Oral Arguments Schedule

Argument DetailCourt

(This oral argument has been continued until further notice)

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

(Amended 03/16/15)

No. SCWC-13-0001498, Wednesday, May 27, 2015, 12 p.m.

DORINDA HAMILTON, Petitioner and Respondent/Plaintiff-Appellant/Cross-Appellee, vs. DAVID HAMILTON, Petitioner and Respondent/Defendant-Appellee/Cross-Appellant.

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

Ronald T.Y. Moon Judiciary Complex
Kapolei Courthouse, Waianae District Court Courtroom
4675 Kapolei Parkway
Kapolei, HI 96707-3272

Attorney for Petitioner and Respondent David Hamilton:

Rebecca Copeland

Attorneys for Petitioner and Respondent Dorinda Hamilton:

Peter Van Name Esser and Michael S. Zola

NOTE: Order accepting Application for Writ of Certiorari, filed 01/08/15.

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

Brief Description:

Petitioner and Respondent/Plaintiff-Appellant/Cross-Appellee Dorinda Hamilton (Dorinda) and Petitioner and Respondent/Defendant-Appellee/Cross-Appellant David Hamilton (David) individually filed cross-applications for writ of certiorari, seeking review of the ICA’s September 25, 2014 judgment, filed pursuant to its August 29, 2014 Memorandum Opinion. The ICA’s judgment affirmed in part, vacated in part, and remanded the Family Court of the Third Circuit’s (family court) June 7, 2013 Divorce Decree.

This case arises from an appeal and cross-appeal from monetary decisions in the parties’ the Divorce Decree. The parties dispute the impact of a multi-million dollar inheritance received by David near the end of the parties’ marriage on the family court’s determinations of property division, alimony, and attorney’s fees and costs. The family court considered any inheritance funds remaining at trial to be marital separate property, credited David with capital contributions for any withdrawn inheritance funds, and deducted these contributions from the marital estate, thereby creating a marital debt that was split between the parties and resulted in Dorinda owing David an equalization payment. The family court also found valid and relevant considerations to justify an equitable deviation, crediting Dorinda with an amount equal to her equalization payment. In addition, the family court awarded Dorinda spousal support both during the pendency of the divorce proceedings and during a period of five years following the trial, and also awarded her attorney’s fees and costs.

The case presents an issue of first impression in this jurisdiction with regard to whether a premarital economic partnership (“PEP”) can include proceeds derived from an illegal business enterprise. The family court found that a PEP existed and determined that possible marital estate proceeds were derived from an illegal marijuana joint enterprise. On appeal, the ICA concluded that the family court’s finding that the parties formed a PEP was erroneous because it was based in part on this illegal business enterprise, and remanded to the family court to segregate the proceeds of the illegal business and to recalculate its property division and alimony awards.

In David’s application, he asserts the following issues on certiorari:

1) Whether ICA erred in affirming the Family Court’s decision that a premarital partnership existed even though the partnership was premised on an illegal business enterprise.

2) Whether the ICA erred in affirming the Family Court’s deviation from the Partnership Model based on David’s inheritance.

3) Whether ICA erred in affirming the Family Court’s award of temporary alimony to Dorinda during the pendency of the divorce because Dorinda was effectively awarded David’s inheritance.

4) Whether ICA erred in affirming the Family Court’s award of attorneys’ fees in Dorinda’s favor[.]

In Dorinda’s application, she asserts the following issues on certiorari:

1) Did the ICA commit grave error when it remanded this divorce case to the family court on a minor issue, without addressing the husband’s $3.5 million inheritance, which was critical to the rulings on property division and alimony?

2) Did the family court gravely err when it found wife incurred a debt to husband, payable by an equalization payment, when their marital partnership assets were insufficient to repay his capital contributions?

3) Did the family court gravely err when found [sic] equitable deviation could not be applied to marital separate property or the repayment of capital contributions from the marital estate, or permit the court to award any of the couple’s partnership assets to wife?

