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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.

Supreme
Court

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.

Supreme
Court

No. SCWC-17-0000087, Thursday, December 6, 2018, 10 a.m.

STATE OF HAWAI I, Respondent/Plaintiff-Appellee, vs. NINO ABRIGO, Petitioner/Defendant-Appellant.

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 Petitioner:

Taryn R. Tomasa, Deputy Public Defender

Attorney for Respondent:

Brian R. Vincent, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 10/17/18.

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

On May 15, 2016, Nino Abrigo’s vehicle was stopped by Officer Aaron Ostachuk of the Honolulu Police Department who informed Abrigo that he had observed Abrigo commit traffic violations. After administering a standardized field sobriety test (SFST), Officer Ostachuk arrested Abrigo. The State of Hawai i charged Abrigo in the District Court for the First Circuit (district court) with operating a vehicle under the influence of an intoxicant (OVUII).

At trial, Officer Ostachuk was the only witness called by the State. The officer recounted the traffic violations that he witnessed, the SFST that he administered, and Abrigo’s performance on the SFST. At the end of the day, the trial was continued.

During cross-examination on the continued date, Officer Ostachuk testified that he did not have an independent recollection of Abrigo’s performance on the SFST without looking at his police report prior to testifying. At a further continued date, the officer again testified that he did not have an independent recollection of Abrigo’s performance on the SFST without looking at his police report.

The defense moved to strike Officer Ostachuk’s testimony about the SFST arguing that he had no independent recollection from which to testify, but the district court denied the defense’s motion. The court convicted Abrigo of OVUII.

Abrigo appealed his conviction to the Intermediate Court of Appeals (ICA), arguing that Officer Ostachuk’s testimony should have been stricken. The ICA affirmed the district court and held that the officer’s testimony, which was based on what was contained in his report, was admissible under the past recollection recorded exception to hearsay. The ICA also held that Officer Ostachuk’s testimony did not violate Abrigo’s constitutional right to confrontation and cross-examination.

In his application for a writ of certiorari, Abrigo contends that the ICA erred in affirming the district court’s conclusion that Officer Ostachuk’s testimony, which was reliant upon his police report, was admissible because (1) the State failed to establish an adequate foundation to satisfy the past recollection recorded exception; and (2) the admission of the police report under the past recollection recorded exception contradicted the public records exception to hearsay. Abrigo also argues that Officer Ostachuk’s testimony violated his constitutional right to confrontation and cross-examination under the United States Constitution and the Hawaii Constitution.

Supreme
Court

No. SCWC-15-0000643, Tuesday, December 18, 2018, 8:45 a.m.

STATE OF HAWAII, Respondent/Plaintiff-Appellee, vs. MARLIN L. LAVOIE, Petitioner/Defendant-Appellant.

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 Petitioner:

Matthew S. Kohm

Attorney for Respondent:

Renee Ishikawa Delizo, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 09/26/18.

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

Brief Description:

On March 22, 2013, Marlin Lavoie was charged with the offenses of murder in the second degree, carrying or use of a firearm in the commission of a separate felony, ownership or possession prohibited of any firearm (felon in possession), and place to keep loaded firearms other than pistols and revolvers (place to keep). Prior to trial, the Circuit Court of the Second Circuit (circuit court) granted the defense’s motion in limine precluding the use of prior crimes, wrongs, or other acts of Lavoie at trial.

At trial, the State elicited testimony about six prior incidents involving alleged abuse of the decedent by Lavoie. The court ruled, over objection, that the defense had opened the door to testimony about these incidents because the defense counsel asked a State witness about prior arguments between Lavoie and decedent and their resulting separation.

At the conclusion of the trial, the court instructed the jury that the prior instances of abuse may be considered on the issue of Lavoie’s intent to commit the charged offenses. The court also instructed the jury that Lavoie’s self-control, or lack thereof, was a significant factor in determining whether he was under the influence of extreme mental or emotional disturbance at the time of the shooting. Lavoie was found guilty as charged on all offenses.

After the verdict, the circuit court denied Lavoie’s motion to compel the State to dismiss either the felon in possession or place to keep conviction due to merger. The court ruled that there was no merger of the offenses because the felon in possession offense was committed at a different time and in a different location than the place to keep offense.

On appeal, the Intermediate Court of Appeals (ICA) affirmed Lavoie’s conviction. The ICA held that the circuit court did not err in admitting testimony about the prior incidents of abuse because the defense opened the door to allow the testimony. The ICA also held that the circuit court did not err in its submitted jury instructions, and it held that the circuit court did not err in omitting a merger instruction.

In his application for a writ of certiorari, Lavoie argues that the ICA erred by affirming the circuit court’s (1) admission of testimony about the prior incidents of abuse; (2) jury instruction that the prior incidents of abuse could be considered to determine Lavoie’s intent; (3) jury instruction that did not include a definition of extreme mental or emotional disturbance; and (4) omission of a merger instruction.

 

No. SCWC-15-0000396, Tuesday, December 18, 2018, 10:00 a.m.

PATRICIA E. G. ADAMS, in her Capacity as Personal Representative of the Estate of Brent Adams, and in her Personal Capacity, Petitioner/Plaintiff-Appellant, vs. HAWAII MEDICAL SERVICE ASSOCIATION, Respondent/Defendant-Appellee.

