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The Appellate Record, February/March 2014 Page 1

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,-./01/2341/56 789:

Recent Developments in Hawaii Appellate Practice and Procedure

By: Christopher J.I. Leong (Damon Key Leong Kupchak Hastert)

Over the last few months, the Hawaii Supreme Court has issued several
opinions addressing topics of particular interest and importance to appellate
practitioners. Common to these opinions is the courts effort to offer authoritative
declarations on issues that frequently arise in appellate practice, such as deadlines
for filing appeals and what should happen to briefs that do not comply with the
applicable rules.

2014 HSBA Appellate Section Board:
Chair: Ms. Bethany C.K. Ace
Vice Chair: Ms. Mitsuko T. Louie
Secretary: Mr. Christopher Goodin
Treasurer: Mr. Robert Nakatsuji
HSBA CLE Liaison: Ms. Mitsuko T. Louie

HAWSCT Liaison: Mr. Matthew Chapman
ICA Liaison: Mr. Daniel J. Kunkel

The Appellate Record, February/March 2014 Page 2

In Assn of Condominium Homeowners of Tropics at Waikele v. Sakuma, 131
Haw. 254, 318 P.3d 94 (2013), the court addressed the deadline for the filing of a
notice of appeal under Hawaii Rules of Appellate Procedure (HRAP) Rule 4 when a
party has filed a post-judgment motion in the trial court.
Under HRAP Rule
4(a)(1), generally speaking, [w]hen a civil appeal is permitted by law, the notice of
appeal shall be filed within 30 days after entry of the judgment or appealable
order. However, pursuant to HRAP Rule 4(a)(3), when a party timely files a post-
judgment motion, 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.

At issue in Sakuma was everything to the right of the semicolon in HRAP
Rule 4(a)(3) that is, whether a deemed denial of the motion triggers the 30-day
window for filing a notice of appeal. The case itself involved judicial foreclosure and
sale of Sakumas condominium unit for failure to pay maintenance fees and other
association dues; after the circuit court entered order and judgment confirming the
sale on May 29, 2012, Sakuma timely filed a motion for reconsideration on June 7,
2012. Sakuma, 131 Haw. at 255, 318 P.3d at 95. The circuit court did not rule
within 90 days, and Sakuma appealed to the ICA on October 16, 2012. Id. The ICA
dismissed the appeal for lack of jurisdiction as untimely under HRAP Rules 4(a)(1)
and 4(a)(3), because the deemed denial of Sakumas motion for reconsideration
meant she had to appeal by October 5, 2012. Id.

A majority of the supreme court concluded that even when a timely post-
judgment motion is deemed denied after 90 days, HRAP Rule 4(a)(1) requires an
entry of an order to trigger the thirty-day appeal period in HRAP Rule 4(a)(3). Id.
at 256, 318 P.3d at 96. Focusing on the phrase entry of an order in Rule 4(a)(3),
the court also noted that under Rule 4(a)(5), a judgment or order is entered when it
is filed in the office of the clerk of the court. Thus, the court held that when a
timely post-judgment tolling motion is deemed denied, it does not trigger the thirty-
day deadline for filing a notice of appeal until entry of the judgment or appealable
order pursuant to HRAP Rules 4(a)(1) and 4(a)(3)[,] vacated the ICAs dismissal,
and remanded the case to the ICA. Id.

The court also addressed the same issue in an unpublished summary disposition order in
Title Guaranty Escrow Services, Inc. v. Szymanski, 131 Haw. 300, 318 P.3d 590 (2014) (table).
The Appellate Record, February/March 2014 Page 3

Justice Nakayama dissented, arguing that the majoritys opinion renders
the second clause of the rule superfluous[] by disregard[ing] the role of HRAP Rule
4(a)(3)s second clause in modifying and clarifying the general rule contained in the
first clause. Id. at 257, 318 P.3d at 97 (Nakayama, J., dissenting). In other words,
the provided clause in Rule 4(a)(3) is meant to clarify and create an exception to
the general practice of disposing of a motion by order in the event that the trial
court does not enter an order on the record within 90 days of the motion being filed.
Id. In her view, the filing of a post-judgment motion extends the deadline for filing
an appeal until 30 days after the disposition of the motion by order or by deemed
denial. Id. (emphasis in original). Accordingly, Sakumas appeal should have been
filed by October 5, 2012. Id.

Moving from appeal filing deadlines to appealability generally, the court held
in Lambert v. Teisina, SCWC-12-0001024 (Jan. 10, 2014) (per curiam), that a
partition sale confirmation order is immediately appealable pursuant to the
doctrine enunciated in Forgay v. Conrad, 47 U.S. 201 (1848). In the case, the circuit
court ordered that a portion of a parcel of property be partitioned and sold at
auction; after the sale, the court entered an order confirming the sale but did not
enter a final judgment. Lambert, slip op. at 6-7. After the Teisinas appealed and
filed their opening brief, the ICA dismissed for lack of jurisdiction because no
separate, final judgment was entered pursuant to Jenkins v. Cades Schutte Fleming
& Wright, 76 Haw. 115, 869 P.2d 1334 (1994). Id. at 7.