4) Did the family court gravely err when it declared husband’s inheritance marital separate property, credited him with capital contributions not used for marital purposes, and awarded him virtually all of the estate?

5) Did the family court gravely err when it failed to consider altering the amount or duration of alimony after wife received virtually none of the marital estate because of husband’s 2007 inheritance?

 

Supreme
Court

No. SCAP-14-0000889, Thursday, June 18, 2015, 8:45 a.m.

PEER NEWS LLC, dba Civil Beat, Petitioner/Plaintiff-Appellee, vs. CITY AND COUNTY OF HONOLULU and HONOLULU POLICE DEPARTMENT, Respondents/Defendants-Appellees, and STATE OF HAWAII ORGANIZATION OF POLICE OFFICERS, Respondent/Intervenor-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:

Robert Brian Black

Attorneys for Respondent City & County of Honolulu and HPD:

Paul S. Aoki, First Deputy Corporation Counsel, and Duane W.H. Pang and Nicolette Winter, Deputy Corporation Counsels

Attorneys for Respondent SHOPO:

Vladimir Devens and Keani Alapa

NOTE: Order granting Application for Transfer, filed 02/10/15.

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

Brief Description:

Intervenor-Appellant State of Hawai`i Organization of Police Officers (SHOPO) appealed from the Circuit Court of the First Circuit’s June 10, 2014 judgment in favor of Plaintiff-Appellee Peer News dba Civil Beat (Civil Beat). Civil Beat timely filed an application for transfer to this court.

This case involves Civil Beat’s request to the Honolulu Police Department (HPD) for records relating to the disciplinary suspensions of twelve police officers who were suspended for various instances of misconduct between 2003 and 2012. HPD denied Civil Beat’s request, and Civil Beat filed this lawsuit against HPD and the City & County of Honolulu in the circuit court, seeking an order requiring HPD to disclose the records. SHOPO intervened and argued that the police officers had a protected privacy interest in the records under Hawai`i Revised Statutes (HRS) section 92F-14(b), which precluded HPD from disclosing the records. The circuit court, relying on SHOPO v. Soc’y of Professional Journalists-University of Hawai`i Chapter, 83 Hawai?i 378, 927 P.2d 386 (1996) (SHOPO v. SPJ), found in favor of Civil Beat and ordered HPD to disclose the records.

SHOPO appealed the circuit court’s order, and argues that after this court decided SHOPO v. SPJ, the legislature amended HRS section 92F-14(b) in Act 242 to recognize a “significant privacy interest” in police officers’ disciplinary suspension records. SHOPO argues that because this court in SHOPO v. SPJ applied an older version of HRS section 92F-14, in which the legislature had not recognized this “significant privacy interest,” this court’s conclusion that police officers have no constitutionally protected privacy interest, and that, as a result, the public interest requires disclosure of such records, is not dispositive. SHOPO also argues that when enacting Act 242, the legislature performed the balancing between the police officers’ privacy interests and the public interest in disclosure, and determined as matter of policy that police officers’ privacy interests in their disciplinary suspension records outweighs the public interest in disclosure.

Civil Beat argues that this court’s decision in SHOPO v. SPJ is dispositive. Civil Beat argues that HRS section 92F-14 must be consistent with the constitutional right to privacy in article I, section 6 of the Hawai?i Constitution, and that because this court in SHOPO v. SPJ determined that police officers have no constitutional right of privacy in their disciplinary suspension records, it already conducted the appropriate balancing under HRS section 92F-14 and found that the records must be disclosed. Civil Beat also argues that even if Act 242 requires this court to revisit SHOPO v. SPJ and re-balance the competing interests, taking into account the amendments in Act 242, disclosure of the records would still be required. Civil Beat argues that because the records it requested in this case pertain only to serious instances of misconduct all resulting in suspension of at least twenty days, the public interest in disclosure still outweighs the police officers’ privacy interests in the records.

