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Argument Detail

Court

Amended (Second)

Thursday, September 27, 2018 – 10 a.m. CAAP-16-0000679 (consolidated with CAAP-16-0000782) 

Benjamin Paul Kekona and Tamae M. Kekona, Plaintiffs/Counterclaim Defendants-Appellees vs. Paz Feng Abastillas, also known as Paz A. Richter and Robert A. Smith, personally, Defendants/Counterclaim Plaintiffs-Appellees; Robert A. Smith, Attorney at Law, a law corporation; Standard Management, Inc.; U.S. Bancorp Mortgage Company, an Oregon company; Western Surety Company, sued herein as DOE Entity 1, Defendants-Appellees; Michael Bornemann, M.D., Defendant-Appellant; and John Does 1-10, Jane Does 1-10, Doe Corporations 1-10, Doe Entities 1-10, Defendants.

Pursuant to Hawaiʻi Rules of Appellate Procedure (HRAP) Rule 34(h), no oral argument will be heard by a party failing to file a brief unless the court directs otherwise.

CAAP-16-0000782 

  Benjamin Paul Kekona and Tamae M. Kekona, Plaintiffs/Counterclaim Defendants-Appellees vs. Paz Feng Abastillas, also known as Paz A. Richter and Robert A. Smith, personally, Defendants/Counterclaim Plaintiffs-Appellants; Robert A. Smith, Attorney at Law, a law corporation; Standard Management, Inc.; Michael Bornemann, M.D.; U.S. Bancorp Mortgage Company, an Oregon company; Western Surety Company, sued herein as DOE Entity 1, Defendants-Appellees; and John Does 1-10, Jane Does 1-10, Doe Corporations 1-10, Doe Entities 1-10, Defendants.

Pursuant to HRAP Rule 34(h), no oral argument will be heard by a party failing to file a brief unless the court directs otherwise.
 
The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Aliʻiolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorneys for Defendant-Appellant Michael Bornemann, M.D.: 

Terence J. O’Toole and Lane Hornfeck (Starn O’Toole Marcus & Fisher); Michael F. O’Conner (Ogawa, Lau, Nakamura & Jew)

Attorney for Plaintiffs/Counterclaim Defendants-Appellees Benjamin Paul Kekona and Tamae M. Kekona: 

Fred Paul Benco

Defendants/Counterclaim Plaintiffs-Appellants pro se Paz Feng Abastillas, also known as Paz A. Richter and Robert A. Smith, (in CAAP-16-0000782)

COURT: Ginoza, C.J., Leonard, J. and Reifurth, J. in place of Chan, J., recused.

Brief Description:
 
These consolidated appeals arise from lengthy litigation stemming from: (1) a prior lawsuit between Standard Management Inc. (SMI), Paz F. Abastillas (Abastillas) and Robert A. Smith (Smith) on one side, and Benjamin Paul Kekona and Tamae M. Kekona (the Kekonas) on the other, related to a business at Hanauma Bay (Hanauma Bay lawsuit); and (2) the instant lawsuit filed by the Kekonas asserting, inter alia, that after the Kekonas had obtained a jury award in the Hanauma Bay lawsuit, Abastillas and Smith fraudulently transferred real property to Michael Bornemann (Bornemann) to avoid the Hanauma Bay lawsuit award.

In the Hanauma Bay lawsuit, the Kekonas obtained a judgment in 1994 that was ultimately reduced to $191,628.27.

In the instant lawsuit, after two prior sets of appeals and three trials, the case was remanded to the Circuit Court of the First Circuit (Circuit Court) in 2015.  On September 19, 2016, the Circuit Court entered a “Consolidated Third Amended Revised Final Judgment” (2016 Judgment), which entered judgment for the Kekonas and against Smith, Abastillas and Bornemann in specified amounts, respectively.  The 2016 Judgment also declared certain deeds regarding Kaneohe property void and that Bornemann shall have no right or title under the deeds.

