Oral Arguments Schedule

Argument DetailCourt

No. SCWC-12-0000858, Thursday, Sept. 4, 2014, 8:45 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. YONG SHIK WON, 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:

Jonathan Burge

Attorney for Respondent:

Brian R. Vincent, Deputy Prosecuting Attorney

Attorney for Attorney General (Amicus Curiae):

Robert T. Nakatsuji, Deputy Solicitor General

NOTE: Order accepting Application for Writ of Certiorari, filed 06/24/14.

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

Brief Description:

Petitioner/Defendant-Appellee Yong Shik Won (Won) applied for a writ of certiorari from the Intermediate Court of Appeals’s (ICA) May 5, 2014 Judgment on Appeal filed pursuant to its March 28, 2014 Published Opinion.

This case arises from Won’s conviction for operating a vehicle under the influence of an intoxicant (OVUII) pursuant to HRS § 291E-61(a)(3). Won was arrested and transported to the Honolulu Police Station after he failed standard field sobriety testing. At the station, the police asked Won to submit to either a blood or breath alcohol test and informed him that refusal was a crime punishable by up to 30 days in jail. Won took and failed the breath test.

In his application for writ of certiorari, Won raises the following four questions:

1. Did the ICA err when it ruled that the 4th Amendment to the United States Constitution and article I, section 7 of the Hawai?i Constitution [were] not violated when the police threatened Petitioner-Appellant with 30 days in jail unless he consented to a 4th Amendment search, a blood or breath test, to determine his blood alcohol [level] in an impaired driving case[?]

2. Did the ICA err when it ruled that there was no violation of Petitioner-Appellant’s Miranda rights under article I, section 10 of the Hawai?i Constitution when, while Won was in custody, he was asked by the police, without Miranda warnings, if he wanted to refuse to take a blood alcohol test, which was likely to incriminate him in the petty misdemeanor offense of refusing to take a test under HRS 291E-68[?]

3. Did the ICA err when it ruled that there was no violation of Won’s statutory right to an attorney under HRS 803-9 and/or due process under article 1, section 5 of the Hawai?i Constitution when Won was in custody, asked questions regarding blood alcohol tests[,] and explicitly told he did not have a right to an attorney despite HRS 803-9 stating that he did[?]

4. Did the ICA err when it ruled that Won’s due process rights under article I, section 5 of the Hawai?i Constitution [were] not violated when the police told him that he “shall” be subject to 30 days in jail if he did not take a blood alcohol test[?]

 

Supreme
Court

No. SCWC-13-0000059, Thursday, Sept. 4, 2014, 10 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. EDDIE A. GARCIA, 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:

Richard K. Minatoya, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 06/25/14.

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

Brief Description:

This appeal arises out of a dispute over whether the State breached its plea agreement with Eddie A. Garcia (Garcia). In the plea agreement, the State agreed to “remain silent at the minimum term hearing” before the Hawai?i Paroling Authority (HPA). Prior to Garcia’s sentencing hearing in the Family Court of the Second Circuit (family court), the Deputy Prosecuting Attorney assigned (Prosecutor) submitted a letter and three exhibits for inclusion in Garcia’s pre-sentence investigation (PSI) report. Garcia then filed a motion to withdraw his no contest plea, arguing that the Prosecutor breached the plea agreement because the Prosecutor knew that the letter and exhibits would be transmitted to the HPA for its consideration at the minimum term hearing.

The family court denied Garcia’s motion and held that the Prosecutor did not breach the plea agreement because Garcia filed his motion before sentencing and therefore the PSI report containing the Prosecutor’s submission could be intercepted before it reached the HPA. The family court ordered that the PSI report be struck from the record and kept under seal, ordered that a new PSI report be prepared by a probation officer other than the one who prepared the first report, and prohibited the State from communicating with the probation officer responsible for preparing the new PSI report. Garcia was subsequently sentenced in accordance with the terms of the plea agreement. Garcia timely appealed on the basis of the Prosecutor’s alleged breach, and the Intermediate Court of Appeals (ICA) affirmed.

