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Oral Arguments Schedule

No. SCWC-16-0000858 Thursday, June 6, 2019, 8:45 a.m.

THOMAS FRANK SCHMIDT AND LORINNA JHINCIL SCHMIDT, Petitioners/Plaintiffs-Appellants/Cross-Appellees, vs. HSC, INC., A HAWAII CORPORATION; RICHARD HENDERSON, SR.; ELEANOR R.J. HENDERSON, Respondents/Defendants-Appellees/Cross-Appellants, and JOHN DOES 1–10; JANE DOES 1–10; DOE CORPORATIONS 1–10; and DOE UNINCORPORATED ASSOCIATIONS, INCLUDING PARTNERSHIPS 1–10, Defendants.

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: 

R. Steven Geshell

Attorney for Respondents: 

Paul Alston of Dentons US LLP

NOTE: Certificate of Recusal, by Chief Justice Mark E. Recktenwald, filed 02/22/19.

NOTE: Order assigning Circuit Court Judge Jeffrey P. Crabtree, in place of Recktenwald, C.J., recused, filed 02/26/19.

COURT: Nakayama, Acting C.J., McKenna, Pollack, and Wilson, JJ., and Circuit Court Judge Crabtree, in place of Recktenwald, C.J., recused.

Brief Description:

The parties in this case return to this court for the third time after our decision in Schmidt v. HSC, Inc., 131 Hawaii 497, 319 P.3d 416 (2014) (“Schmidt II”). Previously, Petitioners/Plaintiffs-Appellants/Cross-Appellees Thomas Frank Schmidt and Lorinna Jhincil Schmidt (collectively, “Schmidts”) obtained a 2004 final judgment against Realty Finance, Inc. (“RFI”) for $537,000 in excess proceeds from a foreclosure sale, but later learned that RFI had already transferred those proceeds to creditors of its parent company, Respondent/Defendant-Appellee/Cross-Appellant HSC, Inc. (“HSC”), leaving RFI insolvent. On April 7, 2006, the Schmidts filed Civil No. 06-1-228 in the Circuit Court of the Third Circuit (“circuit court”), alleging RFI fraudulently transferred the excess proceeds under Hawaiʻi Revised Statutes (“HRS”) § 651C-7, part of Hawaiiˎ’s Uniform Fraudulent Transfer Act (“HUFTA”). Following a bench trial, the circuit court concluded the Schmidts did not prove by clear and convincing evidence RFI actually intended to hinder, delay, or defraud any creditors of RFI and entered judgment in favor of Respondents/Defendants-Appellees/Cross-Appellants HSC, Richard Henderson, Sr., and Eleanor R.J. Henderson (collectively, “Respondents”). On appeal, the Intermediate Court of Appeals (“ICA”) did not address the merits of the circuit court’s findings and instead held that the complaint was untimely because the statute of limitations, HRS § 651C-9(1), ran from the date of the actual transfer of proceeds, not from the date the Schmidts discovered the fraudulent nature of a transfer.

In Schmidt II, we held that the statute of limitations of HRS § 651C-9(1) runs from the date the Schmidts discovered the fraudulent nature of the transfer, not from the date of the transfer. We therefore remanded the case to the ICA to address the merits of the Schmidts’ arguments on appeal as to whether they had proven by clear and convincing evidence RFI actually intended to hinder, delay, or defraud any creditors of RFI, and for reconsideration of whether the Schmidts’ HUFTA claim was timely.

On remand, the ICA concluded the circuit court erred by dismissing the Schmidts’ claims on the merits, as the facts established by the record proved by clear and convincing evidence that RFI actually intended to hinder, delay, or defraud creditors of RFI, as required by HRS § 651C-4(a)(1). The ICA then remanded the case to the circuit court for additional factual findings regarding timeliness, specifically regarding when the Schmidts discovered, or could reasonably have discovered, the fraudulent nature of the transfers. The circuit court then concluded in relevant part that the Schmidts’ HUFTA claim was time-barred as they could reasonably have discovered the fraudulent nature of the transfers on or before February 21, 2005 (before the Schmidts had learned of the existence of the transfers), but did not file a complaint until April 7, 2006, past the one-year statute of limitations period for HUFTA claims under HRS § 651C-9(1).

The Schmidts unsuccessfully appealed to the ICA then filed an Application for Writ of Certiorari on February 19, 2019. They present the same issues they previously argued before the ICA, all related to the date the circuit court determined the Schmidts could reasonably have discovered the fraudulent nature of the subject transfers. The Schmidts assert they could not reasonably have discovered the fraudulent nature of the transfers until the July 26, 2005 deposition of Michael Chagami, the chief financial officer of HSC, during which they learned RFI was insolvent, and that their HUFTA claim was therefore timely filed within the one-year statute of limitations period.

