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Transcript of The Appellate Record - September 2013
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The Appellate Record, September 2013 Page 1
THE APPELLATE RECORD
September 2013
Twitter Brief Contest The HSBA Appellate Section is pleased to announce its first annual Twitter
Brief contest! We are borrowing the idea from our sister section in Texas, whose
twitter competition has garnered national attention over the last three years. To enter the contest, draft an appellate brief of no more than 140 characters
(including spaces – the limit for a "tweet" on Twitter). Email your brief between
now and Monday, September 23, 2013, to the HSBA Appellate Section's Chair at
Winners will be announced at the Appellate Section's presentation at theHSBA Bar Convention, on Friday, September 27, 2013. The three top twitter briefs
will win prizes!
Have fun tweeting, we look forward to reading how much punch a simple
tweet can pack!
2013 HSBA Appellate Section Board:
Chair: Ms. Rebecca A. Copeland
Vice Chair: Mr. Mark J. Bennett
Secretary: Ms. Bethany C.K. Ace
Treasurer: Mr. Robert Nakatsuji
HSBA CLE Liaison: Ms. Mitsuko T. Louie
HAWSCT Liaison: Mr. Matthew Chapman
ICA Liaison: Mr. Daniel J. Kunkel
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appellant’s opening brief. HRAP Rule 28(b)(4)(A). Additionally, in initially making
the objection before the trial court, consider whether to make an offer of proof.
Thus, an error must normally be brought to the trial court’s attention to fully
preserve the issue for appeal.1 In the absence of an objection below, the issue on
appeal is whether the lower court committed a plain error. Plain error review isbroader in criminal cases then it is in civil cases. In the context of civil cases, the
Hawai‘i Supreme Court has explained:
[T]he plain error rule is only invoked when ‘justice so
requires.’ We have taken three factors into account in
deciding whether our discretionary power to notice plain
error ought to be exercised in civil cases: (1) whether
consideration of the issue not raised at trial requires
additional facts; (2) whether its resolution will affect the
integrity of the trial court’s findings of fact; and (3)
whether the issue is of great public import.
Montalvo v. Lapez, 77 Hawai‘i 282, 290, 884 P.2d 345, 353 (1994) (quotations
omitted).
If the error was made during a hearing, be sure that the hearing transcript is
included as part of the record on appeal.
II. Post-trial Motions
Generally, post-trial motions are not required to appeal. One exception to this
rule arises in the family law context. See Hawai‘i Revised Statutes (“HRS”) § 571-
54.
Even if a post-trial motion is not required to appeal, it may be advisable to
file a post-trial motion A party may have a better chance of persuading the trial
1 One exception to this rule arises in the context of subject-matter jurisdiction. No objection to
subject-matter jurisdiction need be made to raise the issue on appeal.
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court or agency to reconsider an issue than of showing error on appeal, where the
standard of review may be restrictive.
A post-trial motion may toll the time to appeal. Under HRAP Rule 4(a)(3):
If any party files a timely motion for judgment as amatter of law, to amend findings or make additional
findings, for a new trial, to reconsider, alter or amend the
judgment or order, or for attorney’s fees or costs, the time
for filing the notice of appeal is extended until 30 days
after entry of an order disposing of the motion; provided,
that the failure to dispose of any motion by order entered
upon the record within 90 days after the date the motion
was filed shall constitute a denial of the motion.
The Hawai‘i Supreme Court is presently considering two cases involving the
application of Rule 4(a)(3)’s deemed-denied clause. Ass’n of CondominiumHomeowners of Tropics at Waikele v. Sakuma, SCWC-12-0000870 (Haw.); Title
Guaranty Escrow Servs., Inc. v. Szymanski, SCWC-12-0000711 (Haw.).
III. Appealable Final Judgments
Generally, a final judgment is necessary to appeal. The appellant should
ensure that the form of judgment disposes of all parties and all claims before the
appeal is filed. If there are multiple claims, consider noting in the judgment in
appropriate that “all other claims are dismissed.” It is helpful to read Jenkins v.
