the appellate record - september 2013

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The Appellate Record, September 2013

THE APPELLATE RECORD

September 2013

Twitter Brief Contest The HSBA Appellate Section is pleased to announce its first annual Twitter

Brief contest! We are borrowing the idea from our sister section in Texas, whose

twitter competition has garnered national attention over the last three years. To enter the contest, draft an appellate brief of no more than 140 characters

(including spaces – the limit for a "tweet" on Twitter). Email your brief between

now and Monday, September 23, 2013, to the HSBA Appellate Section's Chair at

[email protected].

Winners will be announced at the Appellate Section's presentation at theHSBA Bar Convention, on Friday, September 27, 2013. The three top twitter briefs

will win prizes!

Have fun tweeting, we look forward to reading how much punch a simple

tweet can pack!

2013 HSBA Appellate Section Board:

Chair: Ms. Rebecca A. Copeland

Vice Chair: Mr. Mark J. Bennett

Secretary: Ms. Bethany C.K. Ace

Treasurer: Mr. Robert Nakatsuji

HSBA CLE Liaison: Ms. Mitsuko T. Louie

HAWSCT Liaison: Mr. Matthew Chapman

ICA Liaison: Mr. Daniel J. Kunkel




appellant’s opening brief. HRAP Rule 28(b)(4)(A). Additionally, in initially making

the objection before the trial court, consider whether to make an offer of proof.

Thus, an error must normally be brought to the trial court’s attention to fully

preserve the issue for appeal.1 In the absence of an objection below, the issue on

appeal is whether the lower court committed a plain error. Plain error review isbroader in criminal cases then it is in civil cases. In the context of civil cases, the

Hawai‘i Supreme Court has explained:

[T]he plain error rule is only invoked when ‘justice so

requires.’ We have taken three factors into account in

deciding whether our discretionary power to notice plain

error ought to be exercised in civil cases: (1) whether

consideration of the issue not raised at trial requires

additional facts; (2) whether its resolution will affect the

integrity of the trial court’s findings of fact; and (3)

whether the issue is of great public import.

Montalvo v. Lapez, 77 Hawai‘i 282, 290, 884 P.2d 345, 353 (1994) (quotations

omitted).

If the error was made during a hearing, be sure that the hearing transcript is

included as part of the record on appeal.

II. Post-trial Motions

Generally, post-trial motions are not required to appeal. One exception to this

rule arises in the family law context. See Hawai‘i Revised Statutes (“HRS”) § 571-

54.

Even if a post-trial motion is not required to appeal, it may be advisable to

file a post-trial motion A party may have a better chance of persuading the trial

1 One exception to this rule arises in the context of subject-matter jurisdiction. No objection to

subject-matter jurisdiction need be made to raise the issue on appeal.




court or agency to reconsider an issue than of showing error on appeal, where the

standard of review may be restrictive.

A post-trial motion may toll the time to appeal. Under HRAP Rule 4(a)(3):

If any party files a timely motion for judgment as amatter of law, to amend findings or make additional

findings, for a new trial, to reconsider, alter or amend the

judgment or order, or for attorney’s fees or costs, the time

for filing the notice of appeal is extended until 30 days

after entry of an order disposing of the motion; provided,

that the failure to dispose of any motion by order entered

upon the record within 90 days after the date the motion

was filed shall constitute a denial of the motion.

The Hawai‘i Supreme Court is presently considering two cases involving the

application of Rule 4(a)(3)’s deemed-denied clause. Ass’n of CondominiumHomeowners of Tropics at Waikele v. Sakuma, SCWC-12-0000870 (Haw.); Title

Guaranty Escrow Servs., Inc. v. Szymanski, SCWC-12-0000711 (Haw.).

III. Appealable Final Judgments

Generally, a final judgment is necessary to appeal. The appellant should

ensure that the form of judgment disposes of all parties and all claims before the

appeal is filed. If there are multiple claims, consider noting in the judgment in

appropriate that “all other claims are dismissed.” It is helpful to read Jenkins v.

Cades Schutte Fleming & Wright, 76 Hawai‘i 115, 869 P.2d 1334 (1994), in

preparing the final judgment.

There are exceptions to the final-judgment rule, including statutory

exceptions for orders on motions to compel arbitration under HRS Chapter 658 and

good faith settlement determinations under 663-15.5. In addition, interlocutory

appeals may be taken under HRS § 641-1(b), provided that the circuit court makes

the necessary finding. It may also be appropriate to obtain a Hawai‘i Rules of Civil

Procedure (“HRCP”) Rule 54(b) certification. Finally, interlocutory appeals may be

taken based on the collateral order doctrine and the Forgay doctrine (which

concerns orders for execution on property).




IV. Steps to Appeal

Generally, the appellant has 30 days to file a notice of appeal from the entry

of judgment. If the appellant fails to file the appeal within the allowed time, the

appellate court will likely not have appellate jurisdiction to hear the appeal.

Along with the notice of appeal, the appellant must file a civil appeal

docketing statement pursuant to HRAP Rule 3.1.

