Oral Arguments Schedule

Argument DetailCourt

No. SCAP-11-0000599, Thursday, February 5, 2015, 8:45 a.m.

TIMOTHY VANDEVEER, individually and on behalf of all others similarly situated, Respondent/Plaintiff-Appellee, vs. AMERICAN SAVINGS BANK, AMERICAN SAVINGS HOLDING, INC., Petitioners/Defendants-Appellants.

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/Defendants-Appellants:

Terrence J. O’Toole, Mark J. Bennett, Sharon V. Lovejoy, and Brandi B. Balanda

Attorneys for Respondent/Plaintiff-Appellee:

James J. Bickerton, John F. Perkin, and Brandee J.K. Faria

NOTE: Certificate of recusal, by Associate Justice Simeon R. Acoba, Jr., filed 12/07/12.

NOTE: Order assigning Circuit Court Judge Gary W.B. Chang, in place of Acoba, J., recused, filed 12/17/12.

NOTE: Order granting Application for Transfer, filed 12/18/12.

NOTE: Certificate of recusal, by Substitute Justice Gary W.B. Chang, filed 04/22/14.

NOTE: Order filed 12/03/14, that oral argument on the merits be reheard on 02/05/15 at 8:45 a.m.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

Brief Description:

Petitioners American Savings Bank and American Savings Holding, Inc. appeal from the Circuit Court of the First Circuit’s (circuit court) July 15, 2011 order denying their Motion for Judgment on the Pleadings or in the Alternative for Summary Judgment. This appeal arises out of a class action lawsuit brought by Respondent Timothy Vandeveer against Petitioners, based primarily on allegations that Petitioners re-sequence customer checking account transactions in order to increase overdraft charges and associated fees.

At issue is whether Respondent’s state law claims of unconscionability, conversion, unjust enrichment, and unfair or deceptive acts are preempted by federal regulations governing deposit-related activities of federal savings and loan associations (S&L). Petitioners maintain that the circuit court erred in finding genuine issues of material fact with respect to the preemption issue, given that federal law preempts the application of state laws to regulate or otherwise affect an S&L’s deposit-related activities. Respondent maintains that the governing federal body lacked authority to preempt state laws by regulation and alternatively, that his state law claims are not preempted because they are based on state laws of general application.

The court previously heard oral argument on the merits on Thursday, October 31, 2013.

 

Supreme
Court

No. SCWC-13-0000401, Thursday, February 5, 2015, 10 a.m.

STATE OF HAWAII, Respondent/Plaintiff-Appellee, vs. SCOTT A. ABREGANO, Petitioner/Defendant-Appellant.

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:

James S. Tabe, Deputy Public Defender

Attorney for Respondent:

Loren J. Thomas, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 12/11/14.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

Brief Description:

Petitioner/defendant-appellant Scott Abregano timely filed an application for a writ of certiorari, seeking review of the Intermediate Court of Appeal’s judgment, entered pursuant its Summary Disposition Order. The ICA’s judgment affirmed the Family Court of the First Circuit’s (family court) Judgment of Conviction and Sentence, which convicted Abregano of one count of violation of a protective order, in violation of HRS § 586-11.

The state alleged that Abregano violated the protective order by attending a softball game at his daughter’s school. When Abregano’s trial was due to start, the family court continued the trial for four weeks due to the presiding judge’s illness. Abregano’s trial thus started more than six months after his arrest. Abregano moved to have his case dismissed on the grounds the delay violated Hawai`i Rules of Penal Procedure (HRPP) Rule 48 and the reason for the delay did not fall into the “good cause” exclusion under HRPP Rule 48(c)(8). The family court denied Abregano’s motion.