The supreme court accepted the case and held that the confirmation order is
immediately appealable under the Forgay doctrine exception to the Jenkins
separate, final judgment requirement. Id. at 8. As the court explained, the Forgay
doctrine permits a direct appeal from a non-final, interlocutory order or decree that
commands the immediate transfer of property, where the losing party will be
subjected to undue hardship and irreparable injury if appellate review must wait
until the final outcome of the litigation. Id. at 10 (citations omitted). The court
also noted that it has traditionally permitted appeals of non-final, interlocutory
orders that command the immediate transfer of property[,] such as foreclosure
decrees, writs of possession, and orders for the sale of specific property. Id. at 11.
While the doctrine had not yet been applied to a partition sale confirmation order,
the court found guidance in a Ninth Circuit case holding that even though the
partition judgment did not direct the immediate delivery of property, the order had
the effect of depriving one group of property owners of property they had previously
occupied and the hardship of relocation would be exacerbated by a refusal to
undertake immediate review. Id. at 12-13 (citing Sekaquaptewa v. MacDonald,
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575 F.2d 239, 243 (9th Cir. 1978)). Thus, the court vacated the ICAs dismissal and
remanded for consideration on the merits.

In In re Marn Family Litigation, SCWC-10-0000181 (Feb. 12, 2014), the
supreme court addressed what an appellate court should do when considering
striking a brief or dismissing an appeal where briefs are untimely or otherwise not
in conformance with HRAP. The appeal at issue in this case was just one of many
civil lawsuits, appeals, and bankruptcy proceedings involving members of the Marn
family. Alexander Marn appealed to the ICA and filed a pro se opening brief which,
among other things, included no table of authorities, instead referencing the table
of authorities in the opening brief Alexander filed in another appeal before the ICA .
. . incorporated by reference all records and briefing from [four other appeals
currently pending in the Marn Family Litigation] . . . referred the court to prior
appeals for the relevant standard of review . . . cited no authority, and rarely cited
to the record. Marn, slip op. at 3. The opposing parties argued in their own briefs
that Alexanders brief should be stricken and the appeal be dismissed, but did not
file any motions to dismiss. Id. at 3-4. Nevertheless, the ICA in its summary
disposition order sua sponte dismissed the appeal for substantial violations of
HRAP Rule 28 in the opening brief. Id. at 4.

In its opinion, the supreme court reaffirmed that arguments not presented
in compliance with HRAP Rule 28(b)(4) may be disregarded. Id. at 7 (citations
omitted). However, the court noted that it is very rare for an appellate court to
dismiss an entire appeal based on non-compliance with briefing requirements. Id.
at 8. The court then examined HRAP Rule 30, which provides in pertinent part
that (1) when an opening brief is untimely filed, the appellate clerk must notify the
parties that the untimeliness will be brought to the courts attention and that the
appeal may be dismissed, and (2) when an opening brief does not conform to HRAP,
the appeal may be dismissed or the brief stricken and monetary or other sanctions
may be levied[.] Rule 30 further provides that [a]ny party who may be adversely
affected by application of this rule may submit a memorandum, affidavits, or
declarations setting forth the reasons for non-conformance with these rules.

The court noted a slight discrepancy in Rule 30 in that the appellate clerk
shall provide the appellant with notice before dismissing the appeal if the opening
brief is not timely filed, but is silent as to whether the court must provide an
appellant with notice if the appeal is to be dismissed for non-compliance with other
rules such as Rule 28. Id. at 10. The court also looked to the last sentence of the
rule and commented that [i]t is unclear how a party would be aware of the need to
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submit such a memorandum if the court did not provide the party with notice that
its brief was not in compliance with a provision of the HRAP and that the court was
dismissing the partys appeal. Id. Because the drafters of the rule clearly intended
to provide parties with a meaningful opportunity to respond to any allegations of
non-compliance[,] the court concluded that Rule 30 requires the appellate court
[to] give notice to the parties of any non-compliance with HRAP before dismissing
an appeal, striking a brief, or ordering monetary or other sanctions. Id. at 11.
Accordingly, the court vacated the ICAs judgment and remanded the case to the
ICA for further proceedings. Id. at 12. Also of interest is footnote 7 of the courts
opinion, in which the appellate courts ability to disregard individual arguments
remains unaffected: Nothing herein should be interpreted as precluding an
appellate court from disregarding an individual argument that is not presented in
compliance with HRAP Rule 28. Id. at 11 n.7.