If the appellant wants to raise a point that requires a hearing transcript, the

appellant must file with the appellate clerk a request to prepare a transcript within

10 days after filing the notice of appeal. If the court reporter is behind schedule,

consider giving the reporter a call for a status update. This information may be

helpful in obtaining an extension to file the opening brief.

Within 10 days after the record on appeal is filed, the appellant must file a

statement of jurisdiction pursuant to HRAP Rule 12.1(a). Any appellee contesting

jurisdiction may file a statement contesting jurisdiction within the same period.

V. Chapter 91 Appeals

In order to appeal an administrative decision under HRS Chapter 91, the

matter must have been a contested case required by law, i.e., required by rule,

statute, administrative rule, or constitution. See Bush v. Hawaiian Homes Comm’n,

76 Hawai‘i 128, 870 P.2d 1272 (1994).

VI. Factors to Consider Before Appeal

Before filing an appeal, consider whether you should apply to transfer the

case from the Hawai‘i Intermediate Court Appeals to the Hawai‘i Supreme Court.




HRS § 602-58 allows for such transfers and provides three types of cases in which

the transfer is mandatory and two in which the transfer is discretionary.

With respect to the three mandatory categories, the Hawai‘i Supreme Court

“shall grant an application to transfer” upon the grounds that the case involves:

(1) A question of imperative or fundamental public

importance;

(2) An appeal from a decision of any court or agency when

appeals are allowed by law: (A) Invalidating an

amendment to the state constitution; or (B) Determining

a state statute, county ordinance, or agency rule to be

invalid on the grounds that it was invalidly enacted or is

unconstitutional, on its face or as applied, under either

the constitution of the State or the United States; or

(3) A sentence of life imprisonment without the possibility

of parole.

HRS § 602-58(a) (spacing altered).

As for the two discretionary categories, the supreme court “may grant an

application to transfer” upon the grounds that he case involves: “(1) A question of

first impression or a novel legal question; or (2) Issues upon which there is an

inconsistency in the decisions of the intermediate appellate court or of the supreme

court.” Id. § 602-58(b) (spacing altered).




HSBA Bar Convention

Friday, September 27, 2013

8:30 a.m. to 12:00 p.m.

Join us for the Bar Convention!

The Appellate Section will present its Federal Appellate Practice Manual at

this year’s HSBA Bar Convention to be held on Friday, September 27, 2013, at the

Hilton Hawaiian Village. The manual provides information and advice on federal

appellate practice for Hawaii practitioners, with a special emphasis on practice in

the Ninth Circuit Court of Appeals and the United States Supreme Court.

As a follow up to the Hawaii Appellate Practice Manual, released last year,

we will also provide the much-anticipated Hawaii Appellate Motions Chapter ! A

supplement to the Hawaii manual, this chapter will provide useful rules, tips, and

additional forms for those who do – or may – file motions with the Hawaii appellate

courts.

The Appellate Section’s program will also include our popular Appellate

Panel. This year's event will feature special guests from the Hawaii Supreme

Court: Chief Justice Mark E. Recktenwald, Justice Simeon R. Acoba, Jr., Justice

Sabrina S. McKenna, and Justice Richard W. Pollack.

We also have some exciting extras planned including Appellate Motions

Jeopardy and Twitter Briefs!!

Attendees of the Appellate Section's program will earn 2.0 VCLE and 1.0

MCPE.




Mahalo to the HSBA for a wonderful night!




This Month in Appellate History

Ø The following United States Supreme Court Justices assumed office in

September: James Wilson, William Cushing, John Blair, Jr., Smith

Thompson, Levi Woodbury, Benjamin Robbins Curtis, George Sutherland,

Harold Hitz Burton, Arthur Goldberg, William Rehnquist, Sandra Day

O'Connor, Antonin Scalia, and John G. Roberts.

Ø On September 16, 2009, Craig H. Nakamura was sworn in as an Chief Judge

of the Intermediate Court of Appeals.

JEFS E-Filing Tip of the Month Ø When attaching a document in JEFS, the "notes" field is available for writing

note to the clerk of the court. For example, if the titles/document types for

selection did not include the document type you needed, you can indicate this

in the notes. Remember, text entered in the notes field is public record, and

will appear on the eCourt kokua site.




August Published Appellate Opinions In August, the Hawaii Supreme Court issued three published opinions (notcounting the one amended opinion) and the Intermediate Court of Appeals also

issued three. Below is a brief synopsis of each:

In In the Matter of the Application of Honolulu Construction and Draying

Company, Ltd. v. State of Hawaii, Department of Land and Natural Resources et al.,

Scenic Hawaii, and Aloha Tower Development Corp., SCWC-30484 (August 9, 2013),

the HAWSCT held the Land Court properly awarded attorneys’ fees and costs

totaling over $135,000.00 to Scenic Hawaii against the State under the private

attorney general doctrine.

In Kanahele v. Maui County Council, SCWC-29649 (August 8, 2013), theHAWSCT held that although the Maui County Council violated Hawaii’s Sunshine

Law (HRS ch. 92) related to Council meetings of the Land Use Committee related to

a residential development project, the violation did not warrant invalidation of the

Council’s actions.