At trial, during the prosecution’s examination of Abregano’s wife (the complaining witness), the family court judge informed the prosecutor that the testimony the prosecutor was attempting to elicit — that the judge who issued the protective order had explained to Abregano who was covered by the order — was already in evidence on page 1 of the protective order. Abregano moved for a mistrial because, he argued, the judge’s comments, made in the presence of the jury, negated one of his defenses — that his daughter was not covered by the protective order to the same extent as his wife.

Following the jury’s guilty verdict, Abregano moved for a new trial. In support of his motion, Abregano requested to have one of the jurors testify that the judge’s comments had influenced the juror’s decision. The family court denied Abregano’s request to allow the juror to testify, and denied the motion.

In his application, Abregano raises the following questions: (1) whether the family court erred in finding that the judge’s illness was good cause under HRPP Rule 48 and denying Abregano’s motion to dismiss; (2) whether the family court erred when it referred the prosecutor to the protective order; and (3) whether the family court abused its discretion when it denied Abregano’s request to have a juror testify regarding whether the judge’s comments influenced the juror’s decision.

 

Supreme Court

Nos. 29454 and 29589 (Consolidated), Wednesday, February 11, 2015, 9 a.m.

THOMAS FRANK SCHMIDT and LORINNA JHINCIL SCHMIDT, Plaintiffs-Appellants/Cross-Appellees, vs. HSC, INC., a Hawaii corporation, RICHARD HENDERSON, SR., ELEANOR R. J. HENDERSON, JOHN DOES 1-10, JANE DOES 1-10, DOE CORPORATIONS 1-10, and DOE UNINCORPORATED ASSOCIATIONS, INCLUDING PARTNERSHIPS 1-10, Defendants-Appellees/Cross-Appellants.

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(s) for Plaintiffs-Appellants/Cross-Appellees THOMAS FRANK SCHMIDT and LORINNA JHINCIL SCHMIDT:

R. Steven Geshell and Thomas P. Dunn

Attorney(s) for Defendants-Appellees/Cross-Appellants HSC, INC., RICHARD HENDERSON, SR., and ELEANOR R. J. HENDERSON:

Paul Alston and Stephen M. Tannenbaum of Alston Hunt Floyd & Ing

COURT: Fujise, Leonard, and Ginoza, JJ.

Brief Description:

This case involves allegations by Appellants that Appellees participated in certain fraudulent transfers and that Appellants are entitled to remedies against them as a result of those transfers. Appellees maintain, inter alia, that the statute of limitations has run on Appellants' claims. In an August 30, 2013 Memorandum Opinion, on an appeal from a bench trial wherein it was determined that Appellants failed to prove their claims, this court agreed with Appellees that Appellants' claims are time-barred and did not reach the merits of Appellants' contentions that the trial court erred in ruling against them. However, on January 15, 2014, the Hawai`i Supreme Court issued an Opinion, on certiorari review, holding that the applicable statute of limitations begins to run, not when a claimant discovers the purportedly fraudulent transfer, but when the fraudulent nature of the transfer was or could reasonably have been discovered by the claimant.

On remand from the supreme court, this court has been directed to address the merits of Appellants' contentions that the trial court erred in rejecting their claims, regardless of whether the statute of limitations has run on their claims, as that statute has now been interpreted by the supreme court. As the supreme court noted in its Opinion, however, the trial court did not issue any findings or conclusions regarding when the Appellants discovered or reasonably could have discovered the fraudulent nature of the transfers. Thus, we will hear argument from the parties on whether this court may further consider whether Appellants' claims are time-barred, absent such findings, in addition to argument on the merits of Appellants' claims.

Intermediate Courts of Appeals

CAAP-12-0000025, Wednesday, February 11, 2015, 10:15 a.m.

