are conclusory and are not predicated upon personal knowledge or specific factual knowledge.” vn. As to Apana 3, Petitioners maintain the unresolved “(glenuine iseves of material fact . . . (are) (1) whether Petitioners are cotenants of Apana 3; (2) whether [Wailuku] acted in good faith by notifying Petitioners of its claim of adverse } and (3) whether [Wailuku] met all possession to Apana requirements of proving title through adverse possession.” According to Petitioners, (a) “{Wailuku's) claim to Apana 3 parently derives from its taking of land in close proximity to other lands possessed by it without regard to ownership or title(,]" (b) “la] simple title search of the Bureau of Conveyances would have yielded information concerning the ownership by the heirs of Kahololio[,]* (c}) “{Petitioners} have previously contended that Apana 3 contains the burials of their ancestors(,] - . . (but Wailuku's] alteration of Apana 3 after the litigation commenced caused the removal and destruction of identifying characteristics . . . in the determination of burial sites{,)" and (6) “{Wailuku) relied upon declarations of (Tadekuna], (Mechizuki], (Dando, Suzuki, and Chumbley] which contain conclusory statements . . . [barred by Hawai'i Rules of 4s {s*4F0R PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REPORTERS+* Evidence (HRE)] Rule 602 . . . [and] exhibits . . . not admissible because of the lack of proper foundation and authentication and noncompliance with (Hawai'i Rules of Civil Procedure (HRCP)] Rule S€(e)." (Capitalization omitted.) vir On appeal, the ICA was required to follow the rule that “Iain award of sunnary judgment is reviewed de novo under the sane standard applied by [the court).” french v. Pizza Hut Ince, 105 Hawai'i 462, 466, 99 P.3d 1046, 1050 (2004) (citing Amfac, Inc. v. Waikiki Beachcomber Inv, Co., 74 Haw. 85, 106, 839 P.2d 10, 22 (1992) (citations omitted)). “summary judgment is appropriate if the pleadings, depositions, answers te interrogatories, and adnissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party ie entitled tos judgment as a matter of law.” sev st og indus. 16, 147 P.3d 785, 800 (2006) (quoting Relations, 113 Hawai'i Amfac, Inc., 74 Haw. at 104, 639 P.2d at 22 (internal quotation marks and citation omitted)). "*A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties.'" Morinoue, 86 Hawai'i at 60, 947 P.2d at 948 (quoting Hulemen v. Henmeter Dev, Corp., 65 Haw. 58, 61, 647 P.2d 723, 716 (1982)). In @ motion for eunmary judgment, “fa}il evidence and inferences must be viewed in the light most favorable to the non-moving party." Erench, 105 Hawai'i at 466, 16  ‘s*+FOR PUBLICATION IN WEST'S HAKAI'T REPORTS AND PACIFIC REPORTER: 99 P.3d at 1050 (citing Maguire v, Hilton Hotels Comp, 79 Hawai'i 110, 112, 899 P.24 393, 395 (1995)) vant. At the outset, Petitioners contend that the declarations of Tadakuma, Mochizuki, Dando, Suzuki, and Chumbley, relied on by the ICA to determine adverse possession of both Apana 1 and Apana 3, were barred by HRE Rule 602" because they were “unsupported by any specific information establishing their personal knowledge of the statements made.” They further maintain that the exhibits were inadmissible because they did not comply with HRCP Rule S6(e). As to the declarations, the ICA held that the declarations of “Tadakuma and Mochizuki . . . were inadmissible under . . . HRCP Rule $6(e).” Wailuku Agribusiness Cou, 112 Hawai"s at 255, 145 P.3d at 798. Regarding the declarations of Dando and Suzuki, the ICA indicated that “the declarations were made on perscnal knowledge, [as] evidenced by the statements that Dando and Suzuki were employees of [Wailuku] for twenty-eight and twenty-four years, respectively, and were ‘familiar with the land designated as ‘" and “stated, based on their personal knowledge, that Apana 1, Apana 1 was used for sugar cane and pineapple cultivation . . . g] the [relevant] periods[.)" Id. As to Chunbley idur Geclaration that he is “the President of [Wailuku], [and has) knowledge of the facts stated [therein based on records and maps Howai't Rule of Evidence (HRE) Rule #02 provides that “[hlesreay is not acnissitle except ae provided by these roles, or by other rules preteribed by the Hawel's tuprene court, or by stetute.” 7  ‘s+0FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REFORTER regarding land use,” the TCR, citing Stallard v, Consol. Maus Inc., 103 Hawai'i 468, 476, 63 F.36 731, 739 (2004), stated that “facts set forth in an affidavit . . . based on personal knowledge may be reaconably inferred from the position and nature of the affiant.” Wailviy Aeribusiness Co., 112 Hawai'i at 256, 1a5 P34 at 799.” The ICA also indicated that the declaration of Colleen H, Uahinet (Uahinui) did not satisfy HRCP Rule 56(e) because “Uahinui did not attach sworn or certified copies of the docunents she relied on to establish the facts set forth in her declaration, . . . except{) [for] . . . Frazier’s translation of the deed from Kalapuna, Piena, and Puuweuweu to Richardson, which Frazier attested was translated ‘truly and correctly... .1" Id. A review of the affidavits ates the ICA’s conclusions. It dees not appear that for substan ely erred in the reasons given in its opinion, the ICA g affirming adniesion of these documents. 1. In order to establish title to real property by adverse possession, 2 claimant “‘mst bear the burden of proving by clear and positive proof each elenent of actual, open, notorious, hostile, continuous[,] and exclusive possession for the statutory » _h copy ef all the exnibite consisting cf map of Apene 1, 2 lease ef Jang, ang seria photor of D'ana'of an arrigation layout ef Agana 1y sere attached to Caumbiey"® affiderit, and ey vireue ef hit knowledge oe President of the company, the exhibite wovle eppesr te be properly aothentseates. 18 ‘++FOR PUBLICATION J MES®’S HAWAI'I REPORTS AND PACIFIC REPORTERS# period." Petran, 91 Hawai'i at $$6-$7, 985 P.2d at 1123-24 (quoting Lad, 58 Haw. at 368-69, S69 P.2d at 387 (brackets omitted)). Actual, open, and notorious possession is established where @ claimant shows “‘use of the land to such an extent and in such a manner as to put the world on notice’ by means ‘so notoricus as to attract the attention of every adverse claimant.’ Morinove, 86 Hawai'i at 62, 947 P.2d at 950 (quoting Cheek v. Wainwright, 269 S.£.2d 443, 445 (Ga. 1980). “The element of hostility is satisfied by showing possession for oneself under a claim of right[,]” and “[s]uch possession must import a denial of the owner’s title.” Petran, 91 Hawai'i at 557, 985 P.20 at 1124 (quoting Okuna v. Nakahuna, 60 Haw. 650, 656, 594 P.2d 128, 132 (1979)}. Continuity and exclusivity of possession require that the “adverse possessor’s use of a disputed area . . . rise to that level which would characterize an average owner’s use of similar property.” Id. (quoting Tenala, Lid. v. Fowler, $21 P.2d 1114, 1119 (Alaska 1996). As the ICA noted, “(t]he declarations of Dando, Suzuki, and Chunbley . . . set forth facts that establish the open, ssion elements for establishing notorious, and continuous po: % Between 1698 and 1973, the statutory pericd for establishing titie te real property by posceteion was ten yesre, Meringue, 66 Hawai'i at Fi cg, BAT B24 ot S4o m6 felting Lai vs Kakahike, 56 Haws 362, 67 net, 565 P.2g shz, 386\n.4 (1977) (citing 1698 Haw Seee- 1. Act 18)). Although the xtendes to twenty yeare in 1373, thie change cid net affect Selonte that hag already matures” prior to that cate. 1d (citing HRS § 669" 1°1578)7 1973 How. Sees. L. Act. 26, 8 € a 32). Therefore, te have 2 prina facie cece ef adverse postessicn for pana 1, waliuka required £0 show that the sienente cf sdverse persereion hed been sstisiied fer elther a ten-year period between 2595 {when it alleged st began te use pana 1 for sugar cane cultivation) and 1973, or for a twenty-year period on 2 Chess Brought sfter 1973, wasiues alleges more than $0 years of continuous Gee of Apana 1, thue it appears to satisfy elther statutery period. 1s 'FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REFORTER*#* title by adverse possession.” Wailuku Agribusiness Co,, 112 Hawai'i at 256, 145 P.3d at 798, Specifically, Wailuku and its predecessors openly, notoriously, continuously, and exclusively used Apana 1 for sugar cane cultivation from as early as 1935 to the late 1980's, and for pineapple cultivation from the late 1980's to 1997. Further, Wailuku's lessee, Maus Pinespple Company Ltd., has openly, notoriously, continuously, and exclusively used Apana 1 for pineapple cultivation from 1997 to the present. The declarations set forth above do not specifically allege thet Wailuku's claim was hostile. However, as the ICA noted, where all the other elenents of adverse possession have been met, there is generally a presumption of hostility. ier, and such possession Ts onexpiaitied, Gitner by showing that it wes under a lease fren cr sther Gontract with or otherwise by permission ef the true owner, Ed. at 252, 145 P.3d at 795 (quoting Eioneer Mil] Co, utd. y, Dow, 90 Hawai'i 289, 299, 978 P.2d 727, 737 (1999) (citation omitted) (emphases added)). “Thus, if the presumption of hostility remains unrebutted by the nonnovant, the presumption of hostility would satisfy the movant’s burden of proving the elenent of hostility.” Eioneer Mill Co., 90 Hawai"i at 299, 978 P.2d at 737 (citations omitted). The ICK, applying the latter presumption, concluded that because a prima facie case of the other elements of adverse possession was shown, the elenent of hostility was met. Thus 20 ‘se0F0R PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER‘*# based on the declarations, the ICA concluded that adverse possession was proven: [Although the (1855) deed {to Richardson], on its face, did enticn (Alpane 1 or define the metes and of the ignd being conveyed, the declarations of Dando, Surukt, and Chonbley that Wailoke or ite predecessors, under color of the 1655 deed, had been using Kesna 1 for agricultural purposes for the statutory period peevide evidence ef hailutu's hostile and exclusive possession of Apene 1 fiasluku Acribusiness Co., 112 Hawai'i at 286-57, 145 P.3d at 799- 800. However, as this court has noted, where a cotenancy exists there is a “special burden in proving hostile possession” that requires the cotenants making a claim of adverse possession “to show that they had acted in good faith in relation to their cotenants.” Morinoue, 86 Hawai'i at 82, 947 P.2d at 950 (citing Bennett, 57 Haw. at 209, 552 F.2d at 1390). Betran noted that in Bennett, this court concluded that “a tenant in common shares a general fiduciary relationship with his cotenants{.]” 91 Hawai" at $54, 985 P.2d at 1121 (quoting Haw at 208, $52 P.2d at 1390) (emphasis in Bennett, original]). Because cf this fiduciary relaticnship, "a tenant in commen claiming adverse possession must prove that he or she acted in good faith towards the cotenants during the statutory period.” Id. (brackets and citation omitted). The requirement of good faith will, in most cases, “mandate that the tenant adversely must . heor she is claiming against them.” Id. (quoting Eennett, $7 Haw. at 208, 552 P,2d at 1390) (brackets and citation omitted) (emphasis in original). But, in certain exceptional 2a  {S*4FOR PUBLICATION IN WEST’ S HAWAI'I REFORTS AND PACIFIC REPORTER: circumstances the good faith requirement may be satisfied with less than actual notice: Bates a good faith reasonable effort to notify the cotenants Dut is unable to locate then; or where the actual knowledge that the tenants out of possession already have actual knowledge that the tenant in possession 1s cla adversely t0 their interests Id, at 554-55, 985 P.2d at 1121-22 (citation omitted) (enphasi in original). “In these Limited circumstances, the notice requirement will be satisfied by constructive notice and ‘ope: and notorious possession.’ Id. at $58, 985 P.2d at 1122 (citation omitted). Accordingly, if Petitioners are cotenants with Wailuku in Apana 1, Wailuku was requized, in proving hostile possession, “to show that (st) had acted in good faith in relation to [its] cotenants." Morinoue, 86 Hawai'i at 63, 9¢ P.2d at 950 (citing Bennett, $7 Haw. at 209, 562 P.2d at 1390) Additionally, according te Betzan, “(ujnder Bennett, finding of bad faith’ may be inferred from evidence that the ‘cotenant in possession . . . ought to have known chat there euisted a cotenancy.'’” Petran, 91 Hawai'i at 956, 985 P.2d at 1123 (quoting Bennett, 57 Haw. at 211, 552 F.2d at 1391) (ellipses and enphasis in original). In that regard, “publicly recorded conveyances evidencing the existence of cotenancy in land may render a cotenant’s belief that he or she had no reason to suspect the cotenancy’s existence not objectively reasoneble under the rule set forth in (Bennett, supra].” Id, ot 548, 98 F.2d at 1125. Thus, the burden is on Wailuku “affirmatively to ‘adduce evidence that there was ‘no reason to suspect that a 22 ‘++¥0R PUBLICATION IN WEST'S HAWAI'E REPORTS AND PACIFIC REPORTER*+* cotenancy exist{ed].‘” Morinove, 86 Hawai'i at 83, 947 P.2d at 951 (citation omitted). x aA Based on the record, genuine issues of material fact remain as to whether Wailuku acted in good faith towards its purported cotenants in Apana 1. The court apparently rejected Wailuku’s paper title argument and made its ruling based solely on the adverse possession claim. Wailuku did not cross-appeal on the paper title issue." However, in its motion for sunmary judgment, Wailuku argued that it had both paper title and title by adverse possession to Apana 1. Specifically, Wailuku argued vapana 1 wae granted in 1852 to Kaluau, who died intestate survived by his mother, [Kekiv] and father(, Kalapuna)." Tt contended thet Kekiu predeceased Kalapuna and in 1855, Kalapuna “conveyed ‘that entire piece of land at Kuaiwa, Waikapu, Maui’ to [Richardson], after which title vested by mesne conveyances in [Wailukw)." Wailuku assumed for purposes of summary judgment “chat if Kaluau’s property descended to his mother, [Kekiu) and father, [Kelapuna), equally, and if (Kekiul did not convey during Ste dtecuesion of Apana 2, the ICA noted that the court's aeeunption that paper title did not exist wae not attacked on appeal the court) essumed that eiloky aid not have valid paper Since thir assumption hae not been , our examination focuses on whether Hailulo eetablisned the matersal fects necessary to eetablieh the essential elements of ite adverse possession Glin to (Alpena 1 for which Kailuks sought sumeary Sudguent fn ite favor Waiivks Aeribusiness Cou, 152 Hawai's at MMS Fad at 798. {S#4F0R FUBLICATION IN WEST'S HAKAI'T REFORTS AND PACIFIC REPORTERS+® Life, then title co her 1/2 interest descended equally to her ¢ from whom [Petitsoner: m (Kal er husband’ e 1855 convevan: Juhu! decessor w 2 interest.” (Emphasis added.) The foregoing indicates it is Wailuku's contention that, even assuming Wailuku and/or its predecessors were cotenants with the heirs of Kaluav’s mother, summary judgment should nevertheless be granted. However, assuming a cotenancy existed, it was incumbent upon Wailuku to prove it acted in good faith towards cotenants upon claiming adverse possession. 8 Moreover, the 1875 conveyance of Apana 1 by way of the deed from Haleamau and Keluau-Cpic and their spouses to Kahololio was filed in the Bureau of Conveyances. Thus, the interest of Kahololio and her descendants in the subject property was seeningly @ matter of public record when Wailuku and ite predecessors clained adversely beginning from 1935 to the late 1980" through sugar cane cultivation, and from the late 1980's to 1997 for pineapple production. That fact would weigh against 4 finding that Wailuku’e belief in the non-existence of a cotenancy was objectively reasonable. See Bennett, $7 Haw. at 210, $52 P.26 at 138i (stating that “the standard of good faith includes an objective requirement of reasonableness”). The recording of deeds ensures that the public, including Wailuku, would be afforded notice of the property interests detailed in ‘s++F0R PUBLICATION IN WEST’ § HAWAI'T REPORTS AND PACIFIC REPORTER*#* the deeds and of potential claims to the property. Deeds serve as notice “*to those who are bound to search the record.’” Petran, $1 Hawai'i at $86, 985 P.2d at 1123 (quot ¢ In ze Nelson, 26 Haw. 608, €20 (1923)). Even if the 1858 deed to Richardson by Kalapuna, Kaluau's father, Piena, and Puweuweu, purports to convey Kaluau’s ventire” piece of property at Waikapu, a question of fact exists as to whether Wailuku's belief was objectively reasonable in Light of the 1875 deed on record at the time Wailuku claimed adverse possession began. See Bennett, 57 Haw. at 211, $52 P.2d at 1381 (concluding that “[t}he existence or nonexistence of color of title is one factor for the jury to consider in evaluating whether a party in possession reasonably believed himself to be sole owner”); see also Morinoue, 66 Hawai'i at 83, 947 P.2d at 961 (determining that where an adverse possessor ebtained conveyances through quitclaim deeds and neither deed expressly purported to transfer full title, genuine issues of material fact existed as to whether the plaintiffs should have known of the existence of cotenants) Evidence from publicly filed documents, viewed in the Light most favorable to Petitioners the nonmoving parties, Exench, 105 Hawai'i at 466, 99 P.3d at 1050, suggests @ cotenancy may exist among Wailuku and Kahololic’s heirs. Under these circunetances, there remain genvine issues of material fact as to whether Wailuku and its predecessors had no reason to suspect the FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER existence of a cotenancy and, thus, were not required to serve notice of a hostile claim to Apana 1. ‘That Wailuku and its “predecessors were totally ignorant of the cotenancy” would not absolve them of the notice requirement. Betran, 91 Hawai'i at $55, 985 P.2d at 1122 (quoting Bennett, 57 Haw. at 210, £82 P.2d at 1381) (brackets omitted). “Rather, the standard of good faith includes an objective requirement of reasonableness, in addition to a subjective requirenent that the claimant believes himself or herself to be the sole owner.” Id, (citation and brackets omitted). In Betran, the ICA determined that such questions are to be determined by the trier of fact and stated: Whether or not such cersons believed that ther: hevcase,” (ganuete, $7 sow. st 201, S82 Fe20 at Last nile tthe existence or nonexistence of color of title se fone factor fer the jury to coneiger in evaluating whether ¢ party in possession reasonably believed hinself for herself] -_Suidence that the cotenant in Bossession tnew or oloht “te have known that thereaneted @ selenancy —_ualld go touards tustifvings finding of bad Eotran, 91 Hawai'i at 555, 985 P.2d at 1122 (citation and brackets omitted) (emphases added). Wailuku would be required to prove that “that there had been no reason for the tenants in possession ({Wailuku) or [its] predecessors) to suspect the existence of a cotenancy.” Id. (citation and brackets omitted) (emphasis in original). Thus, whether or not Wailuku acted in good faith towards its cctenants would be a genuine issue of material fact to be determined by the 26  //*POR FUBLICATION IN MEST!§ HAWAI'I REPORTS AND PACIFIC REPORTER* trier of fact and, hence, summary judgment was improperly granted as to Apana 1, and the CA gravely erred in affirming sunmary judgment. xi. As to Apana 3, Wailuku only clained title to Apana 3 through adverse posession." Therefore it must be shown that Wiailuks was entitled to summary judgment as a matter of law with respect to Apana 3. In support of its summary judoment motion on Apans 3, Wailuku submitted evidence similar to that submitted on Apana 1 and included declarations from Tadakuma, Mochizuki, Dando, Suzuki, and Chumbley. See supra note 15. As noted earlier, the ICA determined the declarations from Tadakuna and Mochizuki were inadnissable and relied on the declarations of pando, Suzuki, and Chunbley as evidence that Wailuku had established @ prima facie case of adverse possession of Apana 3. The declarations of Oands, Suzuki, and Chunbley attached to Wailuku’s motion for summary judgment indicate that Wailuku and its predecessors openly, notoriously, continuously, and exclusively used Apana 3 for sugar cane cultivation from as early as 1935 to the late 1980's and for pineapple cultivation In ite opening brief, Fetitionere contended that Wailuku did net exercise good faith tonards its Cotenante se required by Bennett becasice SIWolloke! and ite predecestore were aware and knew, oF in the exercise cf rearonable core, should have seen euare and chould have known of the existence Ef cetenonts to Apana. 3." Petitioners forther stated that "(Wasluke Cengesed that it hae no paper title te Apana. 3." However, Wailuku correctly responded that the “Bennett mandate he tenant claiming adversely must actualy notary bie cotemante thst he ng adversely against then’ Ie nct applicable if no record title ie estes sn the adverse possession tatle cisimant.” Petitioners’ reply was that “fal Luke) ‘acknowledges it possesses no record title to Apena 3 and “the recers oh appeal 1s devoid ef any basis fer [Nailuku] te sesert color of title te Apans 3." 2  FOR PUBLICATION IN WEST’S HAMAI'T REPORTS AND PACIFIC REPORTERY# from the late 1960"s to 1997, Ae noted supra, there is a presunption of hostility where all the other elenente of adverse possession have been met. Here, because Wailuku has shown its open, notorious, continuous, and exclusive possession of Apana 3 for the statutory period,” the presumption of hostility applies. Petitioners have not rebutted the presumption of hostility, thus, Wailuku has established @ prima facie case of adverse possession of Apana 3 As to Petitioners’ argument that they are cotenants with Wailuku on Apana 3, the ICA noted that “Petitioners set forth no evidence that Wailuku had any record title to (Alpana 3 that conflicted with (Fetitioners’) inherited interest in Apana 3” and concluded that because there wae no “evidence of a cotenancy between Wailuku and [Petitioners], the legal principles governing cotenancy were inapplicable to [A]pana 3 as a matter of Jaw." Wailuku Agribusiness Co. 112 Hawai'i at 258, 145 P.3d at 802. In holding thusly, the ICA did not gravely err in determining Wailuku was entitled to judgment as a matter of law fon Apana 3. xIr. For the reasons stated sbove, the ICA’s August 1, 2006 published opinion affirming the June 2, 2003 judgment of the \ In order te establish s prime tacie case of adverse possession for Apans 2, Wailuky woe required to thow that all elements had been eatisvied for either a ten-year periea between 1935 (when ite alleged use ef Apena 2 for sugar cone cultivation began) end 1973 or for a twenty-year persed ona claim ser fee guura note 16 explaining the epplicable statutory ching title through agverse son). Wailuke alieges Bore then £0 years of continuous use of Apana 3, thus it appears to eatery either statueary peri 28 ‘44F0R PUBLICATION IN WEST'S WAWAZ'T REPORTS AND PACIFIC REPORTERY+® court in favor of Wailuki Agribusiness on the grounds of adverse possession ag to Apana 1 is reversed and that part of the case is remanded to the court in accordance with this opinion; the ICA opinion is affirmed as to Apana 3. Kevin H.S. Yuen, on the application for petitioners/ defendants-appellants. Gary G. Grinmer and Melissa #. Lambert (Carlemith Ball LLP), in opposition for respondent /plaintiff-appellee. Gro Dharma Decesees CON teeing ee 

