Oral Arguments Schedule

Argument DetailCourt

No. SCAP-13-0002896, Thursday, October 2, 2014, 10 a.m.

IN THE MATTER OF THE TAX APPEAL OF TRAVELOCITY.COM, LP, Petitioners/Appellees-Cross-Appellants, vs. DIRECTOR OF TAXATION, STATE OF HAWAI`I, Respondent/Appellant-Cross-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 Petitioners:

Paul Alston, Tina L. Colman, Pamela W. Bunn, and Ronald I. Heller

Attorneys for Respondent:

Hugh R. Jones, Deputy Attorney General; Girard D. Lau, Solicitor General; Kimberly Tsumoto Guidry, First Deputy Solicitor General; Warren Price III, Kenneth T. Okamoto, and Robert Marks, Special Deputy Attorneys General

NOTE: Certificate of Recusal, by Associate Justice Simeon R. Acoba, Jr., filed 12/11/13.

NOTE: Order assigning Circuit Court Judge Randal K.O. Lee, in place of Acoba, J., recused, filed 12/16/13.

NOTE: Order granting Application for Transfer, filed 12/24/13.

COURT: MER, C.J.; PAN, SSM, & RWP, JJ.; and Circuit Court Judge Lee in place of Acoba, J., recused.

Brief Description:

In January and February of 2011, Respondent/Appellant-Cross-Appellee Director of Taxation, State of Hawai`i (Director) issued retroactive assessments for a ten-year period for the General Excise Tax (GET) and the Transient Accommodation Tax (TAT) on the operations of Petitioners/Appellees-Cross-Appellants: Expedia, Inc.; Hotels.com, L.P.; Hotwire, Inc.; Travelocity.com LP; Site59.com, LLC; Orbitz, LLC; Trip Network, Inc. (d/b/a Cheaptickets.com); Internetwork Publishing Corp. (d/b/a Lodging.com); priceline.com, Incorporated; and Travelweb LLC (Online Travel Companies).

The assessments, which were revised and reassessed in June 2012, included penalties and interest. Including additional accrued interest, the total GET assessment was determined by the Director to be approximately $247 million as of May 8, 2012, based on an amount stipulated by the parties in the event that tax liability was established. The total TAT assessment was reported by the Director to be approximately $430 million. The Online Travel Companies timely appealed these assessments to the Tax Appeal Court (Tax Court). The Tax Court issued a Final Judgment Disposing of All Issues and Claims of All Parties on August 15, 2013, affirming the assessment of the GET and rejecting the TAT assessment.

The Director timely appealed the TAT decision of the Tax Court to the Intermediate Court of Appeals (ICA). The Online Travel Companies timely filed a notice of cross-appeal to the ICA of the Tax Court’s GET decision. Both the Director and the Online Travel Companies filed applications for transfer of the appeal and the cross-appeal from the ICA to this court, which this court granted on December 24, 2013.

In regards to the GET, the Online Travel Companies argue that the GET only applies to revenue-generating activities performed in the State of Hawai`i, their activities do not take place in the state, and their services are not used or consumed in Hawai`i. The Director responds that the Online Travel Companies are doing business in the state and are thus subject to the GET. If liability under the GET is upheld, the Online Travel Companies maintain that a statutory apportionment provision pertaining to the GET would apply, substantially reducing their liability. The Director counters that the apportionment provision is inapplicable to the Online Travel Companies.

In regards to the TAT, the Director contends that the Online Travel Companies function as “operators” as defined by statute and are thus subject to the tax. The Director further maintains that an apportionment provision pertaining to the TAT is inapplicable to the Online Travel Companies. The Online Travel Companies dispute the arguments of the Director.

In regards to both taxes, the Online Travel Companies argue that if they are subject to tax liability, the imposition of penalties and interests would be in error. The Director disagrees. Additionally, the Online Travel Companies contend that as to both taxing regimes, the applicable statutes must be construed in their favor.

Supreme Court

No. SCWC-12-0000266, Thursday, October 16, 2014, 8:45 a.m.

MARK C. KELLBERG, Respondent/Plaintiff-Appellant, vs. CHRISTOPHER J. YUEN, in his capacity as Planning Director, County of Hawai`i, and COUNTY OF HAWAI`I, Petitioners/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 Petitioners:

Laureen L. Martin, Assistant Corporation Counsel, and Michael J. Udovic, Deputy Corporation Counsel

Attorneys for Respondent:

Robert H. Thomas, Mark M. Murakami, and Christopher J.I. Leong

NOTE: Certificate of Recusal, by Associate Justice Michael D. Wilson, filed 06/30/14.

NOTE: Order assigning Circuit Court Judge Colette Y. Garibaldi, in place of Wilson, J., recused, filed 07/28/14.

NOTE: Order accepting Application for Writ of Certiorari, filed 08/13/14.

COURT: MER, C.J.; PAN, SSM, & RWP, JJ.; and Circuit Court Judge Garibaldi in place of Wilson, J., recused.