Garcia raises the following question in his application:

Did the ICA commit grave error by departing from well-established precedent and concluding that the prosecutor’s submission of a detailed letter and three exhibits in a presentence investigation report headed to the Hawai`i Paroling Authority was not a breach of her promise to stand silent at the minimum term hearing?

Supreme
Court

No. SCWC-13-0000137, Thursday, Sept. 4, 2014, 11:15 a.m.

THOMAS NISHIMURA, COLETTE NISHIMURA, individually and on Behalf of a Class of All Persons Similarly Situated, Petitioners/Plaintiffs-Appellees, vs. GENTRY HOMES, LTD., a Hawai?i Domestic Profit Corporation, Respondent/Defendant-Appellant and SIMPSON MANUFACTURING CO., INC., a Delaware Corporation; SIMPSON STRONG-TIE COMPANY, INC., a California Corporation; JOHN and JANE DOES 1-100, DOE PARTNERSHIPS 1-100; DOE CORPORATIONS 1-100; DOE GOVERNMENTAL AGENCIES 1-100; and DOE ASSOCIATIONS 1-100, Defendants.

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:

Melvin Y. Agena, Glenn K. Sato, and Graham B. Lippsmith

Attorneys for Respondent:

Ryan H. Engle, Sarah M. Love, and Summer L. Sylva

NOTE: Order accepting Application for Writ of Certiorari, filed 07/07/14.

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

Brief Description:

In this case, Petitioners/Plaintiffs-Appellees Thomas and Colette Nishimura, individually and on behalf of a class of all persons similarly situated (collectively, “the Nishimuras”), filed a Complaint against Respondent/Defendant-Appellant Gentry Homes, Ltd. (“Gentry”), alleging that Gentry constructed the Nishimuras’ home without adequate high wind protection. Gentry moved to compel arbitration pursuant to the arbitration agreement contained in the Home Builder’s Limited Warranty (“HBLW”). The HBLW was administered by Professional Warranty Service Corporation (“PWC”). The arbitration agreement provided the following:

Any disputes between YOU [the homeowner] and US [Gentry], or parties acting on OUR [Gentry's] behalf, including PWC, related to or arising from this LIMITED WARRANTY . . . will be resolved by binding arbitration.

. . . .

The arbitration shall be conducted by Construction Arbitration Services, Inc., or such other reputable arbitration service that PWC shall select, at its sole discretion, at the time the request for arbitration is submitted.

The Nishimuras opposed the motion to compel arbitration, first pointing out that Construction Arbitration Services, Inc., was no longer conducting construction arbitrations. Therefore, under the terms of the arbitration agreement, PWC would then select a reputable arbitration service. The Nishimuras argued that PWC marketed its close relationship with an insurance company that was the parent of the insurer of another developer, Haseko Homes, which was also being sued for the same construction defect. Thus, the Nishimuras argued, PWC had a conflict of interest because it would likely align itself with Haseko Homes, and, therefore, with Gentry on the construction defect issue. The Nishimuras contended that the arbitrator-selection provision allowing PWC to unilaterally select the arbitrator would deprive them of a fair and effective forum in which to vindicate their claims. The circuit court granted Gentry’s motion to compel arbitration in part and denied it in part, striking and severing the arbitrator-selection provision after finding “a potential conflict of interest with [PWC] selecting the arbitration service as set forth under the [HBLW].” As a result, the circuit court ordered the parties to meet and confer to select a local arbitration service. The circuit court then denied Gentry’s motion for reconsideration, and Gentry appealed.

