Hawaii Appellate Opinions

IN RE: INTEREST OF "A" CHILDREN" N.A., M.A. (1), M.A.(2), AND L.A.

Nos. 28129 and 28130 (July 31, 2008)

Opinion [pdf]

OPINION OF THE COURT BY WATANABE, PRESIDING J.

This consolidated appeal arises from two cases in the Family Court of the First Circuit (family court) that culminated on August 14, 2006 with orders (August 14, 2006 Orders) that (1) divested Father-Appellant (Father) of his parental and custodial rights in J.A. and L.A. (collectively, Sons), his biological sons with Mother-Appellant (Mother), and awarded permanent custody over Sons to the Director of the Department of Human Services, State of Hawaii (DHS); and (2) divested Mother of her parental and custodial rights in Sons, as well as N.A., M.A. (1), and M.A.(2) (collectively, Triplets), her three daughters with a man who died in August 2002 (Deceased Husband), and awarded permanent custody over Sons and Triplets (collectively, Children) to DHS.

We affirm the August 14, 2006 Orders as to Mother.  However, we hold that Father was denied his right to due process of law, as guaranteed by the Fourteenth Amendment to the United States Constitution, when he was not provided with appointed counsel until sixteen days prior to the trial on DHS's motion for permanent custody.  Accordingly, we vacate the August 14, 2006 Orders as to Father and remand for further proceedings consistent with this opinion. [footnotes omitted]

E & J LOUNGE OPERATING COMPANY, INC. v. LIQUOR COMMISSION OF THE CITY AND COUNTY OF HONOLULU

No. 27940 (July 29, 2008)

Opinion [pdf]

OPINION OF THE COURT BY ACOBA, J.

Petitioner/Appellant-Appellee/Cross-Appellee E & J Lounge Operating Company, Inc., a Hawai'i corporation (Petitioner), seeks review of the judgment of the Intermediate Court of Appeals (the ICA) filed on January 8, 2008, pursuant to its December 24, 2007 published opinion vacating the April 20, 2006 (1) Findings of Fact (FOF), Conclusions of Law (COL) and Decision and Order and (2) the Judgment of the Circuit Court of the First Circuit (the court), and remanding the case to the court to determine Petitioner's appeal on the merits.  See E & J Lounge Operating Co. v. Liquor Comm'n, City & County of Honolulu, 116 Hawai'1 428, 556, 174 P.3d 367, 395 (App. 2007). 

We hold that (1) public hearings on liquor license applications held by the liquor commission are contested case hearings such that Hawai'i Revised Statutes (HRS) § 91-11 (1993) requires any commissioner who is not present at any stage of the public hearing to become familiar with the record before voting on a liquor license application, unless the application is automatically rejected pursuant to HRS § 281-59(a) (2007), (2) Respondent/Appellee-Appellant/Cross-Appellee Liquor Commission of the City & County of Honolulu (the Commission) did not comply with HRS § 91-11 in this case, (3) HRS § 91-13.5 (Supp. 2004) does not require automatic approval of Petitioner's liquor license application, and (4) the court's finding, that it is unclear from the present state of the record whether the Commission complied with the notice requirements of HRS § 281-57 (Supp. 2006), because it was not challenged on secondary appeal to the ICA or this court, is affirmed. 

PETERS v. AIPA

No. 27700 (July 14, 2008)

Opinion [pdf]

OPINION OF THE COURT BY LEONARD, J.

Defendant-Appellant Nathan T.K. Aipa (Aipa) appeals from an order denying Aipa's motion for summary judgment, or in the alternative, to compel arbitration (Order), regarding claims brought by him by Plaintiff-Appellee Henry Haalilio Peters (Peters) for alleged breaches of attorney-client confidentiality in conjunction with certain grand jury testimony given by Aipa.  The Order was filed on December 7, 2005, in the Circuit Court of the First Circuit (Circuit Court).

Aipa argues the Circuit Court erred when it denied his motion seeking either summary judgment in his favor or, in the alternative, to compel arbitration because Peters allegedly released Aipa from liability and agreed to arbitrate disputes regarding the release when Peters entered into a broad settlement agreement with, inter alia, the Attorney General of Hawai'i (AG), Kamehameha Schools Bishop Estate (KSBE), KSBE's interim trusteees, and Peters's (former) co-trustees for KSBE.

. . . .

For the reasons set forth above, we vacate the Circuit Court's Order as to the denial of Aipa's request to compel arbitration, dismiss this appeal, without prejudice, as to the denial of summary judgment, and remand this case to the Circuit Court for further proceedings consistent with this Opinion. [footnote omitted]

GUAJARDO v. AIG HAWAII INSURANCE COMPANY, INC.

No. 27893 (July 8, 2008)

Opinion [pdf]

OPINION OF THE COURT BY LEVINSON, J.

On February 11, 2008, the plaintiff-appellants/cross-appellees-petitioners Bang Ja Guajardo (Mrs. Guajardo) and Richard Guajardo (Mr. Guajardo) (collectively, the Guajardos) filed an application for a writ of certiorari, urging this court to review the summary disposition order (SDO) of the Intermediate Court of Appeals (ICA) in Guajardo v. AIG Hawaii Insurance Co., No. 27893 (Hawai'i Ct. App. Oct. 25, 2007).  They argue that the ICA gravely erred in concluding (1) that the defendant-appellee/cross-appellant-respondent AIG Hawaii Insurance Company, Inc. (AIG) did not definitely deny the Guajardos' request for consent to their settlement with the third-party tortfeasor, Gary Senaga (Senaga), who injured Mrs. Guajardo, (2) that the first circuit court, the Honorable Bert J. Ayabe presiding, correctly ruled that AIG did not misrepresent the terms of its insurance policy to them in response to their claim for underinsured motorist (UIM) benefits, (3) that, even if AIG misrepresented the terms of the policy, the misrepresentation did not prejudice the Guajardos, (4) that AIG was not subject to a duty to conduct an independent investigation into Senaga's assets, (5) that the circuit court correctly granted summary judgment in favor of AIG, because the ICA misstated the standard of review of summary judgments and because the reasonableness of AIG's handling of the Guajardos' claim remains a genuine issue of material fact, and (6) that the circuit court correctly declined to grant the Guajardos' request to conduct further discovery pursuant to Hawai'i Rules of Civil Procedure (HRCP) Rule 56(f).

We hold that the ICA erred in affirming the circuit court's grant of partial summary judgment in AIG's favor and against the Guajardos with respect to the Guajardos' bad faith claim and in concluding, as a matter of law, that any unreasonable interpretation of the Guajardos' policy by AIG did not prejudice them.  Accordingly, we vacate the circuit court's judgment and remand this case to the circuit court for further proceedings consistent with this opinion. [footnote omitted].

Concurring opinion by Acoba, J. [pdf]

DOE v. DOE

No. 27940 (June 30, 2008)

Opinion [pdf]

OPINION OF THE COURT BY FOLEY, J.

This appeal arises out of a divorce proceeding in the Family Court of the First Circuit (family court) between Defendant-Appellant Jane Doe (Defendant or Mother) and Plaintiff-Appellee John Doe (Plaintiff or Father) and custody issues involving the daughter (Daughter) of Mother and Father.  Mother appeal from the following two orders:

. . . .

On appeal, Mother argues that the family court erred by denying her Motion for Partial Reconsideration and, therefore, the family court's FOFs 51 and 52 are erroneous and its COLs 28 and 29 are wrong for the following reasons:

. . . .

