appellate record november 2014

8/10/2019 Appellate Record November 2014

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The Appellate Record, November 2014 Page 1

THE APPELLATE RECORDNovember 2014

BAR CONVENTION REVIEW

by Bethany C.K. Ace (Section Chair, Damon Key Leong Kupchak Hastert)

and Rebecca Copeland (Law Office of Rebecca A. Copeland, LLC)

For the third year in a row, the Appellate Section hosted an interesting

and engaging multi-panel presentation at the HSBA Bar Convention, this

year providing our attendees with all three MCPE credits.

This year's Appellate Section Program featured numerous Hawaii

appellate court justices and judges, including Hawaii Supreme Court Chief

Justice Mark Recktenwald, Hawaii Intermediate Court of Appeals Chief

Judge Craig Nakamura, and former Hawaii Supreme Court Justices James

Duffy and Simeon Acoba, Jr. Other program speakers included Intermediate

2014 HSBA Appellate Section Board:

Chair: Ms. Bethany C.K. Ace

Vice Chair: Ms. Mitsuko T. Louie

Secretary: Mr. Christopher Goodin

Treasurer: Mr. Robert Nakatsuji

HSBA CLE Liaison: Ms. Mitsuko T. Louie

HAWSCT Liaison: Mr. Matthew Chapman

ICA Liaison: Mr. Daniel J. Kunkel


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Court of Appeals Staff Attorneys and local appellate attorneys.

We began with Randy Pinal, Supervising Staff Attorney for the

Intermediate Court of Appeals, who also presented for ICA Judge AlexaFujise (who was unable to attend due to illness), with a presentation on the

insiders view of the ICA. Some tips and practice pointers included:

HRAP 10(e) provides that the trial court can supplement the

record, including sua sponte, so you may want to first ask the

clerk informally to supplement the record and failing that move

the trial court to supplement the record.

DO NOT use the OT (Other) code when filing motions on JEFS.

The OT code does not put your motion into the motion queue

(like the specific motion codes do).

DO NOT rely on the Milestones tab dates for your calendaring.

Follow the HRAP rules when determining your deadlines.

Sealed means viewable by the parties only (not the public); in

camera means only the judges can see it (not the parties, the law

clerks, or the public). If the filing has been labeled incorrectly,

tell the clerk immediately to have the correct visibility restriction

imposed.

Use a useful record reference. The preferred is E-docket No. and

PDF page no. (e.g., Transcript, Docket 5 at PDF p. 7). Deal with inconvenient facts and authority at the outset and

diffuse.

If you are challenging a conclusion of law, consider challenging

the underlying findings of fact because an unchallenged finding is

binding on the appellate court.


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State v. Yong Shik Won, SCWC-12-0000858, addressing Miranda,

4th Amendment search requirements, the right to counsel and

due process in the context of a DUI arrest and blood or breath

alcohol testing.

State v. Nofoa, SCWC-12-0000984, addressing the admission of

prior testimony and statements of a deceased complaining

witness and statements allowed to be made to the jury regarding

the victims death and non-appearance in court.

State v. Alangcas, SCWC-30109, addressing the ICA applying an

as applied standard to petitioners challenge to vagueness and

dormant commerce clause challenges to HRS 707-756

(electronic enticement of a child in the first degree) and finding

the petitioner lacked standing to challenge the facial validity of

the statute.

State v. Toma, SCAP-13-0000029, addressing accomplice liabilityjury instructions and seeking to overturn State v. Apao, 59 Haw.

625, 586 P.2d 250 (1978), allowing jury instructions for

accomplice liability even where absent in the charging document.

State v. Hilario, CAAP-13-0003039, addressing the HRPP Rule

48 requirement for a speedy trial, introduction of preliminary

hearing audio recording, and individual juror questioning outside

the defendants presence.