The ICA vacated the circuit court’s orders. The ICA first stated, “We decline to conclude that PWC’s potential conflict of interest constitutes bias rendering the arbitrator selection process under the [HBLW] so ‘fundamentally unfair’ as to be unenforceable.” Slip Opinion at 11. The ICA then stated, “In order to avoid enforcement of an allegedly unconscionable arbitration clause, [the Nishimuras] were required to present evidence of actual partiality or bias of the arbitration service designated by PWC or the neutral arbitrator selected.” Id. The ICA also stated, “Because [the Nishimuras] failed to prove that the arbitration selection process would necessarily result in actual partiality or bias, the circuit court should have confined judicial review to the fairness of the completed arbitration award, at which time 9 U.S.C. § 10 could provide for vacating the award upon a finding that the arbitrators acted with evident partiality.” Id. at 12.

On certiorari, the Nishimuras present the following question: “Did the ICA err by ruling that in a pre-arbitration challenge to a one-sided arbitration-selection clause, the challenging party must prove that the arbitrator-selection process would actually or necessarily result in a biased arbitrator or arbitrator service?”

This appeal presents an issue of first impression in this jurisdiction: Under what standard does a court analyze a pre-arbitration challenge to the arbitrator-selection process?

Supreme
Court

CAAP-13-0000531, Wednesday, September 10, 2014, 9:00 a.m.

CAAP-13-0000531 - (Consolidated with CAAP-13-0000551 as the Personal Representative, and Plaintiffs-Appellees, vs. State of Hawaii, CAAP-13–0000615)

William A. Arthur, Sr., Individually, and The Estate of Mona Arthur thru William A. Arthur Sr., as the Personal Representative, Plaintiffs-Appellees, vs. State of Hawaii, Department of Hawaiian Home Lands, Kamehameha

Investment Corporation, Design Partners Inc., Coastal Construction Co., Inc., Association of Kalawahine Streamside Association, Sato and Associates, Inc., Daniel S. Miyasato, Inc., Defendants-Appellees, and John and Mary Does 1-50, Doe Partnerships 1-50, Doe Corporations 1-50, and other Doe Entities 1-50, Defendants.

Kamehameha Investment Corporation, State of Hawaii, Department of Hawaiian Home Lands, Third-Party Plaintiffs-Appellees, vs. Kiewit Pacific Co., Third-Party Defendant-Appellee. Kiewit Pacific Co., Fourth-Party Plaintiff-Appellee, vs. Pacific Fence, Inc., Fourth-Party Defendant-Appellant, and John Does 1-5, Doe Corporations 1-5, Doe Partnerships 1-5, Roe Non-Profit Organizations 1-5, and Roe Governmental Agencies 1-5, Fourth-Party Defendants.

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/Appellees/Appellants/Cross-Appellees WILLIAM A. ARTHUR, SR., Individually, and THE ESTATE OF MONA ARTHUR THRU WILLIAM A. ARTHUR SR. AS THE PERSONAL REPRESENTATIVE:

Lester K. M. Leu, Gary Y. Okuda, and Karyn A. Doi of Leu
Okuda & Doi
Leighton K. Lee

Attorney(s) for Defendant/Appellee/Third-Party Plaintiff/Cross-Appellee STATE OF HAWAII, DEPARTMENT OF HAWAIIAN HOME LANDS:

Randall Y. Yamamoto and Brian Y. Hiyane of Yamamoto Kim, LLP

Attorney(s) for Defendant/Appellee/Third-Party Plaintiff/Cross-Appellee KAMEHAMEHA INVESTMENT CORPORATION:

Brad S. Petrus, Joseph F. Kotowski III, David R. Harada-Stone, and Lyle M. Ishida of Tom Petrus & Miller, LLLC

Attorney(s) for Defendant/Appellee/Cross-Appellee/Appellant DESIGN PARTNERS, INCORPORATED:

Arthur H. Kuwahara of Kim & Kuwahara

Attorney(s) for Defendant/Appellee/Cross-Appellant COASTAL CONSTRUCTION CO., INC.:

Wayne M. Sakai, Michiro Iwanaga, and Max J. Kimura of Sakai Iwanaga Sutton Law Group, AAL, LLLC

Attorney(s) for Defendant/Appellee ASSOCIATION OF KALAWAHINE STREAMSIDE ASSOCIATION:

Jonathan L. Ortiz, Wade J. Katano, and Christine S. Prepose-Kamihara of Ortiz & Katano

Attorney(s) for Defendants/Appellees/Cross-Appellants SATO AND ASSOCIATES, INC. and DANIEL S. MIYASATO:

Frank K. Goto, Jr., Bennett J. Chin, and Jane Kwan of the Law Offices of Frank K. Goto, Jr.

Kevin P.H. Sumida, Anthony L. Wong, and Lance S. Au of Kevin Sumida & Associates, LLLC

Attorney(s) for Third-Party Defendant/Appellee/Fourth-Party Plaintiff/Cross-Appellee KIEWIT PACIFIC CO.

Wesley H.H. Ching, Sheree Kon-Herrea of Fukunaga Matayoshi Hershey & Ching, LLP

Cary T. Tanaka and Dawn M. Nakagawa of the Law Offices of Cary T. Tanaka Greg H. Takase

Attorney(s) for Fourth-Party Defendant/Appellant/Appellee/Cross-Appellee PACIFIC FENCE, INC.:

Robert P. Richards of Hughes Richards & Associates
Michael N. Tanoue and Eric H. Kunisaki of The Pacific Law Group

COURT: Foley, Fujise, and Leonard, JJ.

Brief Description:

This case arises out of an alleged wrongful death that occurred on or about November 10, 2003 at the Kalawahine Streamside Housing Development, located on 27 acres of land owned by Defendant/Appellee/Third Party Plaintiff/Cross-Appellee State of Hawai?i, Department of Hawaiian Home Lands (DHHL) in Honolulu. Plaintiffs/Appellees/Appellants/Cross-Appellees William A. Arthur, Sr., individually and the Estate of Mona Arthur, through William A. Arthur, as Personal Representative (collectively, Arthur) brought suit against DHHL, the developer Defendant/Appellee/Third Party Plaintiff/ Cross-Appellee Kamehameha Investment Corporation (KIC), the general housing contractor Defendant/Appellee/Cross-Appellant Coastal Construction Co., Inc. (Coastal), the architecture firm Defendant/ Appellee/Cross-Appellee/Appellant Design Partners, Inc. (Design Partners), the civil engineer Defendants/Appellees/Cross-Appellant Sato and Associates, Inc. and Daniel S. Miyasato (Sato) (collectively, Sato), and the Defendant/Appellee Association of Kalawahine Streamside Association (AOAO). KIC filed a third-party Complaint for indemnification and contribution against the general site development contractor, Third-Party Defendant/Appellee/Fourth-Party Plaintiff/ Cross-Appellee Kiewit Pacific Co. (Kiewit). DHHL also filed a third-party Complaint for indemnification and contribution against Kiewit. Kiewit filed a fourth-party Complaint against the subcontractor who furnished and installed a chainlink fence, Fourth-Party Defendant/ Appellant/Appellee/Cross-Appellee Pacific Fence Inc. (Pacific Fence). Defendant parties filed counterclaims for indemnification and contribution against other defendant parties.

On April 30, 2013, Pacific Fence filed an appeal from the Circuit Court of the First Circuit's (circuit court) Amended Final Judgment, entered April 2, 2013 (Amended Final Judgment), and underlying orders. The Amended Final Judgment superseded the Judgment entered January 9, 2012, and was entered in favor of DHHL, KIC, Design Partners, Coastal, AOAO, and Sato against Arthur. Concerning the Third- and Fourth-Party Complaints, the Amended Final Judgment was entered in favor of Kiewit against KIC and in favor of Pacific Fence against Kiewit. The Amended Final Judgment also provided judgment on specific claims of contribution, equitable indemnity, and contractual defense amongst the parties. Several appeals had arisen from the Arthur Complaint and on June 4, 2013, this court entered an order consolidating the appeals in case nos. CAAP-13-0000531, CAAP-13-0000551, and CAAP-13-0000615 under CAAP-13-0000531.