HPD filed a notice stating that it was taking no position in the appeal.

Supreme
Court

No. SCAP-13-0005234 (Consolidated with SCAP-14-0000772) Thursday, June 18, 2015, 10 a.m.

RUSSELL L. HUNGATE, Respondent/Plaintiff-Appellant, vs. THE

LAW OFFICE OF DAVID B. ROSEN, A LAW CORPORATION, DAVID B. ROSEN, DEUTSCHE BANK NATIONAL TRUST COMPANY, and DOE DEFENDANTS 1-50, 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 Rosen, et al.:

David B. Rosen, Peter W. Olson, and Christopher T. Goodin

Attorneys for Petitioner Deutsche Bank:

Judy A. Tanaka and Clyde J. Wadsworth

Attorneys for Respondent Hungate:

James J. Bickerton, Stanley H. Roehrig, Steven M. Tannanbaum, Raymond C. Cho, and Van-Alan H. Shima

NOTE: Order granting Application for Transfer (in SCAP-13-0005234), filed 08/29/14.

NOTE: Order granting Application for Transfer (in SCAP-14-0000772), filed 12/31/14.

NOTE: Order granting motion to consolidate SCAP-13-0005234 and SCAP-14-0000772, filed 02/25/15.

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

Brief Description:

In SCAP-13-5234, Russell L. Hungate (“Hungate”) and the Law Offices of David B. Rosen, et al (“Rosen”) filed Application for Transfer from the Intermediate Court of Appeals to this court on July 25 and July 28th, 2014, which this court granted on August 29, 2014. Subsequently, in SCAP-14-0772, Deutsche Bank National Trust Company (“Deutsche Bank”) filed an Application for Transfer on December 8, 2014 which was granted on December 31, 2014. Accordingly, a Motion to Consolidate filed by Deutsche Bank was granted on February 25, 2015, and the case was consolidated in SCAP-13-5234.

The present appeal arises out of the nonjudicial foreclosure sale involving Hungate’s property on Kaua#i. The nonjudicial foreclosure sale was performed by Rosen on behalf of Deutsche Bank, allegedly in accordance with Part I of Hawai#i Revised Statute (“HRS”) ' 667 (2008). To foreclosure on the property, Rosen published a notice of sale on March 20, 27, and April 3, 2009 and proposed a sale date of April 17, 2009. The proposed sale date of April 17, 2009 was on the 28th day from the first notice of sale published on April 17, 2009. The sale date was postponed a total of three times: from April 3 to May 15, from May 15 to June 12, from June 12 to July 17, and from July 17 to August 14, 2009. These dates were not published, but publicly announced at each sale date. At the August 14, 2009 sale, Deutsche Bank purchased the property with a winning bid of $161,250, the amount due and owing on the Mortgage.

Hungate appeals from the Circuit Court of the First Circuit’s (circuit court) November 5, 2013 “Order Granting Defendants The Law Office of David B. Rosen, a Law Corporation, and David B. Rosen’s Motion to Dismiss August 6, 2013 Complaint” as well as the circuit court’s April 8, 2014 “Order (1) Granting In Part Defendant Deutsche Bank National Trust Company’s Motion to Dismiss First Amended Complaint, Filed December 19, 2010; and (2) Staying Remaining Chapter 480 Claim Re Quitclaim Deed”

Hungate’s Opening Briefs raise the following issues: (1) Whether the circuit court erred in granting Rosen’s and Deutsche Bank’s motions to dismiss because it erroneously concluded that Hungate lacked standing to maintain unfair and/or deceptive trade practice claims against Rosen under HRS ' 480; (2) Whether the circuit court erred in concluding that Rosen complied with HRS Chapter 667; (3) Whether the circuit court erred in concluding that Paragraph 22 of Hungate’s mortgage did not require sale on a published date as a matter of law; and (4) Whether the circuit court erred in concluding that Rosen did not owe or breach common law duties to Hungate.