The [Orders] are reversed with respect to the family court's findings and conclusions that Mother acted as a team parent and the family court's restrictions on Mother's access to the record in the instant case.  We affirm the two orders in all other respects.   [footnote omitted]

RAPOZO v. BETTER HEARING OF HAWAII, LLC

No. 27602 (June 26, 2008)

Opinion [pdf]

OPINION OF THE COURT BY LEONARD, J.

Defendant-Appellant Better Hearing of Hawai‘i, LLC (Better Hearing), appeals from the Judgment of the District Court of the Fifth Circuit (District Court), in favor of Plaintiff-Appellee Mervyn Rapozo (Rapozo) and against Better Hearing, entered on November 11, 2005.

In February of 2004, Rapozo purchased hearing aids from Better Hearing which he alleged did not work properly. Approximately seven months after they were purchased, Rapozo attempted to return the hearing aids, requesting a full refund. Better Hearing refused to refund the purchase price.

On July 13, 2005, Rapozo filed a Complaint alleging that: (1) the hearing aids came with a one-year guarantee; (2) Rapozo returned the hearing aids for repair at least five times within the one-year period; (3) the hearing aids were out of service for over thirty days; (4) Better Hearing failed to comply with Hawaii Revised Statutes (HRS) § 481K-3 (Supp. 2007) (2) when it failed to accept the return of the hearing aids and make a refund; and (5) therefore, pursuant to HRS § 481K-5 (Supp. 2007), Rapoza was entitled to recover twice the amount of his pecuniary loss, costs, disbursements, and reasonable attorney's fees. After a one-day bench trial, judgment was entered in favor of Rapozo and against Better Hearing in the amount of $8,610.66, together with costs and reasonable attorney's fees. On appeal, Better Hearing contends, on several grounds, that Rapozo was not entitled to a refund under Hawai‘i's Assistive Technology Warranty Act, HRS Chapter 481K (Supp. 2007). For the reasons set forth below, we agree.  [footnote omitted]

ALLSTATE INSURANCE COMPANY v. PRUETT

No. 26830 (June 25, 2008)

Opinion [pdf]

OPINION OF THE COURT BY NAKAYAMA, J.

Defendants-Appellants, Third-Party Plaintiffs-Appellants, Cross-Appellees, Pearl Pruett, Ikaika Pruett, and Meredith Pruett (collectively, "the Pruetts"), appeal from the Circuit Court of the First Circuit's ("circuit court's") October 18, 2004 final judgment partially in favor of Plaintiff-Appellee, Cross-Appellee, Allstate Insurance Company ("Allstate"). On appeal, the Pruetts assert that the circuit court erred when it determined that Allstate was not obligated to defend or indemnify Pearl and Ikaika Pruett under Allstate's homeowner's insurance policy naming Pearl Pruett as the named insured.

Both Allstate and Third-Party Defendant-Appellee, Cross-Appellant, AIG Hawaii Insurance Company ("AIG") (collectively, "the Insurers"), appeal from the circuit court's October 18, 2004 final judgment partially in favor of the Pruetts. On appeal, the Insurers present the following points of error: (1) the circuit court erred when it held that the Pruetts were entitled to coverage under the Insurers' automobile insurance policies; (2) the circuit court erred when it determined that the phrase "any person" as used in the automobile insurance policies was ambiguous; and (3) the circuit court erred when it determined that the Pruetts were entitled to recover costs and attorney's fees against the Insurers.

For the following reasons, we hold that the circuit court: (1) did not err when it determined that liability coverage was afforded to Meredith Pruett and Ikaika Pruett pursuant to the terms of AIG's automobile insurance policy, inasmuch as the manner in which the term "any person" was used in AIG's policy was ambiguous; (2) did not err when it determined that Personal Injury Protection ("PIP") coverage was afforded to Ikaika Pruett pursuant to the terms of Allstate's automobile insurance policy, inasmuch as the manner in which the term "any person" was used in Allstate's policy was ambiguous; (3) erred when it determined that Pearl Pruett and Ikaika Pruett were afforded liability coverage under Allstate's automobile insurance policy because any claim arising from the automobile accident would not arise out of the use of an "insured auto"; (4) abused its discretion in awarding costs and attorney's fees to the Pruetts because the circuit court did not order the Insurers to "pay benefits"; and (5) did not err when it determined that the Pruetts were excluded from coverage under the terms of Allstate's homeowner's insurance policy. Accordingly, we affirm in part and reverse in part the circuit court's October 18, 2004 final judgment. [footnote omitted]

Concurring and dissenting opinion by Acoba, J. [pdf]

CAPUA v. WAYERHAEUSER COMPANY

No 26369 (May 27, 2008)

Opinion [pdf]

OPINION OF THE COURT BY MOON, C.J.

On February 27, 2008, this court accepted a timely application for a writ of certiorari, filed by petitioner/claimant-appellant Lani Capua on January 24, 2008, requesting this court review the Intermediate Court of Appeals' (ICA) October 26, 2007 judgment on appeal, entered pursuant to its September 27, 2007 summary disposition order (SDO).  Therein, the ICA affirmed the December 20, 2003 decision and order of the Labor and Industrial Relations Appeals Board (LIRAB), which, in turn, affirmed the decision of the director of the Department of Labor and Industrial Relations (director).  Both the LIRAB and the director determined that, inasmuch as Capua was previously awarded permanent partial disability (PPD) benefits, she was barred from receiving vocational rehabilitation (VR) services under Hawai'i Administrative Rules (HAR) § 12-14-36 (governing waiver of VR services under certain circumstances).  Oral argument was held on April 17, 2008.

On application, Capua challenges -- as she did before the ICA -- the LIRAB's denial of VR services to her, arguing that HAR § 12-14-36 is inconsistent with Hawai'i Revised Statutes (HRS) § 386-25 (1993) (governing an employee's eligibility for VR services).  Based on the discussion infra, we hold that the director exceeded his statutorily designated authority in promulgating HAR § 12-14-36 and, thus, the ICA erred in affirming the LIRAB's December 20, 2003 decision and order.  Accordingly, we vacate the ICA's October 26, 2007 judgment on appeal and the LIRAB's December 30, 2003 decision and order and remand this case to the director with instructions to provide Capua with VR services, if she so desires at this time.

Concurring opinion of Acoba, J., with whom Nakayama, J., joins [pdf]

OHANA PALE KE AO v. BOARD OF AGRICULTURE, STATE OF HAWAI'I

No 27855 (May 21, 2008)

Opinion [pdf]

OPINION OF THE COURT BY WATANABE, PRESIDING J.

The Board of Agriculture (the Board) of the State of Hawai'i (the State) appeals from: (1) the judgment entered by the Circuit Court of the Third Circuit (the circuit court) on March 3, 2006 in favor of 'Ohana Pale Ke Ao; Kohanaiki 'Ohana; GMO-Free Hawai'i; and Sierra Club, Hawai'i Chapter (Plaintiffs); and (2) the order granting Plaintiffs' motion for summary judgment and denying the Board's motion to dismiss or for summary judgment entered on December 16, 2005.

This appeal presents two issues: (1) whether the Board was required to comply with the Hawaii Environmental Policy Act (HEPA), Hawaii Revised Statutes (HRS) chapter 343, before approving a permit to import genetically engineered (GE) algae for production in a facility on state lands; and if so, (2) whether two prior environmental impact statements (EISs) prepared for the state lands where production of the GE algae is planned satisfied the Board's HEPA obligations.

We affirm. [footnotes omitted]

MOI v. STATE OF HAWAI'I, DEPARTMENT OF PUBLIC SAFETY

No. 27557 (May 21, 2008)

Opinion [pdf]

OPINION OF THE COURT BY NAKAMURA, J.