Next, Hawaii Intermediate Court of Appeals Chief Judge Craig

Nakamura, ICA Staff Attorney Daniel Kunkel and Dierdre Marie-Iha of theDepartment of the Attorney General covered everyones favorite topic:

appellate jurisdiction and the final judgment rule for District Court and

Circuit Court decisions. The thrust of their presentation: read in their

entirety, Jenkins v. Cades Schutte Fleming & Wright, 76 Haw. 15, 869 P.2d

1334 (1994) (including footnote 4!) and Casumpang v. ILWU, LOCAL 142, 91

Haw. 425, 984 P.2d 1251 (1999). A few very helpful practice tips:

Make the judgment the operative document by expressly stating:

All other claims, counterclaims, or cross-claims are dismissed

[with/without] prejudice. There are interactive forms for your reference for each specific

Circuit Court addressing the various types of judgments (all

claims, particular counts, Rule 54(b) certified, etc.).

The prevailing party is typically the drafter of the proposed form

of order and judgment, but that party is not the one with the

incentive to make the judgment appealable. The losing party has


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to carefully review the proposed form of order and judgment to

ensure the judgment satisfies the requirements for a final,

appealable decision.

If the finality of the decision is in question, consider filing a

motion to determine jurisdiction in the appellate court. Doing so

before the briefs are due can allow the parties to go back to the

trial court and remedy any deficiencies in the judgment before

spending the time and money on drafting the briefs.

Finally, we concluded with our popular Q&A Appellate Panel, featuring

Hawaii Supreme Court Chief Justice Mark Recktenwald, Hawaii

Intermediate Court of Appeals Chief Judge Craig Nakamura, and former

Hawaii Supreme Court Justice James Duffy, moderated by former Section

chair and presentation organizer, Rebecca Copeland. The panelists

addressed a number of topics, from oral arguments, to candor towards the

court, to making the most of your limited space in an application for writ pf

certiorari. The panelists reminded us of some of the most fundamental points

for appellate advocacy: know the record, know the record, and know

the record.Other key points included:

Oral arguments:

o Again, know the record! You lose the opportunity to have a

meaningful dialogue with the Court and possibly your

credibility if you cannot answer questions about what is in

the record.o Be careful and conscious of your admissions and

concessions. You are bound by them.

Transfers and certiorari:

o Tell the Court why it should take your case and why the

Court should take it now (e.g., are the facts good; is there

uncertainty/division in the lower courts; are there

significant practice and/or real world impacts involved; is

Hawaii in line with/not in line with other jurisdictions).

o What is your hook? Make your question presented

engaging and interesting.o Say in basic terms what the case is about (subject matter

and why the case matters) early on in the application. If

you first mention the case involves an auto accident at page

10, you may have missed an opportunity to engage your

reader.


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Brevity:

o If you dont need all 35 pages to make your argument, then

dont use all 35 pages.

Thank you to everyone who was able to attend. We had an excellent

turnout and were nearly standing room only!


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ANNOUNCEMENTS

Dues Increase

Our Section is one of the most active in the HSBA. Each month we

provide an educational presentation (including MCLE and VCLE programs)

with a light lunch at each, We also hold an annual Meet & Greet with the

appellate judiciary and its staff, present at the bar convention, prepare the

Appellate Record newsletter, and hold an end-of-year luncheon and annual

meeting.

As the Section developed during its first three years, the Section was

been able to cover the costs for these events (including food, copying costs for

materials, and other costs) through the generous contributions from the law

firms of certain board members: Damon Key Leong Kupchak Hastert, Cades

Schutte LLP, and the Law Office of Rebecca A. Copeland, LLC. The Section

has also benefitted from the use at no charge of the meeting facilities at the

Supreme Court and various law firms such as Damon Key Leong Kupchak

Hastert and Carlsmith Ball LLP. These donations have allowed the Section

to concentrate its budget towards defraying the cost for the end-of-year

luncheon to keep the cost to the attendees at a minimum. We are very

thankful for the support from the judiciary and these firms, which has

allowed the Section to flourish and develop to what it is today.

Now the Section has a developed membership and the Board has the

benefit of several years of budgets to determine the operational costs of the

Section. The Board, after due consideration, has voted to increase the dues

for the Section to $20.00 for 2015. Through this small increase, the Board

expects that the Section will become self-sufficient and will continue to

provide the same level of service and value to its membership. The $20.00

dues will be reflected in the HSBA online registration for 2015.