In CAAP-16-0000679, Bornemann contends the 2016 Judgment should be vacated: (1) because the original 1994 judgment in the Hanauma Bay lawsuit expired and can no longer support the judgments in the instant case; (2) the Circuit Court erred by canceling deeds and returning the Kaneohe property to Abastillas and Smith without affording Bornemann credit for equity; and (3) the Circuit Court erred by awarding both post-judgment statutory interest and punitive damages against Bornemann where the punitive damages award already reflected punishment for delayed payment to the Kekonas.

In CAAP-16-0000782, Abastillas and Smith contend the Circuit Court erred: (1) by applying Estate of Roxas v. Marcos, 121
Hawaiʻi 59, 214 P.3d 598 (2009) retroactively to judgments in the Hanauma Bay lawsuit and the instant case; (2) because the 1994 judgment in the Hanauma Bay lawsuit expired under Hawaii Revised Statutes § 657-5, and thus, the fraudulent transfer claim also expired; (3) in determining Abastillas and Smith had unduly delayed and thus denying a motion to vacate certain judgments; and (4) in denying their request to make an oral motion under Hawaiʻi Rules of Civil Procedure Rule 7(b)(1) at a proceeding on September 29, 2015. 

Intermediate
Court Of Appeals

No. SCOT-17-0000630, Thursday, October 18, 2018, 8:45 a.m.

  In the Matter of the Application of HAWAII ELECTRIC LIGHT COMPANY, INC.  For Approval of a Power Purchase Agreement for Renewable Dispatchable Firm Energy and Capacity.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813
   
Attorney for appellant Life of the Land: 

Lance D. Collins of the Law Office of Lance D Collins

Attorneys for appellee Hu Honua Bioenergy, LLC:

Margery S. Bronster, Rex Fujichaku, and Kelly A. Higa of Bronster Fujichaku Robbins; Dean T. Yamamoto and Wil K. Yamamoto of Yamamoto Caliboso, LLLC

Attorneys for appellee Public Utilities Commission:

Clyde J. Wadsworth, Solicitor General, and Kalikoʻonalani D. Fernandes, Deputy Solicitor General

Attorneys for appellees Hawaiian Electric Company, Inc. and Hawaii Electric Light Company, Inc.:

David M. Louie, Joseph A. Stewart, and Aaron R. Mun of Kobayashi, Sugita & Goda, LLP

COURT: MER, C.J., PAN, SSM, RWP, and MDW, JJ.

Brief Description:
  
 Appellant Life of the Land (LOL) brings this appeal to challenge the State Public Utilities Commission’s (PUC) 2017 Decision and Order No. 34726, which approved Appellant Hawaiʻi Electric Light Company’s (HELCO) Amended and Restated Power Purchase Agreement for Renewable Dispatchable Firm Energy and Capacity with Appellant Hu Honua Bioenergy, LLC (Hu Honua).  LOL also challenges the PUC’s Order No. 34651, which denied LOL’s Motion to Upgrade Status.

 In 2012, Hu Honua and HELCO entered into a power purchase agreement (PPA), which provided that Hu Honua would develop and operate a biomass power plant to generate renewable energy that HELCO would distribute to its customers on Hawaiʻi island.  In the PUC proceeding for HELCO’s application for approval of the PPA, the PUC permitted LOL to participate on certain issues as a “limited participant.”  The PUC approved the PPA.

 HELCO subsequently terminated the 2012 PPA, alleging that Hu Honua failed to meet certain project milestones contained therein.  HELCO and Hu Honua subsequently agreed to enter into and seek approval from the PUC for an amended and restated PPA.

 In May 2017, HELCO submitted a request to the PUC to approve its amended PPA with Hu Honua, and the PUC initiated a new proceeding for the request.  The PUC denied LOL’s Motion to Upgrade Status from “participant” to “intervenor” in the 2017 proceedings, and granted LOL “conditional participant status” based on LOL’s limited participant status in the 2012 proceeding.  In July 2017, the PUC issued a Decision and Order approving the Amended PPA.