This appeal presents the question of whether an adult corrections officer, who was injured while bowling, is entitled to compensation under the Hawai'i workers' compensation law.  We hold that the injuries sustained by the adult corrections officer were not work related.  We therefore affirm the decision of the Labor and Industrial Relations Appeals Board (LIRAB) to deny the adult corrections officer's claim for workers' compensation.

INDYMAC BANK v. MIGUEL

Nos. 26881, 27406 & 27561 (May 9, 2008)

Opinion [pdf]

OPINION OF THE COURT BY FUJISE, J.

Plaintiff-Appellants Vic Garo Miguel and Estrellita Garin Miguel (Estrellita) (collectively Appellants) appeal from the decree of foreclosure entered on September 9, 2004 in No. 26881, the judgment confirming the sale entered on June 30, 2005 in No. 27406, and the order expunging the notices of pendency of action entered on September 20, 2005 in No. 27561, rendered by the Circuit Court of the First Circuit (circuit court).  The September 9, 2004 decree of foreclosure was entered pursuant to the circuit court's findings of fact and conclusions of law granting the July 19, 2004 motion for summary judgment filed by Plaintiff-Appellee IndyMac Bank (IndyMac).  The June 20, 2005 judgment confirming the sale was entered pursuant to the order confirming the sale and the writ of possession, also entered on June 30, 2005.

. . . .

Appellants' arguments . . . are unpersuasive.  The [j]udgment[s] . . . are affirmed. [footnote omitted]

JOU v. SCHMIDT

No 27369 (April 29, 2008)

Opinion [pdf]

OPINION OF THE COURT BY LEONARD, J.

In this secondary appeal, Provider-Appellant Emerson M.F. Jou, M.D. (Jou) appeals from the Judgment filed in the Circuit Court of the First Circuit (Circuit Court) on May 23, 2005 (Judgment).  The Circuit Court ruled in favor of Insurance Commissioner J.P. Schmidt (Commissioner Schmidt), Department of Commerce and Consumer Affairs of the State of Hawai'i (DCCA), and Island Insurance Company, Ltd. (Island), affirming Commissioner Schmidt's Final Order Following remand, which was filed on May 26, 2004.  Jou filed a timely notice of appeal on June 21, 2005.

On appeal, Jou argues, inter alia, that the Circuit Court erred in: (1) denying his request that the presiding judge be disqualified based on the composition of the Hawai'i Judicial Selection Commission (JSC), which included an Island employee; (2) finding that the written notice of denial of benefits mandated by Hawaii Revised Statutes (HRS) § 431:10C-304(3)(B) is inapplicable to billing disputes, as opposed to treatment disputes; and (3) finding that the payment of interest mandated by HRS § 431:10C-304(4) is inapplicable when a payment is delayed in conjunction with a billing dispute.  For the reasons discussed herein, we hold: (1) Jou failed to submit a disqualifying affidavit satisfying the statutory requirements of HRS § 601-7 and, inlight of the rules governing the conduct of the JSC, there is no appearance of impropriety requiring the disqualification of the presiding judge in this case; (2) notice of denial was required; and (3) interest was due to Jou in this case. [footnote omitted]

GILLIAN v. GOVERNMENT EMPLOYEES INSURANCE COMPANY

No. 28075 (April 17, 2008)

Opinion [pdf]

OPINION OF THE COURT BY FOLEY, J.

Defendant-Appellant Government Employees Insurance Company (GEICO) appeals from the Amended Partial Judgment filed on July 17, 2006 in the Circuit Court of the First Circuit (circuit court).  The circuit court entered judgment against GEICO and in favor of Plaintiffs-Appellees Margret Gillian (Gillan) and Howard Keller, M.D. (Dr. Keller) (hereinafter collectively referred to as Plaintiffs) on Plaintiffs' claim that GEICO violated Hawaii Revised Statutes (HRS) §  431:10C-308.5 (2005 Repl.) by basing its denial of Gillian's claim for Personal Injury Protection (PIP) benefits on the opinion of a doctor whom GEICO had chosen, without Gillian's approval, to review Gillian's medical records.

On appeal, GEICO contends the circuit court erred by granting partial judgment against GEICO and in favor of Plaintiffs because the judgment was based on erroneous interpretation of HRS §  431:10C-308.5(b).

. . . .

The Amended Partial Judgment filed on July 17, 2006 in the Circuit Court of the First Circuit is vacated and this case is remanded for further proceedings. [footnotes omitted]

HAWAII INSURERS COUNCIL v. LINGLE

No. 27840 (April 14, 2008)

Opinion [pdf]

OPINION OF THE COURT BY FOLEY, J.

Defendants-Appellants Linda Lingle, Governor of the State of Hawai'i; Georgina K. Kawamura, Director of Finance, Department of Budget and Finance; Lawrence M. Reifurth, Director of the Department of Commerce and Consumer Affairs (DCCA); and J.P. Schmidt, Insurance Commissioner, Insurance Division of the DCCA (collectively referred to as "the State") appeal from the Final Judgment entered on February 27, 2006 in the Circuit Court of the First Circuit (circuit court).

On appeal, the State argues that the circuit court erred

(1)  in ruling that, under State v. Medeiros, 89 Hawai'i 361, 973 P.2d 736 (1999), the assessments were taxes rather than regulatory fees;

(2)  in ruling that the assessments violated the Due Process Clauses of the United States and Hawai'i Constitutions;

(3)  in ruling that the assessments violated separation of powers;

(4)  in ruling that the assessments violated the Equal Protection Clauses of the United States and Hawai'i Constitutions;

(5)  in ruling that the assessments violated Hawaii Revised Statutes (HRS) § 431:7-204 (2005 Repl.);

(6)  in granting the request of Plaintiff-Appellant Hawaii Insurers Council (HIC) for injunctive relief;

(7)  in granting HIC an accounting;

(8)  in rejecting the State's defense that HIC failed to exhause its administrative remedies; and

(9)  in rejecting the State's defense that HIC cannot pursue a declaratory action involving a tax matter.

. . . .

Based on the foregoing, we affirm the Final Judgment filed on February 27, 2006 in the Circuit Court of the First Circuit. [footnotes omitted]

Concurring opinion by Watanabe, J. [pdf]

BALDONADO v. THE WAY OF SALVATION CHURCH

No 27169 (April 10, 2008)

Opinion [pdf]

OPINION OF THE COURT BY FOLEY, J.

In this consolidated appeal from the Circuit Court of the First Circuit, Plaintiffs-Appellants Herminia Baldonado, . . . (collectively Appellants) appeal from

(1)  the Final Judgment as to All Claims Between All Parties filed on February 7, 2005 (No. 27169), in which the circuit court granted the January 26, 2004 Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (Motion to Dismiss) filed by Defendant-Appellee The Way of Salvation Church (the Church) as to all of Appellants' claims in the Amended Verified Complaint; and

(2)  the Final Judgment as to All Claims Between All Parties filed on April 20, 2005 (No. 27298), in which the circuit court denied Appellants' motion for reconsideration of the court's grant of the Church's Motion to Dismiss.

On appeal, Appellants argue the following points of error:

(1)  To the extent the circuit court ruled that Appellants lacked standing because Appellants had been expelled from the Church, no matter how unfair the expulsion process was, the court erred as a matter of law.

(2)  To the extent the circuit court ruled, under Hawai'i Rules of Civil Procedure (HRCP) Rule 12(b)(1), that Appellants had been property expelled from the Church, the court erred.

(3)  To the extent the circuit court dismissed the case or granted summary judgment in implied reliance on the "ecclesiastical abstention doctrine," the court erred as a matter of law.

(4)  The circuit court should have granted Appellants' motion to amend their complaint a second time to state new claims based on Appellants' illegal "expulsion" from the Church and to add updated claims as to the Church's financial management.