GORAN PLEHO, LLC, a Hawai`i Limited Liability Company (dba Resorts Limousine Services), and GORAN PLEHO, Plaintiffs/Counterclaim-Defendants/Cross-Claim Plaintiffs/Appellants/ Cross-Appellees, and ANA MARIA PLEHO, Plaintiff/Appellant/Cross-Appellee, vs. DRAGAN RNIC, Defendant/Counterclaim-Plaintiff/Cross-Claim Plaintiff/Cross-Claim Defendant/Appellee/Cross-Appellee, and DAVID W. LACY, LACY AND JACKSON, LLLC, a Hawai`i Limited Liability Law Company, Defendants/Counterclaim-Plaintiffs/Cross-Claim Plaintiffs/Cross-Claim Defendants/Appellees/ Cross-Appellants.

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(s) for Plaintiffs/Appellants/Cross-Appellees GORAN PLEHO, LLC, GORAN PLEHO, and ANA MARIA PLEHO:

Peter Van Name Esser

Attorney(s) for Defendants/Appellees/Cross-Appellants DAVID W. LACY and LACY AND JACKSON, LLLC:

Keith K. Hiraoka, Jodie D. Roeca, and Norman K. Odani of Roeca Luria Hiraoka, LLP

Attorney(s) for Defendant/Appellee DRAGON RNIC:

Robert G. Klein and David J. Minkin of McCorrison Miller Mukai MacKinnon LLP

COURT: Nakamura, CJ, Leonard and Ginoza, JJ.

Brief Description:

This appeal arises out of the sale of Resorts Limousine Services, a limousine service located on Hawai`i Island, by Defendant/Appellee Dragan Rnic (Rnic) to Plaintiff/Appellant/Cross-Appellee Goran Pleho, LLC (GPLLC). Defendant/Appellee/Cross-Appellant David W. Lacy (Lacy) provided legal advice and/or services to one or more of the parties in the transaction. Following the sale, GPLLC, Plaintiffs/Appellants/Cross-Appellees Goran Pleho (Goran), and Ana Maria Pleho (Maria) (collectively, the Pleho Parties) brought claims sounding in fraud, inadequacy of consideration, negligent and/or intentional infliction of emotional distress, unfair and deceptive trade practices, and spoliation of evidence against Lacy, Lacy's law firm, Lacy and Jackson, LLLC (L&J) (collectively, the Lacy Parties) and Rnic, as well as legal malpractice claims against the Lacy Parties. Rnic counterclaimed against the Pleho Parties, bringing contract, fraud, conversion, and unjust enrichment claims; Rnic also filed cross-claims against the Lacy Parties for legal malpractice and indemnification. Rnic was granted summary judgment on a number of the Pleho Parties' claims, and entered into a settlement agreement with the Lacy Parties. All of the Pleho Parties' claims against the Lacy Parties were disposed of on motions, except for GPLLC's legal malpractice claims. A settlement agreement appeared to have been reached between Rnic, Goran, and GPLLC on the remaining claims between them; that settlement was later disputed by the Pleho Parties, but enforced by the circuit court. GPLLC's legal malpractice claims eventually went to trial, resulting in a jury verdict in favor of the Lacy Parties.

On appeal, the Pleho Parties contend that the circuit court erred when it: (1) granted Rnic's motion to enforce settlement; (2) granted summary judgment in favor of Rnic on certain of their claims; (3) dismissed or granted summary judgment on many of their claims against the Lacy Parties; and (4) entered an award against them for the Lacy Parties' attorneys' fees and costs. On cross-appeal, the Lacy Parties assert that the circuit court erred when it allowed the admission into evidence of certain money and property Goran and Maria allegedly loaned to GPLLC, because those purported obligations were not disclosed as assets in Goran and Maria's personal bankruptcy schedules.

Intermediate Courts of Appeals

No. SCAP-13-0005781, Thursdsay, February 19, 2015, 8:45 a.m.

