Hawaii Appellate Opinions

FONG v. OH

November 30, 2007 (No. 27635)

Opinion [pdf]

OPINION OF THE COURT BY DUFFY, J.

Petitioners Semin Oh and Myung Hui Oh seek review of the Intermediate Court of Appeals' (ICA) November 16, 2006 judgment affirming the November 2, 2005 judgment of the circuit court of the first circuit.  We accepted the Oh's application for a writ of certiorari and oral argument was held on August 15, 2007.

The Ohs assert that the ICA gravely erred in vacating in part and affirming in part the circuit court's judgment in favor of Respondent/Plaintiff/Counterclaim Defendant-Appellee Connie Fong and Respondent/Third-Party Defendant-Appellee Keith Kiuchi.  With respect to Fong, the Ohs assert that the ICA mistakenly held that the anti-fraud provisions of Hawai'i Revised Statutes (HRS) chapter 485, known as the Uniform Securities Act, do not apply to transactions in which "a party sells all, as opposed to only a portion, of the stock of a corporation."  With respect to Kiuchi, the Ohs assert the ICA was mistaken in its ruling that an escrow agent's duty of disclosure is limited to agreements or instructions imposing such a duty, and that there was no evidence of any such agreement or instructions in this case..  Because we do not believe the ICA's conclusion with respect to Kiuchi was in error, we focus on the Ohs' HRS § 485-25 claim.

Based on the following, we vacate the ICA's judgment in part and remand to the circuit court on the Ohs' counterclaim with respect to HRS § 485-25, and affirm the judgment of the ICA in all other respects.  [footnote omitted]

STATE OF HAWAI'I v. PLICHTA

November 30, 2007 (No. 27294)

Opinion [pdf]

OPINION OF THE COURT BY LEVINSON, J.

We accepted the plaintiff-appellant-petitioner James George Plichta's application for a writ of certiorari in order to review the summary disposition order (SDO) of the Intermediate Court of Appeals (ICA) in State v. Plichta, No. 27294 (Haw. Ct. App. Nov. 30, 2006).  The ICA affirmed the judgment of the first circuit court, the Honorable Karl K. Sakamoto presiding, convicting Plichta of first degree unauthorized entry into a motor vehicle, in violation of Hawai'i Revised Statutes (HRS) § 708-836.5 (Supp. 1996) (Counts I & III), robbery in the first degree, in violation of HRS § 708-840(1)(b)(ii) (Supp. 1998) (Count II), robbery in the second degree, in violation of HRS § 708-841(1)(a) (1993) (Count IV), unauthorized control of a propelled vehicle, in violation of HRS § 708-836 (1993 & Supp. 2001) (Count V), and first degree assault against a law enforcement officer, in violation of HRS § 707-712.5(a)(a) (2003 Supp.) (Counts VII & VIII), all arising out of incidents occurring on August 1, 2003. 

. . .

Accordingly, the ICA committed no grave error in affirming the circuit court's April 12, 2005 judgment. [footnotes omitted]

Dissenting Opinion by Acoba, J., joined by Duffy, J. [pdf]

COULTER v. STATE

November 30, 2007 (No. 27025)

Opinion [pdf]

OPINION OF THE COURT BY DUFFY, J.

Petitioner Michael Edward Coulter seeks review of the Intermediate Court of Appeals' (ICA) January 22, 2007 judgment, which affirmed the circuit court of the first circuit's November 29, 2004 Findings of Fact, Conclusion of Law, and Order Denying Petition for Post-Conviction Relief.  We accepted Coulter's application for a writ of certiorari and vacate the judgment of the ICA.  [footnote omitted]

HAWAII VENTURES, LLC v. OTAKA, INC.

November 23, 2007 (amended opinion) (No. 25344)

Opinion [pdf]

AMENDED OPINION OF THE COURT BY MOON, C.J.

On June 19, 2007, receiver-appellee/cross-appellee Patricia Kim Park [hereinafter, the Receiver of Receiver Park] timely filed a request for reimbursement of fees and costs incurred by her and her retained professionals on appeal in this foreclosure/receivership case.  For the reasons discussed herein, we grant in part and deny in part Receiver Park's request for fees and costs. [footnotes omitted]

STATE v. HOLT

November 21, 2007 (No. 27924)

Opinion [pdf]

OPINION OF THE COURT BY WATANABE, J.

Defendant-Appellant Duke W. Holt (Holt or Mr. Holt) appeals from the Judgment entered by the Circuit Court of the First Circuit (the circuit court) on April 27, 2006, convicting and sentencing him for Harassment by Stalking, in violation of Hawaii Revised Statutes (HRS) § 711-1106.5(1) (Supp. 2006).  We vacate the sentence portion of the Judgment and remand for resentencing. [footnotes omitted]

EXOTICS HAWAII-KONA, INC. v. E.I. DU PONT DE NEMOURS & COMPANY

November 21, 2007 (No. 27489)

Opinion [pdf]

OPINION OF THE COURT BY MOON, C.J.