40ac5ec195628174cd4d219850cf19cbd50909cd8ef6b2d56fb189cd4e52fba4

2007-03-30T00:00:00Z

89e05e20-22da-4179-9985-346ed3434637

TMJ Hawaii, Inc. v. Nippon Trust Bank.

113 Haw. 373

hawaii

Hawaii Supreme Court

LAW LIBRARY 10+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** IN THE SUPREME COURT OF THE STATE OF HAWAI'I ---000~ ‘TMJ HAWAII, INC., a Hawai'i corporation, Plaintiff-Appellant, vs. NIPEON TRUST BANK, aka Nihon Shintaku Bank, a Japanese corporation, and KELLEY DRYE & WARREN, a New York general partnership, and KELLEY DRYE § WARREN LLP, a New York limited Liability partnership, Defendants-Appellees. OO TTT 2 No. 25588 ofl CERTIFIED QUESTION FROM THE UNITED STATES DISTRICT COURT OF THE DISTRICT OF HAWAI'I (CIV. NO. 97-01518 #6) aad JANUARY 31, 2007 MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ. OPINION OF THE COURT BY NAKAYAMA, J. The corpus of the question presently before this court concerns the validity of a written instrument, executed on Septenber 15, 1994, by which Ishimura Building Co., Ltd. (“Ishisura Building”) purported to assign its claims against Wippon Trust Bank (*NTB“) and Kelley Drye & Warren ("KDW") to THI Hawaii, Inc. ("TMI"). According to the Septenber 15, 1994 assignment, TW filed a complaint in the first circuit court on August 20, 1997. on October 31, 1997, KDW removed the action to the United states District Court for the District of Hawai'i (“district court”). Based upon the following recitation of facts, TMJ claimed that (1) NTB breached its contractual, professional, and fiduciary "* FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** duties to Ishimura Building, and (2) KDW actively participated in perpetrating a fraud against Ishimira Building, in connection with the sale of two commercial real estate properties previously owned by Ishimura Building. The district court, concerned about the validity of the Septenber 15, 1994 assignment, certified to this court the question whether Hawai'i law recognizes the assignability of the tort claims of professional malpractice, breach of fiduciary duty, and fraud claims. For the following reasons, we now answer the certified question in the affirmative. ‘BACKGROUND Trial has not yet commenced, and no evidence has been received. Accordingly, the following factual background relies primarily upon the information certified to this court by the district court, as well as the allegations contained within TMJ’ a amended complaint. Ishimura Building was the owner of the Coconut Plaza Hotel in Honolulu, Hawai'i and the Kailua Professional Center in Kailua, Hawai'i. In May 1991, Ishimura Building retained NIB as its agent and advisor to aid in the sale of the two conmercial properties. The agreement between Ishimura Building and NTB required NTS to sell the properties at the highest price and under the best terns possible. NTB subsequently retained the services of KDW to advise NTB with respect to the sale of Ishimura Building’ s properties. A. The Coconut Plaza Hotel KOW selected Windward Professional Realty (“WER”) to 2  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER broker the sale of the Coconut Plaza Hotel. The record indicates that Ishimura Building authorized the execution of an agreenent by which WER would serve as Ishimura Building's exclusive representative and would receive $400,000 in compensation. However, TMJ alleges that NIB falsely represented to Ishimura Building that it was necessary to retain WR as its exclusive sales representative because WPR had located a buyer for the Coconut Plaza Hotel. TMJ further alleges that NTB and KDW failed to disclose to Ishimura Building that the purpose for inducing Ishimura Building to authorize the exclusive representation agreement was that NTB and KDW were to receive $350,000 of the $400,000 conmission from WPR. On August 1, 1991, the sale of the Coconut Plaza Hotel closed, and WPR was paid the $400,000 conmission. B. The Kailua Prof With respect to the sale of the Kailua Professional ional Center Center, NTB and KOW negotiated with JVIH, Inc. (*JVIH") to purchase the property for $9,350,000, TMJ alleges that, following agreement of the aforesaid purchase price, NTB and KOW restructured the deal such that JVIH would pay $8,500,000 to Ishimura Building, and the remaining $850,000 would be dispersed as follows: (1) $200,000 to NTB; (2) $150,000 to KDW; and (3) $500,000 to Wise Board, Ltd., a Hong Kong corporation controlled by NTB and/or KOM, TMJ claims that NTB falsely represented to Ishimura Building that $8,500,000 was the highest price that could be obtained for the Kailua Professional Center. TMJ also claims that, had it not sold the Kailua Professional Center to 3  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER. IVIH for $8,500,000, it could have sold the property for its actual fair market value, or $10,500,000. II. DIscussroN A. The Parties’ Arguments As previously mentioned, the question certified to this court is whether Hawai'i law recognizes the assignability of the tort claims for professional malpractice, breach of fiduciary duty, and fraud. 1, TM's opening brief TMJ first argues that Havai'i Revised Statutes (“HRS”) § 634-1 supports the assignability of claims, generally. HRS § 634-1 (1993) provides, in relevant part, that “(t]he assignee of any non-negotiable chose in action, assigned in writing, may maintain thereon in the assignee’s own name any action which, but for the assignment, might be maintained by the assignor{.]" T™J contends that HRS § 634-1 is an enabling statute, the intent of which is to enable an assignee to pursue an asaignor’s claim, For support, TMJ refers us to Hany v, Yamaguchi, 30 Haw. 959 (1929), which commented on HRS § 634-1 (then codified as Revis: Laws of Hawai'i ("RLH”) § 2361 (1925)). Ty also argues that the general rule is that claims are assignable, and that a claim's ability to survive the death of the claimant is the test for determining assignability. To that end, TMJ refers us to Alameda v, Spenser, 34 Haw. 667 (1938), which states, in relevant part, the following: YALL things in action which survive and pass to the personal representatives of s decedent creditor as assets, or continue as Lisbilities against the representatives of a deceased debtor, are, 4  ‘OR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTEI in general, thus assignable; all of which do not thus survive, but whulh'die with the person of the creditor or of the debtor, are hot assignable. he first of these classes, according to the Goctrine prevailing throughout the United States, includes all Gleins arising from contract express or implied, with certain Well-defined exceptions; and those arising from torts to real or personal property, and from frauds, deceits, and other wrongs, Ghereby an estate, eal or personal, is injured, diminished, or ‘Samages Snbraces ali tores to the person or cheracter, yand damage are confined to the body Gna the feelings; end also those contracts, often implied, the Breach of wnich produces only gixect injury and ental, to the person, such as promises to marry, injuries done by Che went ef skill of sedical practitioner, contrary to his [npiied undertaking, and the Likes and ali cha as they axe exgcutary, which stipulate solely for the special Bersonal services, skill, cr knowledge of = contracting party.” Id at 674 (emphases in original) (citation omitted). Applying the survival test, TMJ avers that “if Ishimura Building was an individual and died, Ishimura Building's fraud claims would survive.” ‘qNJ farther pointe out that although the certified question incorporates professional malpractice claims, the “First Amended Complaint” did not “specifically use the words professional malpractice” and it did not allege an attorney- client relationship existed between Ishimura Building and KDW. Nevertheless, TMJ argues that it could have pursued 2 legal malpractice claim, had one been assigned. TMJ acknowledges that sone jurisdictions do not permit the assignment of legal malpractice claims where a highly personal and confidential relationship existed between the attorney and the assigning client. However, TMJ distinguishes those cases by asserting that “there was no highly personal or confidential attorney-client relationship between Ishimura Building and Defendants Kelley  + FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTEI prye.* Based upon the foregoing arguments, TNS requests that this court answer the certified question in the affirmative. 2. gq Y ref NTB and KDW counter that the doctrines of chanperty and maintenance mitigate against concluding that Tehimura Building’ s clains were assignable. They cite several cases stating that chanpertous agreements are contrary to public policy. NTB and KDW thus appear to assert that permitting TMJ, “an assetless, dissolved corporation which clains to be an assignee of Ishimura Building,” to pursue Ishimura Building's clains is contrary to public policy. Addressing TMJ's assertion that the assignability issue is resolved by HRS § 634-1, NTB and KDW argue that the statute's effect is merely procedural. They contend that the purpose of HRS § 634-1 was to supersede the common law rule requiring an assignee to pursue an assigned cause of action in the name of the assignor. NTB and KDW point out that Hany interprets HRS § 634-1 as merely amending @ common law procedural rule restricting the name under which an assignable claim could be pursued, as opposed £ muy mistakenly presunes thet the district court's reference to = professional malpractice claim stens from a perceived sttorney/elient Felationship between ishinura Building and KDW. TM fails to realize that the professional malpractice portion of the certified question originates from Yshimure Building's relationship with HTB. Indeed, when summarizing the clains stated in Tuy" complaint, the district court expressly stated that “Plaintiff alleges thet Defendant Nippon breached its contractual, professional, and fiduciary duties to Tshinure Building and perpetrated a fraud against it,” (Esphases added.) Thus, the question whether Legal nalpractice claims are assignable has not been certified to this court, and we heed not address it here.  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** to substantively altering the law to permit the assignment of an othervise unassignable claim. NTB and KOW next contend that Hawai'i law contemplates Limits on the assignability of claims. On that score, they cite Austin v. Michiels, 6 Haw. 595 (1885), in which this court held that a tort action for damages caused to commercial credit and business reputation was not “of an assignable nature.” Id, at 595-96, NTB and KoW also cite Cuson v, Maryland Cas. Co, 735 F. Supp. 966 (D. Haw. 1990), which held that a claim for punitive damages based upon an alleged breach of contract was assignable insofar as “a punitive danages claim arising from a breach of contract action sounds in both contract and tort and is not purely personal in nature.” Id, at 970-71. In addition, NTB and KDW refute TMJ’s reference to Alameda, asserting that (1) the Alameda court was not faced with the question whether the claim was assignable, and (2) although the Alameda court alluded to the survival test, it did not purport to adopt that rule as this jurisdiction's test for determining assignability. Finally, NTB and KOW present this court with the following three approaches utilized by other jurisdictions when analyzing the assignability of claims: (1) the survival testy (2) the characterization test; and (3) the facts and circumstances test. They request that this court adopt the facts and circumstances test insofar as it would place this court “in the company of other courts which have held that valuable court time and resources . . . should not be accorded to traffickers in clains  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER. B. BRS § 634-1 Our initial task is to determine whether HRS § 634-1 disposes of the present matter. HRS § 634-1 provides, in its entirety, as follows: [8634-1] Assignee; nonnegotiable chose. The assignee of any non-negotiable chose in action, assigned in writing, ‘my hRaintain thereon in the assignes's own nane any action which, but for the assiganent, maght be maintained by the assignex) subject, however, to ail equities and setoffs existing in favor of the party liable against the assignor and unich existed at the tine of the assignnent or at any time thereafter until notice thereof mas given to the party liable, except 2a ctherwise provides Reviewing the plain language of the statute, see In re WaLtola 0 Moloka‘i, 103 Hawai'i 401, 422, 63 P.3d 664, 685 (2004) ("In construing statutes, we have recognized that our forenost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself.”) (Citations omitted.) (Block quote formatting omitted.), the primary principle extracted therefrom appears to be no more, and no less, than what is expressly stated -- that an assignee of a chose in action may pursue it in the assignee’s own name. The statute does not purport to authorize the assignment of choses in action that vere Previously unassignable, and there is no justification for such a conclusion here. Indeed, that interpretation is confirmed by Hann. In Hany, Almos Hanu (“Hann”) assigned his chose in action against Y. Yamaichi ("Yamaichi”) to A.F. Tavares ("Tavares") by written instrument dated July 20, 1926. Hany, 30 Haw, at 960. At trial, Tavares moved to amend his declaration by  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER (1) changing the title to read “A. F. Tavares, Trustee for Almos Hanu, Plaintiff, vs. Y. Yamaichi, Defendant,” and (2) “adding paragraph setting forth that ‘on the 20th day of July, 1926, Rlmos Hanu appointed A. F. Tavares, trustee, to prosecute the above entitled action and that the said proceedings be conducted in his name.” Id. The circuit court denied Tavares’ motion, stating that: At would not be ‘right’ to the defendant to pernit s substitution Of parties pleintifl at the stage to which the trial had then it then being too late to examine the jurors as to fs of prejudice toward the assignee or thereafter to challenge then for cause or perenptorily. ‘Ide at 960-61. The cizcuit court then directed the jury to return a verdict in favor of Yamaichi on the grounds that no right of action survived that could be prosecuted by Tavares. Id, at 961. on appeal, this court was presented with the following two points of error: (1) Did the trial court err in denying plaintiff’s motion to amend? and (2) Did said court err in granting the defendant’s motion for a directed verdict?” Id. With respect to the first issue, this court held that the denial of Tavares’ motion to amend was within the discretion of the trial court and was not improperly denied. Id, at 962-63. We noted that RLH § 2361? conferred upon an assignee of a chose + RLM § 2361 (1925) provides as follows: Sec. 2361. Assignee; nonnegotiable chose. The assignee of any nonnegetisbie chose in action, aesigned in writing, may eintain thereon in his own name any action Which, but for the Designaent, might be maintained by the agsignors subject, howeve: fo'all equities ang set-offs existing in favor of the party 1i (continued...)  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER * in action the right to pursue that chose in action in the assignee’s own name. Id. at 962. We further stated that an assignee could also pursue the action in the name of the assignor. Id. at 963. We thus concluded that the circuit court did not err by denying Tavares’ motion to amend insofar as (1) the action was maintainable in the name of either the assignee or the assignor, and (2) the assignee was not a necessary party to the case. Id. Considering the second point of error, this court held that the trial court erred by directing a verdict for Yamaichi because Tavares, as assignee, could have maintained the action in the name of the assignor, Hanu, as originally filed. Id, at 964. Accordingly, this court remanded the matter for a new trial. Ide Hanu’s analysis of RLM § 2361, standing alone, is not conclusive insofar as it does not expressly address whether RLH § 2361 affects the assignability of claims. However, in Hanu, we also commented that neither party contested the assignability of the chose in action: Tt was not urged that a right of action in trespass for assault and battery is not assignable in Hawait. The question apparently. as not considered in the circuit court, Both parties and the Court assumed that the assignment accomplished a transfer of Plainei#frs ineorest to Tavares. The question was not raised in Enis court by the bill of exceptions of the original briefs and appeared for the first tine upon questions propounded by the court tercounsel. In the view we take ies decision is not necessary £o 2 determination of the case. amend wai properly overruled. If the chose in action was "1. scontinued ‘against the assignor and which existed at the time of the Besignment or at any tine thereafter until notice thereat was Given to the party liable. 