SURFRIDER FOUNDATION; HAWAI`I’S THOUSAND FRIENDS; KA IWI COALITION; and KAHEA - THE HAWAIIAN-ENVIRONMENTAL ALLIANCE, Petitioners/Appellants-Appellants, vs. ZONING BOARD OF APPEALS, CITY & COUNTY OF HONOLULU; DIRECTOR OF THE DEPARTMENT OF PLANNING & PERMITTING, CITY & COUNTY OF HONOLULU; KYO-YA HOTELS & RESORTS LP; and 20,000 FRIENDS OF LABOR, Respondents/Appellees-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

Attorney for Petitioner:

Linda M. B. Paul

Attorneys for Respondent Kyo-Ya Hotels & Resort:

Peter T. Kashiwa, Lisa Woods Munger, Randall C. Whattoff, and David J. Hoftiezer

Attorneys for Respondent Dept. of Planning and Permitting:

Don S. Kitaoka and Brad T. Saito, Deputies Corporation Counsel

Attorneys for Respondent 20,000 Friends of Labor:

William Meheula and Natasha Baldauf

NOTE: Order granting request for transfer, filed 05/15/14.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

Brief Description:

Kyo-ya Hotels & Resorts LP (Kyo-ya) is the fee simple owner of the Moana Surfrider Hotel Complex located on a combined zoning lot on Waikiki Beach. The lot includes three adjacent buildings: (1) the 21-story Surfrider Tower; (2) the Banyan Wing (the historic Moana Hotel); and (3) the 8-story Diamond Head Tower. Kyo-ya plans to replace the existing Diamond Head Tower with a 26-story hotel and residential tower.

In 2010, Kyo-ya applied to the Department of Planning and Permitting for a zoning variance from section 21-9.80-4(g)(2) of the Revised Ordinances of Honolulu, which provides that “no structure shall be permitted” within 100 feet of the certified shoreline and that “[b]eyond the 100-foot line there shall be a building height setback of 1:1 (45 degrees) measured from the certified shoreline.”

The Director of the Department of Planning and Permitting (“Director”) found that Kyo-ya’s application satisfied the three-part variance test set forth in section 6-1517 of the Revised Charter of the City and County of Honolulu. Specifically, the Director found as follows: 1) Kyo-ya would be denied reasonable use of the land or building if the provisions of the zoning code were strictly applied; 2) Kyo-ya’s variance request is due to unique circumstances and not the general conditions in the neighborhood, and does not call into question the reasonableness of the neighborhood zoning; and 3) Kyo-ya’s request would not alter the essential nature of the neighborhood nor be contrary to the intent and purpose of the zoning ordinance. The Director partially approved the variance subject to conditions that, inter alia, required Kyo-ya to submit revised plans that show its new tower complies with the 1-to-1 (45-degree angle) coastal height setback as measured from the existing seawall 180 feet seaward (the approximate beach width intended in a 1965 Agreement with the State of Hawai`i). Thereafter, Surfrider Foundation, Hawai?i’s Thousand Friends, Ka Iwi Coalition, and Kahea - The Hawaiian-Environmental Alliance (collectively, “Surfrider”) appealed the Director’s decision to the Zoning Board of Appeals (“Board”). Kyo-ya and 20,000 Friends of Labor subsequently intervened in the action, and following a contested case hearing, the Board affirmed the Director’s decision.

Surfrider appealed the Board’s decision to the circuit court. The circuit court affirmed the Board’s decision, concluding that Surfrider failed to satisfy its burden to demonstrate that the Director’s action in partially approving Kyo-ya’s variance application was based upon erroneous findings of material facts.

On October 30, 2014, Surfrider appealed from the circuit court’s findings of fact, conclusions of law, and order affirming the Board’s decision. In its appeal, Surfrider raises four issues. First, Surfrider argues the circuit court erred in affirming the Board’s finding that the Director was entitled to ordinary deference in granting the variance because the coastal setbacks set forth in the Land Use Ordinance are mandatory and cannot be varied. In response, the Director, Kyo-ya, and 20,000 Friends of Labor (collectively, “Appellees”) argue the Revised City Charter authorizes the Director to approve variances from the Land Use Ordinance, including coastal height setbacks, upon satisfaction of the three-prong variance test.

