The Appellate Record February 2015
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Transcript of The Appellate Record February 2015
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The Appellate Record, February 2015 Page 1
THE APPELLATE RECORD February 2015
FEBRUARY 2015 MEETING summary
By: Michi Momose (Secretary, Cades Schutte LLP)
Our February monthly meeting featured guest speaker retired
Associate Justice Steven H. Levinson of the Hawaii Supreme Court.
Justice Levinson served as an associate justice on the Court from 1992
to the end of 2008. Prior to that, he was a circuit court judge for three
years, and a civil practitioner for seventeen years.
Justice Levinsons talk examined the different factors that a
practitioner considers in deciding to file an appeal. The discussion
2015 HSBA Appellate Section Board:
Chair: Mr. Christopher Goodin
Vice Chair: Mr. Christopher Leong
Secretary: Ms. Michi Momose
Treasurer: Mr. Robert Nakatsuji
HAWSCT Liaison: Mr. Matthew Chapman
ICA Liaison: Mr. Daniel J. Kunkel
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focused primarily on civil litigation, in which the appealing party is
non-governmental. Justice Levinson noted that in criminal practice,
the defendants liberty is at stake and there is likely nothing to lose,
from the defendants perspective, by filing an appeal.
Justice Levinson used a personal injury case that he had worked
on as a real-life example and basis for analyzing the decision to appeal.
In that case, his client had been seriously injured in an accident
involving an epileptic cab driver. The client brought suit against the
driver and cab company, and eventually, the doctor who had treated the
driver. The cab company took the position that the driver was not an
employee, but an independent contractor; at the time, the law was
unsettled as to the drivers employment status. The cab company made
a settlement offer, but the doctor obtained summary judgment in his
favor.
Justice Levinson discussed in detail the factors he considered in
ultimately deciding to settle with the cab company and to not appeal
the grant of summary judgment. These factors included the clients
physical and emotional state, the clients financial needs, and the
likelihood that the cab company would prevail at trial or on appeal.
During the ensuing discussion, section members noted that a
future topic of interest would be the issue of interlocutory appeals under
HRS Chapter 641.
The HSBA Appellate Section thanks Justice Levinson for leading
a thoughtful, practical discussion on the decision to take an appeal.
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FEBRUARY 2015
Published Appellate Opinions
By: Christopher J.I. Leong (Vice-Chair; Damon Key Leong Kupchak Hastert)
In February 2015, the Hawaii Supreme Court issued three
published opinions and the Hawaii Intermediate Court of Appeals
(ICA) issued four. The following is a brief synopsis of those opinions:
State v. Alangcas, No. SCWC-30109 (Haw. Feb. 9, 2015).
Alangcas was charged with, inter alia, two counts of electronic
enticement of a child in the first degree. He filed two motions to
dismiss in circuit court, arguing that the electronic enticement statute,
HRS 707-756, is unconstitutionally overbroad, vague, and violates the
dormant commerce clause. The circuit court denied the motions and
granted Alangcas leave to file an interlocutory appeal. The ICA
affirmed, and the Hawaii Supreme Court subsequently affirmed on
certiorari. In its opinion, the court first reaffirmed that HRS 707-756
includes three distinct elements: (a) intentionally or knowingly
communicating with a minor; (b) agreeing to meet the minor with intent
to promote or facilitate the commission of a felony; and (c) intentionally
or knowingly traveling to the agreed meeting place at the agreed time.
Felonious intent only applies to the meeting requirement in (b); the
statute was written this way so as not to include otherwise innocent
communications with minors within its scope. The court also rejected
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Alangcass overbreadth challenge because the statute only criminalizes
speech used to arrange a meeting with a minor with the intent to
promote or facilitate the commission of a felony and does not otherwise
infringe on legitimate expression protected by the federal and state
constitutions. The court also held the statute is not vague because it is
neither incomprehensible to a person of ordinary intelligence, nor
subject to subjective or arbitrary enforcement by police. Finally, the
dormant commerce clause is not implicated because the statute does not
regulate any type of economic transaction nor otherwise burden
interstate commerce.
Adams v. CDM Media USA, Inc., No. SCWC-12-0000741 (Haw.