Supreme
Court

Nos. SCWC-13-0002977, SCWC-13-0002610 AND SCWC-14-0000556, Thursday, June 18, 2015, 11:15 A.M.

GERALD K. MOUNT, JR. and JANE R. MOUNT,Respondents/Plaintiffs/Counterclaim Defendants/Appellees, vs. MARGARET APAO, Petitioner/Defendant/Appellant, and DIRK APAO as Co-Personal Representative of the ESTATE OF ROSE MARIE ALVARO, deceased, Petitioner/Defendant/Counter-claim Plaintiff/Third-Party Plaintiff-Appellant, and SESHA LOVELACE, as Co-Personal Representative of the ESTATE OF ROSE MARIE ALVARO, deceased, Respondent/Defendant/Cross-Claim Defendant/Appellee, and U.S. BANK NATIONAL ASSOCIATION, A NATIONAL ASSOCIATION AS TRUSTEE FOR THE STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES 2005-SC1, Respondent/Third-Party Defendant/Cross-Claim Plaintiff/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 Apao, et al.:

Gary Victor Dubin and Frederick J. Arensmeyer

Attorneys for Respondents Mounts:

Michael C. Bird, Summer H. Kaiawe, Robert E. Chapman, and Mary Martin

Attorneys for Respondent U.S. Bank:

Paul Alston, Pamela W. Bunn, and J. Blaine Rogers

NOTE: Order accepting Application for Writ of Certiorari, filed 04/23/15.

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

Brief Description:

This consolidated appeal arises from an ejectment action initiated after a non-judicial foreclosure of real property pursuant to a power of sale. Petitioners Dirk Apao as personal representative of the Estate of Rose Marie Alvaro (“Estate”), deceased, and Margaret Apao (collectively, “the Apaos”), are beneficiaries of and the current and former personal representatives of the Estate.

In brief summary, the subject property passed through probate to the Apaos as co-personal representatives of the Estate, and subsequently went into default for non-payment of the mortgage. Margaret Apao resigned as co-personal representative and was replaced with beneficiary Sesha Lovelace (“Lovelace”). Thereafter, U.S. Bank notified Dirk Apao and Lovelace as co-personal representatives of its intent to initiate a non-judicial foreclosure proceeding over the subject property. Lovelace requested information concerning reinstatement of the loan under HRS § 667-5. U.S. Bank, through its mortgage servicer, refused to provide the requested information to Lovelace because it disputed her status as co-personal representative. Lovelace later resigned as co-personal representative, making Dirk Apao the sole personal representative.

The Mounts purchased the property at a public foreclosure auction for approximately $1.2 million, and filed a complaint in the Circuit Court of the First Circuit (“circuit court”) for ejectment and possession. Dirk Apao filed a counterclaim and third-party complaint against the Mounts and U.S. Bank, asserting that the non-judicial foreclosure is void as a result of the HRS § 667-5 violation, is not an exempt proceeding under the Hawai#i Probate Code, and is inequitable because the subject property is appraised at over $3 million. The parties submitted various motions for summary judgment, which the circuit court granted in favor of the Mounts and U.S. Bank as to all claims, reserving the issue of damages. The circuit court also entered a writ of possession and judgment in favor of the Mounts.

The Apaos appealed from nine orders and judgments of the circuit court, resulting in three separate appeals. One such appeal concerned the circuit court’s award of damages and attorneys’ fees and costs in favor of the Mounts and U.S. Bank while the initial appeal was pending before the Intermediate Court of Appeals (“ICA”).

The ICA consolidated the appeals and affirmed the circuit court’s grant of summary judgment and award of damages and attorneys’ fees and costs against the Apaos, concluding that the non-judicial foreclosure was an exempt proceeding under the Hawai#i Probate Code.