On appeal, Arthur contends the circuit court erred by:

(1) granting AOAO's motion for summary judgment on any and all claims asserted by plaintiffs due to lack of causation;

(2) granting KIC's motion for partial summary judgment as to plaintiff's claim for punitive damages; and

(3) denying Arthur's motion for leave to file a complaint over and against Kiewit.

On appeal, Sato contends the circuit court erred by:

(1) holding Sato had a joint and several duty to defend KIC as of December 15, 2005;

(2) finding Sato was obligated to pay KIC fees or costs;

(3) finding Sato had a contractual duty to indemnify and defend KIC and that Sato had a joint and several duty to defend KIC.

On appeal, Pacific Fence contends the circuit court erred by:

(1) granting Kiewit's motion for partial summary judgment in 2007, which included the circuit court's holding that "[a]ny obligation Kiewit has to defend KIC and [Sato] passes through Kiewit, as a matter of law, to Pacific Fence[;]"

(2) granting KIC's motion for partial summary judgment in 2010, which included the circuit court's holding that "Pacific Fence had a joint and several duty to defend KIC from February 9, 2006[;]"

(3) granting KIC's motion regarding Coastal in 2010;

(4) granting KIC's motion regarding Design Partners;

(5) granting KIC's motion for partial summary judgment regarding Kiewit and Sato in 2010;

(6) granting Kiewit's motion in 2010, which included the circuit court's holding that "Kiewit's obligation to reimburse KIC and/or make future payments for KIC's defense fees and costs . . . [passed] through Kiewit as a matter of law to Pacific Fence[;]" and

(7) holding Pacific Fence was required to pay KIC fees and costs incurred for periods and in percentages set forth in an exhibit to the Amended Final Judgment.

Coastal contends the circuit court erred by holding:

(1) Coastal and Kiewit assumed KIC's contractual duty to defend DHHL in litigation and thus relieved KIC from obligations to defend DHHL;

(2) KIC's contractual duty to defend DHHL included defense of claims regarding the negligence or willful acts, omissions, failure to act, or misconduct of DHHL;

(3) Coastal was bound to defend DHHL against all claims asserted in litigation and not only against claims attributable to work by Coastal or its subcontractors; and

(4) Coastal had a contractual duty to defend DHHL in litigation brought by Arthur under a contract between KIC and Coastal.

Intermediate Court of Appeals

Nos. SCWC-30444, SCWC-30568, and SCWC-10-0000166 Thursday, Sept. 18, 2014, 8:45 a.m.

(SCWC-30444) STATE OF HAWAI`I, CITY AND COUNTY OF HONOLULU; et al., Respondents/Complainants-Appellees-Appellees, vs. DAYTON NAKANELUA, State Director, et al., Petitioners/Respondents-Appellants-Appellants and HAWAI`I LABOR RELATIONS BOARD; et al., Respondents/Agency-Appellees-Appellees.

(SCWC-30568) UNITED PUBLIC WORKERS, et al., Petitioner/Union-Appellee, Cross-Appellant, vs. STATE OF HAWAI`I; THE JUDICIARY; et al., Respondents/Employers-Appellants, Cross-Appellees, and CITY AND COUNTY OF HONOLULU (2009-044), Respondent/Employer-Appellee.