Feb. 24, 2015). Adams applied for an International Media Sales
Executive position with CDM but was not hired despite extensive
experience in sales and marketing; CDM then hired seven people who
were all younger than her. Adams filed a Charge of Discrimination
with the Hawaii Civil Rights Commission and then filed suit in circuit
court, alleging that CDM violated HRS 378-2 by discriminating
against her on the basis of age. The circuit court granted summary
judgment in CDMs favor and dismissed the complaint, concluding that
Adams showed a prima facie case of age discrimination, that CDM then
articulated legitimate, nondiscriminatory reasons for not hiring Adams,
but that Adams then failed to raise a genuine issue of material fact that
CDMs articulated reasons were pretextual. On appeal, the ICA agreed
that Adams failed to produce admissible evidence that CDMs reasons
were pretextual and affirmed. On certiorari, the supreme court first
noted that Adams was qualified for the position and established a prima
facie case of age discrimination. However, the court held that a
legitimate, nondiscriminatory reason not to hire a person must be
related to the ability of the individual to perform the work in question.
Here, some of the reasons CDMs president offered for not hiring
Adams, such as no sales experience in the prior five years, were
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disclaimed as considerations in the hiring process, were not related to
the position, or were not included in advertisements for the position,
and thus were not legitimate, nondiscriminatory reasons. The supreme
court rejected other proffered reasons because, although included in
CDMs presidents declaration submitted with CDMs motion for
summary judgment, the reasons were not based on his personal
knowledge and thus were inadmissible hearsay. Thus, the supreme
court did not even reach the question of pretext. It vacated the
judgments of the circuit court and the ICA and remanded to the circuit
court for further proceedings.
State v. Turping, No. CAAP-13-0002957 (Haw. App. Feb. 25,
2015). Turping was convicted of operating a vehicle under the influence
of an intoxicant (OVUII). On appeal, she argued that the OVUII charge
in the complaint was fatally defective because it used the term alcohol
without alleging the statutory definition of alcohol, which contains an
exception for denatured or other alcohol that is considered not potable
under the customs laws of the United States. HRS 291E-1. By not
alleging the exception, Turping argued that the charging instrument
failed to provide fair notice of the charge against her. The ICA clarified
the difference between elements of an offense and defenses to an offense
and reaffirmed that a charging instrument does not need to include or
negate a statutory defense in order to sufficiently state an offense.
Further, as explained in State v. Mita, 124 Haw. 385, 392, 235 P.3d 458,
465 (2010), the State need only allege the statutory definition of a term
when it creates an additional essential element of the offense, and the
term itself does not provide a person of common understanding with fair
notice of that element. Here, the statutory definition of alcohol does
not create an additional essential element that needed to be alleged; the
State properly charged all essential elements of the OVUII offense.
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Perry v. Williams, No. CAAP-13-0003357 (Haw. App. Feb. 25,
2015). Perry filed a complaint in circuit court, alleging that Williams
failed to repay a $45,000 loan plus 6% interest. Williams failed to
appear, and Perry filed a Request for Default Judgment by Clerk
pursuant to HRCP Rule 55(b)(1) for $56,326.46 for principal, interest,
court costs, and reasonable attorneys fees. The clerk entered default
judgment for the amount requested. Two years later, Williams filed a
motion to set aside the default judgment, mainly arguing that Perrys
request was not for a sum certain and therefore the default judgment
was void because the clerk lacked authority to issue it under HRCP
Rule 55(b)(1). The court denied Williamss motion to set aside as well
as a motion for reconsideration. On appeal, the ICA vacated and
remanded, concluding that a clerk may not enter a default judgment
when a plaintiff seeks attorneys fees in addition to the amount of the
claim. This is because a judicial determination is necessary to decide
whether to award fees and, if so, in what amount.
Arthur v. State, Department of Hawaiian Home Lands, Nos.