In their application, the Apaos present the following questions:

1. Did the [ICA] commit a grave error of law in concluding, without offering any legal analysis, that a non-judicial mortgage foreclosure conducted pursuant to former section 667-5 of the [HRS] was a “proceeding,” as that term is used in the Hawaii Probate Code, thereby exempting a mortgagee conducting a non-judicial foreclosure of a decedent’s mortgage from complying with the claims requirements of the Probate Code pursuant to Section 560:3-803(d)(1)?

2. Did the [ICA] commit grave errors of law and fact in affirming the Circuit Court’s entry of summary judgment against Petitioners Dirk Apao and Margaret Apao, where there was at the very least a genuine issue of material fact with respect to whether Respondent U.S. Bank complied with the requirements of former section 667-5(c)(1) of the [HRS], where the record demonstrates that the co-personal representative of the subject estate requested reinstatement figures from U.S. Bank prior to the subject non-judicial foreclosure, but none were provided to the estate?

3. Did the [ICA] commit grave error of law in affirming the Circuit Court’s issuance of a Writ of Possession prior to the entry of a final and appealable judgment, and worse, in completely failing to address Petitioners’ argument that the Circuit Court’s subsequent award of damages to respondents Gerald K. Mount, Jr. and Jane R. Mount resulted in an unlawful splitting of the Mounts’ claim for ejectment?

4. Did the [ICA] commit grave errors of law and fact in affirming the Circuit Court’s conclusion that Petitioner Dirk Apao’s counterclaim and third-party complaint was in the nature of assumpsit, and thereby awarded attorneys’ fees and costs to both Respondents, U.S. Bank and the Mounts, pursuant to Section 607-14 of the [HRS] -- especially where (1) Petitioner Margaret Apao was not a party to the Counterclaim, (2) there was no contractual relationship or breach thereof asserted by Dirk Apao against the Mounts, and (3) all of the claims disputed between the Apaos and the Mounts sounded in tort?

5. Did the [ICA] commit grave error of law in affirming the Circuit Court’s award of damages on the Mount’s [sic] ejectment claim, which damages the Circuit Court’ [sic] measured in part by the Mounts’ rental of another, unrelated property?

6. Did the [ICA] commit grave error of law and fact in affirming the Circuit Court’s award of supplemental damages to the Mounts, who failed to mitigate those damages and benefited from their own misconduct?

This case concerns the rights of a personal representative to raise a statutory violation on behalf of an estate that accrued to a former co-personal representative with adverse interests.

 

Supreme
Court

No. SCAP-13-0002266, Thursday, June 25, 2015, 8:45 a.m.

THE SIERRA CLUB and SENATOR CLAYTON HEE, Petitioners/Appellants-Appellants, vs. D.R. HORTON-SCHULER HOMES, LLC, a Delaware limited liability company, d.b.a. D.R. HORTON-SCHULER DIVISION; THE LAND USE COMMISSION OF THE STATE OF HAWAI?I; OFFICE OF PLANNING, STATE OF HAWAI`I; DEPARTMENT OF PLANNING AND PERMITTING, Respondents/Appellees-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 Sierra Club and Hee:

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

Attorneys for Respondent Office of Planning:

Bryan C. Yee and Deborah Day Emerson, Deputy Attorneys General

Attorney for Respondent Dept. of Planning & Permitting:

Dawn Takeuchi Apuna, Deputy Corporation Counsel

Attorneys for Respondent D.R. Horton-Schuler Homes:

Gregory W. Kugle and Matthew T. Evans

Attorneys for Respondent Land Use Commission:

Russell A. Suzuki, First Deputy Attorney General; Patricia Ohara, and Diane Erickson, Deputy Attorneys General

NOTE: Certificate of Recusal, by Associate Justice Simeon R. Acoba, Jr., filed 02/28/14.

NOTE: Order assigning Circuit Court Judge Gary W.B. Chang, in place of Acoba, J., recused, filed 03/19/14.

NOTE: Order granting in part Application for Transfer, filed 04/02/14.