(SCWC-10-0000166) STATE OF HAWAI`I, CITY AND COUNTY OF HONOLULU; et al., Respondents/Complainants-Appellees-Appellees, vs. DAYTON NAKANELUA, State Director, et al., Petitioners/Respondents-Appellants-Appellants, and HAWAI`I LABOR RELATIONS BOARD; et al., Respondents/Agency-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:

Herbert R. Takahashi, Rebecca L. Covert, and Davina W. Lam

Attorneys for Respondents State, the Judiciary and HHSC:

James E. Halvorson and Nelson Y. Nabeta, Deputy Attorneys General

Attorney for Respondents HLRB, Nicholson, etc.:

Valri Lei Kunimoto

NOTE: Certificate of recusal, by Associate Justice Sabrina S. McKenna, filed 06/20/14.

NOTE: Order assigning Circuit Court Judge Rom A. Trader, in place of McKenna, J., recused, filed 06/26/14.

NOTE: Order accepting Application for Writ of Certiorari, filed 07/15/14.

COURT: MER, C.J., PAN, RWP, & MDW, JJ., and Circuit Court Judge Trader in place of McKenna, J., recused.

Brief Description:

This is an appeal of three cases arising out of proceedings before the Hawai?i Labor Relations Board (HLRB) between several public employers and the United Public Workers (UPW) regarding the selection of a neutral arbitrator and allegations of prohibited practices.

UPW’s application raises the following four questions: (1) whether the ICA erred by misapplying the primary jurisdiction doctrine to conclude the HLRB had exclusive jurisdiction over the issues raised in this appeal; (2) whether the ICA erred by ignoring the clear legislative mandate in HRS § 658A-26, that the circuit court had exclusive jurisdiction over the controversy and parties to enforce an agreement to arbitrate and to enter judgment on the award to enforce the judgment; (3) whether the ICA erred by ignoring the parties’ arbitration agreement that the parties select the neutral arbitrator, and instead affirmed the HLRB’s order that directed the American Arbitration Association to make the selection; and (4) whether the ICA erred in affirming the HLRB’s conclusion of willful conduct by UPW without evidence of any conscious, knowing, and deliberate intent to violate the provisions of HRS chapter 89 while avoiding review as moot.

Supreme Court

No. SCWC-12-0001114, Thursday, Sept. 18, 2014, 10 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. LAST KONY, 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:

Jon N. Ikenaga, Deputy Public Defender

Attorney for Respondent:

Donn Fudo, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 07/15/14.

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

Brief Description:

On June 2, 2014, Last Kony (Petitioner) timely filed an application for writ of certiorari (Application) to review the April 2, 2014 judgment of the Intermediate Court of Appeals (ICA), issued pursuant to its February 28, 2014 Summary Disposition Order, which affirmed the Judgment of Conviction and Sentence entered by the Circuit Court of the First Circuit (circuit court) on November 28, 2012.

Petitioner was charged with three counts of sexual assault in the first degree, in violation of HRS § 707-730(1)(c), and six counts of sexual assault in the third degree, in violation of HRS § 707-732(1)(c). During trial, the State elicited testimony from its expert witness regarding the general nature of child sex abuse, which included testimony regarding statistical percentage and behavioral evidence relating to characteristics of typical sex offenders and child victims. Following trial, Petitioner was convicted on six of the nine counts charged.

Petitioner timely filed a notice of appeal with the ICA, asserting that the circuit court erred in allowing the expert’s testimony regarding statistical and behavioral profile evidence of typical sex offenders and child victims because the testimony was (1) not relevant, (2) did not assist the jury, (3) improperly bolstered the complaining witness’s credibility, and (4) improperly profiled him as a sex offenders or, in the alternative, was misleading and highly prejudicial. The ICA majority rejected all four of Petitioner’s arguments. The ICA minority concurred in the majority’s disposition as to the first two points of error, but would have found that the latter two points of error should be measured by Hawai?i Rules of Evidence Rule 403. However, the minority concluded that the latter two points had been waived by Petitioner. The ICA affirmed the circuit court’s judgment.