In Goo v. Arakawa, SCWC-30142 (Feb. 19, 2014), the court tackled the issue
of what procedure an appellate court should follow when a case becomes moot on
appeal and one party seeks to vacate the lower courts judgment so that it does not
have collateral estoppel effect in future proceedings. Briefly stated, the underlying
case involved building height restrictions on two development projects in Maui
County. After the projects were approved, the definition of building height was
changed by a 1991 Maui County Council ordinance; subsequently, the mayor came
to an agreement with the developers that the pre-1991 definition would apply to
them as the projects had already received preliminary approval and the developers
had made substantial expenditures in reliance thereon. See Goo, slip op. at 3-7.
Several nearby homeowners then filed suit seeking declaratory and injunctive relief
requiring Maui County to enforce the post-1991 height restriction to the projects.
Id. at 8. The homeowners obtained relief in the circuit court, but while the case was
on appeal before the ICA, the council adopted an ordinance that essentially
exempted the projects from the post-1991 definition. Id. at 13-14. The ICA then
concluded that the case was moot, vacated the circuit courts final judgments, and
remanded to the circuit court with instructions to dismiss the case. Id. at 16.

After a review of two United States Supreme Court cases discussing
mootness and vacatur,
the Goo court concluded that the circuit court is in the best
position to determine whether its own prior judgment should be vacated. Because
the case became moot while on appeal, the parties did not have an opportunity to

U.S. Bancorp Mortgage Co. v. Bonner Mall Pship, 513 U.S. 18 (1994); United States v.
Munsingwear, Inc., 340 U.S. 26 (1950).
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adduce evidence, present memoranda, or make arguments to the circuit court judge,
who would have been in the best position to make factual determinations as to the
cause of the mootness and to balance the equities of the case. Id. at 32. Rather
than strictly following a practice of vacating the lower judgment when a case
becomes moot on appeal and remanding the case with instructions to dismiss, the
court concluded that the better practice is to remand to the circuit court to allow
that court an opportunity to consider an HRCP Rule 60(b) motion for vacatur. The
circuit court may then make factual findings, balance the equities of the case, and
exercise its discretion as to whether its own judgment should be vacated in whole or
in part. Id. at 36.

So where do we stand in light of these newly minted precedents? While
these opinions provide useful guidance on the Hawaii Rules of Appellate
Procedure, a set of rules not often directly interpreted by the court, they fortunately
do not change the landscape of appellate practice all that dramatically. For
example, Lambert essentially expanded an already existing doctrine to encompass
partition sale confirmation orders for the first time. Marn simply requires the ICA
(and the supreme court in transfer cases) to afford proper notice under the existing
language of Rule 30 when a brief so egregiously violates HRAP that the court is
contemplating dismissal of the appeal. While the Sakuma majority ostensibly
indefinitely tolls the time period for appealing until the trial court enters an order
on a post-judgment motion, the dissent and the continued existence of the deemed
denial language in Rule 4(a)(3) counsel in favor of ensuring that the trial court does
file an order on the record if 90 days have passed since the motion was filed. Goo
probably provides the most change in this group of cases by requiring appellate
courts to remand cases to trial courts for consideration of motions to vacate rather
than vacating and remanding with instructions to dismiss the entire case.
Regardless of the outcomes in these cases, it is always nice to have the Hawaii
Supreme Court establish precedent on topics of practice and procedure in addition
to all the work it does on matters of substantive law.
The Appellate Record, February/March 2014 Page 7

Administrative Agency Appeals: How do You Get There,
and How do You Get Out?
By: Christopher T. Goodin (Litigation Department, Cades Schutte LLP) and Mitsuko T. Louie
(DCCA, Staff Attorney, Securities Enforcement Branch)

At the January 13, 2014 meeting of the Appellate Section, Robert H. Thomas
and Gregory W. Kugle, both of whom are Directors at Directors of Damon Key
Leong Kupchak Hastert, gave a presentation on Administrative Agency Appeals:
How Do You Get There, and How do You Get Out? Video of the presentation and
the written materials from presentation can be found at Mr. Thomas blog,
The following is a short summary of the presentation.
1. HRS 91-14. This statute is normally the alpha and the omega of
administrative appeals. It authorizes appeals to circuit court by a person
aggrieved (including an agency) by a final decision and order in a contested
case. Appeals from such decisions must be instituted within 30 days after service of
the final decision and order. In reviewing the administrative decision, the circuit
court is typically confined to the record before the agency, so be sure to have your
evidence admitted at the agency level. Functioning as an appellate court, the circuit
court may affirm, reverse, or modify the agencys decision if the substantial rights of
the petitioners may have been prejudiced by constitutional or statutory violations,
ultra vires acts, unlawful procedures, some other error of law, or clearly erroneous
factual findings.