For the reasons stated below, we vacate the February 7 and April 20, 2005 final judgments entered by the circuit court. [footnote omitted]

BISCHOFF v. COOK

No. 26660 (March 31, 2008)

Opinion [pdf]

OPINION OF THE COURT BY FUJISE, J.

Plaintiff-Appellant David Bischoff (Bischoff) appeals from the final judgment entered June 1, 2004, in the Circuit Court of the Third Circuit (circuit court).  Final judgment was entered pursuant to the March 29, 2004 Findings of Fact, Conclusions of Law and Order (Order) entered in favor of Defendant-Appellee Kimi Cook, formerly known as Kimi Cook-McKie (Cook), following a bench trial.

. . . .

Bischoff raises six points of error.

. . . .

Based on the above analysis, the Circuit Court of the Third Circuit's June 1, 2004 judgment is vacated and the matter is remanded for proceedings consistent with this opinion.

PEROUTKA v. CRONIN

No. 27233 (March 27, 2008)

Opinion [pdf]

OPINION OF THE COURT BY NAKAYAMA, J.

Appellants Michael A. Peroutka, Chuck Baldwin ("Peroutka/Baldwin"), David P. Porter ("Porter"), and Ralph Nader, Peter Miguel Camejo ("Nader/Camejo"), and Robert H. Stiver ("Stiver") (collectively, "Appellants"), appeal from the first circuit court's April 5, 2005 final judgments in favor of Appellee, Kevin B. Cronin ("Chief Election Officer").  The instant case is a consolidated secondary appeal from the circuit court's April 5, 2005 judgments affirming the decisions of the Chief Elections Officer.  On appeal, Appellants present the following points of error: (1) the circuit court erred in determining that the procedures used in verifying signatures on Appellants nomination petitions are not unconstitutional; (2) the circuit court erred in determining that the review of Appellants' petitions by the Chief Elections Officer was not arbitrary or capricious; and (3) the circuit court erred in determining that Appellants were provided a fair administrative hearing.  For the reasons that follow, we affirm the circuit court's April 4, 2005 final judgments. [footnote omitted]

KAHO'OHANOHANO v. DEPARTMENT OF HUMAN SERVICES, STATE OF HAWAII

No. 28324 (March 20, 2008)

Opinion [pdf]

OPINION OF THE COURT BY MOON, C.J.

Following a sixteen-day bench trial, defendants-appellants Department of Human Services (DHS) and State of Hawai'i (State) [hereinafter, collectively, DHS or the State] appeal from the Circuit Court of the Second Circuit's January 22, 2007 second amended judgment, entered in favor of plaintiff-appellees George Kaho'ohanohano (George), as next friend of his minor granddaughter, Dasia Marie Morales-Kaho'ohanohano (Minor), and Jarrett K. Kaho'ohanohano (Jarrett), individually as Minor's natural father, [hereinafter, collectively, the Kaho'ohanhanos] in this negligence action, awarding them $243,071.39 in special damages, $800,000.00 in general damages, and $77,369.80 in costs, for a total of $1,120,441.10.  Upon application by the Kaho'ohanohanos, the case was transferred to this court, pursuant to Hawai'i Revised Statutes (HRS) § 602-58(b)(1) (Supp. 2007) (governing transfer upon the ground that the case involves "question of first impression or a novel legal question"), on November 15, 2007.  Oral argument was held on February 21, 2008.

Briefly stated, two-and-a-half year old Minor suffered a fracture of the left femur on February 14, 2001 and life-threatening abdominal injuries two months later on April 16, 2001.  Both injuries allegedly occurred while Minor was in the care and physical custody of her natural mother, defendant Denise Morales (Denise), and Denise's then-boyfriend, defendant Daryl Ramos (Daryl).  Denise and Jarrett shared joint physical custody of Minor, who stayed with each parent on a rotating weekly basis.  Although the first injury was reported to DHS as a suspected child abuse case, DHS allowed Denise to continue her joint custody arrangement with Jarrett while DHS investigated the circumstances of Minor's injury.  DHS had yet to complete its investigation when the second injury occurred, which was determined to have resulted from child abuse.  Ultimately, Jarrett obtained sole legal and physical custody of Minor.

. . .

After a lengthy bench trial, the trial court found in favor of the Kaho'ohanohanos . . . The trial court also found DHS liable for damages resulting from the negligent infliction of emotional distress (NIED). 

. . . .

For the reasons more fully discussed infra, we affirm the trial court's January 22, 2007 second amended judgment.  [footnotes omitted]

Concurring opinion by Levinson, J. [pdf]; concurring opinion by Acoba, J. [pdf]

SMALLWOOD v. CITY AND COUNTY OF HONOLULU

No. 27875 (March 14, 2008)

Opinion [pdf]

OPINION OF THE COURT BY LEONARD, J.

Plaintiff-Appellant Craig Smallwood (Smallwood) appeals from a Judgment filed on February 25, 2005 in the Circuit Court of the First Circuit (Circuit Court) in Civil No. 04-1-2315-12.  The Circuit Court entered Judgment in favor of Defendant-Appellee City and County of Honolulu (City) upon the Circuit Court's February 23, 2005 Order Granting City's Motion to Dismiss Smallwood's Complaint (Order Granting Dismissal).  The Circuit Court based its dismissal of the Complaint on two findings: (1) that the claims set forth in the Complaint were previously adjudicated in Smallwood v. City, Civil No. 04-1-0974-05 (Prior Litigation) and, therefore, the Complaint constituted an impermissible "collateral attack" on the prior judgment; and (2) that the Circuit Court lacked subject matter jurisdiction over certain claims set forth in the Complaint because Smallwood failed to exhaust his administrative remedies as to those claims.

On appeal, Smallwood argues that the Circuit Court erred in finding that the Complaint constituted a collateral attack on the judgment in the Prior Litigation.  Smallwood does not challenge on appeal the Circuit Court's second finding that it lacked jurisdiction over certain claim in the Complaint based on Smallwood's failure to exhaust administrative remedies.

The judgment in the Prior Litigation: (1) dismissed without prejudice a prior complaint by Smallwood against City; and (2) dismissed with prejudice certain claims for injunctive relief that were actually adjudicated on the merits in that case.  Smallwood's Complaint herein does not seek to indirectly set aside, invalidate, avoid, or impeach the judgment in the Prior Litigation through an independent action seeking an alternative form of relief or result.  Therefore, we hold that the filing of the Complaint did not constitute an impermissible collateral attack on the prior judgment.  The Circuit Court's ruling that it lacked subject matter jurisdiction over certain of Smallwood's claims was not an adjudication on the merits and, accordingly, the Circuit Court's dismissal with prejudice must have been based on the erroneous application of the collateral attack doctrine.  We vacate the Judgment and Order Granting Dismissal and remand for further proceedings not inconsistent with this opinion. [footnote omitted]

LIKI v. FIRST FIRE & CASUALTY INSURANCE OF HAWAI'I, INC.

No. 28076 (February 29, 2008)

Opinion [pdf]

OPINION OF THE COURT BY RECKTENWALD, C.J.

Plaintiff-Appellant Lilivau Liki (Liki) was injured when he was struck by an uninsured motor vehicle at a gas station.  At the time of the accident, Liki was an employee of Defendant-Appellee M. Nakai Repair Service, Ltd. (M. Nakai), and he was cleaning a sump at the gas station as part of his job duties.  M. Nakai had assigned a company truck to Liki, which Liki drove to the gas station on the morning of the accident.  Liki parked the truck at the station, and was cleaning the sump using tool that he had transported in the truck when the uninsured motorist backed into him.

