the appellate record february 2015

The Appellate Record, February 2015 Page 1

THE APPELLATE RECORD February 2015

FEBRUARY 2015 MEETING summary

By: Michi Momose (Secretary, Cades Schutte LLP)

Our February monthly meeting featured guest speaker retired

Associate Justice Steven H. Levinson of the Hawaii Supreme Court.

Justice Levinson served as an associate justice on the Court from 1992

to the end of 2008. Prior to that, he was a circuit court judge for three

years, and a civil practitioner for seventeen years.

Justice Levinsons talk examined the different factors that a

practitioner considers in deciding to file an appeal. The discussion

2015 HSBA Appellate Section Board:

Chair: Mr. Christopher Goodin

Vice Chair: Mr. Christopher Leong

Secretary: Ms. Michi Momose

Treasurer: Mr. Robert Nakatsuji

HAWSCT Liaison: Mr. Matthew Chapman

ICA Liaison: Mr. Daniel J. Kunkel


focused primarily on civil litigation, in which the appealing party is

non-governmental. Justice Levinson noted that in criminal practice,

the defendants liberty is at stake and there is likely nothing to lose,

from the defendants perspective, by filing an appeal.

Justice Levinson used a personal injury case that he had worked

on as a real-life example and basis for analyzing the decision to appeal.

In that case, his client had been seriously injured in an accident

involving an epileptic cab driver. The client brought suit against the

driver and cab company, and eventually, the doctor who had treated the

driver. The cab company took the position that the driver was not an

employee, but an independent contractor; at the time, the law was

unsettled as to the drivers employment status. The cab company made

a settlement offer, but the doctor obtained summary judgment in his

favor.

Justice Levinson discussed in detail the factors he considered in

ultimately deciding to settle with the cab company and to not appeal

the grant of summary judgment. These factors included the clients

physical and emotional state, the clients financial needs, and the

likelihood that the cab company would prevail at trial or on appeal.

During the ensuing discussion, section members noted that a

future topic of interest would be the issue of interlocutory appeals under

HRS Chapter 641.

The HSBA Appellate Section thanks Justice Levinson for leading

a thoughtful, practical discussion on the decision to take an appeal.


FEBRUARY 2015

Published Appellate Opinions

By: Christopher J.I. Leong (Vice-Chair; Damon Key Leong Kupchak Hastert)

In February 2015, the Hawaii Supreme Court issued three

published opinions and the Hawaii Intermediate Court of Appeals

(ICA) issued four. The following is a brief synopsis of those opinions:

State v. Alangcas, No. SCWC-30109 (Haw. Feb. 9, 2015).

Alangcas was charged with, inter alia, two counts of electronic

enticement of a child in the first degree. He filed two motions to

dismiss in circuit court, arguing that the electronic enticement statute,

HRS 707-756, is unconstitutionally overbroad, vague, and violates the

dormant commerce clause. The circuit court denied the motions and

granted Alangcas leave to file an interlocutory appeal. The ICA

affirmed, and the Hawaii Supreme Court subsequently affirmed on

certiorari. In its opinion, the court first reaffirmed that HRS 707-756

includes three distinct elements: (a) intentionally or knowingly

communicating with a minor; (b) agreeing to meet the minor with intent

to promote or facilitate the commission of a felony; and (c) intentionally

or knowingly traveling to the agreed meeting place at the agreed time.

Felonious intent only applies to the meeting requirement in (b); the

statute was written this way so as not to include otherwise innocent

communications with minors within its scope. The court also rejected


Alangcass overbreadth challenge because the statute only criminalizes

speech used to arrange a meeting with a minor with the intent to

promote or facilitate the commission of a felony and does not otherwise

infringe on legitimate expression protected by the federal and state

constitutions. The court also held the statute is not vague because it is

neither incomprehensible to a person of ordinary intelligence, nor

subject to subjective or arbitrary enforcement by police. Finally, the

dormant commerce clause is not implicated because the statute does not

regulate any type of economic transaction nor otherwise burden

interstate commerce.

Adams v. CDM Media USA, Inc., No. SCWC-12-0000741 (Haw.