10  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER motion ne discretio: Sort. not Ineroperiy averruled. Id, at 961-62 (emphasis added). NTB and KOW argue that if RLH § 2361 had the effect of making assignable all previously unassignable claims, there would have been no reason for this court to raise the issue of the assignability of rights of action in trespass for assault and battery. We agree. In light of the afore-quoted language, Hanu indicates that RLH § 2361 was meant to permit an assignee of a chose in action to maintain the action in the assignee’s own name, only to the extent that the chose in action is among those that ave of an assignable nature. That conclusion comports with other decisions by this court holding that certain choses in action are unassignable. See, e.g, Austin, 6 Haw. at 596 (“[(T]he bankrupt’s conmercial credit is not among his assets, and the assignees cannot bring action for an injury to it. The complaint alleges a special damage for which only the person injured can bring action.”); Sprague v. fornia Pai 4 Ins. Ltd., 102 Hawai'i 189, 201, 74 P.3d 12, 24 (2003) (“In this case, similar to Austin, the damages sought for injury to the commercial credit and reputation of Kona Aviation were personal and unassignable. . . . Similarly, the Gamages sought for loss of business opportunities were personal and unassignable . . . ."). Therefore, HRS § 634-1 does not dispose of the present matter, and the question remains whether professional malpractice clains, breach of fiduciary duty claims, and fraud claims fall within that class of claims that are assignable u  ‘OR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER €. Champerty and Maintenance We next consider NTB's and KDW’s argument that the common law doctrines of champerty and maintenance preclude the assignment of the claims presently asserted by THJ. In Yan Gieson v. Magoon, 20 Haw. 146 (1910), Justice Perry defined the terms “champerty” and “maintenance” as follows: Chanperty and maintenance have been variously defined in the books, ancient ae well as modern. Courts and text writers seen to have found sone difficulty in stating precisely what they consisted of in England. Perhaps the following definition cones 35 near as possible to stating the generally accepted view on the Subject. chanperty (canpum partire, to divide the land) is "a Bargain with 2 plaintiff or Gefendant ins suit for a portion of the land of other natter sued for in case of a successful, termination of the suit which the chempertor undertakes to carry fon at hic own expense."--Bouvier. Maintenance is “a malicious or at least officious interference in a suit in which the offender hhas no interest, to assist one of the parties to it against the other with money oF advice, to prosecute or defend the action without any authority of Law."-rBouvier Id, at 155 (Perry, J., concurring). Justice Perry explained that, historically, contracts involving champerty and maintenance were viewed as instigating unworthy litigation and contrary to public policy: In olden England such contracts were deemed to be contrary to ‘Sound public policy because it was believed that 4 they were permitted the resuit wouls be co encourage and facilitate the Stirring up of unworthy Litigation. Various considerations Contributed to this view. Inthe first place, judges a9 6 rule were more of less corrupt and the adninistrat ion of Justice was in Gisrepute. It was believed that powerful lords could and aid Control the Judges and influence judicial decisions in their. favor Lrrespective of the merits of controversies. The position of attorneys, too, wos materially different then from wnat it $2 now. ‘They were not supposed to receive any compensation as such for their services but merely an honorarium or gift at the option of the client. Attorneys could not demand oF expect to receive pay asa matter of right. They Were not permitees £0 make any Contract whatsoever with their clients. It was deemed to be for the best Interests of the community that the peverful lords owning large landed estates should continue in the ownership and possession of such estates and thet others should not scquire Eitle to any part of such property. The discouragenent of 2 ‘§ HAWAII REPORTS AND PACIFIC REPORTER *** FOR PUBLICATION IN WES Litigation against the lords was for that as well as for other Hessgns regarded at desirable, The assignment of choses in action flso prohibited. Id, at 156-57. However, this court has repeatedly rejected blind adherence to rules crafted to meet anachronistic societal demands and has expressed skepticism about the continued potency of the doctrines of champerty and maintenance. See Henrique v. Paris, 10 Haw. 408, 413 (1896) ("The old rule is a provision of the feudal law, and grew out of a state of society which does not exist in these Islends. There is not now and here the necessity that there was in England in the Middle Ages for laws against champerty and maintenance to prevent the stirring up of suits for purposes of oppression[.}"); Yan Gieson, 20 Haw. at 149 (“The conditions of society under which the law of maintenance and champerty originated no longer exist.”). Moreover, the modern trend now favors the assignability of causes of action, See Osuna v, Albertson, 134 Cal. App. 3¢ 71, 83, 184 Cal. Rptr. 338, 345 (Cal. Ct. App. 1982) ("It suffices to point out that the tendency of modern jurisprudence strongly favors the assignability and the survivability of things in action.) (Citation omitted.) (Emphasis removed.) ; Brown vy. Guar, Ins. Co., 155 Cal. App. 2d 679, 695, 319 P.2d 69, 79 (Cal. Ct. App. 1958) (“The modern trend in favor of assignability dispels any remaining doubts concerning the transferability of the insured’s claim.”); McKenna v, Oliver, _ P.3d _, _, 2006 WL 2564636, *2 (Colo. Ct. App. Sept. 7, 2006) ("Generally, Colorado law favors the assignability of claims.”); Conrad Bros. 13 1+* FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** john Deere Ins, Co., 640 N.W.2d 231, 236 (Towa 2001) (*{7]he law now generally favors the assignability of choses in action(.]"); Lemley v. Pizzica, 36 Pa. D. & C.2d 327, 330 (Ba. Ct. Com. Pl. 1964) ("The trend of judicial decisions as to the assignability of certain causes of action is to enlarge, rather than to restrict the causes that may be assigned.”) (Citations omitted.); iisconsin Bankers Ass'n (Inc.) v, Mut, Sava, é Loan Ass‘n of Wisconsin, 291 N.W.2d 869, 877 (Wis. 1980) (recognizing ‘2 “common law trend favoring the assignability of choses in action”). Accordingly, we conclude that the common law doctrines of champerty and maintenance are not impediments to the assignability of the claims at issue in this case. D. Hawai'i Law Prohibits the Assignment of “Personal” Tort Claims. hen reviewing the assignability of claims, this court has repeatedly adhered to the principle that “personal” claims for relief are unassignable. 1. Austin v. Michiels ‘The earliest reported opinion in this jurisdiction addressing the assignability of claims is this court's decision in Austin. The plaintiff, an assignee in bankruptcy, filed an action alleging that the defendant forcibly entered the bankrupt's premises and removed property owned by the bankrupt thereby causing loss and damage resulting in injury to the bankrupt’s conmercial credit and reputation. 6 Haw. at $95. The defendant demurred, arguing that the cause of action was not u  FOR PUBLICATION IN WEST HAWAII REPORTS AND PACIFIC REPORTE! assignable. Id. This court first noted that the Bankruptcy Act of 1684 authorized assignees in bankruptcy to “bring suit for the goods, or the value, of the bankrupt, wrongfully taken.” Id. However, we further explained that the Bankruptcy Act of 1884 did not permit assignees in bankruptcy to take claims that were not assignable. Id, We explained: An action for assault or for seduction could not pass to executors Of assigne, and we may say generally that go action of which the Gist couiste of injury to the feelings ox in whieh InGury oF Tei a paaravarion. “can be assigned, voluntarily or Py operation of len Ida (emphasis added). We thus concluded that a claim for injury to commercial credit was unassignable: ‘The assets pass to the assignees, They may bring action for goods token away or anjured. “Bot the bankrupt’ s comercial credit is hot anong ha assets, and the sssignees cannot bring action for an Tejury co ite “The eémplaint alleges = special danege for which only the person injures can bring action. Id, at 596. 2. vc fic naux: In Sprague, Maydwell Millard and Doris Jean Millard (“the Millarde”), doing business as Kona Aviation, rented @ Grumman aircraft to William and Grace Adams ("the Adamses”), who departed from Kona International Aiport and never returned. 102 Hawai'i at 192, 74 P.3d at 15, The Millards were thereafter Anformed that, despite having arranged and paid for an insurance policy, their aircraft was uninsured when the loss occurred. Id. at 193, 74 P.3d at 16. The Adamses’ children, Terri Sprague, Brian Adams, and Dana Adans (“Respondent's”), subsequently filed a wrongful death action against the Millards individually and as owners of Kona Aviation. Id. A stipulated judgment and order 15 ‘++ FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER ** was agreed upon by the Respondents and the Millards, stating that: “(1) the Respondents be awarded $3 million dollars; (2) the counterclaim be dismissed; (3) the Millards assign all of their legal rights against any of the insurance entities and r their own agents to the Respondents; and (4) the parties b attorneys’ fees and costs.” Id, The Respondents and the Millards further agreed that: (2) the Respondents shall not record, execute, or levy the $3 ilifon dollar Jusgment against the Millards; (2) the Respondents ree to defend, hola harsless, and indemnify the Millards trom Tclains that might be brought by the ineurance entities or jents based on the assignment of rights) (3) the Millards Cooperate in litigation against the insurance entities and agent: Gnd’ (4) if the Respondents receive more than £100,000. in Conjunction with litigation against the insurance entities or Sgenta, they would pay the Millards $20,000 for the loss of the aizerafe and attorneys’ fees and costs. Respondents then filed a claim against Janes T. Nottage, Sally Jo Nottage, Allen Tokunaga, Jim Nottage Insurance, Inc., and Ingurance Resources, Inc. (collectively referred to as petitioners”), as well as California Pacific Bankers & Insurance Ltd., Ann Nottage, Ivan Kam, Louan Chandler, and Aviation Insurance Associates, alleging negligence, fraud, and bad faith. Id. at 194, 74 P.3d at 17. Following trial, the jury awarded Respondents $13,000 in special damages and $15,300 in general damages. Id. On appeal, the ICA, inter alia, affirmed that portion of the circuit court’s judgment awarding general damages, holding, in relevant part, that, “as general damages awarded for a negligence claim were assignable, the circuit court did not err in permitting this award[.)" Id, at 195, 74 P.3d at 18. 16 ‘++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ** ‘This court, on weit of certiorari, reviewed, inter alia, the petitioners’ claim that the ICA gravely erred by upholding an assignment of general damages. Id. at 198, 74 P.3d at 21. The petitioners did not challenge the assignability of the underlying claim, id, at 198 n.10, 74 P.3d at 21 n.10, but asserted that general damages were personal and thus unassignable. Id, at 198, 74 P.3d at 21. We agreed, holding that, in determining assignability, the igsve is not only whether the Glain'Ie'assignabies but also whether the damages arising from the Claim are purely personal in nature. Tf so, they Gpesasgnable, As applied to general damages, it that mast items of general damages are not assignable due to their personal nature. “General danages ; - - include such itens as Physical pain and suffering, inconvenience, and 10s3 of enjoyment Enlch cannot be messured definitively in monetary terms.” State Harm Wits Auto. Ins. Co. v. Qacanay, 67 Hawai'i 136, 138 n. 3, 952 Prdd 693; €96 ny 3 (ipp-1998) (citation omitted). ‘Inasmuch as General damages, for the most part, are personal ond unassignable, the Ica erred by holding that "general damages awarded for 2 hegligence cause of action are assignable.” Ids at 199-200, 14 F.3d at 22-23 (footnote omitted) (ellipses in original). ie enphasized, however, that “it is the personal nature of the damages, not the label, that ultimately determines assignability.” Id, at 199 n.11, 74 P.3d at 22 n.11 (emphasis added). Applying the rule, we concluded that the general damages were personal, and thus unassignable! ‘Although loss of business profite may not be the sane Dusiness cpportunities, the economic nature of such da similar. we do not think, however, that economic dana Stherwise known as “out-of-pocket” danages, are automatically Snsicative of non-personal damages. Depending on the Clrcunstances of the case, economic damages may be purely personal Snnacare, thus precluding sseignnent. Whether they are personal in this case is dependent upon the evidence presented in support of the award. in'this case, similar to Austin, the damages sought for Py 1+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** Anjury to the commercial cradit and reputation of Kona Avistion vere personal and unassignable, inasmuch as the Respondents Glained that the lack of adequate insurance led to the Judgment entered against the Millards, and consequently, the inability of the Millards to obtain credit and operate a financially vieble business. Similarly, the danages sought for loss of business Opportunities wore personal and unassignable, inasmuch ae there is po inaieation that they were economically quantifiable predicated upon the injury to credit and reputation pet Suefered by the Miilards. Thus the circuit court erred by instructing the jury that it could award, and the jury erred by auarding, general damages based on injury tothe commercial creait and reputetion of Kons Aviation, as well as loss of business Opportunities. Accordingly, the $15,300 awarded in general Gonages must be reversed. Ida at 201, 74 P.3d at 24. 