Second, Surfrider argues the circuit court and the Board erred in affirming the Director’s decision to condition the variance on compliance with a non-existent shoreline based on the 1965 agreement between Kyo-ya’s parent company and the State to extend the beach in front of Kyo-ya’s property 180 feet seaward of the current certified shoreline. The Appellees maintain that the Director did not rely on the 1965 agreement to determine whether Kyo-ya had satisfied the variance test, but rather to determine the reasonableness and the scope of the variance.

Third, Surfrider argues the circuit court erred in affirming the Board’s decision because Kyo-ya did not satisfy the three-part variance test. In response, the Appellees argue that the Director correctly found that each part of the variance test had been satisfied and that Surfrider did not carry its burden to prove otherwise.

Finally, Surfrider argues the circuit court erred in affirming the Board’s decision because the Board failed to consider and review the complete record. The Appellees argue the Board considered the whole record before it and was not required to consider the record of the other distinct permits and approvals required for the new tower.

Surfrider filed an Application for Transfer from the Intermediate Court of Appeals to this court on April 10, 2014, which was subsequently granted on May 15, 2014.

 

Supreme Court
   

NO. SCWC-13-0003857, Thursday, February 19, 2015, 10 a.m.

POFOLK AVIATION HAWAII, INC., and HALE O`LELE CORP., Petitioners/Plaintiffs-Appellants, vs. DEPARTMENT OF TRANSPORTATION FOR THE STATE OF HAWAI`I, GLENN M. OKIMOTO, FORD FUCHIGAMI, and SIDNEY A. HAYAKAWA, Respondents/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

Attorney for Petitioners:

Eric A. Seitz, Della A. Belatti, and Sarah R. Devine

Attorneys for Respondents:

Michael S. Vincent and Jack Rosenzweig, Deputy Attorneys General

NOTE: Order accepting Application for Writ of Certiorari, filed 01/06/15.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

Brief Description:

Petitioners-Plaintiffs-Appellants Pofolk Aviation Hawai`i, Inc. and Hale O`lele Corp. (Pofolk) applied for a writ of certiorari from the Intermediate Court of Appeals’ (ICA) November 21, 2014 judgment, entered pursuant to the ICA’s October 24, 2014 published opinion.

This case arises from the Hawai?i Department of Transportation’s (DOT) imposition of landing fees on users of Dillingham Airfield (Dillingham). Dillingham is owned by the United States but leased to the DOT. Pofolk operates a commercial skydiving operation out of Dillingham. The DOT alleges that Pofolk owes unpaid landing fees. Pofolk claims that the DOT’s landing fees, the fee schedule for which is set forth in the DOT’s administrative rules, are invalid as applied to Dillingham because Hawai?i Revised Statutes (HRS) § 261-12(a) states that “[n]o rule of the director shall apply to airports or air navigation facilities owned or operated by the United States.”

The Circuit Court of the First Circuit (circuit court) found that the DOT was authorized to impose landing fees at Dillingham pursuant to HRS § 261-7(e), and denied Pofolk’s request for an injunction preventing the DOT from imposing further landing fees or collecting unpaid landing fees at Dillingham. Pofolk appealed to the ICA, which affirmed the circuit court’s judgment.

In its application, Pofolk argues that HRS § 261-12(a) prohibits the DOT from applying its rules to Dillingham and, because the DOT’s landing fee schedule is set forth in the DOT’s administrative rules, imposition of those fees at Dillingham violates HRS § 261-12(a). In response, the DOT argues that its landing fees are applied to Dillingham not by rule but by procedure, which is permitted pursuant to HRS § 261-7(e). In the alternative, the DOT argues that the phrase “owned or operated by the United States” in HRS § 261-12(a) should be read as “owned and operated by the United States” to better reflect the legislature’s intent.

 

Supreme Court
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