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OCTOBER-NOVEMBER 2014

PUBLISHED APPELLATE OPINIONS

By: Christopher J.I. Leong (Damon Key Leong Kupchak Hastert) and Bethany C.K.Ace (Section Chair; Damon Key Leong Kupchak Hastert)

As of November 13, 2014, the Hawaii Supreme Court has issued five

published opinions and the Hawaii Intermediate Court of Appeals (ICA) has issued

three published opinions since our last report in October. The following is a brief

synopsis of those opinions:

Kondaur Capital Corporation v. Matsuyoshi, No. SCWC-12-0000867

(Haw. Oct. 23, 2014). In this property title dispute case, the circuit court granted

summary judgment and a writ of possession in favor of Kondaur. Matsuyoshi filedseveral post-judgment motions and a declaration that purported to raise a genuine

issue of material fact sufficient to defeat the motion for summary judgment. On

Matsuyoshis appeal, the ICA concluded that the allegations in the declaration were

material to the issue of whether Kondaur acquired good title to the property, and it

vacated the circuit courts judgment and remanded the case. On certiorari, the

Supreme Court held that the ICA erred by considering the declaration because it

was not in the record at the time the circuit court ruled on Kondaurs motion for

summary judgment and therefore had not been considered by the circuit court first.

Pofolk Aviation Hawaii, Inc. v. Department of Transportation, No.

CAAP-13-0003857 (Haw. App. Oct. 24, 2014). Plaintiffs, commercial aircraft

operators based at Dillingham Airfield on Oahu, sought injunctive relief preventing

the State Department of Transportation from collecting certain landing fees owed

based on their use of the airfield. The circuit court denied the requested injunctions

based on the relevant statutes and DOT rules. The ICA affirmed, concluding that


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HRS 261-12(a) empowered the DOT to adopt such rules and procedures as

necessary for it to carry out its duties, including the procedures at issue in this case

concerning rates and charges for the use of facilities operated by the State Airports

Division.

U.S. Bank National Association v. Salvacion, No. CAAP-13-0001367

(Haw. App. Oct. 29, 2014). In this mortgage foreclosure case, U.S. Bank sought

foreclosure and Salvacion counterclaimed for fraud, contending that her mortgage

broker fraudulently induced her to refinance her property and invest $72,000 of the

equity with him in a short term investment agreement. The ICA concluded that

there was no evidence showing that the mortgage broker had any actual or

apparent authority to act as an agent for the lender. The ICA also concluded that

there was no evidence to show that the lender engaged in any unfair or deceptive

practices, that Salvacion had no standing to challenge the assignment of the

mortgage to U.S. Bank, and that the circuit court did not err by denying a HRCPRule 56(f) continuance because further discovery would not have rebutted the

absence of genuine issues of fact regarding the assignment issue.

Friends of Makakilo v. D.R. Horton-Schuler Homes, LLC, No. SCAP-13-

0002408 (Haw. Oct. 30, 2014). In this agency appeal from a Land Use Commission

contested case hearing, Friends of Makakilo filed a cross-appeal to circuit court

more than thirty days after it was served with a certified copy of the LUCs final

decision and order. Friends of Makakilo argued that HRAP Rule 4.1 allowed them

to file a cross-appeal within 14 days after being served with the notice of appeal by

the appealing parties (who filed their notice of appeal within the 30-day deadline

set by HRS 91-14). The Hawaii Supreme Court held that the rules of appellate

procedure do not apply to a circuit courts review of administrative decisions and

orders. Thus, an agency appeal, however denominated, must be taken within the

30-day deadline to be timely; accordingly, the Supreme Court affirmed the circuit

courts dismissal of Friends of Makakilos cross-appeal as untimely.

Nishimura v. Gentry Homes, Ltd., No. SCWC-13-0000137 (Haw. Oct. 31,

2014). A group of homeowners brought a class action alleging that Gentry

constructed their homes without adequate high wind protection. Gentry moved tocompel arbitration based on a clause in its limited warranty. The circuit court

granted the motion to compel but struck the arbitrator-selection provision because

it allowed Gentry (and its agent administering the limited warranty) sole discretion

to choose the arbitration service; instead, the circuit court ordered the parties to

meet and confer to choose an arbitration service. The ICA vacated the circuit

courts order, concluding that the plaintiffs had to present evidence of actual


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partiality or bias of the arbitration service selected by Gentry or its agent. The

Supreme Court vacated the ICAs judgment and affirmed the circuit courts orders,

concluding that the fundamental fairness standard applies to arbitrator-selection

provisions. In this case, the court held that the provision was fundamentally unfair

precisely because it gave Gentry and its agent sole discretion to select the

arbitration service in the event that the binding arbitration clause was invoked.