Supreme
Court

No. SCWC-16-0000593, Thursday, June 6, 2019, 10 a.m.

STATE OF HAWAII, Respondent/Plaintiff-Appellee, vs. WILLIAM ROY CARROLL, III, 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: 

Keith S. Shigetomi

Attorney for Respondent: 

Haʻaheo M. Kahoohalahala, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 03/12/19.

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

Brief Description:

On May 20, 2016, a jury in the Circuit Court of the Third Circuit (“circuit court”) found Petitioner/Defendant-
Appellant William Roy Carroll III (“Carroll”) guilty of the following three counts: (1) Theft in the Second Degree, in violation of Hawaiʻi Revised Statutes (“HRS”) § 708-830(1) and HRS § 708-831(1)(b); (2) Criminal Property Damage in the Second Degree, in violation of HRS § 708-821(1)(b); and (3) Theft in the Third Degree, in violation of HRS § 708-830(1) and HRS § 708-832(1)(a), as amended. These counts were premised on charges that on or about September 6, 2015: (1) Carroll obtained or exerted unauthorized control over and damaged a bronze spear, valued at over $300, that was a part of a statue of King Kamehameha belonging to the Kamehameha School Alumni Association; and (2) Carroll had also obtained or exerted unauthorized control over a four-foot pipe and forty-foot chain, valued at over $100, belonging to Bayfront Motors Incorporated. Carroll was sentenced to five years’ imprisonment, and the circuit court denied Carroll’s request for a stay pending appeal.

Carroll timely appealed to the Intermediate Court of Appeals (“ICA”), arguing the circuit court erred when: (1) it denied his challenges to two jurors for cause — each of whom had been exposed to prior media coverage and demonstrated other potential reasons for bias, but who had been “rehabilitated” after long colloquys with the circuit court — instead requiring him to excuse those jurors by using two of his peremptory challenges, which he would have used to excuse other jurors on the voir dire panel; (2) it denied his Motion for Judgment of Acquittal, as the State failed to adduce sufficient evidence of the values of the spear and pipe and chain; and (3) it sentenced Carroll to five years’ imprisonment, which far exceeded the sentence of probation suggested by the State at an earlier plea hearing, thereby penalizing him for exercising his right to trial. The ICA rejected these challenges and affirmed the circuit court’s judgment and conviction. See State v. Carroll, No. CAAP-16-0000593 (App. Oct. 31, 2018) (SDO).

Now on appeal before this court, Carroll presents three similar issues he had presented to the ICA:

1. Did the Intermediate Court of Appeals gravely err in holding Carroll’s challenges to jurors for cause were not erroneously denied and Carroll’s right of peremptory challenges was not violated?

2. Did the Intermediate Court of Appeals gravely err in holding that [the] trial court did not erroneously deny Carroll’s Motion for Judgment of Acquittal[?]

3. Did the Intermediate Court of Appeals gravely err in holding that the trial court’s sentence did not improperly penalize/punish Carroll for exercising his right to trial?

 

Supreme
Court

No. SCWC-16-0000668 Thursday, June 6, 2019, 11:15 a.m.

STATE OF HAWAI I, Respondent/Plaintiff-Appellee, vs. KEITH KAUHANE, 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:

Hayden Aluli

Attorney for Respondent:

Lyle Keanini, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 04/18/19.

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.
Brief Description:

In 2015, Petitioner/Defendant-Appellant Keith Kauhane (“Kauhane”) was arrested while protesting the construction of the Daniel K. Inouye Solar Telescope. He was charged with obstructing a convoy of trucks that was delivering materials to the summit of Haleakal . Hawai i Revised Statutes § 711-1105.

Kauhane appeals from the Circuit Court of the Second Circuit’s (“circuit court”) September 9, 2016 Judgment of Conviction and Probation Sentence related to the offense of Obstructing.

Although the Intermediate Court of Appeals (“ICA”) vacated the circuit court’s judgment and remanded the case for a new trial, Kauhane asks this court to address two issues that he contends were incorrectly resolved by the ICA. Kauhane’s application for writ of certiorari asks:

1. Whether the ICA gravely erred in holding that the State’s Complaint was sufficient despite its failure to define the term “obstructs”; and

2. Whether the ICA gravely erred in upholding the circuit court’s sustaining of the State’s “golden rule” objection, which precluded Kauhane from arguing that the jury should evaluate the choice-of-evils defense by “walking in Kauhane’s shoes.”

Supreme
Court

No. SCWC-17-0000638, Thursday, June 20, 2019, 8:45 a.m.

STATE OF HAWAII, Respondent/Plaintiff-Appellee, vs. LISA E. ALKIRE, 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: 

Richard L. Holcomb of Holcomb Law, LLLC

Attorney for Respondent:

Donn Fudo, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 04/18/19.

