Hawaii Appellate Opinions

WILSON v. FREITAS

Nos. 27747 and 27856 (June 30, 2009)

Opinion pdf

OPINION OF THE COURT BY NAKAMURA, J.

This case arises out of the investigation by the Kaua'i Police Department (KPD) of two murders and an attempted murder, each involving sexual assault and stabbing of women, that were committed in separate incidents in 2000 on Kaua'i. In 2002, Plaintiff-Appellant Waldorf Roy Wilson, II, (Wilson) sued the Kaua'i Police Chief, certain Kaua'i police officers, and the County of Kaua'i (County), claiming that they had engaged in misconduct while investigating him for these crimes. Wilson also sued the authors and publishers of articles appearing in the Honolulu Magazine and The Garden Island newspaper, claiming, among other things, that the articles had defamed him.

During the times relevant to this case, George Freitas (Freitas) was the Kaua'i Police Chief and William Ching {Ching), Roy Asher (Asher), Marvin Rivera (Rivera), and Samuel Sheldon (Sheldon) were members of the KPD. All were employees of the County. Joan Conrow (Conrow) was the author of an article published in the August 2001 edition of Honolulu Magazine entitled, "The Killing Year." Dennis Wilken (Wilken) was the author of an article appearing in the January 28, 2002, edition of The Garden Island newspaper under the headline, "Suspected killer has parole hearing today."

On September 11, 2002, Wilson filed a complaint in the Circuit Court of the Fifth Circuit (circuit court) against Defendants-Appellees Freitas; Ching; Asher; Rivera; Sheldon; the County; Conrow; Honolulu Publishing Co., Ltd., nka Pacific Basin Communications, LLC, dba Honolulu Magazine (HonoluluPublishing); Wilken; and Kauai Publishing Co., dba The Garden Island (Kauai Publishing). The complaint alleged numerous causes of action, including defamation; slander; slander per se; libel; libel per se; invasion of privacy; intentional, deliberate, knowing, and/or negligent infliction of emotional distress; punitive conduct; violations of Wilson's constitutional rights; failure to properly train, supervise, control, and/or discipline employees; trespass; and unlawful imprisonment. On March 2, 2006, the circuit court entered Judgment in favor of Defendants and against Wilson with respect to all claims asserted in the action. It is from this Judgment that Wilson appeals.

On appeal, Wilson asserts that the circuit court erred by: 1) granting Honolulu Publishing and Conrow's motion for summary judgment; 2) granting Kauai Publishing and Wilken's motion for summary judgment; and 3) dismissing Wilson's complaint against the County Defendants for failure to prosecute. For the reasons discussed below, we affirm. [footnotes omitted]

STATE OF HAWAII v. TUIALII

No. 29238 (June 30, 2009)

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OPINION OF THE COURT BY LEONARD, J.

Defendant-Appellant Afa Tuialii (Tuialii) appeals from the Findings of Fact, Conclusions of Law, and Order Denying Defendant's Motion For Correction Of Illegal Sentence (Rule 35 Order), filed on June 4, 2008 in the Circuit Court of the First Circuit (Circuit Court).

Tuialii, a former payroll and accounts payable clerk, was charged with Theft in the First Degree, in violation of Haw. Rev. Stat. (HRS) § 708-830.5 (1) (a) (Supp. 2007), stemming from the transfer of over $76,000 from his employer's payroll account into his personal credit union account. Tuialii pled no contest to the charge and was sentenced to five years of probation and one year in jail (which was suspended except for time served). Tuialii was also ordered to pay restitution in the amount of $76,285.19 to his employer, Principle Hotels, LLC (Principle).