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2. Contested Case. A contested case is an agency hearing required by
law (rule, statute, or constitutional requirements) that determines legal rights,
duties, or privileges of specific parties. The proceeding may be handled by the
agencys decision makers (e.g., the director or a board) or may be assigned to a
hearings officer who makes recommendations to the decision makers. Contested
cases often look like trials (witnesses, cross-examination, and evidence), but
sometimes they are much less formal. Basically any agency ruling that is the result
of a hearing in the agencys non-legislative capacity could be deemed a contested
Where a person is denied a contested case, the person can appeal the denial
under HRS 91-14. So if youre unsure about the proper agency procedure, consider
asking the agency for a contested case. If the agency denies your request, consider
appealing. If the agency grants the request, but you lose on the merits, consider
One open question is whether someone who challenges an agencys action
must do so under HRS 91-14 or whether the person may also seek declaratory or
injunctive relief in an original jurisdiction action.
3. Exhaustion of Administrative Remedies and Primary
Jurisdiction. Before challenging agency action in court, be sure to consider
whether you must first exhaust administrative remedies and whether the doctrine
of primary jurisdiction applies to your claim. If either doctrine applies, the court
will decline to grant relief until the administrative process has unfolded.
The two doctrines are related, though distinct. Exhaustion applies where a
claim is cognizable in the first instance by the administrative agency alone. On the
other hand, primary jurisdiction applies where a claim is originally cognizable in
both the courts and the agency. When the claim requires resolution of issues that,
under the regulatory scheme, have been placed within the special competence of the
administrative body, the judicial process is suspended pending referral of such
issues to the administrative body for its views.
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Oral Arguments: Tips and Insights
By: Christopher T. Goodin (Litigation Department, Cades Schutte LLP) and Mitsuko T. Louie
(DCCA, Staff Attorney, Securities Enforcement Branch)

At the March 3, 2014 meeting of the Appellate Section, Justice James E. Duffy, Jr.
of the Hawaii Supreme Court (Ret.) and attorneys Janice P. Kim and Chuck
Crumpton gave an informative talk on Oral Arguments: Tips and Insights. The
following is a summary of points from the meeting.
Overall Goal. Justice Duffy explained that the goal of oral argument is to have an
informed and meaningful conversation to enable the court to decide the case in your
clients favor.
Record. Know the record on appeal inside and out. Mistakes or misstatements
about the record cast doubt on the lawyers credibility. Once an attorney gets the
record wrong, the justices may start to question not only the attorneys presentation
of the facts, but also the law.
Caselaw. Read all of the relevant cases and be prepared to discuss the facts of the
cases. Additionally, consider making an outline of key points of law and reasoning
from the important cases.
Weak Points. Know the weak points in your case. Practice responding to the weak
points and explaining why they do not matter.
Two-Minute Drill. Justice Duffy suggested that counsel should have a two-minute
drill as to why the case should be decided in his or her favor.

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Be Courteous. Appellate judges do not appreciate when attorneys are rude to each
other. Nor do they appreciate it when attorneys are rude to the trial judge. Justice
Duffy suggested that it is enough to say that the trial judge erred or was mistaken.
He recalled reading a brief arguing that the trial judge had ignored over 100 years
of precedent. Justice Duffy suggested that this type of language was especially
ineffective at the Hawaii Supreme Court, where some of the justices had previously
served as trial judges.
Perspective. In preparing for oral argument, put yourself in the courts shoes. The
court will be looking backwards to see how the current case squares with precedent.
The court will also be looking forwards to see how the current case will affect future
cases. If the case is a blockbuster or requires overturning precedent, counsel
should be prepared to discuss the policy reasons that support the argument.
Additionally, counsel may want to show why the current case will not have broad
implications in future cases. Some judges are more comfortable making decisions
that have limited, incremental effects on future cases. At the same time, sometimes
the court may be prepared to rule broadly. Ms. Kim explained that, when she last
argued before the Hawaii Supreme Court, her primary argument was for a limited
ruling. However, based on questions from the bench, it was apparent that the
justices were inclined to overrule past caselaw. She modified her approach during
argument accordingly.
Moot Court. Consider holding moot court sessions before oral argument, especially
with practitioners who can bring a broader perspective to the given area of law.
Emotion. Justice Duffy recommended against using too much emotion at an
appellate oral argument. He suggested that this tactic may suggest that the
lawyers case is weak on the facts or the law.
Softballs. Attorneys should watch out for softball questions from judges.
Sometimes judges ask an attorney a question that helps his or her case to educate
the judges colleagues.
Frequency of Oral Argument. Recently, the Hawaii Supreme Court has been
scheduling oral argument in close to 100% of the cases it decides.
Oral Arguments Effect on Decisionmaking. Justice Duffy explained that, in
his personal experience on the bench, oral argument changed his mind in 1015% of
cases. Additionally, in 3040% of cases, oral argument affected how broadly or
narrowly the court would decide the case. For example, if a case presents five
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issues, a judge might be initially inclined to reach only two of the five issues.
However, as a result of oral argument, the judge may rather resolve all five issues.
The Courts Process Before Oral Argument. Before oral argument, a lead
justices chambers will prepare a bench memorandum that analyzes the arguments
and makes a recommendation on disposition. This memorandum is circulated to the
other justices, and they will have their law clerks further analyze the case before
oral argument.
The Courts Process After Oral Argument. Immediately after oral argument,
the justices will hold a conference at which they will vote on how the case should be
decided. If the lead justice is in the majority, he or she will be tasked with writing
the courts opinion. If not, the most senior justice in the majority will assign the
Video of Oral Argument. Video of oral arguments is recorded. Copies of the video
can be obtained by calling the Hawaii Supreme Courts bailiff.
Judiciarys Appellate Tips Video. Justice Duffy noted that additional tips on
oral argument could be found in a video program entitled Tips from the Bench and
the Bar: Dos and Donts in Hawaii Appellate Practice. It is available at

