THE APPELLATE RECORD

November 2014
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

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

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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 Alexa
Fujise (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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Do not forget to demonstrate prejudice.

Dont stop at
demonstrating the error, also demonstrate the harm suffered.
Put a specific prayer for relief in the conclusion (not just For the
foregoing reasons, Appellant asks that this Court affirm this
appeal). Also, a request for sanctions should be made by
separate motion.
We even had a special surprise appearance by the merit panel bingo ball by
which merit panels are randomly assigned for cases!

We were pleased to provide our first panel devoted to criminal

appellate practice, featuring Justice Acoba (Ret.) and practitioners Craig
Jerome and Kevin Takata. The panelists highlighted some of the differences
between civil and criminal cases on appeal, including: what is a final,
appealable order or decision in the criminal context; the requirements for
appealing interlocutory orders; release and bail requirements under HRAP
Rule 9; specific items that must be included in the statements of jurisdiction
per HRAP Rule 12.1; and the requirement for the defendants affidavit or
declaration supporting a stipulation or motion to dismiss the appeal.
They also reviewed several pending criminal appellate certiorari that
could yield significant decisions:
State v. Kony, SCWC-12-0001114, addressing the issue of expert
testimony regarding the general nature of child sex abuse,
including statistical percentage and behavioral evidence relating
to characteristics of typical sex offenders and child victims.

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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 liability
jury 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 the
Department 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 filed
several 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 HRCP
Rule 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-130002408 (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 to
compel 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 of
counsel 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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Molfino v. Yuen, No. SCWC-10-0000150 (Haw. Nov. 13, 2014). Molfino

owned property that he wanted to subdivide. He requested a pre-existing lot
determination from Planning Director Yuen, who recognized two pre-existing lots
for the property. Apparently missing from the propertys TMK file at the County of
Hawaii Planning Department was a pre-existing lot determination by the former
Planning Director recognizing six lots for the property. Molfino then sold the
property to one Pruglo; when Pruglo applied for subdivision approval, the missing
letter had reappeared and Pruglo received a six-lot subdivision. Molfino sued Yuen
and the County for damages resulting from negligence, alleging that they breached
a legal duty to use reasonable care in maintaining the TMK file. The circuit court
granted summary judgment in favor of the County and the ICA affirmed. The
Supreme Court also affirmed, drawing heavily from Cootey v. Sun Investment, Inc.,
68 Haw. 480, 718 P.2d 1086 (1986), and concluding that policy considerations weigh
against imposing liability on the County in this situation. The court explained that
there was neither a common law nor a statutory basis imposing a legal duty to
maintain government records in complete condition at all times.

Below is a brief synopsis of October 2014 opinions as reported in our last

Appellate Record:
In re Grievance Arbitration between State of Hawaii Organization of
Police Officers (SHOPO) and County of Kauai, CAAP-10-0000077 (Haw. App.
October 16, 2014). The Intermediate Court of Appeals held that an arbitration
award granting remedial promotions under the collective bargaining agreement
(CBA) did not violate public policy, one of the exceptions to the general deference
given arbitration awards. The award allegedly violated HRS Chapter 76 and the
merit principles for promotional management decisions. Using the legislative
intent in amending HRS 89-9(d) to clarify management rights in the context of
CBAs and the CBA provisions granting the arbitrator broad authority to remedy
grievances, the Court concluded that the arbitrator did not exceed his authority and
that there was no violation of public policy to support vacature.
We typically dont report on unpublished decisions, but Bailey v.
Duvauchelle, CAAP-14-0000883 (Haw. App. October 10, 2014), is noteworthy for
its analysis of appealability of post-judgment orders. The Intermediate Court of
Appeals reviewed the standard set forth in Ditto v. McCurdy, 103 Hawaii 153, 80
P.3d 974 (2003), that [a] post-judgment order is an appealable final order under
HRS 641-1(a) if the order ends the proceedings, leaving nothing further to be
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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 19
meeting 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@tpmhawaii.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)

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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 efile 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 cosponsored 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 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

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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!

Stay tuned for the next edition of

The Appellate Record!

If you are interested in contributing to our newsletter in any way, please contact the
Sections Chair Bethany C.K. Ace at bcka@hawaiilawyer.com

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