The truck was covered by a Business Auto Policy issued by Defendant-Appellee First Fire & Casualty Insurance of Hawaii, Inc. (First Insurance).  The policy had an uninsured motorist (UM) endorsement, and Liki sought coverage under the endorsement.  After First Insurance denied coverage, Liki filed a complaint for declaratory relief in the Circuit Court of the First Circuit (circuit court).  First Insurance and M. Nakai (collectively Defendants) filed a motion for summary judgment, which the circuit court granted on the ground that Liki had an insufficient connection with the M. Nakai truck at the time of the accident to bring him within the scope of the policy's UM coverage.  Liki now appeals from: (1) the final judgment entered on July 11, 2006 by the circuit court in favor of Defendants (Final Judgment), and (2) the order filed on July 11, 2006 granting Defendants' motion for summary judgment (Order).

This appeal requires us to apply the "chain of events" test adopted by the Hawai'i Supreme Court in Dawes v. First Ins. Co., of Hawai'i, Ltd., 77 Hawai'i 117, 132-33, 883 P.2d 38, 53-54 (1994).  Applying that test here, we conclude that the circuit court erred in granting summary judgment to Defendants.  Accordingly, we vacate the Final Judgment and Order, and remand for further proceedings consistent with this opinion. [footnotes omitted]

BANK OF HAWAI'I v. SHINN

No. 27832 (February 29, 2008)

Opinion [pdf]

OPINION OF THE COURT BY FOLEY, J.

Defendant-Appellant Michael J. Shinn (Shinn) appeals from the "Order Denying Defendant Michael L. Shinn's rule 60(b) Motion on Statutory and Due Process Grounds (1) to Set Aside this Court's December 18, 2003, 'Order Granting Plaintiff's Motion to Extend Deficiency Judgment Against Defendants Michael J. Shinn and Kahala Ventures Entered on 12/21/93,' and (2) to Expunge this Court's December 21, 1993, 'Plaintiff Bank of Hawaii's Joint and Several Judgment Against Defendants Michael L. Shinn, Donald T. Eovino, and Kahala Ventures,' Recorded at the State of Hawaii Bureau of Conveyances on 12/21/93, as Document No. 93-211815, filed on January 17, 2006," filed on March 7, 2006, in the Circuit Court of the First Circuit (circuit court).

. . . .

On appeal, Shinn argues that he "was simultaneously deprived of (1) his State [Hawaii Revised Statutes (HRS)] Section 657-5 statutory procedural rights, (2) his Article 1 of Section 5 State Constitutional procedural rights, and (3) his Fifth and Fourteenth Amendment Federal Constitutional procedural rights when the [circuit] court without notice to him extended [BOH's] 1993 judgment against him, rendering that extension null and void, as a result of which [Shinn's] rule 60(b) Motion to set aside that judgment should have been granted."

. . . .

The "Order Denying Defendant Michael L. Shinn's rule 60(b) Motion on Statutory and Due Process Grounds (1) to Set Aside this Court's December 18, 2003, 'Order Granting Plaintiff's Motion to Extend Deficiency Judgment Against Defendants Michael J. Shinn and Kahala Ventures Entered on 12/21/93,' and (2) to Expunge this Court's December 21, 1993, 'Plaintiff Bank of Hawaii's Joint and Several Judgment Against Defendants Michael L. Shinn, Donald T. Eovino, and Kahala Ventures,' Recorded at the State of Hawaii Bureau of Conveyances on 12/21/93, as Document No. 93-211815, filed on January 17, 2006," filed on March 7, 2006, in the Circuit Court of the First Circuit is affirmed. [footnotes omitted]

ASSOCIATION OF HOME OWNERS OF KAI NUI COURT v. CITY AND COUNTY OF HONOLULU

February 28, 2008 (No. 27408)

Opinion [pdf]

OPINION OF THE COURT BY LEONARD, J.

Defendant-Appellant City and County of Honolulu (City) appeals from a Judgment filed on June 21, 2005 in the District Court of the First Circuit, Honolulu District (District Court).  The District Court entered Judgment in favor of Plaintiff-Appellee Association of Home Owners of Kai Nui Court (Association) and against City in the amount of $11,417.03 and costs in the amount of $147.00.  The money damages were awarded to Association for property damage, i.e., damage to Association's entry/exit gate that occurred when City's refuse truck came into contact with Association's gate.

On appeal, City argues that the District Court abused its discretion by granting Association's Motion for Reconsideration of the District Court's prior ruling, which granted City's oral District Court Rules of Civil Procedure (DCRCP) Rule 41(b) Motion to Dismiss.  For the reasons set forth below, we hold that: (1) it is not an abuse of discretion for a court to reconsider its ruling upon an oral motion when the court, upon review of persuasive legal authorities, determines that it made a mistake in its oral ruling; and (2) the District Court did not err in granting Association's Motion for Reconsideration.  Accordingly, we affirm. [footnotes omitted]

CARLISLE v. ONE (1) BOAT

February 27, 2007 (No. 26995)

Opinion [pdf]

OPINION OF THE COURT BY RECKTENWALD, C.J.

Petitioner-Appellant Peter B. Carlisle, in his official capacity as the Prosecuting Attorney of the City and County of Honolulu, on behalf of the State of Hawai‘i (the State), filed a Verified Petition for Forfeiture seeking to forfeit property including a boat. That property was allegedly used to commit intentional violations of Hawai‘i Administrative Rules (HAR) §§ 13-95-70, entitled Stony corals, and 13-95-71, entitled Live rocks.

Claimants/Interested Persons-Appellees Dang Van Tran (Dang) and Sang Tran (Sang) (collectively, Claimants) filed a motion to dismiss the petition, arguing that the petition failed to state a claim upon which relief could be granted and that the Circuit Court of the First Circuit (circuit court) lacked subject matter jurisdiction. In an order entered on February 1, 2002 (February 1, 2002 Order), the circuit court granted the motion. The circuit court found that the offenses that were allegedly committed in connection with the use of the property were not "covered offenses" within the meaning of Hawaii Revised Statutes (HRS) § 712A-4 (1999), and thus could not provide the basis for forfeiture.

On December 6, 2004, the circuit court reduced the February 1, 2002 Order to a judgment entered in favor of Claimants and against the State (Judgment). On December 9, 2004, the State filed a notice of appeal from the Judgment. On January 20, 2005, the circuit court entered an order nunc pro tunc to February 1, 2002, granting in part and denying in part Claimants' motion to strike the judgment, or in the alternative, to amend the Judgment (January 20, 2005 Nunc Pro Tunc Order Amending Judgment).  The State filed a second notice of appeal on January 24, 2005.

Claimants contend that the State's "right to prosecute this appeal is time barred" because the State did not file its notice of appeal until two years and nine months after the February 1, 2002 Order, which Claimants maintain was an appealable final order. The State contends that this court has jurisdiction and that the circuit court erred in granting Claimants' motion to dismiss the petition because Claimants' property was forfeitable under HRS Chapter 712A and HRS § 199-7 (1993 & Supp. 1999).

We conclude that we have appellate jurisdiction and that the circuit court erred in dismissing the petition. Accordingly, we vacate the February 1, 2002 Order, the December 6, 2004 Judgment, and the January 20, 2005 Nunc Pro Tunc Order Amending Judgment, and remand for further proceedings.  [footnotes omitted]

FLORES v. THE RAWLINGS COMPANY, LLC

February 1, 2008 (No. 28124)

Opinion [pdf]

OPINION OF THE COURT BY DUFFY, J.