LOL appealed the PUC’s 2017 Decision and Order and Order Denying LOL’s Motion to Upgrade Status directly to this court.

 On appeal, the issues are as follows:
 1. Whether the PUC reversibly erred by failing to consider the effect of the Amended PPA on greenhouse gas emissions;
 2. Whether the PUC denied LOL’s due process right to protect its right to a clean and healthful environment by restricting LOL’s participation in the proceedings;
 3. Whether the PUC erred by denying LOL’s Motion to Upgrade Status from “participant” to “intervenor.”

Supreme
Court

No. SCAP-17-0000480, Thursday, October 18, 2018, 10 a.m.

HONOLULU CIVIL BEAT, INC., Plaintiff-Appellant, vs. DEPARTMENT OF THE ATTORNEY GENERAL, Defendant-Appellee.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Aliiolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for appellant:

Robert Brian Black

Attorneys for appellee:

Clyde J. Wadsworth, Solicitor General, and Kalikoonalani D. Fernandes, Deputy Solicitor General

NOTE: Order granting Application for Transfer, filed 03/01/18.

COURT: MER, C.J., PAN, SSM, RWP, and MDW, JJ.
Brief Description:

This case concerns the request of Honolulu Civil Beat Inc. (“Civil Beat”) to the Department of the Attorney General (“Department”) for “access or copies of all final investigative reports related to the state auditor’s office from Jan. 1, 2015 to present.” On May 11, 2016, the Department provided Civil Beat with a Notice to Requester stating that its request was denied in its entirety based on HRS § 92F-13(1) and (3) of the Uniform Information Practice Act (“UIPA”). On August 23, 2016, the Department provided Civil Beat with an Amended Notice to Requester further denying its request on the basis that the requested report is confidential and subject to the attorney-client privilege and is therefore not required to be disclosed under HRS § 92F-13(4), which excludes government records protected from disclosure by state or federal law from UIPA.

On September 5, Civil Beat filed a complaint against the Department in the Circuit Court of the First Circuit seeking to compel the Department to disclose the report. The circuit court reviewed the report in camera over Civil Beat’s objection. After hearing arguments on the cross-motions, the circuit court determined that the Department is authorized by statute to provide legal services to the Legislature, that those services are covered by the attorney-client privilege under Hawaii Rule of Evidence 503 and qualify as confidential communications under Hawaii Rule of Professional Conduct 1.6, and that the report was prepared in response to a request for legal services. Thus, the circuit court concluded that the report is protected from disclosure by HRS § 92F-13(4).

Civil Beat appealed the circuit court’s judgment to the Intermediate Court of Appeals (“ICA”), raising the following three points of error on appeal: (1) whether the circuit court erred by, sua sponte, using HRPC Rule 1.6 as a confidentiality statute to bar disclosure of non-privileged client information in the Department’s possession; (2) whether the circuit court erred by holding that the Department met its burden of proof to justify withholding from the public the non-privileged facts in the Department’s investigation of the Office of the Auditor; and (3) whether the circuit court erred by reviewing the investigation report in camera without first requiring the Department to provide non-privileged information about the report in the public record. After briefing on the appeal was complete, Civil Beat filed a transfer application, which the Hawaii Supreme Court accepted on March 1, 2018.

Supreme
Court

Courts in the Community

No. SCWC-14-0001042, Thursday, November 15, 2018, 10 a.m.

STATE OF HAWAII, Respondent/Plaintiff-Appellant, vs. JAMES WELDON, also known as James William Weldon, Petitioner/Defendant-Appellee.

The above-captioned case has been set for argument on the merits at:

Kaimuki High School Auditorium
 2705 Kaimuki Avenue
 Honolulu, Hawaii 96816
   
Attorneys for Petitioner:

Phyllis J. Hironaka and Jon N. Ikenaga, Deputy Public Defenders

Attorney for Respondent:

 Brian R. Vincent, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 08/28/18.