CAAP-13-0000531, CAAP-13-0000551, and CAAP-13-0000615
(consolidated) (Haw. App. Feb. 27, 2015). This complex litigation arose
out of an alleged wrongful death incident that occurred at a residence
on DHHL land. Defendants included DHHL, the developer, the general
housing contractor, the architecture firm, the civil engineers, the fence
subcontractor, and the AOAO. The various defendants filed numerous
third-party complaints, counterclaims, and crossclaims for
indemnification and contribution. The circuit court issued various
orders and a final judgment, and the parties filed numerous appeals
and cross-appeals. The ICA rendered various holdings, including:
summary judgment against Arthur on his negligence claims was
improper, because he submitted expert testimony from which a trier of
fact could reasonably infer a causal link between the defendants
alleged negligence and his wifes injuries, and therefore a genuine issue
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of material fact existed; summary judgment against Arthur on his
punitive damages claim was proper because his factual allegations did
not raise any conscious wrongdoing on defendants part; denial of
Arthurs motion for leave to file a third amended complaint was proper
because he knew the identity of the parties sought to be added for over
four years before filing the motion, and adding them now would cause
great delay and prejudice; and Pancakes of Hawaii, Inc. v. Pomare
Properties Corp., 85 Haw. 286, 944 P.2d 83 (App. 1997) is reaffirmed for
the principle that, in general indemnity contracts as well as insurance
contracts, if a complaint alleges claims that fall within the coverage of
the indemnity provision, then the duty to defend is triggered and the
indemnitor must bear the cost of a defense whenever any of the claims
asserted may potentially come within the scope of an indemnity
agreement, and the defense must continue until it is clear that the
liability cannot possibly come within the scope of the indemnity.
State v. Bowman, No. CAAP-13-0005863 (Haw. App. Feb. 27,
2015). Bowman was convicted of one count of spilling loads on
highways in violation of HRS 291C-131(a). Bowman, a farmer, was
transporting cabbage in uncovered containers; a police officer who was
traveling in the opposite direction passed Bowman and shortly
thereafter saw cabbage on the side of the road and on the road itself. At
trial and on appeal, Bowman argued that he had been mischarged
under subsection (a) of the statute, which prohibits movement of a
vehicle on any highway unless the vehicle is so constructed, covered, or
loaded as to prevent any of its load other than clear water or feathers
from live birds from dropping, sifting, leaking, blowing, spilling, or
otherwise escaping therefrom, and that he should have been charged
under (c), which exempts [v]ehicles carrying agricultural produce from
fields during harvesting except that the owner of the vehicle must
provide for the reasonable removal of all such produce spilled or
dropped on the highway. As in State v. Turping, supra, the ICA
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analyzed whether (c) constituted an offense that needed to be charged
or a defense that did not. The court concluded, looking at the text of the
statute as well as legislative history, that (a) establishes a general
requirement that all vehicles be constructed or covered so as to prevent
the spilling of a load on a highway, while (c) is an exception to that
requirement for vehicles transporting agricultural produce after
harvest. Accordingly, (c) is not an offense or element of an offense that
the State needed to allege, but a defense for which Bowman carried the
initial burden of production of evidence. Further, the defense would
have failed regardless because Bowman chose to let the cabbage blow
away rather than remove it from the highway. The ICA thus affirmed
the conviction.
Ito v. Investors Equity Life Holding Co., No. SCAP-10-0000131
(Haw. Feb. 27, 2015). This case arises out of the 1994 involuntary
liquidation of an insolvent insurance company, Investors Equity Life
Insurance Company of Hawaii, Ltd. (IEL), by the Insurance
Commissioner. Investors Equity Life Holding Co. (IELHC), IELs
parent company and sole shareholder, opposed the petition for
liquidation and proposed a rehabilitation plan. The circuit court
concluded that the rehabilitation plan was not reasonable or feasible
and ordered the liquidation of IEL under the Commissioners
supervision. The circuit court also approved the plan for the
disbursement of IELs assets and established a claims bar date for
creditors. At the same time, the Commissioner brought suit against
IELHC and its sole shareholder for alleged tortious misconduct in
causing the failure of IEL. IELHC settled this suit in 1996 by agreeing
to surrender all of its shares in IEL for cancellation and forfeiture. In
2008, IELHC wrote two letters to the Commissioner claiming title to
IELs stock and demanding that the Commissioner deliver all shares of
IEL stock to it and distribute the remaining surplus of the IEL estate.