3. In Hawai'i, the personal/propert: Survivability, governs whether a cause of action is assignable. The general rule gleaned from these cases is that tort claims that are “personal” in nature are not assignable. As mentioned, this court has described such “personal” tort claims as actions “of which the gist consists of injury to the feelings or in which injury or insult is an aggravation(.)” austin, 6 Haw. at 595. See also 4 J. Pomeroy, Equity Jurisprudence § 1275, at 793 (5th ed. 1941) (describing as unassignable that class of toxts “to the person or character, where the injury and danage are confined to the body and the feelings{)") (footnote omitted) . ‘These “personal” tort claims are distinguished from “non- personal” or “property” tort claims -- ie., those that arise out of an injury to the claimant's property or estate. Sa Poneroy, supra, at 792-93 (describing assignable causes of action as “those arising from torts to real or personal property, and from frauds, deceits, and other wrongs, whereby an estate, real or personal, or injured, diminished, or damaged(]”) (footnote 18  '* FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** omitted); 6A C.5.S. § 39, at 646-47 (1975) ("Generally, a right of action in tort, which does not apply to the person strictly, but involves directly or indirectly a right of property or injury to one’s property or estate, is assignable, especially when the assignee has acquired title to the property. It has been said that a distinction is observed betwi n those causes of action for wrongs which affect the person strictly and all others.”) (Footnote onitted.). Because this court has, on one occasion, endorsed the common law rule that equated assignability with survivability, we now take a moment to clarify that assignability and survivability are no longer interchangeable in this jurisdiction. In Alameda, this court vas confronted with the ‘ssue whether Frank Alameda (“Alameda”), as administrator of the estate of Awili Shaw ("Shaw"), could file a claim for arrears of @ police pension in the anount of $1,303.90 due and unpaid to Shaw during her lifetine. Id, at 668. The defendants, the board of trustees of the police pension fund of the County of Maui ("the board"), refused to pay Alameda’s claim on the grounds that the clain was not one that survived Shaw’s death and, thus, was not payable to the administrator of her estate. Ida on appeal, this court concluded ae follows: fee, pot surtine orises there ia a statate speci ficnly proviaiog a tratgthsia that thevenuse oF actions which it is acnitted {Shan sd in her Lifetine, id not survive. The cause 6f action not having survived, her administrator cannot maintain fan setion to recover it. A Judgment in favor of the board of 19  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER. trustees of said pension fund may be entered. Id. at 674-75 (emphases added) . In so concluding, this court relied on several authoritative works, including 3 Pomeroy’s Eq. Jur. § 1275, which stated as follows: CALL things in action which survive and pass to the personal representatives of 8 decedent creditor as assets, cr continue as Liabilities against the representatives of a deceased debtor, are, in general, thus assignable; all of which do not thus survive, But nich die with the person of the creditor of of the debtor, ave fot assignable. The first of these classes, according co the doctrine prevailing throughout the United States, includes al] laine arising from contract express of implied, with certain eli“defined exceptions; and those arising fren torts to real oF Personal property, ond from fraude, deceits, and ceher wrongs, hereby eh estate, real or personal, 1s injured, diminished, ox Genaged. The seccnd class embraces ell torts £0 the person oF Character, where the injury and damage are confined to the body and the féelings; and also those contracts, often smplied, the breach of which produces only dixect injury and danage, bodily or ental, tothe person, such as prosizes to marry, anjuries done by the want of skill of medical practitioner, contrary £0 his Implied undertaking, andthe like? and also those contracts, 22 Anna as they are execstory, which stipulate solely for the special Dacional services, shill, or knowledge of @ contracting party.” Alamsda, 34 Haw. at 674 (emphases in original) (citing 3 Pomeroy’s Eq. Jur. § 1275). Subsequent to the Alaneda decision, the legislature enacted HRS § 663-7, see 1955 Haw. Sess. L. Act 205, § 2, at 185, which states as follows: § 663-7. Survival of cause of action. A cause of action arising out of a wrongful act, neglect, or default, except a cause Of action for defanation or malicious prosecution, ‘shall not be extinguished by resson of the death of the injured person. The cause of action shall survive in favor of the legal’ representative of the person and any danages recovered shall form part of the fe of the HRS § 663-7 (1993). By enacting the foregoing survival statute, the 20  +#+* FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER legislature has extended the class of causes of action that survive beyond the class contemplated at common law and described by this court in Alameda. There is no indication, however, that the legislature intended a concomitant expansion of the class of causes of action that are assignable. Indeed the legislature expressly stated that the purpose of the enactment of a survival statute was to remedy the “untold hardship and injustice” arising out of the “archaic” common law doctrine terminating a tort right of action upon the death of the injured party. Stand. Comm. Rep. Wo. $81, in 1955 House Journal, at 773. The legislature focused entirely on survivability and made no mention of assignability. Thus, the survivability and assignability analyses appear to have been legislatively uncoupled. nile some jurisdictions have concluded that the enactment of a broad survival statute governs assignability,? others view such legislation as disconnecting the tests of > See Davenport v, State Fare tut. Auto, Ing. Cox, 404 P.2d 10, 12 (ev. 1965) TPIIt 18 now golte generally accepted that the assignability of the right to sue in tore for personal injuries is governed by the test of Noivissrship-sivess i the right of action survives the death of the injured person, that right is assignable. The Fight to sue in tort for persons Peluries Goes survive in Nevada, NES #1-100(2}, and therefore is assignable.") (internal citetions omitted.) (Footnote omitted.); Eexcer v; Guevara, 192 Siw.5a'38, 43. (Tex. Ct. App. 2005) ("On the premise that azsignability Gepended oo survivability, che passage of the Texas Survival Statute meant Ghat personal injury claine becane agsignable.”); ichola v, United states Ha. f'Guars cons 125 Newe2d 204, 107 (Ws. 1967) (Since the accepted test of SEGREMIGSG?' a cause’ ot action in wisconsin is whether it would survive the seath of @ party, it is necessary to look to our survival statute(.J") (Footnote onitted:]/ Peterson ¥, Broun, 457 N.W.2d 745, 748 (Minn. Ct. App. 1830) Uiinnescta’s role on aesignability conforms to the general practice Aesignability is detersined by reference to Minn-stat. § 573.01 (1990) which governs survival (-]") = 2  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** survival and assignability.‘ The latter interpretation is + see Pension ¢ profit shor: 322 S.W-2a 865, 867 Trenn. 1996) (Although a chose in action must survive to be assignable, not every action that survives is assignable. For example, elaine for personal injuries Survive, pursuant to Tenn.Code Ann, § 20-5-102 (1994), but generally aze not Sssignobie. "In sodern tines, ‘the conaon law est of determining the issue of ability solely by whether the clain survives the assignor’s death seen Shtaated and’ aloplaced, “Sthes state courts have experienced cieticeley in applying the survival test and have approached this issue By considering factors such as public policy considerations, which vary depending upon the ticular type of action under exanination.”)”(Pacagraph formatting Salteed. 1) Bar iva Se Eos, 416 S.We2d 208, 227 (Mo. Ct. App. 1867) ("We Feject the Tule Urge by Harcware Desiers that wether ® cause of action for personal injury 18 assignable depends solely pon whether it survives and adopt the rule that such causes of action may not be assigned prior to judgment for reasons of public policy. We ehink the cast Law'as given to us by the suprene Court of this state dictater this course, @ course we would willingly follow even though there was no such case lax. We Ehink the reasons for the applicability ef such @ public policy are as Eundanental end es necessary today a5 in the days of the origin of this rule. ‘ie do not think economic of social changes since its origin make the reasons for this humane rule anackronistic.”); Goldfarb v. Reicher, 171 A, 149, 180, (W.g. 193¢) (rt is a firmly established rule thata right of action for personal injuries cannot be made the subject of assignment before judgeent, in the absence of statutory provision to the contrary. Except when otherwise Provided by statute, nothing 1s assignable, either a law or in equity, chat Goes not directly or indirectly involve 2 right to property. In other Jurisdictions the rule is that survival is the test of assignability of rights ef action ex delicto. Gut the rule is otherwise in this state. While the. . S act relating to executors and the adainistration of intestates! ests in the executor or administrater an action against the trespa any trespass done to the person or property of his testator or intestate Court of the last resort has declared, and Lt 19 now settied law, that this Provision dia not abrogate the rule that such causes of action are not Sssignable before judgment.")" (Internal citations omitted.)) Jags t.. . Deiitcck, “336 w.w.2d 736, 736 uicn. Ce. App. 1983) (noting thar Miehigan’ = Survival statute states that “[a]il actions and claims survive death, 1" but Sdopting the rule that “survivabiiiey ia not the only test,” and concluding that legal malpractice claims were unassignable based on public policy Grounds) (sone brackets in originel and some. added); Not sMC Jeep, Ines, 5€7 $0.24 1034, 1035 (Fla. ct. ABP. 1950) (*[Wle are noe lunmindful that the assignability of a cause of action is the rule rather than the exception, and that many causes of action based on tore survive the tort victin’s death. The ascignability of » tort claim, however, is not controlled by ite survivability. Florida's courts aghere to the common-lew prohibition Darring the assignment of personal injury claina.”) " (Internal quotation marke omitted.) (Internal citations omitted.); $f me Wciahe Gis con, dSe s.s2a 69, 92 (ark. 1970) {We have no Restestcr ie joining those courte which hold that s survival statute does not confer the Poner of essignnent upon the holder of an unliquidated tort claim fer personal ‘eont ined.) 2  ‘OR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** more consistent with Hawai'i law. Jo wit, in Sprague, this court expressly reaffirmed Austin’s holding that injury to commercial credit is personal and unassignable. In so doing, this court did not mention either survivability or HRS § 663-7, Pursuant to HRS § 663-7, the cause of action in Sprague, alleging injury to commercial credit, would have survived the death of the claimant, insofar as it (1) arose ovt of a wrongful act, and (2) did not “Ls jscontinves) injuries.) Standard Chartered PLC v. Price Waterhouse, 9¢5 P.2d 317, 327 (Ariz. Ct. App. 1996) ("[T]he Arizona Courts detached the rule of non” sbsignablisty cf personal injury cleins from the survivability standard and Sopparted ton shdependent policy grounds. In eile Hutus Gov. Lea, 2 Arizapp. $38, S41, 410 P.2d 495, 498 (1966), we explained that Efevnen-assignability rule prevents unscrupulous people’ from ‘traffic{king] inlaw suite for pain and suffering.'") (Some brackets added and sone in original.); Town £ Country Bank of dprinafield v, Country Mut, Ins. Cou, 459 Nibs2d 629, 640 [ITl. Ce. App. 1908) ("Illinois law has established that a Cause of action for personel injuries may survive by virtue of the Survival het, but it ig neverthelest not assignable, on public policy grounds. Two Feasons were given for this principle: (1) A lstigious person could harass tn annoy’otnere ig aliowed fo purehase elaine fer pein tnd suttering and Pursue the claims in court ae ‘and (2) all assignsents are vod Unless ine sasignor'has either actually of potentially the thing which he attempts to assign.*], (Internel citations omitced.); Hager 16e s-E-24 157, 161 tw, Va, 1969) (stating that “the Legislative Ghactnent of the provisions of Code, 5S-7-5 and 6, 25 amended, which pertain fo the survivability in various situations of a wrongful death action and the fecovery cf hospitsl, nedical and funeral expenses therein, and Code 55-7-8 and 8a, as anendes, which provide for the survivel and revival of certain actions whieh did fot survive at common law... relate only to the Survivability and/or revivabilsty of certain specific claims and inno way alter or amend the common law with respect to the assignability of such Glaine(1"}7 Hagener v. MeDonala, 503 N-W.2é 186, 151 (linn. Ct- App. 1983) (today, it seens anachronistic to reaclve the isaue of the assignebility of a by deciding whether such a claim would survive the the case with the cosmon law, the rule hes outlived the reason for ite creation. “The custons, beliefs, of needs of a primitive tine establish a rule or formula, In the course of the conturies the custom, belief or necessity disappears, but the rule remains.’ Where such Se the case, this Court has been Willing to ‘re-examine the basis of the File.’ “Assignment should be permitted or prohibited based on the effect it will Lixely have on modern society and the legel system in particular. Thos, te consider issuer of public policy rather then the statutory survival test to ‘enine whether legal malpractice claims are assignable.")" (Sone block ‘and paragraph formatting omitted.) (Internal citation omitted.) 23  ‘*** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER assert a claim for defamation or malicious prosecution. Thus, this court's reaffirmation of the validity of Austin’s conclusion ~ that 2 claim alleging an injury to comercial credit is unassignable ~~ implies that survivability is a non-factor in the assignability analyss. Given the foregoing, we now explicitly abandon reference to survivability when analyzing the assignability of a claim for relief and adhere to the principle described by Austin Lg., the personal/property dichotomy. and Sprague E. TM's Claims Are Not “Personal.” Having concluded that the proper inquiry in this jurisdiction is whether the cause of action alleges a personal injury or an injury to property, our subsequent obligation is to analyze the specific claims presented in the case at bar. To that end, we have previously focused our attention on the injury alleged. See Sprague, 102 Hawai'i at 200, 74 P.3d at 23 ("(Dlealing with assignment of @ claim, this court focused on the in that case, damages for injury to the commercial credit and general reputation of a business that was damages requested: allegedly forced into bankruptcy.”) (Footnote omitted.) (emphasis added.). That focus recognizes the truism that a Clain’s title (i.e., “professional malpractice,” “breach of Indeed, a fiduciary duty,” “fraud,” ete.) is not dispositiv “fraud” may harm either person or property. Clains for “professional malpractice” and “breach of fiduciary duty” share the same chaneleonic quality. Here, the two-count complaint asserts non-personal 24  ‘+0 FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER * injuries. The first count alleges that “Ishimura Building was damaged by the payment of the $400,000 brokerage fee and suffered additional damages to the extent the Coconut Plaza Hotel was sold for less than its fair market value.” The second count alleges that “Ishimura Building was induced to sell the Kailua Professional Center for $2,000,000.00 less than its appraised and fair market value and has been damaged by said amount.” These allegations consist of direct and quantifiable economic injuries? to the estate or property of Ishimura Building, as opposed to physical, mental, or reputational harm. Given the non-personal nature of the injuries alleged, we are compelled to conclude that the professional malpractice, breach of fiduciary duty, and fraud claims presented in the present case are assignable. We are not unsympathetic to the view that public policy may nevertheless preclude such assignments insofar as it would arguably facilitate the merchandising of non-personal tort claims. However, questions regarding the wisdom of permitting such assignnents are more appropriately directed to the legislature, which is better positioned to balance the policy considerations and potential consequences that will flow from such a decision.* * However, sn allegation of economic harm is not always indicative of non-personal injury. See Sprague, 102 Mawai'i at 201, 74 isd at 24 ("We So not think, however, that economic danages, otherwise know as ‘out-of- pocket’ danages, are automatically indicative of non-personal damages Depending on the circumstances of the case, economic damages may be Purely personal in nature, thus precluding assignment.) + te have, in the past, exhibited auch restraint when faced with policy decisions of sinilar magnitudes. See State vy, Aiuohi, 109 Hawai'i 115, (continved. .-) 25  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER. IIT. coNcLUSION Based upon the foregoing analysis, we (1) hold that MJ's causes of action for professional malpractice, breach of fiduciary duty, and fraud are of an assignable nature, and (2) answer the certified question in the affirmative. on the briefs: Edward J. Bybee for plaintiff-appellant George T. Okamura of George T. Okamura, AAL, ALC and James N. Duca’ of Kessner Duca Umebayashi Bain 6 Matsunaga for defendant- appellee Nippon Trust Bank, aka Nihon Shintaku Bank Robert J. Snolenski of Smolenski & Wooddell for defendant-appellee Kelley Drye & Warren LLP *L cscontinued) 129, 125 F.3d 1210, 1224 (2005) (“Although we recognize that there may be significant policy implication? and social ramifications surrounding the Present issue, it is well established that the legislature is best sulted to Sssess guch considerations."); Stat Nawai's 142, 182, 60 P.3d 321, 332 (2003) (stating that are expressly within the constitutional purview of the legislature”); 01 Hawai": 3, 10, 61 F.3d S14, 521 (2002) (observing that “[w]hile there nay be sound policy reasons to allow a choice of evils justification defense for the protection of unborn children, the adoption of such a public policy is best! left to the state Legislature"): in Ke Water Use Permit Applications, 94 Hawai'i 97, 192, 9 P.3a 403, S04 (2000) (etating that vthe “how” or the public Policy making function was properly reserved for the legislature”); ge vs Sorrecedare, €3 Hawai: 18¢, 171, $25 P-34 324, 341 (1996) (stating that broad Policy decisions are vbest left to the branch ‘of government vested with the Buthoréty and fact finding ability to make such broad public policy decisions, namely the Haxai't Legislature”) 26 