State v. Vaimili, No. CAAP-12-0000115 (Haw. App. Nov. 12, 2014). In this

criminal case, Vaimili was tried and convicted on several counts. Additionally, after

the members of the jury were selected but before they were sworn in, Vaimili

disappeared and the trial proceeded in his absence. On appeal, the ICA affirmed

the circuit courts judgment of conviction and sentence, holding that: (1) consistent

with State v. Codiamat, 131 Haw. 220, 317 P.3d 664 (2013), the States indictment

was not rendered defective because the charges against Vaimili were phrased in the

disjunctive; (2) Vaimilis trial attorney did not provide ineffective assistance ofcounsel by failing to raise the charging issue; and (3) the circuit court acted within

its discretion, and did not violate Vaimilis right to be present at trial, when it only

proceeded with the trial after it became apparent that Vaimili was voluntarily

absent, that he could not be located, and that it was unlikely he would soon return.

AOAO of Discovery Bay v. Mitchell, No. SCWC-11-0000151 (Haw. Nov. 13,

2014). The underlying case involved a petition submitted by Mitchell to the AOAO

seeking a special meeting to remove one or more of the AOAO Board members. The

AOAO alleged that Mitchells petition did not contain signatures of 25% or more of

the condominium owners as required by HRS 514B-121(b). Mitchell insisted on

proceeding with the special meeting, and the AOAO filed suit seeking declaratory

and injunctive relief. Mitchell failed to answer the AOAOs complaint and

apparently failed to oppose the AOAOs motion for summary judgment, but he did

file a motion for reconsideration in which he asserted that he had sufficient

signatures and that the AOAO ignored his request for mediation of the dispute.

The circuit court denied reconsideration, granted the AOAOs motion for fees and

costs, and entered judgment. The ICA affirmed. The Supreme Court vacated and

remanded the case back to the circuit court for consideration of whether the AOAOs

refusal to participate in mediation should have affected its fees and costs award

under HRS 514B-161(a). The court also remanded for consideration of certain

time entries that did not appear to be part of this litigation, but were never

addressed by the circuit court or ICA.


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accomplished[,] but that the separate judgment rule (HRCP 58 and Jenkins) is

inapposite in the post-judgment context. However, the Court found that the order

at issue (an order denying a motion to vacate a judgment and an order of dismissal)

was not a post-judgment order because there was not a judgment on the particular

cause of action addressed in the order. Per HRCP 54(a), a judgment is a decree

and any order from which an appeal lies[,] and in an earlier appeal, the Court had

found that the judgment failed to satisfy the requirements for a final judgment

under HRS 641-1(a), HRCP Rule 58 and Jenkins. The order denying the motion

to vacate was held to be an interlocutory order eligible for review if a timely appeal

is made from the entry of a future appealable final judgment.


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Stay Tuned For Upcoming Events!

NOVEMBER

We are pleased to announce that our Wednesday, November 19meeting will feature Associate Justice Michael D. Wilson, the Hawaii

Supreme Courts most recently-appointed justice, as our guest speaker.

Topics include oral arguments and appellate courts participation with moot

courts for at-risk youths. Due to scheduling conflicts, this meeting will be

held in the conference rooms of the Carlsmith Ball firm at 1001 Bishop Street

#2!00 (not the HSBA offices) and we thank Section member Douglas S. Chin

for hosting us.


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DECEMBER

The Hawaii State Bar Association

Appellate Section and Litigation

Section cordially invite you to our

JOINT ANNUAL

MEETING

December 16

12:00 p.m. to 1:00 p.m.Pacific Club

1451 Queen Emma Street, Mangos

outdoor dining

Guest Speaker: Chief Justice Recktenwald

Cost is $10 for Section Members by cash or

check (payable to HSBA Litigation Section)

collected at the door.