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

Brief Description:

In this case, Petitioner Lisa Alkire was pulled over on suspicion of Operating a Vehicle under the Influence of an Intoxicant (“OVUII”).  A Honolulu Police Department police officer had observed her weaving in and out of her lane on Likelike Highway.  Upon her arrest, she was taken to the Kalihi police substation, which is monitored by video cameras.
 
Alkire was later charged with OVUII.  During discovery, her defense counsel asked the State to produce the personnel files of the officers involved in Alkire’s case.  Defense counsel also asked that the prosecutor be required to review those files to determine whether impeachment materials existed, e.g., misconduct records or other documentation concerning the officers’ reputation for truthfulness and veracity.  Defense counsel also filed a motion to compel the production of video recordings of Alkire at the Kalihi police substation, or, in the alternative, to allow defense counsel to subpoena the footage.  Defense counsel stated that he had already sent a request to preserve the video evidence to the Honolulu Police Department and the prosecutor’s office days after Alkire’s arrest, but was unable to obtain any video recording.  The district court denied both motions.

The district court then confirmed with defense counsel that two remaining motions to suppress would be consolidated with trial.  The district court asked Alkire if that was acceptable to her, and she agreed.  The district court then asked her if she had any questions, and Alkire said she did not.  The district court then advised Alkire of her trial rights.  Trial then began with the State’s first witness.  Trial was then continued for another two months, then another four and a half months after that.  In the interim, defense counsel filed a motion to dismiss Alkire’s case, arguing that her right to a speedy trial had been violated; the district court denied the motion.  Ultimately, the district court adjudged Alkire guilty of OVUII.  The Intermediate Court of Appeals affirmed the district court’s decision.

On certiorari, Alkire presents four questions.  First, she asserts that the ICA erred in concluding that the circuit court properly advised Alkire of her trial rights.  Alkire argues that the district court did not advise her, before trial, of her right to remain silent.  She also asserts that the district court did not advise her, before the suppression hearing, that she had a right to testify at the suppression hearing without the testimony being used against her in determining guilt or innocence.  Second, Alkire contends that the ICA erred in concluding that her right to a speedy trial was not violated.  Third, Alkire argues that the ICA erred in concluding that the prosecutor was not required to further investigate whether material relevant to the police officers’ reputation for truth or veracity existed in police personnel files.  Fourth, Alkire claims that the ICA erred in affirming her conviction because Alkire was not able to establish an appropriate record as to the existence of video footage of her at the police substation after her OVUII arrest.  She also argues the ICA erred in concluding that the video footage was not material because other evidence of her guilt was overwhelming.

Supreme
Court

No. SCWC-17-0000807, Thursday, June 20, 2019, 10 a.m.

HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee for the Benefit of the Certificate Holders of NOMURA HOME EQUITY LOAN, in Asset-Backed Certificates, Series 2006-FM2, Respondent/Plaintiff-Appellee, vs. MARK MARCANTONIO and GWEN MARCANTONIO, Petitioners/Defendants/Cross-Claim Defendants-Appellants, and ALINA NAULT, Petitioner/Defendant-Appellant, and MC&A, Inc., Respondent/Defendant/Cross-Claim Plaintiff-Appellee, and STATE OF HAWAII, HAWAII HEALTH SYSTEMS CORPORATION, dba MAUI MEMORIAL MEDICAL CENTER, and DIRECTOR OF DEPARTMENT OF TAXATION, STATE OF HAWAI I, 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

Attorneys for Petitioners:

Gary Victor Dubin and Frederick J. Arensmeyer of Dubin Law Offices

Attorneys for Respondent HSBC Bank:

David B. Rosen, David E. McAllister, and Justin S. Moyer of Aldridge Pite, LLP

NOTE: Order accepting Application for Writ of Certiorari, filed 05/06/19.

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

Brief Description:

This case arises out of foreclosure proceedings initiated against Gwen Marcantonio, Mark Marcantonio, and Alina Nault (collectively, “Petitioners”) by HSBC Bank in June 2013. Petitioners failed to answer HSBC Bank’s foreclosure complaint and the circuit court entered default against them. The circuit court subsequently granted summary judgment in favor of HSBC Bank and entered a foreclosure decree.

Thirteen months later, Petitioners sought to set aside the entry of default and the foreclosure decree on the grounds that they had retained counsel in August 2013, who failed to represent them in the matter, resulting in their default and the judgment against them. Petitioners later filed another motion to set aside the foreclosure decree based on intervening authority. The circuit court denied Petitioners’ motions and entered an order confirming the foreclosure sale of the property.

Petitioners appealed the order confirming sale to the Intermediate Court of Appeals, which affirmed the circuit court’s rulings.

Petitioners’ Application for Writ of Certiorari asks the Supreme Court to review their client abandonment and intervening authority arguments.

Supreme
Court