The Appellate Record, February/March 2014 Page 13

By: Bethany C.K. Ace (Damon Key Leong Kupchak Hastert); Christopher T. Goodin (Litigation
Department, Cades Schutte LLP); Rebecca A. Copeland (Law Office of Rebecca A. Copeland, LLC)

In January 2014, the Hawaii Supreme Court issued 13 published opinions,
and the Intermediate Court of Appeals issued 2 published opinions. The following
is a brief synopsis of some of those opinions follows:
In re TM, SCWC-12-0000521 (Haw. January 6, 2014). In the certiorari
opinion authored by Justice Acoba, the Hawaii Supreme Court found that the
failure of the family court below to appoint counsel for the minor parent until nearly
14 month after the Department of Human services filed a petition for temporary
foster custody for the parents son constituted an abuse of discretion under HRS
587-34 (2006) and 587-17 (supp. 2012) because the delay left the minor parent
without the necessary assistance to prepare for the hearing on termination of
parental rights, noting also that she was the only primary party not represented
by counsel. The Court additionally held that parents have a constitutional right to
counsel under article I, section 5 in parental termination proceedings and courts
must now appoint counsel for indigent parents once DHS files a petition to assert
foster custody over a child, thereby discontinuing the case-by-case approach
previously employed.
Lahaina Fashions, Inc. v. Bank of Hawaii, SCWC-30644 (Haw. January
7, 2014). In the certiorari opinion written by Justice Acoba, the Hawaii Supreme
Court held: (1) under certain circumstances, the trial court may recall a jury
following formal discharge if the jury is in the presence of, under the direction of,
or subject to the control of the court; (2) a jury verdict cannot be reversed based on
a jurys misunderstanding or misinterpretation of the legal effect of the jurys
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answer to a special verdict form question on the result of the case; and (3) a contract
to convey property does not create a trust relationship between the vendor and
purchaser and does not impose fiduciary duties. Restatement (Third) of Trusts 5,
cmt 1.
Lambert v. Teisina, SCWC-12-0001024 (Haw. January 10, 2014). The
Hawaii Supreme Court held that an order granting a motion for, among other
things, to confirm a partition sale is a final, appealable order under the Forgay
doctrine (Forgay v. Conrad, 47 U.S. 201 (1848)) and may be immediately reviewed
on appeal in the absence of a final judgment (i.e., absent a separate judgment
satisfying Jenkins v. Cades Schutte Fleming & Wright, 76 Hawaii 115, 869 P.2d
1334 (1994)) and in the absence of Rule 54(b) certification. The Court has
traditionally permitted appeals of non-final, interlocutory orders that command the
immediate transfer of property, but in this case of first impression, the Court found
that the exception created under the Forgay doctrine included a partition
confirmation order that effectively terminates property rights.
Van Ness v. State, Dept of Education, SCWC-11-0000775 (Haw. January
23, 2014). The Hawaii Supreme Court held that a claimant was entitled to
workers compensation for the aggravation of his asthma after he was exposed to
vog (volcanic smog) at work. According to the court, the aggravation of Van Nesss
asthma was a compensable injury. According to the court, both the ICA and the
LIRAB erred in consider[ing] whether vog exposure was a natural incident of Van
Nesss occupation as a technology coordinator[.] The focus, in this case, should
have been whether the vog exposure was proximately caused by the employment
or the work-connection approach.
Kellberg v. Yuen, SCWC-12-0000266 (Haw. January 22, 2014). The Hawaii
Supreme Court held that since an appeal to the County of Hawaiis zoning board of
appeals is only required from final decisions of the Planning Director, a later
dispute related to a subdivision approval could go straight to circuit court.
According to the court, an appeal to the Board of Appeals is only required from
final decisions of the Director for example, here, the final subdivision approval
Kellberg was not required to appeal the later adverse letter determination to the
Board of Appeals. In other words, there were no administrative remedies that he
failed to exhaust before filing his lawsuit in circuit court.
Schmidt v. HSC, Inc., SCWC-29454 (Haw. Jan. 15, 2014). The Hawaii
Supreme Court held that under the Uniform Fraudulent Transfers Act, the one
year [statute of] limitations period that begins on the date a transfer was or could
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reasonably have been discovered by the claimant commences when a plaintiff
discovers or could reasonably have discovered a transfers fraudulent nature.