Please R.S.V.P. by December 10 to Litigation

Section Joe Kotowski at jkotowski@tpm-

hawaii.com.


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Useful Appellate Links:

The Hawaii Judiciary: www.courts.state.hi.us

United District Court for the District of Hawaii: www.hid.uscourts.gov

United States Court of Appeals for the Ninth Circuit: www.ca9.uscourts.gov

United States Supreme Court: www.supremecourt.gov

Hawaii State Bar Association: www.hsba.org

Blogs by our Members:

www.hawaiilitigation.com(by our Member Louise Ing)

www.hawaiioceanlaw.com(by our Member Mark M. Murakami)

www.hawaiiopinions.blogspot.com (by our Member Ben Lowenthal)

www.insurancelawhawaii.com(by our Member Tred R. Eyerly)

www.inversecondemnation.com(by our Member Robert H. Thomas)

www.hawaiiappellatelaw.com(by our Member Charley Foster)

www.recordonappeal.com(by our Member Rebecca A. Copeland)
http://www.courts.state.hi.us/http://www.hid.uscourts.gov/http://www.ca9.uscourts.gov/http://www.supremecourt.gov/http://www.hsba.org/http://www.hawaiilitigation.com/http://www.hawaiioceanlaw.com/http://www.hawaiiopinions.blogspot.com/http://www.insurancelawhawaii.com/http://www.inversecondemnation.com/http://www.hawaiiappellatelaw.com/http://www.recordonappeal.com/http://www.recordonappeal.com/http://www.hawaiiappellatelaw.com/http://www.inversecondemnation.com/http://www.insurancelawhawaii.com/http://www.hawaiiopinions.blogspot.com/http://www.hawaiioceanlaw.com/http://www.hawaiilitigation.com/http://www.hsba.org/http://www.supremecourt.gov/http://www.ca9.uscourts.gov/http://www.hid.uscourts.gov/http://www.courts.state.hi.us/


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Appellate Resources:

HAWAII APPELLATE SECTION WEBSITE: The Appellate Sections website

includes useful appellate resources, including handouts from prior monthly

meetings, copies of this newsletter, and power point presentations from the

Appellate Sections programs at the 2012 and 2013 HSBA Bar Coventions.www.hawaiiappellatesection.org

HAWAII APPELLATE PRACTICE MANUAL: The Hawaii Appellate Practice

Manual (2012) includes information for filing appeals in Hawaii, including how to e-

file documents on the Judiciarys E-Filing System, how to supercede a judgment,

and how to brief and argue cases. The manual also includes useful appellate forms.

The Manual was co-sponsored by the Appellate Section and the Hawaii State Bar

Association, and is available through the HSBA.

FEDERAL APPELLATE PRACTICE MANUAL: The Federal Appellate Practice

Manual (2013) includes valuable information and insight into practicing appeals in

the federal arena, with special emphasis on the United States Supreme Court and

United States Court of Appeals for the Ninth Circuit. The Manual was co-

sponsored by the Appellate Section and the Hawaii State Bar Association, and is

available through the HSBA.

HAWAII APPELLATE PRACTICE MANUAL SUPPLEMENT: Appellate

Motions Practice a supplement to the 2012 Hawaii Appellate Practice Manual,

offering insight and practice tips into state appellate motions practice, and

including additional forms. The Supplement was co-sponsored by the AppellateSection and the Hawaii State Bar Association, and is available through the HSBA.

HSBA Publication List (effective January 13, 2014) can be found at this link:

http://hsba.org/resources/1/CLE%20Flyers/Publications%20List.pdf
http://www.hawaiiappellatesection.org/http://hsba.org/resources/1/CLE%20Flyers/Publications%20List.pdfhttp://hsba.org/resources/1/CLE%20Flyers/Publications%20List.pdfhttp://www.hawaiiappellatesection.org/


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Stay tuned for the next edition ofThe Appellate Record!

If you are interested in contributing to our newsletter in any way, please contact the

Sections Chair Bethany C.K. Ace at [email protected]

The Appellate Record is presented

as a courtesy to the Members of the

Hawaii State Bar Associations

Appellate Section by its Board.

Mahalo and enjoy!
mailto:[email protected]:[email protected]

appellate record november 2014

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