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:

Rafael G. Del Castillo of Jouxson-Meyers & Del Castillo; Robert H. Thomas, Tred R. Eyerly, and Joanna C. Zeigler of Damon Key Leong Kupchak Hastert

Attorneys for Respondent:

Dianne Winter Brookins and John-Anderson L. Meyer of Dentons US LLP

NOTE: Certificate of Recusal, by Chief Justice Mark E. Recktenwald, filed 09/05/18.

NOTE: Order assigning Circuit Court Judge Rowena A. Somerville, in place of Recktenwald, C.J., recused, filed 09/19/18.

NOTE: Order accepting Application for Writ of Certiorari, filed 10/17/18.

COURT: PAN, Acting C.J., SSM, RWP, and MDW, JJ., and Circuit Court Judge Somerville, in place of Recktenwald, C.J., recused.

Brief Description:

In late 2005, Brent Adams (Brent) sought a tandem autologous-allogenic bone marrow transplant to treat his aggressive cancer. At the time, Brent was insured by Respondent-Appellee Hawaii Medical Service Association (HMSA). Over the course of the next few months, Brent and his wife Patricia Adams (Patricia) communicated with HMSA to determine the best course of treatment.

Brent submitted a formal pre-certification request to HMSA for the allogenic phase of the transplant on March 2, 2006. HMSA denied the request four days later, on March 6, 2006. Brent and Patricia subsequently challenged this determination before the Insurance Commissioner of the Department of Commerce and Consumer Affairs, the Circuit Court of the First Circuit, and the Intermediate Court of Appeals.

On certiorari, Petitioner-Appellant Patricia, in her capacity as personal representative of the estate of Brent Adams and in her personal capacity, argues that HMSA had a duty to act in good faith and fair dealing. She alleges that this duty first arose when HMSA became aware that Brent would pursue the allogenic transplant–as early as December 2005. She claims that HMSA breached this duty when it failed to notify Brent that the allogenic transplant was not covered under his insurance plan.

HMSA claims that its duty to act in good faith and fair dealing arose once Brent complied with the claims procedure outlined in the insurance policy–once Brent submitted the formal request for coverage on March 2, 2006.

Therefore, this case addresses the point in time at which an insurer’s duty to act in good faith and fair dealing arises.

Supreme
Court

No. SCAP-17-0000816, Tuesday, December 18, 2018, 11:15 a.m.

In the Matter of the Tax Appeal of KAHEAWA WIND POWER, LLC, and KAHEAWA WIND POWER II, LLC, Taxpayers-Appellants-Appellees, vs. COUNTY OF MAUI, Appellee-Appellant. In the Matter of the Tax Appeal of AUWAHI WIND ENERGY LLC, Taxpayer-Appellant-Appellee, vs. COUNTY OF MAUI, Appellee-Appellant.

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 appellant County of Maui:

Patrick K. Wong, Corporation Counsel; Brian A. Bilberry, Deputy Corporation Counsel

Attorney for appellees Kaheawa Wind Power, LLC, and Kaheawa Wind Power II, LLC:

Ronald I. Heller of Torkildson Katz Hetherington Harris & Knorek

Attorneys for appellee Auwahi Wind Energy LLC:

Vito Galati and Christopher T. Goodin of Cades Schutte LLP

NOTE: Order granting Application for Transfer, filed 06/15/18.

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

Appellant County of Maui (County) challenges the tax appeal court’s (TAC) 2017 summary judgment orders and final judgment, which conclude that the County exceeded its taxation authority under the Hawai i State Constitution when it amended Maui County Code (MCC) § 3.48.005 to define the term “real property” to include wind turbines for taxation purposes.

In Kaheawa Wind Power, LLC v. County of Maui, the ICA held that under the then-existing MCC, wind turbines did not qualify as “real property” for taxation purposes. 135 Hawai i 202, 346 P.3d 632 (2014) (cert. denied, 2015 WL 745424 (Feb. 19, 2015)). In response, the County amended MCC § 3.48.005 by redefining “real property” to include wind turbines.

Pursuant to the amended code, the County started including wind turbines in the “building value” for real property taxes assessed to the Appellee-taxpayers Kaheawa Wind Power, LLC, Kaheawa Wind Power II, LLC, and Auwahi Wind Energy LLC. The Appellee-taxpayers appealed to the TAC, which issued summary judgment orders and a final judgment in their favor.

The TAC held that the County, by amending MCC § 3.48.005, exceeded its authority under article VIII, section 3 of the Hawai i State Constitution. In response, the County filed five separate appeals with the ICA (consolidated under CAAP-17-816) and filed an application for transfer, which this court granted.

The County argues the following:

(1) The TAC erred in concluding that article VIII, section 3, did not transfer policymaking authority to the counties for purposes of real property taxation;

(2) The TAC erred in concluding that article VIII, section 3, restricts counties from defining and/or identifying the types of property which may be included as realty for purposes of real property taxation;

(3) The ICA’s Kaheawa decision does not hold that wind turbines are exclusively personal property which cannot be included as part of the underlying realty on which they are constructed and/or affixed; and

(4) There is no traditional common law, statutory, and/or constitutional definition of “personal property” in Hawai i which precludes any type of property from becoming an accession to realty pursuant to appraisal concepts of use, utility, and value.

Supreme
Court