COURT: MER, CJ; PAN, SSM, and RWP, JJ., and Circuit Court Judge Gary W.B. Chang, in place of Acoba, J., recused.

Brief Description:

In this case, Appellants Sierra Club and Clayton Hee appeal from the Decision and Order of the Circuit Court of the First Circuit, which dismissed their appeal from the Land Use Commission’s (“LUC”) Findings of Fact, Conclusions of Law, and Decision and Order, which approved Appellee D.R. Horton-Schuler Homes’ Petition for District Boundary Amendment (as amended). The LUC reclassified approximately 1525.516 acres of Appellee’s land from the state agricultural land use district to the state urban land use district. The land is slated for development of the Ho?opili project.

Appellants argue that the reclassification violated Article XI, Section 3 of the Hawai?i State Constitution, which provides the following:

The State shall conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency and assure the availability of agriculturally suitable lands. The legislature shall provide standards and criteria to accomplish the foregoing.

Lands identified by the State as important agricultural lands needed to fulfill the purposes above shall not be reclassified by the State or rezoned by its political subdivisions without meeting the standards and criteria established by the legislature and approved by a two-thirds vote of the body responsible for the reclassification or rezoning action.

Appellants also argue that the reclassification violated Act 183, HRS § 205-41 through -52, which are the statutory provisions implementing Article XI, Section 3’s mandate, and which govern land use on important agricultural lands (“IALs”). They contend that the LUC should not reclassify lands that could potentially qualify as IALs until the City and County of Honolulu has completed the formal process of identifying Oahu’s IALs.

Lastly, Appellants argue that the reclassification violated Hawai?i Administrative Rules (“HAR”) § 15-15-77, which requires conformance to the Hawai?i State Plan. They also contend that the reclassification violated HAR § 15-15-77-(6), which requires the LUC to consider whether taking land in “intensive agricultural use for two years prior to the date of a filing of a petition [for a district boundary amendment] or lands with a high capacity for intensive agricultural use” out of the agricultural district “[w]ill not substantially impair actual or potential agricultural production in the vicinity of the subject property or in the county of State; or . . . [i]s reasonably necessary for urban growth. . . .”

Supreme
Court

No. SCWC-30557, Thursday, June 25, 2015, 10 a.m.

LLOYD R. ANASTASI, Petitioner and Respondent/Plaintiff-Appellant, vs. FIDELITY NATIONAL TITLE INSURANCE COMPANY, Respondent and Petitioner/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 and Respondent Anastasi:

Philip J. Leas, Jacqueline B. Kido, John P. Duchemin, and Trisha H.S.T. Akagi

Attorneys for Respondent and Petitioner Fidelity:

Carol A. Eblen, Edmund K. Saffery, Thomas Benedict, William K. Tanaka, and Dawn T. Sugihara

NOTE: Order accepting Application for Writ of Certiorari, filed 05/22/15.

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

Brief Description:

Both Plaintiff-Appellant Lloyd R. Anastasi (Anastasi) and Defendant-Appellee Fidelity National Title Insurance Company (Fidelity) applied for a writ of certiorari from the Intermediate Court of Appeals’s (ICA) February 6, 2015 Judgment on Appeal filed pursuant to its December 30, 2014 Published Opinion. The ICA vacated the judgment of the Circuit Court of the First Circuit (circuit court), which was entered in favor of Fidelity.

Anastasi filed a bad faith and breach of contract claim against Fidelity after Fidelity allegedly delayed in making payments to Anastasi under a title insurance policy. Anastasi had loaned $2.4 million to a third party in exchange for a mortgage on a property that was supposedly owned by that third party. Fidelity insured that the third party had good title, but it was soon discovered that the warranty deed purporting to give title to the third party was forged. When Anastasi was sued by the true owners of the property, Fidelity accepted tender of the claim under a reservation of rights and retained an attorney to represent Anastasi.