93e1e80ba44c61092bc7f17be46d330e375048b9f45475ea0f2de5e034ad0ac1

2007-01-31T00:00:00Z

86063be4-df87-413f-96b2-36b139e1cf8c

State v. Jess

hawaii

Hawaii Supreme Court

no. 26483 IN THE SUPREME COURT OF THE STATE OF HAWAI'I STATE OF HAWATE, Plaintitt-Ropettont gy “ ma OF BRIAN JESS, Defendant-Appellee = 2512 TTT RESERVED QUESTION FROM THE crAcUIT couRT'gI® & OF THE FIRST CIRCUIT, STATE OF Hawa? gf | (CR. NO. 0071-0422) ORDER ACCEPTING RESERVED QUESTION (By: Duffy, J. for the court’) upon consideration of the order issued by the circuit court of the first circuit reserving for the consideration of the supreme court, pursuant to HRS § 602-5(a) (2) (Supp. 2006) and HRAP 15, a question of law arising before the circuit court in Ce. No, 00-1-0422, IT IS HEREBY ORDERED that the reserved question is accepted. IT IS FURTHER ORDERED the 1. Plaintiff State of Hawai'i shall be regarded ae the appellant for the purpose of this proceeding. 2. Defendant Brian Jess shall be regarded as the appellee. 3. Appellant shall file an opening brief within 40 days of the date of this order. The brief shall conform to the briefing requirements of HRAP 26(b), except that points of error and standards of review need not be provided. 'considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, a3 Ie 4. Appellee shail file an answering brief within the time provided by HRAP 28(c). The brief shall conform to the briefing requirements of HRAP 28(c), except that standards of review need not be provided. 5. Appellant may file a reply brief in accordance with HRAP 28(d) . 6. Extensions of tine for briefing will not be granted. DATED: Honolulu, Hawai'i, April 26, 2007. SEES. SE Fay For THE court: /& a) SE, Gor Dutigs r= ( AL y Associate Justice Ve ag ys 

0a6ce567976c2a860b25e9c69a2a00596c3ba753052045d3c7799567015c72f7

2007-04-26T00:00:00Z

ce94adef-6a84-4e69-a0a6-c40ad9ef27ed

State v. Lee

hawaii

Hawaii Supreme Court

LAW LIBRARY NO. 27336 IN THE SUPREME COURT OF THE STATE OF HAWAI'I STATE OF HAWAI'I, Respondent-Appellee, «|= ~ vs. a F & ° JERRY LEE, Petitioner-Appellant. = CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (HPD TRAFPIC NOS. 004424211 & 004424201) (HPD CRIMINAL NO. 04424348) o Ps (By: Moon, C.J., for the court; Acoba, J., dissenting) Petitioner-appellant Jerry Lee’s application for writ of certiorari, filed January 2, 2007, is hereby rejected. PATED: Honolulu, Hawai'i, February 16, 2007. Deborah L. Kim, Deputy Public Defender, for petitioner-appellant on the application FOR THE COURT: * considered by: Moon, ¢.J., Levinson, Nakayama, and Duffy, av 

76b59464a4f32e222c6a84bb989773c91771c950c7647104583c9f0f46114f2e

2007-02-16T00:00:00Z

afe341ed-1980-4a46-8cae-e546cdd16c33

Phipps v. The Warden

hawaii

Hawaii Supreme Court

no. 28366 IN THE SUPREME COURT OF THE STATE OF HAWAI'I s EDWARD PHIPPS, fe 2 Petitioner, 2 ¥ a THE WARDEN, DEPUTY WARDEN, and HEAD OF SECURITY, OAHU COMMUNITY CORRECTION CENTER, STATE OF HAWAI'I, Respondents. ‘ORDER (By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy JJ.) By letter to the Chief Justice prisoner Edward Phipps (Petitioner) complains the warden, deputy warden, and head of curity offices at the Oahu Community Correctional Center are a petition for writ of holding his mail. We view the letter mandamus. Phipps has not shown “a clear and indisputable right to the relief requested and a lack of other means to redress adequately the alleged wrong or to obtain the requested action.” Straub Clinic & Hospital v. Kochi, 61 Hawai'i 410, 424, 917 P.24 1284, 1288 (1996). ‘Therefore, XT IS HEREBY ORDERED that the Clerk shall file Petitioner's letter as a petition for a writ of mandamus, without payment of the filing fee. IT IS FURTHER ORDERED, pursuant to Rule 21 of the Hawai'i Rules of Appellate Procedure, that the Petition is aa denied. This denial is without prejudice to any other action by which Petitioner might seek a remedy. DATED: Honolulu, Hawai‘t, January 17, 2007. 

38f24b20edea1e61b907d04176ce93e2a51313bd3d520940490f02d029282446

2007-01-17T00:00:00Z

7d865b06-8def-48cc-ac7d-29cc7103f5a6

State v. Razo

hawaii

Hawaii Supreme Court

No, 26604 IN THE SUPREME COURT OF THE STATE OF HAWAI'I se STATE OF HAWAI'I, Plaintiff-Appellee-Respondent VINCE WILLIAM RAZO, Defendant-Appellant-Petitioner ee ERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (Crim. No. 03-1-0293(2)) 7 (By: Levinson, J., for the court") upon consideration of the application for a writ of 4 filed on December 28, 2006 by the defendant-appellant- certiorari petitioner Vince William Razo, the application is hereby January 29, 2007. rejected. DATED: Honolulu, Hawai'i, on the application: Linda C.R. Jameson, defendant -appellant-petitioner Vince William Razo for the 00O1Ky 62 Nur Long cid.) Levinson, Nakayama, Acoba, ané Duffy, JV. > considered by: Moon, aang 

f9b5118b7bb7e52dddd7c869500fd9fe9eee49140d1d5f06625aa12cddbec43c

2007-01-29T00:00:00Z

ae05264a-7073-4772-85d0-cd1b7dc9d15f

Brantley v. State

hawaii

Hawaii Supreme Court

No. 26991 IN THE SUPREME COURT OF THE STATE OF HAWAI'I MARK BRANTLEY, Petitioner-Appellant STATE OF HAWAT'T, Respondent-Appellee CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (8.P.P, NO, 031-0012 (2)) (By: Duffy, J., for the court’) Petitioner-appellant Mark Brantley’s application for a weit of certiorari, filed on Decenber 12, 2006, is hereby rejected. DATED: Honolulu, Hawas'S, January 9, 2007. FOR THE couRT: Goren 6. mtu fr Associate Justice Karen T. Nakasone, Deputy Public Defender, for petitioner-appellant on the application 6 wir Lanz 81 :01n "court: Moon, €.J., Levinson, Nakayama, Accba, and Duffy, od. oad 

8e6513d87cb8983bee425a3b824080c493cd28f3507f54678b50020e9b2409d5

2007-01-09T00:00:00Z

0e0e0115-7172-413a-b241-c85abc00e6fb

State v. Deparini

hawaii

Hawaii Supreme Court

No. 27272 IN THE SUPREME COURT OF THE STATE OP HAWAT'T STATE OF HAWAI'I, Respondent -Appellee, ray aan ww DANIEL DEPARINI, Petitioner-Appellant. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CITATION NOS. 1858147MH & 1e5814@MH) ING cnt R WRIT OF CERTIORART (By: Moon, C.J., for the court) Petitioner-appellant Daniel Deparini’s application for writ of certiorari, filed December 11, 2006, is hereby rejected. DATED: Honolulu, Hawai‘i, January 11, 2007. Daniel Deparini, petitioner-appellant, Eppearing poo se, onthe appt ication Lepr lle Soon FOR THE COURT: Considered by: Moon, C.J., Lev: mn, Wakayama, Acoba, and Dutfy, 3d. 

c503706154ad1043470afe890361525134b16071ae81958587bef4d898133bc3

2007-01-11T00:00:00Z

4599d0d9-fdfb-4874-bd94-a4271286cf4b

State v. Agard. ICA s.d.o., filed 08/15/2006 [pdf], 111 Haw.204. S.Ct. Order Accepting Application for Writ of Certiorari, filed 01/08/2007 [pdf].