Brief Description:

This appeal arises from a dispute over the Planning Director of the County of Hawaii’s approval of Michael Pruglo’s application to consolidate and resubdivide pre-existing lots on his parcel of land. Mark Kellberg, an owner of an adjacent parcel of land, objected to the Planning Director’s approval of Pruglo’s application, and eventually filed a complaint against the Planning Director and County of Hawai`i (County Defendants) in the circuit court. Prior to and during litigation, Pruglo sold several of the lots on the subject property to other individuals.

The circuit court issued a final judgment granting the County Defendants’ motion for summary judgment on all counts. The Intermediate Court of Appeals (ICA) held that the Planning Director’s approval of the subdivision was invalid because it resulted in seven lots rather than six, and therefore that Kellberg was entitled to judgment as a matter of law on two of his counts. The ICA also held that its holding as to those counts rendered other counts moot.

In their application, the County Defendants raise the following questions:

1. Where the undisputed evidence demonstrated the subject property consists of six, not seven lots, was it error to declare the subdivision invalid?

2. Prior to vacating the judgment in favor of the County and entering judgment in favor of Kellberg, should the ICA have considered all of the County Defendants’ arguments which were relied upon by the circuit court in granting summary judgment?

3. When a party seeks to invalidate a subdivision must the owners of the subject property be joined as parties prior to voiding the subdivision?

Supreme
Court

No. SCWC-13-0000069, Monday, November 24, 2014, 1:00 p.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. IKAIKA REED, 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:

Craig W. Jerome, Deputy Public Defender

 Attorneys for Respondent:

Sonja P. McCullen, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 08/12/14.

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

Brief Description:

Defendant-Appellant Ikaika Reed (“Reed”) filed an application for writ of certiorari to review the June 9, 2014 Judgment of the Intermediate Court of Appeals (“ICA”), entered pursuant to its April 25, 2014 Memorandum Opinion. The ICA’s Judgment affirmed Reed’s conviction and sentence for Assault in the First Degree in violation of Hawai`i Revised Statutes (“HRS”) ' 707-710. The charges against Reed stemmed from a physical altercation at Waianae Boat Harbor involving the Complaining Witness.

On the day of trial, prior to jury selection, Reed’s counsel moved to withdraw, explaining that Reed had retained private counsel. The circuit court denied Reed’s request, stating that the motion could be considered a “dilatory tactic” and that a jury was ready to proceed with trial. On appeal, the ICA held that although there were factors supporting and weighing against granting Reed’s request, it could not conclude that the circuit court abused its discretion.

Reed presents a single issue on appeal:

Whether the ICA gravely erred in holding that the trial court did not abuse its discretion in denying Reed’s motion for withdrawal and substitution of counsel.

Supreme
Court

No. SCWC-13-0000703, Monday, November 24, 2014, 2:15 p.m.

GENE WONG, Petitioner/Plaintiff-Appellant/Cross-Appellee, vs. HAWAIIAN AIRLINES, INC., Respondent/Defendant-Appellee/Cross-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:

R. Steven Geshell

Attorneys for Respondent:

C. Michael Heihre and Allison Mizuo Lee

NOTE: Order accepting Application for Writ of Certiorari, filed 08/14/14.

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

Brief Description:

Petitioner/Plaintiff-Appellant/Cross-Appellee Gene Wong (Petitioner) timely filed an application for a writ of certiorari (Application) from the June 25, 2014 judgment of the Intermediate Court of Appeals’ (ICA), issued pursuant to its May 23, 2014 Summary Disposition Order (SDO). The SDO affirmed the Circuit Court of the First Circuit’s (circuit court) Order Granting Defendant-Appellee/Cross-Defendant/Respondent Hawaiian Airlines, Inc.’s (Respondent) Motion for Summary Judgment and Final Judgment.

Petitioner, a retired pilot, states that a Respondent representative incorrectly informed him that if he chose to forego enrolling in Medicare Part B, he could enroll later at no penalty. Later, a representative informed Petitioner that he would be subject to late penalties if he enrolled in the Medicare program.

Petitioner filed a complaint against Respondent alleging negligence, negligent misrepresentation, and unfair or deceptive practices under Hawai?i Revised Statutes Chapter 480 (UDAP Claim). Respondent filed a summary judgment motion and the circuit court granted Respondent summary judgment on all of Petitioner’s claims. The circuit court also granted Respondent’s motion for costs.

Petitioner timely filed a notice of appeal to the ICA. Petitioner argued that the circuit court erred in concluding that Petitioner’s negligence claims were preempted by the Employee Retirement Income Security Act (ERISA) and the Railway Labor Act (RLA), that the circuit court erred in concluding that the UDAP Claim was not applicable to a former employee’s claim against his former employer, and that his constitutional rights to due process and equal protection were violated by the circuit court’s dismissal of his claims. Petitioner also argued that the circuit court erred in taxing excessive costs against Petitioner and that Respondent’s motion for costs was untimely. Respondent answered each of Petitioner’s points of error by arguing that the circuit court’s grant of summary judgment was correct and also cross-appealed on the issue of Petitioner’s standing.