Anastasi argued that Fidelity committed bad faith because Fidelity knew early on in the underlying litigation that the deed was forged but continued to litigate the lawsuit. Anastasi asserted that the lawsuit was used by Fidelity to delay paying him under the policy. The circuit court granted summary judgment in favor of Fidelity on this issue.

On appeal, Anastasi argued that there were genuine issues of material fact as to whether Fidelity committed bad faith. Anastasi also challenged a circuit court order that allowed Fidelity to withhold certain documents that Anastasi requested during discovery under attorney-client privilege and work product doctrine. The ICA remanded the discovery order to the circuit court and vacated part of the circuit court’s order granting summary judgment.

In Anastasi’s application, he presented the following questions:

1. Did the ICA gravely err by failing to hold Fidelity to an enhanced standard of good faith in analyzing Fidelity’s interactions with insurance-defense counsel?

2. Did the ICA gravely err in its published opinion by viewing the evidence unfavorably to Anastasi, the summary judgment non-movant, to exclude from trial a material portion of Anastasi’s insurance bad-faith claim showing inducement of unethical conduct by insurance defense counsel?

In Fidelity’s application, it presented the following questions:

1. Whether the ICA grievously erred in holding that Fidelity could be found to have acted unreasonably by exercising its contractual right to defend its insured’s property interest.

2. Whether the ICA grievously erred in holding that Fidelity’s obligation to pay benefits to its insured should be judged under the “heightened duty of good faith” standard developed to protect insureds from uncovered risks in third-party litigation.

3. Whether the ICA grievously erred when it created a presumption that documents prepared by insurers prior to their final coverage decision are not work product.

Supreme
Court

No. SCWC-14-0000780, Thursday, June 25, 2015, 11:15 a.m.

ANASTASIA Y. WALDECKER, Petitioner/Petitioner-Appellant, vs. JOHN O’SCANLON, Respondent/Respondent-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

Attorney for Petitioner:

Michael A. Glenn

Attorney for Respondent:

A. Debbie Jew

NOTE: Order accepting Application for Writ of Certiorari, filed 05/08/15.

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

Brief Description:

Petitioner/Plaintiff-Appellant Anastasia Waldecker (“Waldecker”) applied for writ of certiorari from the judgment of the Intermediate Court of Appeals (ICA), entered pursuant to its summary disposition order.

Waldecker and John O’Scanlon (“O’Scanlon”) divorced in Nevada in 2010. At the time of divorce, Waldecker and O’Scanlon had one minor daughter (“Daughter”). Waldecker and O’Scanlon entered into a Settlement Agreement that was incorporated into the Nevada district court’s divorce decree (“divorce decree”), pursuant to which Waldecker and O’Scanlon had joint custody of Daughter, but if either parent relocated to more than 200 miles from either O?ahu or San Francisco, sole custody would automatically transfer to the remaining parent. The Nevada court did not make any explicit findings regarding Daughter’s best interests.

Following the divorce, both parents and Daughter lived on O?ahu, but in early 2014, Waldecker intended to relocate to Florida. Waldecker filed a petition in the Family Court of the First Circuit on O?ahu (“family court”), arguing that since the entry of the divorce decree, there had been a material change in circumstances, which required the family court to determine whether the automatic change of custody to O’Scanlon would be in Daughter’s best interests.

The family court concluded that because the parties had agreed to the automatic change of custody provision, they had anticipated the relocation of a parent, so there was no material change in circumstances. As such, the family court concluded that it did not need to determine whether enforcement of the divorce decree was in Daughter’s best interests. Waldecker appealed, and the ICA affirmed the family court’s order.

In her application to this court, Waldecker argues that her anticipated relocation to Florida and her allegation that O’Scanlon’s parenting skills have deteriorated are both grounds to find a material change of circumstances. According to Waldecker, the family court thus erred in failing to analyze whether enforcement of the automatic change of custody provision was in Daughter’s best interests.