IELHC also filed a complaint in California state court in early 2009
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that was stayed on the ground that Hawaii was a more suitable forum.
Subsequently, the Commissioner as liquidator issued a Notice of
Determination of Claim, treating IELHCs letters and the California
lawsuit as a claim against IELs estate and denying the claim. The
circuit court granted the Commissioners motion for an order confirming
the Determination of Claim. On appeal and transfer to the Hawaii
Supreme Court, the court first held that the two letters and the
California lawsuit constituted a claim seeking assets from IELs estate
under HRS 431:15-332. Although the letters did not contain all the
elements listed in HRS 431:15-326(a) for a proof of claim, substantial
compliance is sufficient if the liquidator can identify who submitted the
claim, the amount of the claim, and the grounds of the claim. Further,
while the liquidator has the discretion to consider late-filed claims,
IELHCs claim was first asserted more than 12 years after the claims
bar date, and the circuit court did not abuse its discretion in concluding
that the claim was time barred. Thus, the supreme court affirmed the
circuit courts order confirming the liquidators denial of IELHCs claim.
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Useful Appellate Links:
The Hawaii Judiciary: www.courts.state.hi.us
United District Court for the District of Hawaii: www.hid.uscourts.gov
United States Court of Appeals for the Ninth Circuit: www.ca9.uscourts.gov
United States Supreme Court: www.supremecourt.gov
Hawaii State Bar Association: www.hsba.org
Blogs by our Members:
www.hawaiilitigation.com (by our Member Louise Ing)
www.hawaiioceanlaw.com (by our Member Mark M. Murakami)
www.hawaiiopinions.blogspot.com (by our Member Ben Lowenthal)
www.insurancelawhawaii.com (by our Member Tred R. Eyerly)
www.inversecondemnation.com (by our Member Robert H. Thomas)
www.hawaiiappellatelaw.com (by our Member Charley Foster)
www.recordonappeal.com (by our Member Rebecca A. Copeland)
www.legaltxts.com (by our Member Elijah Yip)
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The Appellate Record, February 2015 Page 12
Appellate Resources:
HAWAII APPELLATE SECTION WEBSITE: The Appellate Sections website includes useful appellate resources, including handouts from prior monthly
meetings, copies of this newsletter, and power point presentations from the
Appellate Sections programs at the 2012 and 2013 HSBA Bar Coventions. www.hawaiiappellatesection.org
HAWAII APPELLATE PRACTICE MANUAL: The Hawaii Appellate Practice
Manual (2012) includes information for filing appeals in Hawaii, including how to e-
file documents on the Judiciarys E-Filing System, how to supercede a judgment, and how to brief and argue cases. The manual also includes useful appellate forms.
The Manual was co-sponsored by the Appellate Section and the Hawaii State Bar
Association, and is available through the HSBA.
FEDERAL APPELLATE PRACTICE MANUAL: The Federal Appellate Practice
Manual (2013) includes valuable information and insight into practicing appeals in
the federal arena, with special emphasis on the United States Supreme Court and
United States Court of Appeals for the Ninth Circuit. The Manual was co-
sponsored by the Appellate Section and the Hawaii State Bar Association, and is
available through the HSBA.
HAWAII APPELLATE PRACTICE MANUAL SUPPLEMENT: Appellate Motions Practice is a supplement to the 2012 Hawaii Appellate Practice Manual, offering insight and practice tips into state appellate motions practice, and
including additional forms. The Supplement was co-sponsored by the Appellate
Section and the Hawaii State Bar Association, and is available through the HSBA.
HSBA Publication List (effective January 13, 2014) can be found at this link:
http://hsba.org/resources/1/CLE%20Flyers/Publications%20List.pdf
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The Appellate Record, February 2015 Page 13
Stay tuned for the next edition of
The Appellate Record! If you are interested in contributing to our newsletter in any way, please contact Michi
Momose at [email protected].
The Appellate Record is presented
as a courtesy to the Members of the
Hawaii State Bar Associations
Appellate Section by its Board.
Mahalo and enjoy!