COURT: MER, C.J., PAN, SSM, RWP, and MDW, JJ.

Brief Description:
  
Petitioner/Defendant-Appellee James Weldon (Weldon) was charged with one count of carrying a deadly weapon in violation of Hawaii Revised Statutes (HRS) § 134-51(a).  In the Circuit Court of the First Circuit (circuit court), he sought to suppress evidence of the weapon, a metal baton, in his trial as the fruit of an illegal seizure.  Weldon argued that when Honolulu Police Department officers observed Weldon laying down on a cement foundation on Waikiki beach at 7:00 a.m., they lacked reasonable suspicion to believe that Weldon was committing a crime.  Therefore, Weldon contended that his subsequent questioning by officers constituted an unconstitutional seizure, and that any evidence discovered during that seizure should be suppressed as a “fruit of the poisonous tree.”  The circuit court granted Weldon’s motion to suppress.

The Intermediate Court of Appeals (ICA) vacated the circuit court’s order granting the motion to suppress.  The ICA concluded that under the totality of the circumstances, the police officers’ recovery of the baton was lawful.
On certiorari, Weldon asks whether the ICA gravely erred in holding that the circuit court erred in granting his motion to suppress, “because the police seized Weldon without specific and articulable facts supporting reasonable suspicion to believe he was committing a crime[.]”

Supreme Court

No. SCWC-16-0000260, Thursday, November 29, 2018, 8:45 a.m.

DONNA H. YAMAMOTO, an individual, Petitioner/Plaintiff-Appellant, vs. DAVID W.H. CHEE; TOM CHEE WATTS DEGELE-MATHEWS & YOSHIDA, LLP, Respondents/Defendants-Appellees.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorneys for Petitioner:

Michael M. Ching of Ching & Yamamoto LLP, and Cheryl Y. Arakaki of Arakaki & Eugenio LLLC

Attorney for Respondents:

Gary S. Miyamoto of Chong, Nishimoto, Sia, Nakamura & Goya

NOTE: Order accepting Application for Writ of Certiorari, filed 08/22/18.

COURT: MER, C.J., PAN, SSM, RWP, and MDW, JJ.

Brief Description:

This case concerns whether Petitioner/Plaintiff-Appellant Donna H. Yamamoto (“Yamamoto”) is required to arbitrate claims for conversion, fraudulent conversion, and punitive damages, which she filed on August 27, 2015, in the Circuit Court of the First Circuit (“circuit court”) against Respondents/Defendants-Appellees Tom Chee Watts Degele-Mathews & Yoshida, LLP, a law partnership in which she had formerly been a founding partner (the “Law Firm” or “Partnership”) and Law Firm Partner David W.H. Chee (“Chee”)(collectively, “Defendants”).

In summary, Yamamoto alleged that after leaving the Partnership she handed Chee a personal check made payable to the Law Firm to repay a 401(k) loan, but that funds were instead used by Defendants for other non-authorized purposes. When Yamamoto learned that the 401(k) loan had already been repaid using funds from her Partnership capital account, she demanded that Defendants return the funds obtained from her personal check, but Defendants refused.

On December 16, 2015, Defendants moved to compel arbitration of Yamamoto’s claims (“Motion to Compel”). They asserted that the agreement founding the Partnership (the “Partnership Agreement”), signed by Yamamoto, required the arbitration of any disputes “in connection with” that agreement. The circuit court granted Defendants’ Motion to Compel binding arbitration of the claims in Yamamoto’s Complaint, concluding that Yamamoto’s claims “arise[] out of the [P]artnership [A]greement,” and that therefore the Partnership Agreement’s arbitration clause applied. Additionally, the circuit court concluded Defendants had provided appropriate notice to initiate the arbitration under Hawaii Revised Statutes (“HRS”) § 658A-9 (2016), even though Defendants’ January 12, 2016 letter, which Defendants asserted had provided notice pursuant to the statute, was sent nearly one month after Defendants filed their Motion to Compel, and one day after Yamamoto filed her response to the Motion.