O’Scanlon argues that because the parties agreed to the change of custody provision, they anticipated, and provided for the relocation of a parent. O’Scanlon thus argues that there was no material change in circumstances, and the family court did not err in enforcing the automatic change of custody provision without making any findings regarding Daughter’s best interests.

Supreme
Court

No. SCWC-13-0002894, Thursday, July 2, 2015, 08:45 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. JAYSON AULD, 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:

Benjamin E. Lowenthal

Attorney for Respondent:

Artemio C. Baxa, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 05/20/15.

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

Brief Description:

Petitioner/Defendant-Appellant Jayson Auld was convicted of Robbery in the Second Degree in violation of Hawai`i Revised Statutes § 708-841(1)(a). He was sentenced to ten years of incarceration, subject to a mandatory minimum term of imprisonment of six years and eight months as a repeat offender. On certiorari, Auld presents a threefold challenge to his conviction and sentence.

First, he argues that his mandatory minimum sentence violated the rule set forth in Apprendi v. New Jersey, 530 U.S. 466, 489 (2000): “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The United States Supreme Court recently extended the Apprendi rule to mandatory minimum sentencing in Alleyne v. United States, 133 S.Ct. 2151 (2013).

Second, he asserts that the circuit court plainly erred in admitting the complaining witness’s statement about a pool stick Auld had sold him. The complaining witness testified that another person told him the pool stick was stolen. Auld contends the statement was hearsay that affected his substantial rights to (1) confront and cross-examine the witness and (2) to remain silent, as Auld may have decided to testify to explain that he did not steal the pool stick.

Third, Auld contends that the circuit court plainly erred in allowing the prosecutor, in opening statements, to argue that Auld’s case was about “the younger and stronger” “taking advantage of” and “overpowering” the “weaker and older.”

Supreme
Court

No. SCWC-14-0000355, Thursday, July 2, 2015, 10 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. WILLIAM MCDONNELL, 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

Attorney for Respondent:

Stephen K. Tsushima, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 05/19/15.

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

Brief Description:

Petitioner/Defendant-Appellant William McDonnell was prosecuted for sexual assault of a minor less than fourteen years old. During the trial, a practicing psychologist was qualified as an expert in child sex abuse and was permitted to testify regarding the behavior of child sex abuse victims and the common characteristics and practices of child molesters.

McDonnell objected to the expert’s testimony as being unduly prejudicial and irrelevant. In objecting to the testimony as unduly prejudicial, McDonnell was particularly concerned with the use of statistics by the expert and the expert’s testimony regarding the common characteristics and practices of child molesters. The family court found that the expert testimony was admissible and any prejudice to the defendant was outweighed by its probative value.

Following his conviction, McDonnell appealed to the Intermediate Court of Appeals (ICA) arguing that the family court erred in admitting the expert testimony because the testimony was irrelevant, did not assist the jury, improperly bolstered the complainant’s credibility, improperly profiled McDonnell as a child molester, and was unduly prejudicial. The State argued that the family court did not abuse its discretion in admitting the testimony because the testimony was relevant, was not unfairly prejudicial, and did not provide an opinion regarding the complainant’s credibility.

The ICA, in a summary disposition order, agreed with the State and found that the family court did not abuse its discretion in allowing the expert testimony. In its analysis, the ICA considered the expert’s testimony regarding child victim behavior and testimony regarding the characteristics and practices of child molesters. The Honorable Lawrence M. Reifurth concurred with the ICA majority regarding the testimony concerning the behavior of victims, but he dissented from the ICA’s conclusion with respect to the testimony regarding the common characteristics and practices of child molesters. McDonnell filed an application for writ of certiorari on April 10, 2015, presenting one question for review--whether the ICA gravely erred in holding that the family court did not abuse its discretion in allowing the expert testimony.

Supreme
Court
Increase text sizeDecrease text sizePrint this page

© 2008 Hawaii State Judiciary. All rights reserved.

Privacy Policy  |  Terms of Use  |  Accessibility Information

HIC logo