The instant action arises from product liability cases initiated by the plaintiffs-appellants/cross-appellees Albert Isa dba Albert Isa Nursery (Isa), Samuel H. Taka and Sylvia A. Taka dba S. Taka (the Takas), Mark Willman dba Hawai'i Orchids (Willman), and James McCulley [hereinafter, collectively, the plaintiffs] in 1992 and 1993 against, inter alia, the defedant-appellee/cross-appellant E.I. du Pont de Nemours and Company (DuPont), alleging that contaminated Benlate, an agricultural fungicide manufactured by DuPont, had killed or damaged their plants and nurseries.  Between 1994 and 1995, the plaintiffs settled their product liability cases.  In 2000, the plaintiffs commenced the instant action against, inter alia, DuPont, alleging that only after settling their claims did they discover that DuPont had improperly failed to reveal certain vital scientific data and information indicating that Benlate was contaminated.  As such, the plaintiffs believed that DuPont was guilty of fraudulently withholding such evidence in order to induce them to settle for less than the fair value of their claims.

In three summary judgment orders, the Circuit Court of the Third Circuit, the Honorable Ronald J. Ibarra presiding, found in favor of DuPont on all of the plaintiffs' claims.  Significantly, the circuit court, without determining whether DuPont indeed committed fraud, found as a matter of law that the plaintiffs could not meet their burden of proving damages.   According to the circuit court, the damages available to the plaintiffs was "the fair compromise value of the claim at the time of settlement."  A judgment, pursuant to Hawai'i Rules of Civil Procedure (HRCP) Rule 54(b) (2007), in favor of DuPont was entered on August 10, 2005.

The plaintiffs appeal -- and DuPont cross appeals -- from the HRCP Rule 54(b) judgment.  The plaintiffs challenge, inter alia, the circuit court's order granting summary judgment on the basis that they were unable to prove damages.  Although DuPont's position is that the HRCP Rule 54(b) judgment should be upheld, it cross appeals in apparent recognition of the possibility that this court may not agree with its position, challenging another order granting in part and denying in part DuPont's motion for summary judgment, discussed infra.

For the reasons stated herein, we hold that the circuit court properly granted summary judgment in favor of DuPont on the basis that the plaintiffs could not, as a matter of law, prove damages and, therefore, affirm the circuit court's August 10, 2005 judgment.  [footnotes omitted]

Dissenting opinion by Acoba, J. [pdf]

STATE v. OWENS

November 19, 2007 (No. 27714)

Opinion [pdf]

OPINION OF THE COURT BY ACOBA, J.

Petitioner/Defendant-Appellant Charlie Owens, Jr. (Petitioner) filed an application for writ of certiorari on July 12, 2007, requesting that this court review the April 13, 2007 judgment of the Intermediate Court of Appeals (the ICA), issued pursuant to its February 5, 2007 opinion that affirmed the December 20, 2005 Revocation of Probation; Order of Resentencing of the Family Court of the First Circuit (the court), and its January 10 2006 Findings of Fact, Conclusions of Law, and Order Denying Defendant's Motion to Dismiss for Violation of Hawai'i Rules of Penal Procedure (HRPP) Rule 9, except that Conclusions of Law Nos. 1, 2, 4, and 5 were vacated because they were wrong.  State v. Owens, 113 Hawai'i 472, 477, 155 P.2d 655, 660 (App. 2007).   Petitioner's application was accepted on August 10, 2007, and oral argument was heard on October 31, 2007.

. . . .

We hold, respectfully, that the ICA's April 13, 2007 judgment issued pursuant to its February 5, 2007 opinion is reversed, because (1) HRPP Rule 9 requires Respondent to serve warrants in both pre-conviction and post-conviction contexts without unnecessary delay, (2) Respondent's delay of nearly five years in serving Petitioner with a bench warrant for his arrest amounted to an unnecessary delay under HRPP Rule 9 where Petitioner was available for service in the jurisdiction of this state over the period of  non-service, there was no evidence that Petitioner intentionally avoided service, and there was no evidence that attempts had been made by Respondent to serve Petitioner over the nearly five-year period, and (3) Respondent's duty to comply with HRPP Rule 9 in the service of the bench warrant is not excused by Petitioner's failure to obey a court order that resulted from the issuance of the bench warrant.  [footnotes omitted].

STATE v. BELTRAN

November 16, 2007 (No. 26096)

Opinion [pdf]

OPINION OF THE COURT BY ACOBA, J.