In State v. Taylor, SCWC-30161 (August 19, 2013), held that (1) appellate

review of the impact of an unrequested mistake of fact jury instruction is for plain

error, (2) "plain error exists if the defendant, at trial, had met his or her initial

burden to adduce credible evidence of facts constituting the defense (unless those

facts are supplied by the prosecution’s witnesses)," and (3) "[i]f the omission of the

unrequested mistake of fact jury instruction constitutes plain error, it shall be abasis for reversal of the defendant’s conviction only if an examination of the record

as a whole reveals that the error was not harmless beyond a reasonable doubt."

In State v. DeMello, CAAP-10-0000173 (August 27, 2013), the ICA held that

(1) the evidence was sufficient to support the defendant's conviction for harassment,

(2) the trial court erred in sentencing the defendant to both a thirty-day term of

imprisonment and anger management classes, and (3) vacated, in part, the

restitution award. On the issue of restitution, the ICA held that the evidence

supported the victim's compensable losses, but concluded that the trial court erred

in ordering lost wages because

"restitution for lost wage is contrary" to legislative intent. The court also vacated

the amount of the restitution award related to medical expenses awarded based on

apportionment.

In Simmons v. Aqua Hotels and Resorts, Inc., CAAP 12-0000836 (August 22,

2013), the ICA adopted Ninth Circuit precedent allowing Title VII lawsuits to move

forward even though a party was not named in an EEOC charge under limited




circumstances where "(1) the unnamed party was involved in the acts giving rise to

the EEOC charge; (2) the EEOC or the unnamed party should have anticipate a

Title VII suit against the unnamed party; (3) the named party is a principal or

agent of the unnamed party or if they are substantially identical; (4) the EEOC

could have inferred that the unnamed party violated Title VII; or (5) the unnamed

party had notice of the EEOC conciliation efforts and participated in the EEOCproceedings." Based on these exceptions, the ICA held that the circuit court erred in

dismissing Plaintiff's age discrimination case for lack of jurisdiction.

In Ryan v. Palmer, CAAP-12-0000697 (August 20, 2013), the ICA held (1)

that case law interpreting dismissals under Hawaii Rules of Civil Procedure

41(b)(2) applies to dismissals under Hawaii Circuit Court Rule 12(q), and (2) that

the dismissal of Ryan's case with prejudice for the failure to file a pretrial statement

after the case had been admitted to the Court Annexed Arbitration Program

(CAAP) was improper because the he “was not dilatory in any respect other than

the failure to file a pretrial statement.”




Upcoming Events:

2013 HSBA Bar Convention Please sign-up to join the HSBA Appellate Section at this year’s HSBA Bar

Convention to be held on Friday, September 27, 2013 , at the Hilton Hawaiian

Village. The Appellate Section’s time will be from 8:30 to Noon.

Our line-up will consist of discussions on federal and state appellate practice

including: state and federal motions practice, federal standards of review,

bankruptcy appeals, federal criminal appeals, and oral argument.

The section will also reprise the popular Appellate Panel with distinguished

guests Chief Justice Mark E. Recktenwald, Justice Simeon R. Acoba, Jr., Justice

Sabrina S. McKenna, and Justice Richard W. Pollack.




Coming Soon:FEDERAL APPELLATE PRACTICE MANUAL: The Appellate Section is

pleased to announce that it will publish another appellate manual in conjunction

with the Hawaii State Bar Association. This year’s manual will be entitiled

“Federal Appellate Practice Manual.” The manual will provide 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. Our contributors and/or editors include: Rebecca

A. Copeland, G. Richard Morry (editor), Marissa Luning (editor), Mitsuko Louie

(editor and contributor). Ninth Circuit Judge Richard Clifton, Christphoer Goodin,

Doug Fredrick, John Duchemin, Monica Suematsu, Kimberly Asano, Cal Chipchase,

Elijah Yip, Robert Thomas, Mark Murakami, Steven Gray, Johnathan Bolton, Lisa

Munger, Lisa Bail, Trent Kakuda, Bethany C.K. Ace, and Brett Rowan.

HAWAII APPELLATE PRACTICE MANUAL SUPPLEMENT : “Appellate

Motions Practice” a suplement to the 2012 Hawaii Appellate Practice Manual, will

be available for the first time at the 2013 Bar Convention. The Supplement will

offer insight and practice tips into state appellate motions practice, and include

additional forms.




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 Chair Rebecca A. Copeland)




Appellate Section Website:

The Appellate Section’s website includes useful appellate resources, includinghandouts from prior monthly meetings, copies of this newsletter, and power point

presentations from the Appellate Section’s program at the 2012 HSBA Bar

Covention.

www.hawaiiappellatesection.org

Hawaii Appellate Practice Manual:

The Hawaii Appellate Practice Manual includes information you need to know for

filing appeals in Hawaii, including how to e-file documents on the Judiciary’s 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.




Stay tuned for the October 2013 edition of The Appellate Record!

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

Section’s Chair Rebecca A. Copeland at [email protected]

The Appellate Record is presented

as a courtesy to the Members of the

Hawaii State Bar Association’s

Appellate Section by its Board.

Mahalo and enjoy!

the appellate record - september 2013

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