Cades Schutte Fleming & Wright, 76 Hawai‘i 115, 869 P.2d 1334 (1994), in
preparing the final judgment.
There are exceptions to the final-judgment rule, including statutory
exceptions for orders on motions to compel arbitration under HRS Chapter 658 and
good faith settlement determinations under 663-15.5. In addition, interlocutory
appeals may be taken under HRS § 641-1(b), provided that the circuit court makes
the necessary finding. It may also be appropriate to obtain a Hawai‘i Rules of Civil
Procedure (“HRCP”) Rule 54(b) certification. Finally, interlocutory appeals may be
taken based on the collateral order doctrine and the Forgay doctrine (which
concerns orders for execution on property).
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IV. Steps to Appeal
Generally, the appellant has 30 days to file a notice of appeal from the entry
of judgment. If the appellant fails to file the appeal within the allowed time, the
appellate court will likely not have appellate jurisdiction to hear the appeal.
Along with the notice of appeal, the appellant must file a civil appeal
docketing statement pursuant to HRAP Rule 3.1.
If the appellant wants to raise a point that requires a hearing transcript, the
appellant must file with the appellate clerk a request to prepare a transcript within
10 days after filing the notice of appeal. If the court reporter is behind schedule,
consider giving the reporter a call for a status update. This information may be
helpful in obtaining an extension to file the opening brief.
Within 10 days after the record on appeal is filed, the appellant must file a
statement of jurisdiction pursuant to HRAP Rule 12.1(a). Any appellee contesting
jurisdiction may file a statement contesting jurisdiction within the same period.
V. Chapter 91 Appeals
In order to appeal an administrative decision under HRS Chapter 91, the
matter must have been a contested case required by law, i.e., required by rule,
statute, administrative rule, or constitution. See Bush v. Hawaiian Homes Comm’n,
76 Hawai‘i 128, 870 P.2d 1272 (1994).
VI. Factors to Consider Before Appeal
Before filing an appeal, consider whether you should apply to transfer the
case from the Hawai‘i Intermediate Court Appeals to the Hawai‘i Supreme Court.
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HRS § 602-58 allows for such transfers and provides three types of cases in which
the transfer is mandatory and two in which the transfer is discretionary.
With respect to the three mandatory categories, the Hawai‘i Supreme Court
“shall grant an application to transfer” upon the grounds that the case involves:
(1) A question of imperative or fundamental public
importance;
(2) An appeal from a decision of any court or agency when
appeals are allowed by law: (A) Invalidating an
amendment to the state constitution; or (B) Determining
a state statute, county ordinance, or agency rule to be
invalid on the grounds that it was invalidly enacted or is
unconstitutional, on its face or as applied, under either
the constitution of the State or the United States; or
(3) A sentence of life imprisonment without the possibility
of parole.
HRS § 602-58(a) (spacing altered).
As for the two discretionary categories, the supreme court “may grant an
application to transfer” upon the grounds that he case involves: “(1) A question of
first impression or a novel legal question; or (2) Issues upon which there is an
inconsistency in the decisions of the intermediate appellate court or of the supreme
court.” Id. § 602-58(b) (spacing altered).
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HSBA Bar Convention
Friday, September 27, 2013
8:30 a.m. to 12:00 p.m.
Join us for the Bar Convention!
The Appellate Section will present its Federal Appellate Practice Manual at
this year’s HSBA Bar Convention to be held on Friday, September 27, 2013, at the
Hilton Hawaiian Village. The manual provides information and advice on federal
appellate practice for Hawaii practitioners, with a special emphasis on practice in
the Ninth Circuit Court of Appeals and the United States Supreme Court.