In February 2014, the Hawaii Supreme Court issued 28 published opinions,
and the Intermediate Court of Appeals issued 2 published opinions. The following
is a brief synopsis of some of those opinions follows:
State v. Basham, No. SCWC-11-0000758 (Haw. Feb. 6, 2014). The Hawaii
Supreme Court held that the prosecutor misstated the law on accomplice liability
during closing argument, and therefore the defendants conviction of assault in the
first degree was vacated and the case was remanded for a new trial. The court
addressed the defendants remaining arguments to provide guidance on remand,
holding that: (1) even assuming that the prosecutor made a reasonable inference
from the evidence during closing argument by arguing that the defendant lied to the
police, the allegation was not legitimate inasmuch as the wrongful conduct that
was inferred may have been inadmissible under the applicable evidence rules; (2) a
prosecutor may not argue during closing argument that defendants, because they
are defendants, have no reason to tell the truth or have the greatest motive to lie;
and (3) substantial evidence supported the jurys conclusion in this case.
Ruggles v. Yagong, No. CAAP-13-0000117 (Haw. Ct. App. Feb. 7, 2014).
The Hawaii Intermediate Court of Appeals held that the Lowest Law Enforcement
Priority of Cannabis Ordinance conflicts with, and is thus preempted by, the
Hawaii Penal Code, HRS Chapter 329, Hawaii's Uniform Controlled Substances
State v. Adviento, No. SCWC-30171 (Haw. Feb. 10, 2014). The Hawaii
Supreme Court held that the trial court has a duty to instruct the jury on the
defense of extreme mental or emotional disturbance (EMED) when it is raised by
the evidence and that a defendant may not waive an instruction on the EMED
The Appellate Record, February/March 2014 Page 16

defense. Accordingly, the court vacated the defendants conviction of second-degree
murder and remanded the case for a new trial.
State v. Villiarimo, No. SCWC-10-0000109 (Haw. Feb. 12, 2014). The
Hawaii Supreme Court held that: (1) the appropriate standard for determining
whether to grant a continuance in a probation revocation or modification proceeding
should be the good cause standard; (2) the defendant had good cause for
requesting a continuance and thus the trial court abused its discretion in denying
the defendants request; and (3) on remand the trial court should consider, with
respect to each alleged probation violation, (a) whether the defendants actions were
intentional and (b) whether his actions, if intentional, were a deliberate attempt to
circumvent the courts probation order, considering the goals of sentencing the
defendant to probation.
Lopez v. State, No. SCWC-11-0000512 (Haw. Feb. 12, 2014). The Hawaii
Supreme Court held that: (1) a child support enforcement agency lien had priority
over an attorneys lien obtained through a contingency-fee agreement in subsequent
litigation; and (2) the failure to grant priority to the attorneys lien did not violate
due process.
In re Marn Family Litigation, No. SCWC-10-0000181 (Haw. Feb. 12,
2014). The Hawaii Supreme Court held that the Intermediate Court of Appeals
was required to give notice to a party of any non-compliance with the Rules of
Appellate Procedure before dismissing his appeal. The ICAs judgment was vacated
and the case was remanded to ICA for further proceedings.
Lales v. Wholesale Motors Co., No. SCWC-28516 (Haw. Feb. 13, 2014).
The Hawaii Supreme Court held that: (1) as a matter of first impression,
individual employees are not personally liable as employers for state law
harassment and retaliation claims; (2) summary judgment was inappropriate on the
plaintiffs federal harassment claim because there were factual issues as to whether
the alleged harassment culminated in the plaintiffs discharge; (3) summary
judgment was inappropriate on the plaintiffs state harassment claim because HAR
12-46-175(d) imposes strict liability on an employer for the discriminatory conduct
of its supervisory employees; (4) there were factual issues regarding whether the
employers proffered reasons for the plaintiffs termination were pretextual; and (5)
summary judgment was inappropriate on the plaintiffs public policy claim because
the motion on that claim was not properly supported.
Nautilus Ins. Co. v. Lexington Ins. Co., No. SCCQ-12-0000977. The
Hawaii Supreme Court held that: (1) unless another insurers policy is specifically
The Appellate Record, February/March 2014 Page 17

