Record on Appeal

Family Court Erred in Limiting Mediation Litigant's Communications Outside of Mediation Sessions

On December 28, 2016, the Intermediate Court of Appeals issued a summary disposition order in a post-decree divorce case holding that the Family Court erred in entering an order that limited one of the parties' ability to discuss issues related to mediation with a third-party outside of the mediation sessions.

In the underlying case, the Husband and Wife were involved in mediation.  The appeal involved the Wife's post-decree motion challenging the Family Court's decision that ordered her into mediation but also ordered that she was not permitted to talk about the mediation with her fiancé.

Although the ICA noted that Wife had not properly preserved her claim that the order violated her constitutional right to free speech, the court nevertheless decided that the order was improper. The ICA called the lower court's decision "extraordinary."  SDO at 2.

According to the court:

"The Family Court did not cite to any authority, and we find none, that authorizes a ban on a party's communications outside of the mediation sessions themselves, even when it might not exceed the bounds of reason to exclude non-parties from being present at or participating in the mediation." SDO at 3.  

Thus, the ICA held that it was an abuse of discretion for the Family Court to forbid the Wife from talking with her fiancé "about any outstanding or unresolved mediated matters during mutually agreed breaks or between mediation sessions, either in person or over the telephone or through another medium . . . ." Id.

Although a short decision, and one that only has persuasive value outside of the case itself, the decision made by the Family Court raised an interesting issue on appeal.  To read the full decision, go here.

HAWSCT Clarifies Title to Property After Death of Intestate Grantor

On October 8, 2015, the HAWSCT issued its opinion in Kaupulehu Land LLC v. Heirs and Assigns of Pahukula, SCWC-30475, authored by Justice McKenna, holding that where a common grantor of title is not vested in title to property, it passes in accordance with the law in effect at the time of the grantor’s death to the heirs.

The case involved a title dispute related to property on the Big Island.  Both parties held title to the property from a common grantor, but the LLC claimed that the title was defective because the grantor had sold the prior before he died.  The LLC also claimed that it was entitled to 100% ownership through adverse possession. In the alternative, the LLC claim that it is co-tenants with the Hiers.  The Heirs also argued that they were co-tenants with the LLC.

 The common grantor died intestate, and at the time of his death that meant that the property passed to his heirs.  However, at the time he died, no distribution of the property occurred and the heirs did not receive their interests.  Nevertheless, the heirs proceeded to convey their interests in the property.  Through various conveyances, the LLC was deeded certain interest in the property.  After the LLC filed an action to quite title, the circuit court granted is motion for summary judgment, finding that the LLC had 100% title under adverse possession. 

The HAWSCT held that despite no documents effectuating the passage of title at the common grantor’s death to his heirs, title nevertheless passed under Hawaii law.  In that regard, the HAWSCT held that the fact that the property was omitted from the probate proceeding property inventory was not dispositive as to whether the property was actually part of the estate.  According to the court, the inventory is nothing more than prima facie evidence of the property in the estate.  Moreover, at the time of the common grantor’s death, real property was not required to be listed in the inventory.  And, the court reiterated that at the time of his death, title passed to the heirs “without an order of the court.”  Slip. Op. at 26.  Thus, the property “passed outside of probate as a matter of law” to the heirs.  Id. at 27.

The court also held that the LLC failed to establish any superior right to title, and that it is co-tenants with the heirs.

The HAWSCT’s full opinion is available here.

Evident Partiality Claim Against Arbitration Award Requires Evidentiary Hearing and the Entry of Findings of Fact and Conclusions of Law

On August 12, 2015, the HAWSCT issued an amended opinion in In the Matter of the Nordic PCL Construction, Inc. v. LPIHGC, LLC, No. SCWC-11-0000350, designated as a writ to watch here, holding that when an“evident partiality” claim is made as a basis for vacating an arbitration award, the circuit court must hold an evidentiary hearing and issues findings and fact and conclusions of law to support its decision – otherwise, the record will be insufficient for the appellate court to review the propriety of the lower court’s decision.

In the underlying case, Nordic appealed the circuit court’s decision to confirm the arbitration award and deny Nordic’s motion to vacate the award.  The ICA agreed with Nordic the arbitrator’s “failure to disclose various relationships with the law firms of LPIHGC’s attorneys established a reasonable impression of partiality requiring vacatur of the Arbitration Award.”  Slip. Op. at 2.