As a follow up to the Hawaii Appellate Practice Manual, released last year,
we will also provide the much-anticipated Hawaii Appellate Motions Chapter ! A
supplement to the Hawaii manual, this chapter will provide useful rules, tips, and
additional forms for those who do – or may – file motions with the Hawaii appellate
courts.
The Appellate Section’s program will also include our popular Appellate
Panel. This year's event will feature special guests from the Hawaii Supreme
Court: Chief Justice Mark E. Recktenwald, Justice Simeon R. Acoba, Jr., Justice
Sabrina S. McKenna, and Justice Richard W. Pollack.
We also have some exciting extras planned including Appellate Motions
Jeopardy and Twitter Briefs!!
Attendees of the Appellate Section's program will earn 2.0 VCLE and 1.0
MCPE.
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Mahalo to the HSBA for a wonderful night!
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This Month in Appellate History
Ø The following United States Supreme Court Justices assumed office in
September: James Wilson, William Cushing, John Blair, Jr., Smith
Thompson, Levi Woodbury, Benjamin Robbins Curtis, George Sutherland,
Harold Hitz Burton, Arthur Goldberg, William Rehnquist, Sandra Day
O'Connor, Antonin Scalia, and John G. Roberts.
Ø On September 16, 2009, Craig H. Nakamura was sworn in as an Chief Judge
of the Intermediate Court of Appeals.
JEFS E-Filing Tip of the Month Ø When attaching a document in JEFS, the "notes" field is available for writing
note to the clerk of the court. For example, if the titles/document types for
selection did not include the document type you needed, you can indicate this
in the notes. Remember, text entered in the notes field is public record, and
will appear on the eCourt kokua site.
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August Published Appellate Opinions In August, the Hawaii Supreme Court issued three published opinions (notcounting the one amended opinion) and the Intermediate Court of Appeals also
issued three. Below is a brief synopsis of each:
In In the Matter of the Application of Honolulu Construction and Draying
Company, Ltd. v. State of Hawaii, Department of Land and Natural Resources et al.,
Scenic Hawaii, and Aloha Tower Development Corp., SCWC-30484 (August 9, 2013),
the HAWSCT held the Land Court properly awarded attorneys’ fees and costs
totaling over $135,000.00 to Scenic Hawaii against the State under the private
attorney general doctrine.
In Kanahele v. Maui County Council, SCWC-29649 (August 8, 2013), theHAWSCT held that although the Maui County Council violated Hawaii’s Sunshine
Law (HRS ch. 92) related to Council meetings of the Land Use Committee related to
a residential development project, the violation did not warrant invalidation of the
Council’s actions.
In State v. Taylor, SCWC-30161 (August 19, 2013), held that (1) appellate
review of the impact of an unrequested mistake of fact jury instruction is for plain
error, (2) "plain error exists if the defendant, at trial, had met his or her initial
burden to adduce credible evidence of facts constituting the defense (unless those
facts are supplied by the prosecution’s witnesses)," and (3) "[i]f the omission of the
unrequested mistake of fact jury instruction constitutes plain error, it shall be abasis for reversal of the defendant’s conviction only if an examination of the record
as a whole reveals that the error was not harmless beyond a reasonable doubt."
In State v. DeMello, CAAP-10-0000173 (August 27, 2013), the ICA held that
(1) the evidence was sufficient to support the defendant's conviction for harassment,
(2) the trial court erred in sentencing the defendant to both a thirty-day term of
imprisonment and anger management classes, and (3) vacated, in part, the
restitution award. On the issue of restitution, the ICA held that the evidence
supported the victim's compensable losses, but concluded that the trial court erred
in ordering lost wages because
"restitution for lost wage is contrary" to legislative intent. The court also vacated
the amount of the restitution award related to medical expenses awarded based on
apportionment.