The ICA affirmed the circuit court. The ICA found that Petitioner’s liability for late enrollment penalties was a sufficiently cognizable injury to confer standing. The ICA concluded that the circuit court did not rule that ERISA preempted Petitioner’s negligence claims, and upheld the circuit court’s decision that the negligence claims were preempted by the RLA. The ICA held that the circuit court did not err in dismissing the UDAP claim. Finally, the ICA held that the circuit court did not err in awarding Respondent costs and that Petitioner failed to show that the award of costs was inequitable.

In the Application, Petitioner identified four errors in the ICA decision: (1) affirmance of the circuit court’s decision that Petitioner’s negligence and negligent misrepresentation claims were preempted by the RLA; (2) affirmance of the circuit court’s decision that Petitioner’s UDAP Claim failed because the alleged violation did not occur in the course of trade or commerce; (3) affirmance of the circuit court’s award of costs; and (4) refusal to consider Petitioner’s constitutional claims. Respondent countered each of Petitioner’s points of error by arguing that the decision of the ICA was correct.

Supreme
Court

No. SCWC-30485, Monday, November 24, 2014, 3:30 p.m.

CLARENCE O. FURUYA AND LONA LUM FURUYA, Petitioners-Respondents/Plaintiffs-Appellees/Cross-Appellants, vs. ASSOCIATION OF APARTMENT OWNERS OF PACIFIC MONARCH, INC.; JAMES DOZIER; GRETA WITHERS; ELWIN STEMIG; FOIL CRAVER; KAZUO SAWADA, Respondents-Petitioners/Defendants-Appellants/Cross-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

Attorney for Petitioners-Respondents Furuyas:

George W. Van Buren, Robert G. Campbell, and John B. Shimizu

Attorneys for Respondents-Petitioners AOAO Pacific Monarch, et al.:

Matt A. Tsukazaki

NOTE: Order accepting Application for Writ of Certiorari (Furuyas), filed 08/13/14.

NOTE: Order accepting Application for Writ of Certiorari (AOAO Pacific Monarch, et al.), filed 09/11/14.

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

Brief Description:

The parties in this case both applied for applications for writ of certiorari. This case contains issues from both of these applications.

Clarence and Lona Lum Furuya (“Furuyas”) own a leasehold interest in Apartment Unit 3206 at the Pacific Monarch Condominium (“Condominium”) located in Waikiki. Pursuant to the original June 1, 1979 Pacific Monarch Condominium Conveyance Document (“Conveyance Document”) from the developer, Unit 3206 enjoys an exclusive easement to 106 parking stalls at the Condominium.

In 1995, facing the possibility of a decrease in the value of the units in the Condominium and a rent increase after the lease expired on the Condominium, AOAO’s Board sought to purchase the leased fee interest in the Condominium from the Lessor to offer the owners the opportunity to own their units in fee simple. AOAO successfully purchased the leased fee interest to all the units in the Condominium.

The application submitted by Clarence and Lona Lum Furuya (“Furuyas”) involves a contract dispute between the Furuyas and AOAO regarding the alleged contract between the Furuyas and AOAO for the leased fee interest in Unit 3206 and the appurtenant 106 stalls.

The Furuyas present the following questions on certiorari:

Did the Intermediate Court of Appeals (“ICA”) commit a grave error of law and/or rule in a manner that was obviously inconsistent with this Court’s decisions by:

(1) Misinterpreting the governing documents of the Association of Apartment Owners of Pacific Monarch (“AOAO”) contrary to the plain language and intent of the governing documents and the Hawaii statute so as to not require an AOAO that acquires the leased fee interest from the lessor to then offer it to the individual lessees;

(2) Ruling that the Furuyas had waived the admission by the AOAO that a contract (offer/acceptance) had been formed yet ruling in favor of the AOAO on an argument not earlier made, i.e., that the AOAO was not required to offer the fee to the Furuyas; and

(3) Affirming the Circuit Court’s incorrect rulings that the promissory estoppel claim failed based on alleged breaches of a written contract that the ICA and Circuit Court ruled was never even formed?

At issue in AOAO’s application is the lease payment schedule for Unit 3206’s exclusive easement to the 106 Parking Stalls appurtenant to the Unit 3206. In addition, AOAO’s application involves two of the 106 stalls, which AOAO used for laundry related facilities for the Condominium without payment to the Furuyas.

AOAO presents the following questions on certiorari:

1. Did the ICA commit grave error in holding that the Condominium Conveyance Document for Apartment Unit 3206 at the Pacific Monarch was unambiguous as to the developer’s intent that the owner of Apartment Unit 3206 was not obligated to pay lease rent for the 106 Parking Stalls after April 26, 2014 despite the owner’s continued use and generation of income from the stalls for the remaining 40 years of the ground lease?

2. Did the ICA commit grave error in holding that Hawaii Revised Statute ' 514C-22(c) did not create an independent obligation for the payment of lease rent to the lessor (i.e., the Association)?

3. Did the ICA commit grave error in substituting its discretion for that of the Trial Court which held that the knowledge of the Furuyas for more than 21 years along with the investment in, and reasonable reliance by the Association on, the assigned use of two (2) parking stalls to the laundry facilities meant that the Furuyas’ loss of income form the use of the wo stalls from the date of the filing of the Complaint was not unjust?

 

Supreme
Court
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