The Intermediate Court of Appeals (“ICA”) affirmed the circuit court’s decision, concluding that Defendants provided adequate notice and that Yamamoto’s allegations “touch[ed] [the] matter[]” of the handling of her Partnership capital account, which was covered by the Partnership Agreement. Yamamoto asserts the ICA erred on both issues. Specifically, Yamamoto presents the following two questions in her certiorari application:

A. Whether the [ICA] used the wrong test and ignored precedent to determine the arbitrability of a dispute under an agreement?

B. Whether strict compliance with § 658A-9, HRS is required and if so, whether the statute is jurisdictional?

Corollary: Whether it is reversible error to allow a party, effectively, to give a proper § 658A-9, HRS notice after that party filed a motion to compel?

Supreme
Court

No. SCWC-16-0000355, Thursday, November 29, 2018, 10 a.m.

DEBBIE S. QUEL, Petitioner/Petitioner-Appellant-Appellant, vs. BOARD OF TRUSTEES, EMPLOYEES’ RETIREMENT SYSTEM OF HAWAII, Respondent/Respondent-Appellee-Appellee.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Aliiolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner:

Dan S. Ikehara

Attorneys for Respondent:

Patricia Ohara, Brian P. Aburano, Elmira K.L. Tsang, and Jodi L.K. Yi, Deputy Attorneys General

NOTE: Order accepting Application for Writ of Certiorari, filed 08/27/18.

COURT: MER, C.J., PAN, SSM, RWP, and MDW, JJ.
Brief Description:

Debbie S. Quel (Quel) worked for eighteen years as a school cafeteria helper. During this time, her duties included lifting heavy trap doors, putting things in an oven (sometimes into an oven taller than her), scooping rice for about 250 trays, pinching dough, peeling potatoes, cutting vegetables, opening cans with an “old-fashioned” can opener, serving meals to students, cleaning up, buffing the floors, and shampooing the carpet. In November 2010, Quel filed an application for service-connected disability retirement with the Employee’s Retirement System (ERS) and claimed that she experienced pain and swelling in her shoulders, arms, and hands. Quel asserted that her disability resulted from her duties as a cafeteria worker.

Although the ERS Board found that Quel’s physical injuries resulted from repetitive motions during her years of employment as a cafeteria helper, the ERS Board denied Quel’s application because the repetitive use of hands and arms was common to employment in general. The ERS Board stated that occupational hazards do not arise from acts that are incident to employment in general, but rather arise from acts that pose a hazard different in character than “the general run of occupations.” In addition, the ERS Board determined that Quel failed to sustain her burden of proof.

Quel appealed the ERS Board’s Final Decision to the Circuit Court of the First Circuit (circuit court). The circuit court affirmed the Final Decision of the ERS Board, finding that Quel “did not carry her burden of proving that her repetitive use of hands, arms, and shoulders was different in character from those found in the general run of occupations.”

On appeal before the ICA, Quel argued that the regulation defining “occupational hazard” was too narrowly defined under Hawai i Administrative Rules (HAR) § 6-22-2. Instead of applying HAR § 6-22-2, Quel argued that the Hawai i Supreme Court’s decision in Ralph Y. Komatsu v. Board of Trustees, Employees’ Retirement System, 67 Haw. 485, 693 P.2d 405 (1984) provided the relevant test for determining whether a claimant is entitled to service-connected disability retirement benefits. Quel asserted that Komatsu did not require proof that the work environment or work activities constituted an “occupational hazard.” Instead, Quel contended, Komatsu simply required a causal nexus between the injury suffered and the work environment.

The ICA affirmed the circuit court’s decision on the basis that the ERS Board properly applied the definition of “occupational hazard” codified in HAR § 6-22-2. The ICA held that Komatsu’s definition of “occupational hazard” was “not substantially different” than the definition under HAR § 6-22-2 and therefore the same result should occur.