In his Application, Petitioner contends that the ICA erred in its holding because the expert’s testimony was not relevant, did not assist the jury in understanding the dynamics of child sexual abuse, improperly bolstered the complaining witness’s credibility, and was unfairly prejudicial. In its response to the Application filed September 16, 2014, the State maintains that the expert’s testimony assisted the jury, did not improperly bolster the credibility of the complaining witness, was not unduly prejudicial, and Petitioner failed to object to any of the questions asked of the expert on the grounds that the answer would be prejudicial.

Supreme
Court

No. SCWC-30700, Thursday, September 18, 2014, 11:15 a.m.

GERARDO DENNIS PATRICKSON; et al., Petitioners/Plaintiffs-Appellants, vs. DOLE FOOD COMPANY, INC.; et al., Respondents/Defendants-Appellees, and JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; and DOE CORPORATIONS 1-10, Defendants. DOLE FOOD COMPANY, INC., Defendant/Third-Party Plaintiff- Appellees, vs. DEAD SEA BROMINE CO., LTD and BROMINE COMPOUNDS LIMITED, Third-Party 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

Attorney for Petitioners:

Sean M. Lyons

Attorney for Respondents Del Monte Fresh Produce N.A., Inc. and Del Monte Fresh Produce (Hawaii) Inc.:

David W.H. Chee

Attorneys for Respondent Dow Chemical Co.:

Sidney K. Ayabe, Calvin E. Young, and Steven L. Goto

NOTE: Order accepting Application for Writ of Certiorari, filed 07/22/14.

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

Brief Description:

Litigation in this case involves the nematocide dibromochloropropane (“DBCP”), which Plaintiffs alleged caused damage to their reproductive systems. The instant case has lasted decades, been back and forth between state and federal courts, and is related to multiple cases on the mainland. Specifically, this case is related to Jorge Carcamo v. Shell Oil Co., and Delgado v. Shell Oil Co., two putative class action cases initially filed in Texas state courts in 1993, then removed to federal court and consolidated with other DBCP cases. The Plaintiffs in the instant case are the same plaintiffs in the Carcamo case. On July 11, 1995, the Texas district court dismissed the consolidated cases for forum non conveniens, ordering in a final paragraph the following:

Other motions

In addition to defendant’s motion to dismiss for f.n.c., a number of other motions are pending. Because Delgado,Jorge Carcamo, Valdez, and Isae Carcamo may be dismissed in 90 days, all pending motions in those cases not otherwise expressly addressed in this memorandum and Order are DENIED as MOOT.

Delgado v. Shell Oil Co., 890 F.Supp. 1324, 1375 (S.D.Tex. 1995).

On October 3, 1997, the Plaintiffs filed a putative DBCP class action in Hawai`i. Defendant Dow Chemical Corporation filed a motion for partial summary judgment on statute of limitations grounds, which the circuit court granted. The Plaintiffs appealed, arguing that the pendency of class action certification motions in the Texas cases “cross-jurisdictionally tolled” the two-year Hawai`i statute of limitations under Hawai`i Revised Statutes section 657-7.

The ICA affirmed the circuit court’s judgment. The ICA did not reach the cross-jurisdictional tolling issue, holding that, in any event, the Texas district court’s July 11, 1995 order denying all pending motions as moot included the class certification motion pending in the Carcamo action. The ICA held that any tolling of Hawaii’s two-year statute of limitations thus ended on July 11, 1995. Therefore, the Plaintiffs’ class action complaint, which was filed approximately two years and three months after the July 11, 1995 order, was time-barred.

On certiorari, the Plaintiffs present the following questions:

A. Whether an order entered on July 11, 1995 – purportedly dismissing the prior class action – that explicitly did not take effect until October 11, 1995 operates to bar Petitioners’ October 3, 1997 lawsuit on limitations grounds.

B. Whether an administrative “housekeeping” order included in a forum non conveniens order denying “all pending motions” as “moot” – without specifying those pending motions – put putative class members on notice that class action tolling had ended.

Supreme Court

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
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