Feb. 24, 2015). Adams applied for an International Media Sales

Executive position with CDM but was not hired despite extensive

experience in sales and marketing; CDM then hired seven people who

were all younger than her. Adams filed a Charge of Discrimination

with the Hawaii Civil Rights Commission and then filed suit in circuit

court, alleging that CDM violated HRS 378-2 by discriminating

against her on the basis of age. The circuit court granted summary

judgment in CDMs favor and dismissed the complaint, concluding that

Adams showed a prima facie case of age discrimination, that CDM then

articulated legitimate, nondiscriminatory reasons for not hiring Adams,

but that Adams then failed to raise a genuine issue of material fact that

CDMs articulated reasons were pretextual. On appeal, the ICA agreed

that Adams failed to produce admissible evidence that CDMs reasons

were pretextual and affirmed. On certiorari, the supreme court first

noted that Adams was qualified for the position and established a prima

facie case of age discrimination. However, the court held that a

legitimate, nondiscriminatory reason not to hire a person must be

related to the ability of the individual to perform the work in question.

Here, some of the reasons CDMs president offered for not hiring

Adams, such as no sales experience in the prior five years, were


disclaimed as considerations in the hiring process, were not related to

the position, or were not included in advertisements for the position,

and thus were not legitimate, nondiscriminatory reasons. The supreme

court rejected other proffered reasons because, although included in

CDMs presidents declaration submitted with CDMs motion for

summary judgment, the reasons were not based on his personal

knowledge and thus were inadmissible hearsay. Thus, the supreme

court did not even reach the question of pretext. It vacated the

judgments of the circuit court and the ICA and remanded to the circuit

court for further proceedings.

State v. Turping, No. CAAP-13-0002957 (Haw. App. Feb. 25,

2015). Turping was convicted of operating a vehicle under the influence

of an intoxicant (OVUII). On appeal, she argued that the OVUII charge

in the complaint was fatally defective because it used the term alcohol

without alleging the statutory definition of alcohol, which contains an

exception for denatured or other alcohol that is considered not potable

under the customs laws of the United States. HRS 291E-1. By not

alleging the exception, Turping argued that the charging instrument

failed to provide fair notice of the charge against her. The ICA clarified

the difference between elements of an offense and defenses to an offense

and reaffirmed that a charging instrument does not need to include or

negate a statutory defense in order to sufficiently state an offense.

Further, as explained in State v. Mita, 124 Haw. 385, 392, 235 P.3d 458,

465 (2010), the State need only allege the statutory definition of a term

when it creates an additional essential element of the offense, and the

term itself does not provide a person of common understanding with fair

notice of that element. Here, the statutory definition of alcohol does

not create an additional essential element that needed to be alleged; the

State properly charged all essential elements of the OVUII offense.


Perry v. Williams, No. CAAP-13-0003357 (Haw. App. Feb. 25,

2015). Perry filed a complaint in circuit court, alleging that Williams

failed to repay a $45,000 loan plus 6% interest. Williams failed to

appear, and Perry filed a Request for Default Judgment by Clerk

pursuant to HRCP Rule 55(b)(1) for $56,326.46 for principal, interest,

court costs, and reasonable attorneys fees. The clerk entered default

judgment for the amount requested. Two years later, Williams filed a

motion to set aside the default judgment, mainly arguing that Perrys

request was not for a sum certain and therefore the default judgment

was void because the clerk lacked authority to issue it under HRCP

Rule 55(b)(1). The court denied Williamss motion to set aside as well

as a motion for reconsideration. On appeal, the ICA vacated and

remanded, concluding that a clerk may not enter a default judgment

when a plaintiff seeks attorneys fees in addition to the amount of the

claim. This is because a judicial determination is necessary to decide

whether to award fees and, if so, in what amount.

Arthur v. State, Department of Hawaiian Home Lands, Nos.

CAAP-13-0000531, CAAP-13-0000551, and CAAP-13-0000615

(consolidated) (Haw. App. Feb. 27, 2015). This complex litigation arose

out of an alleged wrongful death incident that occurred at a residence

on DHHL land. Defendants included DHHL, the developer, the general

housing contractor, the architecture firm, the civil engineers, the fence

subcontractor, and the AOAO. The various defendants filed numerous

third-party complaints, counterclaims, and crossclaims for

indemnification and contribution. The circuit court issued various

orders and a final judgment, and the parties filed numerous appeals

and cross-appeals. The ICA rendered various holdings, including:

summary judgment against Arthur on his negligence claims was

improper, because he submitted expert testimony from which a trier of

fact could reasonably infer a causal link between the defendants

alleged negligence and his wifes injuries, and therefore a genuine issue


of material fact existed; summary judgment against Arthur on his

punitive damages claim was proper because his factual allegations did

not raise any conscious wrongdoing on defendants part; denial of

Arthurs motion for leave to file a third amended complaint was proper

because he knew the identity of the parties sought to be added for over

four years before filing the motion, and adding them now would cause

great delay and prejudice; and Pancakes of Hawaii, Inc. v. Pomare

Properties Corp., 85 Haw. 286, 944 P.2d 83 (App. 1997) is reaffirmed for

the principle that, in general indemnity contracts as well as insurance

contracts, if a complaint alleges claims that fall within the coverage of

the indemnity provision, then the duty to defend is triggered and the

indemnitor must bear the cost of a defense whenever any of the claims

asserted may potentially come within the scope of an indemnity

agreement, and the defense must continue until it is clear that the

liability cannot possibly come within the scope of the indemnity.