113 Haw. 321

hawaii

Hawaii Supreme Court

LAW LIBRARY *#4FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER: IN THE SUPREME COURT OF THE STATE OF HAWAI'I ‘o00-== STATE OF HAWAI'I, Petitioner/Plaintiff-Appell No. 27219 oats CERTIORARI 70 THE INTERMEDIATE COURT OF APPI (HPD TRAFFIC NO. 5775863M0) JANUARY 23, 2007 MOON, C.J, LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ. OPINION OF THE COURT BY ACOBA, J. Petitioner/Plaintiff-Appellee State of Hawai'i (Petitioner) filed an application for writ of certiorari® on Decenber 12, 2006, requesting that this court review the + Pursuant to Hawai'i Revised statutes (HRS) § 602-59 (Supp. 2006), @ party may appeal the decision of the intermediate appellate court ithe 1¢8) ‘Sas, HRS § 602- only by an application to this court for a writ of certioreri: 59(a).” In determining whether to accept or reject the application’ for weit of certiorari, this court reviews the ICh decision for (2) Grave errors of law of of facts or (2) Gbvicus inconsistencies in the decision of the [ICA] with that of the supreme court, federal deckelons, or ite own decision, land the magnitude of such errors or inconsistencies dictating tne need for further appeal. The grant or denial of a petition for certiorarl se ‘Sag HRS §602-59(0) HRS § 602-59() Giscretlonary with this court  FOR PUBLICATION IM WEST’ HAMAI'I REPORTS AND PACIFIC REPORTER*#* August 15, 2006 Summary Disposition Order (S00) of the Intermediate Court of Appeals (the ICA),? reversing the January 21, 2005 judgment of the district court of the first circuit (the court)? adjudging Respondent /Defendant-Appellant Louis Kruse Agard IV (Respondent) guilty of Reckless Driving, Hawai'i Revised Statutes (HRS) § 291-2 (Supp. 2006).‘ Respondent filed his response to Petitioner's application on December 27, 206. We hold that (1) the reckless state of mind definition under HRS § 702-206(3) (1993) applies to the reckless driving statute, HRS § 281-2; (2) in determining whether an identified risk is substantial and unjustifiable under HRS § 702-206(3), the nature and degree of the risk disregarded by the actor, the nature and purpose of his conduct, and the circumstances known to him in acting must be weighed; (3) in this case a reckless state of mind can be inferred from the cizcunstances to conclude that there was conscious avareness of a substantial and unjustifiable risk to the safety of others and property on the part of ‘Te Summary Disposition Order was issued by Chief Judge Janes S. Burns, and Associate Judges Daniel R. Foley and Alexa W. Ful » The Honorable Michael Marr presided. animal, porltyf 22172 entitied, “Reckiens driving of vehicle or riding of Whoever operates any vehicle or rides any eninal ‘or feckless riaing ofan aninel, as appropriate, and shall be fined not more Than €1, 000 or imprisoned not more than thirty days, oF both, (emphases added. ) ‘S++FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTE! Respondent; and (4) deference must be given to the trier of fact with respect to questions of credibility and weight of the evidence. Therefore, there was substantial evidence for the court to find Respondent guilty of reckless driving in violation of HRS § 291-2. Because the ICA reversed the court's judgment, the ICA's August 15, 2006 SO is reversed, and the court’s January 21, 2005 judgment is affirmed. I ‘The relevant procedural history obtained from the application is as follows. ‘on Decenber 21, 2004, [Respondent] was . . . charged sey oporating a Vebicie Reckless Dissegerd of the safety Of Fersons or Property in violation of [HRS] § 291-2... « Following a bench trial, Respondent. was found guilty(.] - . + "[Slentence was stayed pending ppeal Respondent . .\. appealed)... on February 18, 2005. “On appeal, Respondent.» clain{ed) insufficiency of the evidence {on the ground) ‘that the evidence . failed to prove beyond « reasonable doubt that [Respondent] acted with... "the requisite reckless state of mindi-]” In its August 15, 2006 SD0, the ICA described the circumstances giving rise to the charge as follows: on uly 18, 2004, after midnight on the 8-3 Freeway, [Respondent] drove eastbound through the tunnels toward Kili Highway exit, he was “lasered” by 2 police 5 going 60 miles per hour {(mph)) in a 55 (mph) Zone, changed lanes to pass other vehicles, turned on the Likelixe Highway exit, swerved in front of the police officer's vehicle, turned on the Kahekill Highway exit, exited Kanekili Highway, van through @ stop sign, swerved Into-an oncoming lene, and finally stopped at @ residence. 00 at 1. At trial Respondent “denied driving . . . the morning of July 18, 2004, and stated that the car was either in his yard during the incident or in the possession of one of his family (members) or friends, all of whom denied responsibility for the ‘**0FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER**# incident.” According to the court, however, it found “unbelievable [the] testimony of [Respondent] and defense witness, Kenneth Friedman(,)" and that Petitioner “had proved its case beyond a reasonable doubt and found [Respondent] guilty of reckless driving."* Nevertheless, the ICA concluded that (Petitioner) failed its burden of proving that, considering the nature and purpose of his conduct and the clreunstances known to him, (Respondent) ‘consciously disregarded a substantial snd unjustifiable risk that one or more persons would be injured and/or that property would be danaged.and the disregara of this risk involved a gross deviation from the standard of conduct that a law-abiding person would observe in the sane situation. S00 at 3. It therefore reversed Respondent's January 21, 2005 judgment of conviction. nm. In its application, Petitioner poses the following question: “whether the ICA erred in concluding that the combined actions of speeding at €0 [mph] in a 55 mph zone, multiple unsafe lane changes, failure to stop for a pursuing police vehicle, cutting off a motor vehicle by swerving directly in front of it and disregarding a stop sign was insufficient evidence to support a conviction for reckless driving?” (Capitalization omitted.) Petitioner argues that the ICA erred in answering the question in the affirmative. In response, Respondent argues that “while the evidence showed that [Respondent] committed various non-criminal traffic + petitioner points out that “Respondent's defense did not dispute that (Petitioner's) evidence was sufficient to prove reckless driving, but that he had not been the driver of the vehicle.” 4 ‘s*4f0R PUBLICATION IN WEST’ HAWAI'I REPORTS AND PACIFIC REPORTER*#* infractions, [Petitioner] failed to adduce facts establishing that [Respondent] drove his vehicle with the requisite criminal state of mind of ‘reckless./* Specifically, Respondent argues that (1) “[t]he record shows that while [Respondent's] violation of various traffic offenses may have posed some degree of risk of harm to others, it cannot be concluded that there was a substantial risk to the safety of others,” and (2) “[a]ssuming that there was some evidence that [Respondent's] operation of his vehicle presented a substantial risk to persons or property, under the circumstances of this case, it cannot be concluded that there was sufficient evidence that [Respondent] was subjectively aware of such a risk, and thus, acted in conscious disregard of the risk.” qt. In pertinent part, HRS § 291-2 states that “[wJhoever operates any vehicle . . . recklessly in disregard of the safety of persons or property is guilty of reckless driving... .” “Recklessly” is not defined in the statute. In their Opening and Answering Briefs respectively, Respondent and Petitioner resort to HRS § 702-206(3) entitled, “Definitions of states of mind, which states in relevant part: (2), Auperson acts recklessly with respect to his conduct uh sieves isi" ang that the person's conduct is of = specified natur ii oat considering the nature and purpose of the person's condict and the circumstances. known £0. him, the disreaard of the Hise involves 2 gross deviation éroa the standard of conduct Shat_a Jawcabicing cerson would observe in the sane ‘situation ‘*0f0R PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REFORTER*## (Emphases added.) HRS § 701-102(3) (1993), entitled, “All offenses defined by statute; applicability to offenses committed after the effective date,” states, “The provisions of chapters 701 through 706 of the Code are applicable to offenses defined by other statutes, unless the Code otherwise provides.” (Emphasis added.) Because HRS § 702-206(3) is @ provision included within HRS chapters 701 and 706, and the Code does not provide otherwise, the state of mind definition in HRS § 702-206(3) applies to HRS § 291-2. See State v. Kupihea, 98 Hawai'i 196, 201 n.8, 46 P.3d 498, 503 n.8 (2002) (concluding that, based on HRS § 701-102(3), “the provisions of the [Code], such as HRS $$ 702-202 and -204 [(1993)], are applicable to HRS § 329-43.5 [(1993)]," a statute not part of the Code). Petitioner also cites to the Commentary on HRS § 702- 206 which states in relevant part: Recklessness in subsection (3) deals not with the conscious object of conduct or the relative certainty of Conduct but Father with disregard of certain probabilities. it gees without saying thet the conscious disregard of every Esk of harm to a protected social interest should not, in every instance, be sufficient to impose penal liability for an untoward eventuality. Precision in defining which risks the penal law will not et a defendant Sgnore i2 impossible. Following the leed of the Model Penal Code, the Code has labeled the relevant risks as “aubstantial’ and unjustifiable” end in subsection (3) (a) states the factors which ought to be considered in determining whether the Glsregard of the risk should be condenned.” The Reporter to the Model Penal Code has stated the issue concisely: ‘The draft requires, however, that the risk thu: consciously disregarded by the actor be “substantial” and “unjustifiable”; even substantial risks may be Greated without recklessness when the actor seeks to Serve a proper purpose, as when a surgeon performs on ‘Operation which he knows is very Likely to be fatal But Feasonebly thinks the patient has no other, safer chance. Accordingly, to aid the ultimate determination, the draft points expressly to the ‘seePOR PUBLICATION IN WEST’ HAMAI' REPORTS AND PACIFIC REPORTER*#* factors to be weighed in judgment: the nature and deares of the Pew diereaarded by the actor, the DSRS tices been to hin thastings (Quoting Model Penal Code, Tentative Draft No. 4, comments at 125 (1955) (emphases added) ). Ww. It should be noted initially that “[tJhe test on appeal in reviewing the legal sufficiency of the evidence is whether, when viewing the evidence in the light most favorable to the prosecution, substantial evidence exists to support the conclusion of the trier of fact.” State v. Bui, 104 Hawai'i 462, 467, 92 P.3d 471, 476 (2004) (citing State v. Pone, 78 Hawai'i 262, 265, 892 P.24 455, 458 (1995)). “Substantial evidence” neans “‘credible evidence which is of sufficient quality and probative value to enable person of reasonable caution to reach a conclusion.’" Id, (quoting State v, Silva, 75 Haw. 419, 432, 864 P.2d 583, 590 (1993) (internal ellipses, brackets, and citations omitted)). Furthermore, “appellate courts will give due deference to the right of the trier of fact ‘to determine credibility, weigh the evidence, and draw reasonable inferences from the evidence adduced.’” In re Doe, 107 Hawai'i 12, 19, 108 P.34 96, 973 (2005) (quoting State v, Lubong, 77 Hawai'i 429, 432, 686 P.2d 766, 769 (App. 1994) (citation omitted). As to a defendant's state of mind, this court has said, “Given the difficulty of proving the requisite state of mind by direct  ‘*+00R PUBLICATION IN MEST’S HAWAI'I REPORTS AND PACIFIC REPORTER! evidence in criminal cases, proof by circumstantial evidence and reasonable inferences arising from circumstances surrounding the defendant’s conduct is sufficient.” State v. Eastman, 81 Hawai't 131, 141, 913 P.2d 57, 67 (1996) (citation omitted). Although Petitioner cites to other reported reckless driving cases, such cases revolve around the specific facts in those cases. Here, according to Petitioner, [eJhere [was] . . . speeding (25 miles over the posted speed Limit, multiple unsafe lane changes, swerving into an enconing Lane of traffic, refusal to stop for s police Sfticer, cutting in front of other venicles, passing on the Fight, . «. (and) running a step sign. Honolulu Police Officer Michael. R. Krekel (Officer Krekel) testified that on July 18, 2004, while performing traffic enforcement outside the H-3 eastbound tunnel, he used an ultralight laser to detect Respondent traveling at 80 mph, twenty five miles over the posted speed limit. Thereafter, Office: Krekel stated that he followed Respondent and testified to the following: (OFFICER KREKEL]: (Inaudible) right here. Lasered the vehicle here. I'm right bere in front (inaudible) gates surround. I'g0t in my vehicle. I followed the vehicle, AE this time the vehicle was halfway between the (inaudible) tunnel and the (inaudible! The vehicle, still in the lect ais, nsraed ver inte the right lane and then crossed back ‘Suer Between two vehicles, And as it cot past the second Sehicie here: it peraed back into the right Lane ust past ‘he inaudible tunnel. Temas unable to pace the speed of the vehicle. Tt just (inaudible) Ssually past these venicles, continued on in the rignt lane. I didn't catch up to the venicle until just prior to the Likelike off-ramp.” I was approximately four far lengths behind the venicle. At this point Fight here, you see, what I do is vhen I laser (inaudible) tunnel Tistop veniclés in a sate location to ene shoulder here just Prior to the (inaudible). Just prior to this (snaudibie) Fight nere I turned on my lights and siren. ‘se+F0R PUELICATION IN WEST'S EAWAI'T REPORTS AND PACIFIC REPORTER*#+ of irivizioner’s comset] @ And during the cours this following the defendant did you at any tine see the Sefendant turn on his blinker when he changed lanes to (inaudible)? {OFFICER KREKEL] A navdibie.) go “ina what happened ater? ond the vehicle ane i ite appesred to eck In his rear view sirror which it somewhat common on the freeway because you're not going to hear a siren traveling 25°or ts ce a higher speed.” (Inaudible) a sires. Actually ere (sic) the siren and (inaudible) * -_. Laporoached the car on the richt side of ‘the vehicle, and’ ve finaudibiel the vebtele past [evel Even though Thad sy lights, ny directional signal on, the Care (inaudible) right lane, it's