named in the first insurers policy, an insurer may not look to another insurers
policy in order to disclaim the duty to defend, where the complaint in the underlying
lawsuit alleges facts within coverage; (2) an other insurance clause purporting to
release an otherwise primary insurer of the duty to defend if the insurer becomes
excess as to liability is enforceable, but only as between two or more insurers
seeking to allocate or recover defense costs; (3) the relevance of the other
insurance provisions should be determined from the face of the policies and the
allegations in the complaint first, and then it can be decided whether the relevant
other insurance provisions are irreconcilable or mutually repugnant; if the
provisions are reconcilable, the operation of the other insurance provisions may
then be considered; and (4) an otherwise primary insurer who becomes an excess
insurer by operation of an other insurance clause has a duty to defend as soon as a
claim is tendered to it and there is the mere possibility that coverage of that claim
exists under its policy.
State v. Amiral, No. SCWC-11-0000374 (Haw. Feb. 13, 2014). The Hawaii
Supreme Court held that, in a prosecution for exceeding the speed limit, the
prosecution failed to lay an adequate foundation for the introduction of the laser
gun reading. The reason was that police officer's testimony was insufficient to
establish that his laser speed gun training met the manufacturer's requirements.
State v. Calara, No. SCWC-29550 (Haw. Feb. 14, 2014). The Hawaii
Supreme Court held that: (1) the trial court abused its discretion by admitting the
testimony of a police detective, a long-time veteran of the Sex Crimes Detail, that
probable cause existed for arresting the defendant, because the witness was imbued
with an aura of expertise due to his experience, and because the testimony implied
that the complaining witnesss version of the events was truthful and believable,
thus invading the province of the jury; (2) the trial court should have conducted an
HRE Rule 104 hearing to determine whether there was admissible evidence
concerning the complaining witnesss alleged drug use and its effect upon her
perception; and (3) the trial court should have excluded the defendants earlier
statements that he wanted to take the complaining witness because the
statements were, at their core, character evidence used to show action in conformity
therewith, and were not admissible under an HRE Rule 404(b) exception.
State v. Acker, No. SCWC30205 (Haw. Feb. 14, 2014). The Hawaii
Supreme Court held, in murder prosecution, that: (1) the trial court erred in its
determination that defense counsel opened the door to evidence concerning the
defendants convictions in California, but the error was harmless beyond a
reasonable doubt; (2) the trial court did not abuse its discretion in denying the
The Appellate Record, February/March 2014 Page 18

defendants motion for mistrial because it struck the testimony of the victims friend
regarding the lie detector test and instructed the jury to disregard that testimony;
(3) the prosecutions use of the presentence report to question the defendant during
cross-examination was harmless beyond a reasonable doubt and the prosecutions
comments during his rebuttal closing argument did not violate the defendants right
to a fair trial; (4) the prosecution did not engage in prosecutorial misconduct, and
the trial court did not abuse its discretion in denying the defendants request to
extract the alleged accomplice during the defendants case and instead allowing a
deputy sheriff to testify regarding the alleged accomplice's refusal to testify; and (5)
the challenged jury instructions on murder and accomplice liability were not
prejudicially insufficient, erroneous, inconsistent, or misleading.
Seki v. v. Hawaii Government Employees Assn, AFSCME Local No.
152, AFL-CIO, No. SCWC29352 (Haw. Feb. 14, 2014). The Hawaii Supreme
Court held that state and county employees could choose to enroll in health benefits
and long-term care benefits plans offered by their respective employee unions,
rather than Health Fund-sponsored plans. For employees who chose a union-
sponsored plan, the Health Fund would transfer or port to the unions either the
public employer's contribution as determined in relevant collective bargaining
agreements, or the actual monthly cost of the coverage, whichever was less. The
Hawaii Supreme Court held that the trial court did not err in interpreting actual
monthly cost of the coverage to mean the premium charged by and paid to the
[insurance] carrier, as opposed to the cost negotiated with an insurer in a bona fide
transaction at arm's length.
Pilaa 400, LLC v. Board of Land & Natural Resources, No. SCWC
28358 (Haw. Feb. 14, 2014). The Hawaii Supreme Court held that: (1) the Board of
Land and Natural Resources (BLNR) had jurisdiction to institute the enforcement
action, even if damage to conservation district land resulted from activities
conducted outside of the district; (2) BLNR was not required to engage in rule-
making before imposing a financial assessment for damages to state land against
the landowner; and (3) the landowner was afforded a full opportunity to be heard at
a contested case hearing following reasonable notice
In re AS, No. SCWC110001065 (Haw. Feb. 14, 2014). The Hawaii
Supreme Court held that: (1) where a party challenges the Department of Human
Services (DHS) permanent placement determination of a child, that party bears
the burden of proving, by a preponderance of the evidence, that DHS's permanent
placement determination is not in the best interests of the child; (2) as an agency
with child welfare expertise, DHS, as permanent custodian of a child, has the
The Appellate Record, February/March 2014 Page 19