State v. Bowman, No. CAAP-13-0005863 (Haw. App. Feb. 27,

2015). Bowman was convicted of one count of spilling loads on

highways in violation of HRS 291C-131(a). Bowman, a farmer, was

transporting cabbage in uncovered containers; a police officer who was

traveling in the opposite direction passed Bowman and shortly

thereafter saw cabbage on the side of the road and on the road itself. At

trial and on appeal, Bowman argued that he had been mischarged

under subsection (a) of the statute, which prohibits movement of a

vehicle on any highway unless the vehicle is so constructed, covered, or

loaded as to prevent any of its load other than clear water or feathers

from live birds from dropping, sifting, leaking, blowing, spilling, or

otherwise escaping therefrom, and that he should have been charged

under (c), which exempts [v]ehicles carrying agricultural produce from

fields during harvesting except that the owner of the vehicle must

provide for the reasonable removal of all such produce spilled or

dropped on the highway. As in State v. Turping, supra, the ICA


analyzed whether (c) constituted an offense that needed to be charged

or a defense that did not. The court concluded, looking at the text of the

statute as well as legislative history, that (a) establishes a general

requirement that all vehicles be constructed or covered so as to prevent

the spilling of a load on a highway, while (c) is an exception to that

requirement for vehicles transporting agricultural produce after

harvest. Accordingly, (c) is not an offense or element of an offense that

the State needed to allege, but a defense for which Bowman carried the

initial burden of production of evidence. Further, the defense would

have failed regardless because Bowman chose to let the cabbage blow

away rather than remove it from the highway. The ICA thus affirmed

the conviction.

Ito v. Investors Equity Life Holding Co., No. SCAP-10-0000131

(Haw. Feb. 27, 2015). This case arises out of the 1994 involuntary

liquidation of an insolvent insurance company, Investors Equity Life

Insurance Company of Hawaii, Ltd. (IEL), by the Insurance

Commissioner. Investors Equity Life Holding Co. (IELHC), IELs

parent company and sole shareholder, opposed the petition for

liquidation and proposed a rehabilitation plan. The circuit court

concluded that the rehabilitation plan was not reasonable or feasible

and ordered the liquidation of IEL under the Commissioners

supervision. The circuit court also approved the plan for the

disbursement of IELs assets and established a claims bar date for

creditors. At the same time, the Commissioner brought suit against

IELHC and its sole shareholder for alleged tortious misconduct in

causing the failure of IEL. IELHC settled this suit in 1996 by agreeing

to surrender all of its shares in IEL for cancellation and forfeiture. In

2008, IELHC wrote two letters to the Commissioner claiming title to

IELs stock and demanding that the Commissioner deliver all shares of

IEL stock to it and distribute the remaining surplus of the IEL estate.

IELHC also filed a complaint in California state court in early 2009


that was stayed on the ground that Hawaii was a more suitable forum.

Subsequently, the Commissioner as liquidator issued a Notice of

Determination of Claim, treating IELHCs letters and the California

lawsuit as a claim against IELs estate and denying the claim. The

circuit court granted the Commissioners motion for an order confirming

the Determination of Claim. On appeal and transfer to the Hawaii

Supreme Court, the court first held that the two letters and the

California lawsuit constituted a claim seeking assets from IELs estate

under HRS 431:15-332. Although the letters did not contain all the

elements listed in HRS 431:15-326(a) for a proof of claim, substantial

compliance is sufficient if the liquidator can identify who submitted the

claim, the amount of the claim, and the grounds of the claim. Further,

while the liquidator has the discretion to consider late-filed claims,

IELHCs claim was first asserted more than 12 years after the claims

bar date, and the circuit court did not abuse its discretion in concluding

that the claim was time barred. Thus, the supreme court affirmed the

circuit courts order confirming the liquidators denial of IELHCs claim.


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)

www.legaltxts.com (by our Member Elijah Yip)


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 is 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 Appellate

Section 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


Stay tuned for the next edition of

The Appellate Record! If you are interested in contributing to our newsletter in any way, please contact Michi

Momose 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!

the appellate record february 2015

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