On appeal, Tuialii contends that the Circuit Court erred by denying his Motion for Correction of Illegal Sentence (Rule 35 Motion) because the Circuit Court failed to conduct a colloquy which advised him that restitution could be ordered as a consequence of his plea, thus rendering his no-contest plea unknowing and involuntary. Tuialii claims that the "illegal" restitution order must be vacated or Tuialii must be allowed to withdraw his plea. Tuialii further claims that restitution cannot be ordered because the victim received indemnification from its insurance company. We reject both arguments and affirm. [footnote omitted]

KONA VILLAGE REALTY, INC. v. SUNSTONE REALTY PARTNERS, XIV, LLC

No. 28840 (June 29, 2009)

Opinion pdf

OPINION OF THE COURT BY LEONARD, J.
 
Defendants-Appellants, Sunstone Realty Partners, XIV, LLC and Sunstone Realty Partners, IX, LLC (collectively, Sunstone) appeal from the Order Granting Plaintiff Kona Village Realty, Inc.'s Motion to Confirm Arbitration Award and Denying [Sunstone's] Motion to Vacate or Correct the Arbitration Award Filed October 8, 2007 (Confirmation Order) in the Circuit Court of the Third Circuit (Circuit Court).

Although argued on alternative grounds, there is only one issue on appeal in this case - whether the Circuit Court erred in affirming an arbitration award (Award) which included an award of $123,994.69 in attorneys' fees, nearly double the amount of the principal and interest components of the Award in favor of Plaintiffs-Appellees Kona Village Realty, Inc., Brenda Tschida, and Robert Tschida (collectively, Kona Village) and against Sunstone. For the reasons set forth herein, we answer this question in the negative. [footnote omitted]

STATE OF HAWAII v. NAKAMURA

No. 28836 (June 29, 2009)

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OPINION OF THE COURT BY FUJISE,J.

Defendant-Appellant Blake Yasuo Nakamura (Nakamura) appeals from the October 5, 2007 Amended Judgment and Sentence entered by the District Court of the First Circuit, Honolulu Division (district court), convicting him of the offense of Excessive Speeding in violation of Hawaii Revised Statutes (HRS) § 291C-105 (2007). As his sole issue on appeal, Nakamura challenges the imposition of a six-month driver's license suspension as a term of his sentence and argues that it is illegal. We agree with Nakamura that the district court was without authority to impose a six-month driver's license suspension for a violation of HRS § 291C-105. [footnote omitted]

CHARMAINE TAVARES CAMPAIGN v. WONG

No.28729 (June 25, 2009)

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OPINION OF THE COURT BY LEONARD, J.

This is a statutory construction case concerning the campaign contribution limits set forth in Hawaii Revised Statutes (HRS) § 11-204(a)(1)(C) and (b) (Supp. 2005). Defendant-Appellant Barbara U. Wong (Wong), in her capacity as the Executive Director of the Campaign Spending Commission of the State of Hawai'i (Commission) , appeals from the Findings of Fact, Conclusions of Law, and Order filed on July 23, 2007, and the Final Declaratory Judgment filed on August 10, 2007 (Judgment), by the Circuit Court of the Second Circuit (Circuit Court), in favor of Plaintiff-Appellee Charmaine Tavares Campaign (Tavares) and Plaintiff/Intervenor-Appellee Quong Enterprises, L.L.C. (Quong) (collectively, Appellees), and against Wong. Wong argues that Quong's $2,000 campaign contribution to Tavares violated the $1,000 limit in HRS § 11-204(b), which applies to any contribution to a "noncandidate committee." Wong requests the reversal of the Judgment primarily on the ground that the Circuit Court erred in concluding that Quong's contribution was lawful under the $4,000 limit prescribed in HRS § 11-204(a)(1)(C) for any contribution to a candidate or a "candidate's committee." Based on the arguments presented, the record on appeal, and the well-established rules of statutory construction, we conclude that HRS § 11-204(b) did not apply to Quong's contribution to Tavares and that Quong's contribution was lawful under HRS § 11-204 (a) (1) (C). We affirm. [footnote omitted]

IN RE TKC

No. 28295 (June 24, 3009)

Opinion pdf

OPINION OF THE COURT BY LEONARD, J.