Petitioner/Defendant-Appellant Marie Beltran (Petitioner) filed an application for writ of certiorari on July 31, 2007, requesting that this court review the judgment of the Intermediate Court of Appeals (the ICA) filed on May 3, 2007, pursuant to its April 5, 2007 published opinion vacating the November 10, 2003 judgment of the district court of the first circuit (the court) convicting Petitioner of Camping Without a Permit, and remanding the case to the court to determine the classification of the offense with which Petitioner was charged. State v. Keawemauhili, 114 Hawai‘i 100, 122, 157 P.3d 539, 561 (App. 2007). According to the ICA, the camping regulation involved was not constitutionally overbroad or vague and the offense is one of absolute or strict liability under Hawai‘i Revised Statutes (HRS) § 702-213 (1993). Id. at 118, 121, 122, 157 P.3d at 557, 560, 561. The ICA ordered that if the charge against Petitioner did not allege a negligent state of mind element, the court shall enter judgment for camping without a permit as a civil violation under HRS § 702-213(1). Id. at 118, 157 P.3d at 557. If, however, the charge included a negligent or higher state of mind, the court shall enter judgment as a criminal petty misdemeanor offense of camping without a permit under HRS § 702-213(2). Id. at 122, 157 P.3d at 561. We hold that the camping regulation involved is overbroad and vague and with all due respect, reverse the ICA's May 3, 2007 judgment and the November 10, 2003 judgment of the court.  [footnotes omitted]

JOU v. DAI-TOKYO ROYAL STATE INSURANCE COMPANY

November 16, 2007 (No. 26310)

Opinion [pdf]

OPINION OF THE COURT BY NAKAYAMA, J.

Plaintiff-Appellant, Emerson M.F. Jou, M.D. ("Jou"), appeals from the first circuit court's December 17, 2003 judgment in favor of Defendant-Appellant, Dai-Tokyo Royal State Insurance Company, Limited ("DTRIC") and Lawrence E. Reifurth in his capacity as the director of the Department of Commerce and Consumer Affairs ("DCCA"), State of Hawai'i ("the director").  On appeal, Jou presents the following points of error: (1) the circuit court reversibly erred by denying his motion for recusal; (2) the circuit court reversibly erred by denying his oral motion for an interlocutory appeal from the denial of his motion for recusal; (3) the circuit court reversibly erred by denying his request to amend the complaint; (4) the circuit court erroneously granted summary judgment in favor of the director inasmuch as his declaration in support of summary judgment was insufficient; (5) the circuit court erred by granting DTRIC's motion to dismiss, or for summary judgment, inasmuch as "[t]he court was violating state law [sic] of equitable tolling, the right to sue insurers in tort notwithstanding administrative proceedings, and settled law of third party beneficiaries[]"; (6) the foregoing errors violated his constitutional rights to equal protection and due process of law under the state and federal constitutions; and (7) "[t]he first circuit, by repeatedly assigning [J]udge Hifo to Appellant's case is creating a 'conduit court' bent on damaging Dr. Jou as much as possible on his way to the appellate court."  Also before this court is a motion for damages and costs filed by the director, pursuant to Hawai'i Rules of Appellate Procedure ("HRAP") Rule 38, asserting that Jou filed a frivolous appeal.

for the following reasons, we conclude that Jou's points of error are without merit.  However, we disagree with the director that Jou's appeal is frivolous.  Accordingly, we affirm the judgment appealed from and deny the director's motion for damages and costs. [footnotes omitted]

Acoba, J., concurs in the result only.

OMEROD v. HEIRS OF KAHEANANUI

November 15, 2007 (No. 27118)

Opinion [pdf]

OPINION OF THE COURT BY ACOBA, J.

This appeal arises from a quiet title action filed in the the circuit court of the third circuit (the court) involving numerous parties and several dispositions.  To summarize, Appellants claim an undivided one-half interest in the ahupua'a of Hilea Nui under the theory that Prince Lot Kamehameha (Lot) and Chief Leleiohoku (Leleiohoku) were granted a cotenancy in a single ahupua'a known as "Hilea" at the time of the Great Mahele, as opposed to receiving grants in fee simply of two separate ahupua'as, Hilea Iki and Hilea Nui.  They contend that Hilea Iki and Hilea Nui actually represent 'ilis, or administrative divisions, of the single ahupua'a of Hilea.  Appellants further maintain that the cotenancy created between Lot and Leleiohoku continues to the present, between Appellants (Lot's successors in interest) and Appellees (Leleiohoku's successors in interest).

On the other hand, the essence of Appellees' argument is that the Boundary Commission of the Kingdom of Hawai'i determined the relative boundaries of Hilea Iki and Hilea Nui in 1877, defining them as two adjacent ahupua'as owned in fee simple, and that the Boundary Commission's judgment cannot be collaterally attacked by Appellants.

For the reasons stated herein, we affirm the (1) November 30, 2004 Hawai'i Rules of Civil Procedure (HRCP) Rule 54(b) Partial Final Judgment (rule 54(b) Judgment), (2) February 2, 2005 Order Denying (a) Omerod Appellants' Motion to Alter or Amend Judgment Pursuant to HRCP Rules 59(e) (2007) and 60(b)(2) (2007) and (b) Kaheananui Appellants' Motion to Alter or Amend Judgment Pursuant to HRCP Rules 59(e) and 60(b)(2), All Supplements Thereto and All Joinders Thereto (February 4, 2005 Order); (3) July 7, 2005 Order Denying Defendant C. Brewer's Motion to Quash Subpoena Issued to John Cross (July 7, 2005 Order); and (4) July 8, 2005 Order Denying Plaintiffs' Motion for Relief from Judgment Pursuant to HRCP Rule 60() (2007) and For Sanctions (July 8, 2005 Order). [footnotes omitted]

Levinson, J., concurs in the result only.