According to the Hawaii Supreme Court, since the “evident partiality” claim raised by Nordic presented fact issues, the circuit court should have held an evidentiary hearing even though none of the parties requested one.  Also, after the hearing, the circuit court must issue findings of fact and conclusions of law supporting its decision.  Otherwise, the record will not be sufficient for the appellate court to review whether the circuit court’s decision is correct or not.  According to the court, absent findings and conclusions, “the factual and/or legal bases upon which the circuit court denied the motion to vacate are unascertainable.”  Slip. Op. at 3.  Therefore, is “unable to determine the grounds on which the circuit court based its decision,” and is “unable to appropriately review its ruling.”  Id. at 3-4.

Although a hearing was held on Nordic’s motion to vacate, the HAWSCT nevertheless based it decision on the circuit court’s failure to hold an “evidentiary hearing” on the disputed issues of fact raised by Nordic’s argument.  This particular issue was not one that the parties raised on in the certiorari pleadings.  Slip. Op. at 24-27.  Nevertheless, according to the court, it is not within the appellate court’s purview to review the many disputed issues of material fact that were raised in this case.

The HAWSCT provided the following direction to lower courts:

“Although entry of findings of fact and conclusions of law are not required on all motions to vacate as long as the circuit court’s reasoning is clearly stated on the record, due to the numerous issues in this case, to allow appropriate appellate review, the circuit court is to conduct an evidentiary hearing and render findings of fact and conclusions of law.”  Slip. Op. at 62-63.

The HAWSCT’s full amended opinion, authored by Justice McKenna is available here.

The HAWSCT’s order granting reconsideration, and noting the minor amendments made to the original opinion, is available here.

HAWSCT Defines the Public’s Right to an Open Courtroom in Criminal Proceedings

On July 16, 2014, the HAWSCT issued an unanimous opinion in Oahu Publications, Inc., dba The Honolulu Star-Advertiser vs. The Honorable Karen S.S. Ahn, SCPW-13-0003250, authored by Justice Pollack, holding that the public has a right to an open courtroom in criminal proceedings, and defined the scope of that right.

The underlying case related to the criminal trial of Christopher Deedy, the U.S. State Department Special Agent charged with murder in a 2011 shooting of a Hawaii man in a Waikiki McDonalds during that year’s Asia Pacific Economic Cooperation meetings.  During the first trial (which subsequently ended in a mistrial due to a deadlocked jury), the circuit court conducted five court proceeding on the fifth day of jury deliberations that were not open to the public.  The transcripts of those proceedings were also sealed.  The Star-Advertiser sought a writ of prohibition to prohibit the court from enforcing the order sealing the records, and writ of mandamus to prevent the circuit court from similarly closing the proceedings to the public in Deedy’s retrial (which is underway now).

As to the writ of prohibition, the HAWSCT dismissed the writ as moot because the relief the Star-Advertiser requested had already been provided per a related remand to the circuit court by the HAWSCT.  As a result of the remand, the transcripts were unsealed, in part, with limitations approved by the court.

As to the writ of mandamus, the HAWSCT denied the writ because it “seeks to peremptorily prohibit [the circuit court judge] from again closing her courtroom unless specific steps are followed.”  Slip. Op. at 3.  However, the court decided to “adopt procedures to guide our courts in the future when making a determination whether to close court proceedings or to deny public access to the transcript of the closed proceedings.”  Id.

In reaching its conclusion, the court held that “article 1, section 4 of the Hawaii Constitution provides the public with a qualified right of access to observe court proceedings in criminal trials.”  Slip. Op. at 30.  According to the HAWCT, the right may be overcome if (1) the trial court “articulate(s) the interest the closure protects, along with findings specific enough that a reviewing court can determine whether the closure was properly entered,” and (2) “provide a reasonable opportunity to object.”   Slip. Op. at 31-32 (citation and internal quotation marks omitted).

The court also held that the defendant’s right to a fair and impartial trial must also be considered and weighed against the public’s right to access.  With regarding to the issue raised in Deedy’s case – potential juror misconduct – the HAWSCT held that the trial court should consider:  “the nature and likely risk to the defendant’s right to an impartial jury; the probability of such risk impacting the juror’s impartiality; the likely prejudicial impact of the risk; and, the availability and efficacy of alternative means to neutralize the effect of the reach of such risk.”  Slip. Op. at 65-66.

The HAWSCT’s full opinion is available here.

Trial Court Judge Castagnetti’s Practice Pointers

On August 20, 2013, First Circuit Court Judge Jeannette H. Castagnetti joined the HSBA Litigation Section to discuss her observations and perspectives that included practice pointers and advice for appearing in her court.  Most of Judge Castagnetti’s points apply equally to appearing before any other court (including many that would apply to appellate court practice). 