Defendant-Appellant The Rawlings Co., LLC [hereinafter, Rawlings], appeals from the August 1, 2006 interlocutory order of the circuit court of the first circuit, denying Rawlings's motion for summary judgment in this action initiated by Plaintiffs-Appellees Albert Flores and Donald Rapoza [hereinafter, collectively, Plaintiffs] against Rawlings. The case was subsequently transferred to this court pursuant to Hawai‘i Revised Statutes (HRS) § 602-58(b)(1) (Supp. 2006).

Although the heart of Plaintiffs' claim is that Rawlings violated the registration requirement for collection agencies under HRS § 443B-3(a) (1993), this appeal also concerns two threshold issues regarding whether Plaintiffs may bring this claim: (1) whether Plaintiffs have established injury within the meaning of HRS § 480-13 (Supp. 2004), and (2) whether Plaintiffs are "consumers" within the meaning of HRS § 480-13. The circuit court, in denying Rawlings's motion for summary judgment, found that these prerequisites for bringing suit had been met and that Rawlings was subject to the registration requirement of HRS § 443B-3(a).

On appeal, Rawlings argues that: (1) the circuit court erred in ruling that Plaintiffs' respective payments of what Rawlings terms "valid obligations" constituted "actual injury" sufficient to give them standing to bring suit; (2) the circuit court erred in ruling that Plaintiffs were "consumers" under HRS chapter 480, because the transaction involving Rawlings was a recovery of subrogation/reimbursement claims arising from tort rather than a consumer transaction concerning the delivery of medical services; and (3) the circuit court erred in ruling that Rawlings was recovering "debts" within the meaning of HRS chapter 443B, such that it was a "collection agency" subject to that chapter.

Based on the following, we vacate the circuit court's interlocutory order and remand to the circuit court to enter an order granting summary judgment in favor of Rawlings. [footnote omitted]

INOUE v. INOUE

January 31, 2008 (No. 28028)

Opinion [pdf]

OPINION OF THE COURT BY RECKTENWALD, C.J.

Defendant-Appellant Gina L. Inoue, now known as Gina L. Khouw (Gina), appeals from the Divorce Decree filed on June 9, 2006 (Divorce Decree), as well as several related orders entered by the Family Court of the First Circuit (family court). 

. . . .

We conclude that the family court was correct in holding that Gina was equitably estopped in the circumstances of this case.  Since we find that Gina's points of error are without merit, we affirm.

OFFICE OF HAWAIIAN AFFAIRS v. HOUSING AND COMMUNITY DEVELOPMENT CORPORATION OF HAWAI'I (HCDCH)

January 31, 2008 (No. 25570)

Opinion [pdf]

OPINION OF THE COURT BY MOON, C.J.

Two sets of plaintiffs-appellants -- (1) the Office of Hawaiian Affairs (OHA) and its Board of Trustees [hereinafter, collectively, the OHA plaintiffs] and (2) Pia Thomas Aluli, Jonathan Kamakawiwo'ole Osorio, Charles Ka'ai'ai, and Keoki Maka Kamaka Ki'ili [hereinafter, collectively, the individual plaintiff and, together with the OHA plaintiffs, collectively, the plaintiffs] appeal from the Circuit Court of the First Circuit's January 31, 2003 final judgment, entered pursuant to Hawai'i Rules of Civil Procedure (HRCP) Rule 54(b) (2007).  Following a jury-waived trial, the trial court found in favor of defendants-appellees State of Hawai'i (State), the Housing and Community Development Corporation of Hawai'i, and the executive director and members of the board of directors of the HCDCH, as well as Linda Lingle, in her capacity as Governor of the State [hereinafter, collectively, the defendants] and against the plaintiffs.

. . . .

For the reasons discussed, infra, we vacate the January 31, 2003 judgment and remand this case to the circuit court with instructions to issue an order granting the plaintiffs' request for an injunction against the defendants from selling or otherwise transferring to third parties (1) the parcel of ceded land on Maui and (2) any ceded lands from the public lands trust until the claims of the native Hawaiians to the ceded land has been resolved. [footnotes omitted]

KAMAKA v. GOODSILL ANDERSON QUINN & STIFEL

January 24, 2008 (No. 26308)

Opinion [pdf]

OPINION OF THE COURT BY MOON, C.J.

Following a jury trial, plaintiff-appellant/cross-appellee Kitty Kamaka appeals -- and defendant-appellee/cross appellant Goodsill Anderson Quinn & Stifel (Goodsill) cross appeals -- from the Circuit Court of the First Circuit's December 24, 2003 final judgment entered in favor of Goodsill against Kamaka in this wrongful termination case, as well as the December 24, 2003 order awarding attorneys' fees and costs in favor of Goodsill. 

. . . .

For the reasons discussed more fully infra, we affirm the trial court's December 24, 2003 f(1) final judgment and (2) order granting Goodsill's attorneys' fees and costs.  If this court agrees, Goodsill's cross-appeal need not be addressed. [footnote omitted]

ROSALES v. DUELL

January 9, 2008 (No. 27059)

Opinion [pdf]

OPINION OF THE COURT BY FOLEY, J.

Garnishee-Appellant First Hawaiian Bank (FHB) appeals from the "Order Re Garnishee First Hawaii [sic] Bank's Claim of Statutory Right of Offset" (Order) filed on December 14 2004 in the Circuit Court of the First Circuit (circuit court).  The circuit court overruled FHB's purported right to a setoff under Hawaii Revised Statutes (HRS) § 652-2 (1993) and ordered the attorney for Petitioner-Appellee Adolfo R. Rosales (Rosales) to prepare a garnishee order against FHB.

On appeal, FHB argues that the circuit court erred in overruling FHB's right to offset deposits in the FHB accounts of Alejandria B. Pineda (Pineda) from the amount Pineda still owed on a FHB loan.  FHB contends the circuit court erroneously ignored the plain language of HRS § 652-2, pursuant to which FHB had a right of setoff.  FHB also maintains that in the Order, the circuit court erroneously applied and relief on Bank of Hawaii v. DeYoung, 92 Hawai'i 347, 992 P.2d 42 (2000), which FHB asserts is distinguishable from the instant case.  FHB asks this court to reverse the circuit court's Order and reinstate FHB's right of offset.

. . .

The "Order Re Garnishee First Hawaii [sic] Bank's Claim of Statutory Right of Offset,' filed on December 14, 2004, in the Circuit Court of the First Circuit is vacated, and this case is remanded for proceedings consistent with this opinion. [footnote omitted]

TANAKA v. STATE OF HAWAI'I, DEPARTMENT OF LAND AND NATURAL RESOURCES

December 31, 2007 (No. 27487)

Opinion [pdf]

OPINION OF THE COURT BY WATANABE, PRESIDING J.

This appeal stems from two consolidated cases for declaratory and injunctive relief, challenging the following actions by Defendants-Appellees State of Hawai'i (the State) and Department of Land and Natural Resources, State of Hawai'i (DLNR or the department) (collectively, State Defendants) as being in violation of Hawaii Revised Statutes (HRS) chapter 91 (1993 & Supp. 2006), the Hawaii Administrative Procedure Act (HAPA): (1) allowing game-bird hunting in the County of Hawai'i on Wednesdays and Thursdays, (2) requiring hunters to purchase a wildlife-conservation stamp and bird-hunting stamp before they can obtain a license to hunt for birds, and (3) allowing black-powder hunting in areas restrict to archery hunting by DLNR rules.

. . .

We conclude that DLNR exceeded its authority when it allowed game-bird hunting on Wednesdays and Thursdays and exacted fees for the wildlife-conservation and bird-hunting stamps (the stamp fees) without going through the rulemaking procedures set forth in HRS chapter 91.  Accordingly, we reverse the circuit court's judgment as to claims 1 and 2. [footnote omitted]

RIGHT TO KNOW COMMITTEE v. CITY COUNCIL, CITY AND COUNTY OF HONOLULU

December 28, 2007 (No. 27996)

Opinion [pdf]

OPINION OF THE COURT BY FOLEY, J.