On Certiorari, the critical issue is whether or not cumulative trauma is an “occupational hazard” entitling Quel to service-connected disability retirement benefits with the ERS. Accordingly, Quel contends that: (1) the ERS Board promulgated a definition of “occupational hazard” that is too narrow and (2) Komatsu requires that she receive service-connected disability retirement benefits.

 

No. SCWC-15-0000464, Thursday, December 6, 2018, 8:45 a.m.

MOLOKAI SERVICE’S INCORPORATED, a Hawaii corporation, Respondent/Plaintiff-Appellant, vs. PEARL A. HODGINS, FRIEL ENTERPRISES, INC., a Hawaii corporation, PAULINE L. CASTANERA, CORNWELL S. FRIEL, and GERALDINE M. SHAH, Petitioners/Defendants-Appellees.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Aliiolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorneys for Petitioners:

Jesse J. T. Smith and Kurt W. Klein of McCorriston Miller Mukai MacKinnon; and Jonathan H. Steiner

Attorney for Respondent:

Bruce F. Sherman of Law Office of Bruce F. Sherman

NOTE: Order accepting Application for Writ of Certiorari, filed 08/20/18.

NOTE: Order granting request to reset oral argument from 10/04/18 to 12/06/18 at 8:45 a.m., filed 09/10/18.

COURT: MER, C.J., PAN, SSM, RWP, and MDW, JJ.
Brief Description:

In 2014, Respondent/Plaintiff-Appellant Molokai Service’s Incorporated (Molokai Services) filed a complaint against Petitioners/Defendants-Appellees Pearl A. Hodgins (Hodgins), Friel Enterprises, Inc. (Friel Enterprises), Pauline L. Castanera (Castanera), Cornwall S. Friel (Friel), and Geraldine M. Shah (Shah) (collectively “the Defendants”). Briefly stated, the complaint alleged that: (1) while serving as officers and/or directors for Molokai Services, Hodgins, Castanera, and Friel were also shareholders, officers, and/or directors of Friel Enterprises; (2) from 1994 through 2012, Molokai Services leased a piece of property from Friel Enterprises; (3) the rent paid under the lease grossly exceeded fair market value and was harmful to Molokai Services’ financial circumstances; and (4) Hodgins, Castanera, and Friel were aware that the lease terms were not in Molokai Services’ best interests and overwhelmingly favored Friel Enterprises’ interests.

Accordingly, Molokai Services averred, inter alia, that Hodgins, Castanera, and Friel breached their fiduciary duties to Molokai Services by continuously accepting rental payments in accordance with the lease on a monthly basis between 1994 and 2012. Molokai Services also alleged that Friel Enterprises, Castanera, Friel, and Shah aided and abetted Hodgins and Pearl Friel Petro (Petro), the President of Molokai Services from 1998 to 2009, in breaching their fiduciary duties to Molokai Services.

The Defendants filed a motion to dismiss, arguing that Molokai Services’ claims were barred by the six-year statute of limitations. The Circuit Court of the Second Circuit (circuit court) granted the motion to dismiss, ruling that the statute of limitations had run on Molokai Services’ claims, and that the continuing tort doctrine did not apply. Subsequently, final judgment was entered in favor of the Defendants.

The ICA affirmed in part and vacated in part the circuit court’s judgment. After determining that the continuing tort doctrine could apply to Molokai Services’ breach of fiduciary claim, the ICA held that the claim was erroneously dismissed. Based upon this conclusion, the ICA also held that the circuit court erred in dismissing Molokai Services’ claim for aiding and abetting a breach of fiduciary duty.

On certiorari, the Defendants’ arguments present the following questions for review: (1) whether the ICA gravely erred in extending the continuing tort doctrine to breach of fiduciary duty claims in the corporate context; (2) whether the ICA gravely erred in concluding that the circuit court should not have dismissed Molokai Services’ claim for breach of fiduciary duty; and (3) whether the ICA gravely erred in determining that the circuit court should not have dismissed Molokai Services’ claim for aiding and abetting a breach of fiduciary duty.