In Simmons v. Aqua Hotels and Resorts, Inc., CAAP 12-0000836 (August 22,
2013), the ICA adopted Ninth Circuit precedent allowing Title VII lawsuits to move
forward even though a party was not named in an EEOC charge under limited
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circumstances where "(1) the unnamed party was involved in the acts giving rise to
the EEOC charge; (2) the EEOC or the unnamed party should have anticipate a
Title VII suit against the unnamed party; (3) the named party is a principal or
agent of the unnamed party or if they are substantially identical; (4) the EEOC
could have inferred that the unnamed party violated Title VII; or (5) the unnamed
party had notice of the EEOC conciliation efforts and participated in the EEOCproceedings." Based on these exceptions, the ICA held that the circuit court erred in
dismissing Plaintiff's age discrimination case for lack of jurisdiction.
In Ryan v. Palmer, CAAP-12-0000697 (August 20, 2013), the ICA held (1)
that case law interpreting dismissals under Hawaii Rules of Civil Procedure
41(b)(2) applies to dismissals under Hawaii Circuit Court Rule 12(q), and (2) that
the dismissal of Ryan's case with prejudice for the failure to file a pretrial statement
after the case had been admitted to the Court Annexed Arbitration Program
(CAAP) was improper because the he “was not dilatory in any respect other than
the failure to file a pretrial statement.”
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Upcoming Events:
2013 HSBA Bar Convention Please sign-up to join the HSBA Appellate Section at this year’s HSBA Bar
Convention to be held on Friday, September 27, 2013 , at the Hilton Hawaiian
Village. The Appellate Section’s time will be from 8:30 to Noon.
Our line-up will consist of discussions on federal and state appellate practice
including: state and federal motions practice, federal standards of review,
bankruptcy appeals, federal criminal appeals, and oral argument.
The section will also reprise the popular Appellate Panel with distinguished
guests Chief Justice Mark E. Recktenwald, Justice Simeon R. Acoba, Jr., Justice
Sabrina S. McKenna, and Justice Richard W. Pollack.
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Coming Soon:FEDERAL APPELLATE PRACTICE MANUAL: The Appellate Section is
pleased to announce that it will publish another appellate manual in conjunction
with the Hawaii State Bar Association. This year’s manual will be entitiled
“Federal Appellate Practice Manual.” The manual will provide 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. Our contributors and/or editors include: Rebecca
A. Copeland, G. Richard Morry (editor), Marissa Luning (editor), Mitsuko Louie
(editor and contributor). Ninth Circuit Judge Richard Clifton, Christphoer Goodin,
Doug Fredrick, John Duchemin, Monica Suematsu, Kimberly Asano, Cal Chipchase,
Elijah Yip, Robert Thomas, Mark Murakami, Steven Gray, Johnathan Bolton, Lisa
Munger, Lisa Bail, Trent Kakuda, Bethany C.K. Ace, and Brett Rowan.
HAWAII APPELLATE PRACTICE MANUAL SUPPLEMENT : “Appellate
Motions Practice” a suplement to the 2012 Hawaii Appellate Practice Manual, will
be available for the first time at the 2013 Bar Convention. The Supplement will
offer insight and practice tips into state appellate motions practice, and include
additional forms.
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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 Chair Rebecca A. Copeland)
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Appellate Section Website:
The Appellate Section’s website includes useful appellate resources, includinghandouts from prior monthly meetings, copies of this newsletter, and power point
presentations from the Appellate Section’s program at the 2012 HSBA Bar
Covention.
www.hawaiiappellatesection.org
Hawaii Appellate Practice Manual:
The Hawaii Appellate Practice Manual includes information you need to know for
filing appeals in Hawaii, including how to e-file documents on the Judiciary’s 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.
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Stay tuned for the October 2013 edition of The Appellate Record!
If you are interested in contributing to our newsletter in any way, please contact the
Section’s Chair Rebecca A. Copeland at [email protected]
The Appellate Record is presented
as a courtesy to the Members of the
Hawaii State Bar Association’s
Appellate Section by its Board.
Mahalo and enjoy!