Defendants/Appellants/Cross-Appellees the City Council of the City and County of Honolulu (Council) and Donovan M. Dela Cruz, Todd K. Apo, Barbara Marshall, Charles K. Djou, Ann H. Kobayashi, Rod Tam, Romy M. Cachola, Gary H. Okino, and Nester R. Garcia, in their official capacities as members of the Honolulu City Council, (hereinafter, Council and the individual defendants are collectively referred to as Defendants) appeal from the Final Judgment entered on May 26, 2006 in the Circuit Court of the First Circuit.

Plaintiffs/Appellees/Cross-Appellants Right To Know Committee; League of Women Voters of Hawai'i; Society of Professional Journalists, Hawaii Chapter; University of Hawaii Chapter of the Society of Professional Journalists; Big Island Press Club, Inc.; Hawaii Political Reform Project; Citizen Voice; and Honolulu Community Media Council (hereinafter collectively referred to as Plaintiffs) cross-appeal as to the amount of the attorney's fees awarded.

. . .

The Final Judgment entered by the Circuit Court of the First Circuit on May 26, 2006 is vacated, and this case is remanded with direction to the circuit court to (2) enter judgment that provides that "declaratory  judgment is hereby entered in favor of Plaintiffs and against Defendants City Council, City and County of Honolulu; onovan M. Dela Cruz, Todd K. Apo, Barbara Marshall, Charles K. Djou, Ann H. Kobayashi, Rod Tam, Romy M. Cachola, Gary H. Okino, and Nester R. Garcia, in their official capacities as members of the Honolulu City Council, declaring that HRS § 92-2.5 did not permit members of the Honolulu City Council to engage in serial communications involving a quorum of Council members in deliberating Resolution 05-243" and (2) award Plaintiffs the amount of $41,353.14 in attorneys' fees, along with costs previously awarded. [footnotes omitted]

COLONY SURF, LTD. v. DIRECTOR OF THE DEPARTMENT OF PLANNING AND PERMITTING

December 26, 2007 (No. 26037)

Opinion [pdf]

OPINION OF THE COURT BY NAKAYAMA, J.

Defendants/Appellees-Appellants, director of the Department of Planning and Permitting, State of Hawai'i, Michel's Inc., and D.G. Anderson (collectively referred to as "Appellants"), appeal from the first circuit court's July 23, 2003 judgment on appeal in favor of Plaintiff/Appellant-Appellee, Colony Surf, Ltd. ("CSL").  Appellants assert the following points of error on appeal: (1) the circuit court erred by ruling that the daytime operation of Michel's "constitute[d] an 'expanded' nonconforming use" under section 21-4.110(c)(1) of the Land Use Ordinance, codified as Revised Ordinances of Honolulu ("ROH") § 21-4.110(c)(1); (2) the circuit court erred by ruling that the daytime operation of Michel's following its temporary cessation constituted "action" within the meaning of ROH § 21-4.110(c)(5), inasmuch as it did not intend to reduce its hours; (3) the circuit court erred by construing ROH §§ 21-4.110(c)(2), (c)(3), and (c)(5) in pari materia and by ruling that the daytime operation of Michel's violated ROH § 21-4.110(c)(5); an (4) the circuit court erred by ruling that the daytime operation of Michel's increased its hours of operation within the meaning of ROH § 21-4.110(c)(1).

Based upon the following analysis, we reverse the circuit court's July 23, 2003 judgment. [footnotes omitted]

IN RE CONTESTED CASE HEARING ON THE WATER USE PERMIT APPLICATION FILED BY KUKUI (MOLOKAI), INC.

December 26, 2007 (No. 24856)

Opinion [pdf]

OPINION OF THE COURT BY NAKAYAMA, J.

The present matter involves multiple appeals from the December 19, 2001 final decision and order of the Commission on Water Resource Management ("the Commission") approving Kukui (Moloka'i), Inc.'s ("KMI's") application for water use permits.  On appeal, intervenor-appellants (collectively referred to as "Appellants") Department of Hawaiian Home Lands ("DHHL"), Office of Hawaiian Affairs ("OHA"), and Judge Caparida ("Caparida") and Georgina Kuhuia ("Kuahuia") generally allege multiple violations of the Commission's public trust duties under the Hawai'i Constitution, the State Water Code ("Code"), and the public trust doctrine.  Specifically, the Appellants raise the following points of error.

. . .

For the following reasons, we hold that: (1) DHHL's reservation is a public trust "purpose" and not an "existing legal use"; (2) the Commission failed to adequately scrutinize KMI's request to divert water; (3) the Commission appeals to have placed the burden of proof on DHHL to demonstrate that pumpage at KMI's well would increase the chloride concentration at the DHHL well site; (4) the Commission's decision did not violate the precautionary principle; (5) the Commission erred by considering an untimely application; (6) KMI requested both existing and new uses; (7) pursuant to HRS § 174C-49(c), KMI may transport water from Well #17; (8) the Commission erred when it failed to consider the impact that the closing of the hotel and golf course would have on its allocation of water to KMI; and (9) the Commission impermissibly shifted the burden of proving harm to those claiming a right to exercise a traditional and customary native Hawaiian practice.

Accordingly, we vacate the Commission's December 19, 2001 final decision and order, and remand the matter for further proceedings consistent with this opinion.

DEL MONTE FRESH PRODUCE (HAWAII), INC. v. FIREMAN'S FUND INSURANCE COMPANY

December 26, 2007 (No. 24647)

Opinion [pdf]

OPINION OF THE COURT BY NAKAYAMA, J.

Defendant-Appellant Fireman's Fund Insurance Company ("Fireman's Fund"), appeal from the order of the Circuit Court of the First Circuit ("circuit court") filed August 29, 2001, granting partial summary judgment in favor of Plaintiff-Appellee Del Monte Fresh Produce (Hawai'i), Inc. ("Del Monte Fresh"), and denying Fireman's Fund's motion for summary judgment.  On appeal, Fireman's Fund presents the following points of error: (1) the circuit court erred when it chose to apply the law of Hawai'i rather than California; (2) even assuming, arguendo, that Hawai'i law applies, the circuit court misapplied this court's jurisprudence relating to insurance contracts; (3) the circuit court misinterpreted and misapplied the word "suits" in its insurance policies when it determined that Fireman's Fund owed a duty to indemnify on the basis that costs incurred in administrative proceedings are covered under the insurance policy as "damages."

. . .

For the following reasons, we hold that the circuit court erred when it determined that insurance coverage was assigned by operation of law to Del Monte Fresh.  We also hold that the assignment by contract was invalid inasmuch as none of the insurers consented to the assignment.  Accordingly, the circuit court's August 29, 2001 orders are vacated, and the case is remanded with instructions to enter summary judgment in favor of Defedant-Appellant insurers and against Del Monte Fresh consistent with this opinion. [footnote omitted]

Concurring opinion by Acoba, J., with whom Duffy, J., joins [pdf]

E&J LOUNGE OPERATING COMPANY, INC. v. LIQUOR COMMISSION OF THE CITY AND COUNTY OF HONOLULU

December 24, 2007 (No. 27940)

Opinion [pdf]

OPINION OF THE COURT BY WATANABE, J.