discretion in the first instance to determine where and with whom a child shall live;
(3) any relative placement preference found in Title IVE of the Social Security Act
does not condition the receipt of federal funds thereunder upon permanent
placement of foster children with relatives; (4) there is no relative placement
preference in HRS Chapter 587A (the Child Protective Act or CPA) with regard
to permanent placement of foster children; therefore, to the extent that DHS's
Policy Directives PA Nos. 2005-5, -7, and -8 mandate such a preference, those
policies impermissibly alter the CPA and its legislative history; and (5) In re Doe,
101 Hawaii 220, 65 P.3d 167 (2003), does not stand for the proposition that the
family court must relieve DHS of its permanent custodianship if the family court
disagrees with DHS's permanent placement decision.
State v. Walton, No. SCWC-11-0000667 (Haw. Feb. 14, 2014). The Hawaii
Supreme Court held that: (1) the trial court erred in denying the defendants motion
for severance of his case from that of a co-defendant, because the defendant forced,
in effect, to defend against two prosecutors with two different theories of his guilt;
(2) the trial court correctly denied the defendants motion to suppress identifications
of the defendant made by his two coworkers; (3) the trial court properly instructed
the jury, because distinctions between principals and accomplices were not
necessary; (4) the trial court correctly denied the defendants motion for judgment of
acquittal since substantial evidence supported the defendants conviction; and (5)
the trial court did not reversibly err in denying the defendants motion to suppress
evidence of his name as obtained through the use of a card issued by General
Nutrition Center, because any such error would be harmless.
Fagaragan v. State, No. SCWC-11-0000592 (Haw. Feb. 14, 2014). The
Hawaii Supreme Court held that: (1) once the defendant made a showing that he
failure to raise claims in his first petition for post-conviction relief was not an
intelligent and knowing failure, the second petition should not have been denied
without a hearing on the basis that the claims had been waived; (2) HPA's action of
classifying the defendant as a Level III offender was in violation of the HPA
Guidelines and thus arbitrary and capricious, because the defendants offenses do
not meet the prescribed HPA criteria and no further written justification is
provided explaining HPA's decision.
Asato v. Procurement Policy Board, No. SCAP-12-0000789 (Haw. Feb. 14,
2014). The Hawaii Supreme Court held that: (1) the taxpayer was an interest
person with standing under HRS 91-7 to challenge a procurement regulation; (2)
the challenged regulation, HAR 3-122-66, manifestly exceeded the scope of the
authority granted to the Procurement Policy Board by the legislature; (3) the trial
The Appellate Record, February/March 2014 Page 20

court did not err in refusing to declare that HAR 312266 has never been valid
and has always been ultra vires and void ab initio; (4) the trial court did not err in
refusing to declare that every government contract issued under the invalid
authority of HAR 312266 is void ab initio, inasmuch as the validity of those
contracts was not before the court; (5) the trial court did not err in refusing to grant
a preliminary and permanent injunction prohibiting use of HAR 3-122-66 because
the legal remedy of declaring HAR 3-122-66 invalid constituted an adequate legal
remedy rendering an injunction unnecessary; and (6) the trial court erred in
granting the plaintiff attorneys fees under the private attorney general
State v. Amiral, SCWC-11-0000374 (February 13, 2014). The defendant
was ticketed for speeding by an officer using a laser gun (UltraLyte). The Hawaii
Supreme Court held that the officers testimony did not lay adequate foundation to
introduce the laser gun speed reading. To lay sufficient foundation for the
admission of a speed reading from a laser gun, the prosecution must produce
evidence that the nature and extent of an officers training in the operation of the
laser gun meets the requirements indicated by the manufacturer. Specifically, the
prosecution must show, first, the requirements indicated by the manufacturer and,
second, the training actually received by the operator of the laser gun. In this case,
the ticketing officer testified about the training he received. He also stated that the
training he received was consistent with what he read in the manual regarding the
manufacturers recommended procedures. The courts primary reason was that,
although the officer testified that his training was consistent with the
manufacturers recommendations, the prosecution did not introduce sufficient
evidence as to what the manufacturers training requirements actually were. Chief
Justice Recktenwald, joined by Justice Nakayama, concurred in the majority
opinion. The concurring opinion noted that, in some instances, there may be no
requirements indicated by the manufacturer. In those cases, the prosecution may
establish adequate foundation by other means.

The Appellate Record, February/March 2014 Page 21

;<5=>? @A #B-@CDE

May 2014 Monthly Meeting
On May 7, 2014, the Hawaii State Bar Association and the Hawaii Family Law
Section will team up for a discussion on family law appeals.
Our presenters will be appellate practitioners Peter Van Name Esser and Rebecca
A. Copeland, both of whom represent clients in both general civil appeals and family
law cases. The meeting will take place at the Hawaii Supreme Court
Courtroom/Conference Room from Noon -1:30 p.m.
Please RSVP to the Appellate Section Secretary Chris Goodin at Christopher
Goodin <>.

The Appellate Record, February/March 2014 Page 22

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The Hawaii Judiciary:

United District Court for the District of Hawaii:

United States Court of Appeals for the Ninth Circuit:

United States Supreme Court:

Hawaii State Bar Association:

IG =AD .2 =0/ 4->.-/DE (by our Member Louise Ing) (by our Member Mark M. Murakami) (by our Member Ben Lowenthal) (by our Member Tred R. Eyerly) (by our Member Robert H. Thomas) (by our Member Charley Foster) (by our Member Rebecca A. Copeland)

The Appellate Record, February/March 2014 Page 23

%<<-G G 1C- (-D=0/5-DE
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.

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.

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.

Motions Practice 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:

The Appellate Record, February/March 2014 Page 24

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If you are interested in contributing to our newsletter in any way, please contact the
Sections Chair Bethany C.K. Ace at
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!