unsafe for any other person standing on the other side, person on the Fight side. Uf they're this side here of the retainer wall, (inaudible) A” "1. , mis is where 1 put on my lights and aizen,” And as'wo came onto this -* to Likelike Highway to fhe left lane 1 again hit ay Lights and siren.” While {was Apchis position the vehicle then came around this sshicle, ist use the only vehicle It sadsed in front of us, cane ‘inte_the-tarciaht lane, and then actually cut off. suervad ‘lone inctrent of wes. gq tye stated that you weren't successful in Unauateie) ? Re Yeah. wasnt w= T wasn't ~ toot pha wor efi, for 100k at YOUE spesdonater to see how ast you were driving? RS "Nos f wasn’t because I actually had the initial violation. Normally what you do in a case Like this, un, Since that's normally what T sudible) is to cbserve Yiclations. but proBable cause was already met here and heres here. but St this point right here my main concern 4s (inaidible) step actually here that he was going to pull over at this point. And then 2s he got into this lane right here, it was 5 (mph). I didn't (inaudible) - A” fie cut off nie vehicle here and then merasd inte A” ” The vehicle just continued on here. 1 had to catch up with the vehicle. Swing by (inaudible) here. Was not able to {inaudible}. ©.” " Dig you have to speed up to catch up with the Respondent]? "Yes. As he turned around his vehicle to me, it's (Inauetble} Q How about during the course of the (inaudible) tunnel and Likelike off-ramp? Did you find you had to speed Up to catch up with the [Respondent]? ‘*9f0R PUBLICATION IN WEST’ S HAMAI'T REPORTS AND PACIFIC REPORTER*## A _. Thad to speed up to get to this point (inaudible), and then as he got into this lane right here, it's 45 (mph) here, but 1 didn’t (inaudible). (Q Wnat happenes?, Ae got out of his vehicle here and then merged into the Lefe-vurn lane on Kehekili off-ramp. A” "Gh, the vehicie just continued on here. Then again T wae undble to catch op to the vehicle «| 0" iat happened after the Kehekill off-ramp? : ST nee ‘don't remember the vehicle sitting there braking fora very feng times That's when Started runhing the plate of the vehicle. A” mot that point { — vou bnew, J wae thinking, well. gaxbe tnie-ian'e a drunk driver, May thie daa stolen andibli “P Fan the plates. I didh’t get a feedback from the police Gispatch untii this point Up here Before he cane cut of this private lane right ners ‘and the Feport came back, um ~~ the dispatcher said it ues registered to an Agard, and She gave this street right here Kahulukia. And when { came up here, I saw the numbers Ga the side, the numbers on the aide of the house sight here. S01’ knew that would be (inaudible) residenc A da Lit ny blue Lights, again (inaudible. it. wn right here te stop this venieie: Um the vehicle then Kha iiob sah. swerved into the oncoming Jane here, and cane ‘Sut at a nlah rate of speed. Actually it turns then scraped sx tuned to the lett (inaudible O Dia you 8a use at the amt D And what happened after the turn? x event jt wae T Tost sight of the vehicle as it pulied into this private lane. There's 2 house here. As I turned right here, I saw the brake 11 cone, and i saw the vehicle stop Fight in the carport a essentially right here. (Q You say you lost sight of the vehicle? AR — T'lost signe of the vehicle fora few seconds. © And when you caught up with the vehicle, was it ®_As T caught up with the vehicle, it was the sane as this. there were several other vehicles’ that were parked.” The bead iights were still on in the vehicle, and the river was still seated in the driver's seat. A” " Gn, right then and there 1 gave a -- T looked I put on my fis0d lights, overhead lights.” And also there's 2 house right here, so 1 turned on my side lights right here for safety. . 10 ‘S+APOR PUBLICATION IN WEST’ S HAWAI'T REPORTS AND PACIFIC REPORTERS** ‘K.stood ciaht outside the open door {of py sehicie) and) in! for auite-a fon sinutes I micht have been inbetween (inaudible), As _(Reapondent) exited the vehicle. SRGESER door he suited the vehicle: ie came around to" sop-auite a few tines. 2" So was your Light on, your Lights on? K Uh, "yess The Back ones are. What I do is (inaudible) heavy metal Lights are flashing (inaudible) Bnd I (inaudible) right here because 1 have flood Lights on. a Did the food Lights provide you with sufficient Lights to see = 2.” ” iipen the (Respondent) was in his car did you get a look at him? B Yes, T aid. @ __And'when the (Respondent) exited his car did you get a look at nim then? x" Nes, 1 did. 2nd’ approxinately how far avay were you from the Respondent}? A Uh, approximately 25 fect Q When you called Gut to che [Respondent], what dig [Respondent] do? “Nothing. He just closed his door. He walked straight over here kind of like a carport area, covered Fight here. He walked up to the front door. there were Lignte in the house. We then opened the door. T called out Police. Stop. Police. Stop. Police © Were you walking towards him when you sald thet ‘A I wag walking, yee. T was right here. 0h, the individual entered the house, closed the door. Officer Moy pulled up. “I saw his headlights and his cruise lights. Eng, why i ran up to the door, knocked on the door, and 1 was there for approximately five minutes tapping on the indow and the door. And the lights were still out. o'” “All right. So vou were calling out to tne defendant and sold nin to ston? a Yes Q All right. Did he took at you? ° ‘didn't respond 2 A Me Q — Were you able to see his face? @ Dia’ you nave a R Yes, T did. He was staring at the house, fis body was very rigid, and his eyes appeared very glassy. And he was, like, staring st the house, walked straight from his Cars ie Just walked ina straight Line (inaudible) - Q 'Ang then what happened when the (Respondent) ‘entered nie home? A” T knocked on the door. No one came out. My sergeont, my supervisor, cane to the scene. n ‘S447OR PUBLICATION IN WEST'S HAMAI'T REFORTS AND PACIFIC REPORTER**# A" 2. . 1 was instructed by ay supervisor Sergeant Dowkin to cite for reckless =~ after I advised him, to cite for reckless driving and so insurance. (Bmphases added.) Petitioner asserts that Respondent “exhibited consciousness of his guilt by his refusal to stop, when (the o}fficer . . . pursued him with sirens blaring and lights flashing.” vr. In his Opening Brief on appeal, Respondent asserted that to be convicted of reckless driving, his conduct must have created “a high probability” of the prescribed harm. By definition, the degree of risk of harm posed by the actor ast arise to’ aubstantial righ, such that disregard of the Fisk anounts toa gross deviation from the orginary standard Gf care. Evidence based serely upon speculation, or which establishes the possibility that the harm sought to be Prevented would occur, does not suffice as proof of a Substantial risk, Gvidence of a substantial risk requires proof chat the actor's conduct erestes 2 high probability. Ehat such harm would occur (Emphases in original.) To support his argument, Respondent cites Commonwealth v, Bullick, &30 A.2d 998 (Pi 2003), in which the Pennsylvania Superior Court considered the Super. Ct. state of mind requisite to conviction of reckless driving in willful or wanton disregard of safety of persons or property” synonymous with the definition of recklessness based on “conscious disregard of substantial and unjustifiable risk.” Id. at 1002. In that case, it was determined thet the uns Len necessary to support the offense of reckle; Griving iss eatiresene shat (the driver) drove sn suche sasner That there existed » substantial risk that injury woald renal Hem hls deivingy tier, a high peabebiiity that & motor vehicle “ident would result fren driving in that manner, chat be wae ‘Stare of that risk and yer continved to drive in such a manner, Sn 12 [FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER*** essence, callovsly disregarding the risk he was creating by his town reckless driving Id. at 1003. Respondent maintained that, “[w]hile the record shows that (Respondent’s] driving may have posed some degree of risk of harm to others, it cannot be concluded that there was a high probability of such a risk.” He, however, summarizes the circumstances surrounding his alleged conduct as follow: officer Krekel's testimony in the light most favorable to fellewing Felevant conditions exiting the tunnel. 2) Traffic was very iight. When Géticer Krekel #irct cited Respondent], his was the Vehicle inthe left lane of the freeway. Officer Ki Gcccribed' [Respondent] passing Less then half a dozen cther Sutomobiles. ea Tins ak ‘Lines_iuice to bass other vehicles, (51 Respondent swerved ‘into-an “ensoning 1anev-at high speed, end (6) Respondent) Sisteaarded two efop sions. (Emphasis added.) Respondent argues that: The circumstances described by Officer Krekel -- the very light traffic and the early morning hour, show that although [Respondent] committed # number [of] traffic Infractions, there was no evidence that any othex persons ved bi e Ofticer Kreker tostified Efst Inespondent] execored quick lane changes to pass other Vehicles traveling in the same direction. However, there is hho evidence that these maneuvers in any way impeded or Thterrupted the forward movement of the other cars. There ie no evigence that (Respondent) drove too close to the ‘other cars, oF cut them off, or caused then to brake or Swerve. There is no evidence that (Respondent's) driving in any way impacted the other vehicles on the road. ne tame is true of the other instances of lane changes on the Kahekils [H)ighvay and disregarding the stop Signs, Where there are no other vehicles or persons in the Area. such consust dose not creste 2 substantial risk, or bich‘Grobebilicy. of harm or intury. (Emphases added.) The standard of a “high probability” of risk of an accident is not contained in HRS § 291-2 and, thus, is not binding in this jurisdiction, Nevertheless, the definition of 3 ‘*47OR PUBLICATION IN WEST’ § HAKAI'T REPORTS AND PACIFIC REPORTER*: reckless conduct as set forth in HRS § 702-206 is similar. In that regard, the “reckless” standard is not to be indiscriminately applied, for “the conscious disregard of every risk of harm to @ protected social interest should not, in every instance, be sufficient to impose penal liability for an untoward eventuality.” Commentary on HRS § 702-206. The probable Likelihood of an accident paradigm, however, is embodied in the requirement under HRS § 702-206(3) that the culpable risk is one that must be “substantial and unjustifiable.” In assessing whether an identified risk meets these criteria, the Commentary on HRS § 702-206 “points expressly to the factors to be weighed in judgment: the nature and degree of the risk disregarded by the actor, the nature and purpose of his conduct and the circunstances known to him in acting.” (Citation omitted.) Hence, the “substantial and unjustifiable” standard is essentially equivalent to the high probability standard and the governing statute establishes the factors to be applied in arriving at the relevant conclusion. vit. The circumstances surrounding Respondent's alleged conduct indicate that Officer Krekel observed Respondent traveling at 80 mph in a $5 mph zone, that Respondent passed about six other vehicles, changed lanes twice to pass the other Vehicles, swerved into an oncoming lane at a high speed, and disregarded two stop signs. On the face of it Respondent's own rendition of his conduct emphasized above, indicates evidence of 4  FOR PUBLICATION IN WEST’ S HAMAI'T REPORTS AND PACIFIC REPORTER**+ acts which, taken together, would enable a reasonably cautious person to believe the safety of other persons and property then on the highway was put at “substantial and unjustifiable risk.” HRS § 702-206(3). Thus, taking the evidence in the strongest Light for the Petitioner, the evidence was of sufficient quality and probity to enable a reasonably cautious person to conclude that Respondent disregarded the safety of persons or property, Bul, 104 Hawai'i at 467, 92 P.3d at 476 (citations omitted), and that such circumstances, Eastman, 61 Hawai'i at 141, 913 P.2d at 67, reasonably demonstrate that Respondent's disregard of the risk to oth was conscious and “involve[é) a gross deviation from the standard of conduct that a law abiding person would observe in the same situation," HRS § 702-206(3) (4). Moreover, deference must be given to the court, which was the trier of fact, with respect to questions of credibility and weight of the evidence. In re Doe, 107 Hawai'i at 19, 108 P.3d at 973. In reversing the court it does not appear that the ICA applied the foregoing governing standards. [As to the reckless component of the charge, Petitioner contends, Se Ligtle doubt that a Law abiding person would gnize thet possible repercussions of traveling at 60 mph he high ent should [Ret ‘Similarly, such @ citizen could Sscertein that hanain i Yebicle (Gr any vehicle’ while simJtansously excesdina the [need Linit would eoteil-e sarkedly higher risk of accident Biiniury, Such actions singly, but certainly in Etmbinatign involve a gross deviation from the standard of Gare that 2 normal law abiding person would observe in the Sone situation: 8 added.) 15  vitr. Therefore, the August 15, 2006 SDO of the ICA is reversed and the January 21, 2005 judgment of the court is of times. s Anne K. Clarkin, Deputy : Prosecuting Atcorney, heca flor nse City « county of Honolulu, Petitioner/Plaintift- Appellee State of Hawas"t = Deborah L. Kim, Deputy ere Public Defender, on the response for Vanen «rds re Respondent /Defendant~ Appellant Louis Kruse Agard IV. 16 

bb21e0c9873d6dfb7f47dafbf631f5489226ec70b27a9b60b410ba6a4b5c5882

2007-01-23T00:00:00Z

09f1bf58-d538-4507-939d-48ec87a65216

Thomas v Takabayashi

hawaii

Hawaii Supreme Court

Law upRaey No. 27553 IN THE SUPREME COURT OF THE STATE OF HAWAI'I TARA THOMAS, Plaintiff-Appellant-Petitioner vs. MONICA TAKABAYASHI, Defendant-Appellee-Respondent CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (Civ. No. 3-1-0200) (By: Levinson, J., for the court) upon consideration of the application for a writ of certiorari filed on January 16, °2007 by the plaintift-appellant- petitioner Tara Thomas, the application is hereby rejected. DATED: Honolulu, Hawai'i, February 6, 2007 FOR THE COUR STEVEN . LEVINSON Associate Justice Steven D. Strauss, attorney for plaintiff- appellant-petitioner, ‘Tara Thomas, on the application, 11:8 WY 9- 34 L002 aa Considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 99. 

301ec522fc7a2787c3d6b48df23e10ce84c416f06d2d7a3117e644ba73494cb6

2007-02-06T00:00:00Z