This secondary appeal by Appellant-Appellee/Corss-Appellee E & J Lounge Operating Company, Inc. (E&J) from the denial of a liquor dispenser general license (liquor license) raises two issues: (1) whether Appellee-Appellant/Cross-Appellee Liquor Commission of the City and County of Honolulu (the Commission) was required to hold a "contested case' hearing in accordance with Hawaii Revised Statutes (HRS) § chapter 91 before deciding whether to approve or deny E&J's application for a liquor license, and (2) whether the Circuit Court of the First Circuit (the circuit court) had jurisdiction to review the Commission's denial of E&J's application for a liquor license.

The circuit court concluded that it had jurisdiction over E&J's appeal pursant to HRS § 91-14 (1993 & Supp. 2006) because "[t]he public hearings held before the Commission prior to issuance of a Liquor License are adjudicatory in nature and are therefore contested cases" subject to the procedural requirements for contested cases set forth in HRS chapter 91.  The circuit court also held that the Commission violated HRS § 91-11 (1993) in denying E&J's application because although one of the Commissioners who participated in the final decision was not present for the first day of public hearings on the application, the Commission rendered a final decision without first issuing a proposed decision and providing an opportunity for E&J to file exceptions and present arguments on the proposed decision, one of the procedural requirements for a contested cases under HRS chapter 91.  Additionally, the circuit court concluded that the Commission violated HRS § 281-59(b) (Supp. 2006) by failing to "make a ruling on corrections, additions, or subtraction of the persons required to be notified of the public hearing[.]"  The circuit court thereupon vacated the Commission's decision and remanded the case to the Commission with instructions for further proceedings on remand.

In light of Singleton v. Liquor Comm'n, 111 Hawai'i 234, 140 P.3d 1014 (2006), we agree that the circuit court had jurisdiction pursuant to HRS § 91-14 to review the denial of E&J's liquor-license application.  However, we conclude that the Commission was required to comply with the more specific "public hearing" procedures set forth in HRS chapter 281, rather than the "contested case" procedures delineated in HRS chapter 91, in deciding whether to grant or deny E&J's liquor-license application.  Accordingly, we vacate the circuit court's judgment and remand for further proceedings consistent with this opinion. [footnotes omitted]

Dissenting opinion by Nakamura, J. [pdf]

OLELO: THE CORPORATION FOR COMMUNITY TELEVISION v. OFFICE OF INFORMATION PRACTICES

December 21, 2007 (No. 27421)

Opinion [pdf]

OPINION OF THE COURT BY DUFFY, J.

Defendants-Appellants the Hawai'i Office of Information Practices and Les Kondo, Director of Office of Information Practices, in his official capacity [hereinafter, collectively OIP], appeal from the June 30, 2005 final judgment of the circuit court of the first circuit entered pursuant to its May 23, 2005 order that (1) granted summary judgment to Plaintiff-Appellee, Olelo: the Corporation for Community Television (Olelo), and (2) denied OIP's cross-motion for summary judgment.

On September 6, 2002, OIP issued OIP opinion letter number 02-08 (Olelo letter).  OIP Op. Ltr. No. 02-08 (2002), 2002 WL 31126635.  The Olelo letter concluded that Olelo met the definition of "agency" contained in Hawai'i Revised Statutes (HRS) § 92F-3 (1993) and, therefore, was subject to the provisions of Hawai'i Uniform Information Practices Act (UIPA), HRS chapter 92.  As an agency subject to UIPA, OIP concluded that Olelo was required to disclose "government records."

The current controversy began in 2004 when Olelo received a request from three individuals for a master list with contact information (names, addresses, telephone number, and email addresses) for Olelo's current clients, presented, producers, volunteers, and "all persons eligible to vote in Olelo's election."  When OIP subsequently demanded that Olelo disclose the requested information, Olelo filed a complaint for declaratory relief in circuit court requesting that the court declare that it is not an agency under UIPA.  After a de novo review of the legal arguments and evidence submitted by both parties, the circuit court granted Olelo summary judgment and denied OIP's corresponding motion for summary judgment.

OIP appealed to this court on July 26, 2005.  OIP alleges that the circuit court erred because (1) it did not apply the correct standard of review to and/or grant deference to OIP's conclusion that Olelo was an agency subject to UIPA, and (2) it concluded that Olelo was not an agency as defined in UIPA.

Based on the following analysis, we affirm the circuit court's declaratory judgment that Olelo is not an agency subject to UIPA. [footnote omitted]

DOE v. DOE

December 13, 2007 (No. 26471)

Opinion [pdf]

OPINION OF THE COURT BY NAKAYAMA, J.

Petitioners-Appellants, the grandparents ("Grandparents") of a minor child ("Child"), appeal from the third circuit family court's February 27, 2004 order and February 27, 2004 judgment dismissing their petition for visitation rights filed pursuant to Hawai'i Revised Statutes ("HRS") § 571-46.3.  The solitary issue presented by Grandparents on appeal is whether the family court correctly concluded that HRS § 571-46.3, Hawaii's grandparent visitation statute, which allows the court to award reasonable visitation to a minor child's grandparent if it is "in the best interests of the child," is unconstitutional on its face in light of the United States Supreme Court's decision in Troxel v. Granville, 530 U.S. 57 (200).

For the following reasons, we hold (1) that HRS § 571-46.3 can be interpreted to comply with Troxel, but (2) that it implicates a fundamental right and is not narrowly tailored to further a compelling governmental interest.  We therefore affirm the family court's February 27, 3004 order and judgment. [footnotes omitted]

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]

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]

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]

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.

IN RE HAWAI'I GOVERNMENT EMPLOYEES ASSOCIATION, AFSCME

November 13, 2007 (No. 27800)

Opinion [pdf]

OPINION OF THE COURT BY ACOBA, J.

This case is before us by virtue of our acceptance of a transfer from the Intermediate Court of Appeals (the ICA), Hawai'i Revised Statutes (HRS) § 602-58 (Supp. 2006), filed by Complainant-Appellant-Appellant the Hawai'i Government Employees Association, AFSCME, Local 152, AFL-CIO (HGEA or Appellant).

Appellant appeals from the February 21, 2006 judgment of the first circuit court (the court) affirming the June 30, 2005 decision and order rendered by the HLRB dismissing a prohibited practice complaint (Complaint) filed by HGEA pursuant to HRS §§ 89-13 (Supp. 2006) and 89-14 (1993) against Respondents-Appellees-Appellees, employer and supervisors of affected HGEA members (Respondents or State) and Agency-Appellees-Appellees HLRB, Brian K. Nakamura, Emory J. Springer, and Kathleen Racuya-Markrich, then-members of the HLRB [collectively, HLRB or Board], for removal of election campaign materials from a State bulletin board assigned for "Union Notices."

We hold that the court's February 13, 2006 judgment affirming the June 30, 2005 decision and order rendered by the Board, dismissing HGEA's prohibited practice complaint is affirmed, because (1) there was no constitutional violation of the free speech rights of public employees under the First and Fourteenth Amendments to the United States Constitution or article I, section 4 of the Hawai'i State Constitution, (2) the statutory rights of public employees to engage in "mutual aid or protection," HRS § 89-3 (Supp. 2006), were not violated, (3) the Board did not exceed its jurisdiction by applying the State Ethics Code, HRS § 84-13, in this case, and (4) the Board did not misconstrue the preemption clause of HRS § 89-19 (Supp. 2006). [footnotes omitted]

Concurring Opinion by J. Levinson, with  whom C.J. Moon, joins [pdf].

MOYLE v. Y & Y HYUP SHIN CORPORATION

November 8, 2007 (No. 26582)

Opinion [pdf]

OPINION OF THE COURT BY FUJISE, J.

Plaintiff-Appellant Roger Scott Moyle (Appellant) appeals from the final judgment entered March 5, 2004, in the Circuit Court of the First Circuit (circuit court).  The circuit court entered final judgment pursuant to the jury verdict rendered in favor of Defe