Minor-Appellant (TC) and his parents (Parents) appeal from the Decree Re: Law Violation Petitions filed on September 26, 2006 (Decree), and the Findings of Fact, Conclusions of Law and Order Denying Motion for Reconsideration filed December 19, 2006 (Reconsideration Order) in the Family Court of the Third Circuit (Family Court).

After a hearing based on evidence that was stipulated into the record, TC was adjudicated to have committed acts, prior to reaching eighteen years of age, which would constitute violations of Hawai'i sexual assault laws prohibiting certain sexual conduct involving persons who are less than fourteen-years old. Based upon our review of the record and the briefs submitted by the parties, and having given due consideration to the issues raised, arguments advanced, the relevant rules, statutes, constitutional provisions, and case law, we hold that: (1) there was insufficient evidence to support the allegation that TC engaged in prohibited sexual conduct with his younger brother; (2) any person who is alleged, pursuant to Hawaii Revised Statutes (HRS) § 571-11(1), to have committed an act prior to achieving eighteen years of age which would constitute a violation of law (as described in HRS § 671-11(1)) shall be advised of his or her right to testify and, in every HRS § 571-11(1) adjudication in which the accused minor does not testify, a family court must engage in an age-appropriate colloquy with the accused minor to obtain an on-the-record waiver of that right; (3) parents of an accused minor have standing throughout juvenile proceedings conducted pursuant to HRS § 571-11(1); (4) minors under the age of fourteen are subject to adjudication for violations of HRS §§ 707-730 (1) (b) and 707-732 (1) (b), which prohibit certain sexual conduct involving minors under the age of fourteen; (5) TC's Due Process and Equal Protection Clause rights were not violated when a HRS Chapter 571 petition was filed against him but not against two other minors who also admittedly engaged in prohibited sexual conduct with TC who was also a minor under the age of fourteen at the time of the sexual activities; (6) there is no fundamental personal privacy right for minors under the age of fourteen to engage in sexual activities with other children under the age of fourteen; and (7) Parents' argument that the Family Court erred in denying their request to cross-examine the makers of certain written reports is waived. For these reasons, we reverse as to Count VI of the petition filed against TC and, because the Family Court did not determine whether TC knowingly and voluntarily waived his right to testify, which we cannot conclude was harmless error, we vacate and remand this matter for further proceedings as to the remaining counts. [footnote omitted]

WILLIAMS v. AONA

No. 28691 (June 19, 2009)

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OPINION OF THE COURT BY DUFFY, J.

Petitioner/Respondent-Appellant Robert Aona (Aona) filed a timely Application for Writ of Certiorari (Application) urging this court to review the December 30, 2008 judgment of the Intermediate Court of Appeals (ICA) based on its Memorandum Opinion in Williams v. Aona, No. 28691, 2008 WL 5182933 (App. Dec. 10, 2008). The ICA's Memorandum Opinion affirmed the district court of the first circuit's (district court) July 17, 2007 Order Granting Petition for Injunction Against Harassment (injunction order).

In his Application, Aona argues that the ICA gravely erred in affirming the injunction order because:

(1) "The ICA incorrectly held that the district court had jurisdiction over Williams's Petition [for a temporary restraining order and injunction against harassment]."

(2) "The ICA incorrectly affirmed the district court's injunction imposing a distance restriction on Aona while in the workplace."

(3) "The ICA incorrectly affirmed the district court's refusal to admit and consider evidence of William's prior criminal conviction."

(4) "The ICA incorrectly affirmed the district court's refusal to admit and consider evidence of the [Department of Environmental Services] workplace rules."

We accepted the Application for the limited purpose of correcting an error by the ICA when it affirmed the district court's jurisdiction on the basis of the doctrine of preemption. We agree with the ICA's Memorandum Opinion in all other respects. [footnote omitted]