Some of her advice that would apply to both trial and appellate practice included:

• Remember that is the attorney’s job to education the court, especially when the judges are unfamiliar with the area of law;
• Be on time, be prepared, and be able to answer the judge’s questions about the case;
• For written submissions to the court, brevity is best – be concise, get to the point, don’t write like the submission is a law school exam (in other words, issue spotting and black letter points of law are not always necessary);
• An introduction should be 2-3 paragraphs maximum with the key points and key legal authority (cases, statutes) so that the judge knows immediately what the case is about (in other words, even if the judge reads only the introduction, he or she will have a good idea about the case);
• Remember courtroom demeanor – including the use of cell phones (Judge Castagnetti’s rule is no cell phones, unless necessary but cannot record and must be kept on silent versus vibrate);
• No texting or taking calls on a cell phone while in court (Judge Castagnetti notes that young attorneys are the more common offenders);
• Read court rules and know deadlines (“We are a rules profession”);
• Be courteous, civil, and professional with opposing counsel and the court.

Her advice that applies particularly to trial court included:

• The courts seem many motions for summary judgment, so consider whether one should even be filed;
• There is a high standard to overcome for a MSJ to be granted (especially where discovery is still open), and granting a MSJ is uncommon;
• Consider filing instead a partial MSJ;
• Don’t be surprised if the court takes the MSJ under advisement or reserves judgment until the close of discovery;
• Attached the complaint to the MSJ to make it easily accessible to the judge (the file may be in another building);
• An award of attorney’s fees based on a claim that the filing was frivolous almost requires a finding of bad faith, therefore, the standard is very high;
• For stipulations to continue, remember Circuit Court Rule 19 requires the stipulation to state the reason(s) why it is being made;
• Ex parte motions to shorten or advance time for a hearing must include an explanation of the attempt to confer with opposing counsel;
• For HRCP Rule 37 Motions to Compel discovery, the confer requirement means to discuss the issues on the telephone with the opposing party and try to reach a resolution (Judge Castagnetti has denied these motions where there was a single attempt to contact the opposing party to confer);
• If the opposing party’s response to the attempt to confer in a discovery dispute is unreasonable, need not provide a lengthy tit-for-tat response – instead, provide a short statement that you disagree and will go to court (avoid the he said, she said response; keep it short) – avoid getting distracted by the other sides tactics;
• Judge Castagnetti encourages status conferences if there is agreement by all parties to have a conference to try to resolve disputes informally (for example, discovery disputes);
• Judge Castagnetti sometimes gives oral inclinations, but does not give written inclinations;
• Ensure pretrial statements are timely filed to avoid dismissal (getting it filed is better since it can always be substituted later);
• Whether a dismissal is with or without prejudice depends on the applicable rule and/or argument of counsel;
• If a motion is going to be withdrawn, give the court a courtesy call to let them know so the judge doesn’t spend unnecessary time reviewing the material;
• Always remember to provide the court with the 2 courtesy copies required by the rules – filed in the clerk’s office;
• When the judge makes a ruling, accept it and move on rather than trying to continue arguing (this is another area Judge Castagnetti noted that younger attorneys are the more often offenders).

Judge Castagnetti also provided the following handout that sets forth trial procedures for her court.

Law Day Interviews With Hawaii Trial & Appellate Court Judges

In celebration of Law Week, the Hawaii State Judiciary is releasing a series of videos this week featuring Hawaii trial and appellate court judges.  The interviews will be available on the Judiciary's YouTube channel here.

Here's the schedule:

Tuesday, April 30

Associate Justice Sabrina McKenna of the Hawaii Supreme Court explains the significance of Title IX.

Wednesday, May 1

First Circuit Senior Family Court Judge R. Mark Browning discusses how juveniles are treated in the family court system.

Thursday, May 2

Dan Foley, Associate Judge of the Intermediate Court of Appeals, shares how Access to Justice initiatives will help address the unmet legal needs of Hawaii residents.

Friday, May 3

Fifth Circuit District Court Judge Trudy Senda addresses the issue of fairness in state traffic court.

HSBA Seeks Comment on Judicial Nominees Dean Ochiai and Kevin Souza

We received the following email regarding the newest nominees to the Hawaii Judiciary:

To members of the HSBA:

 Governor Neil Abercrombie has announced the nomination of Dean Ochiai as Circuit Court Judge of the First Circuit, and

 Chief Justice Mark Recktenwald has announced the nomination of Kevin A. Souza as District Family Court Judge to the First Circuit.

 Both nominations are subject to Senate confirmation.  In order to allow the HSBA Board to provide informed recommendations to the Senate Committee on Judiciary and Labor, please submit your comments on these nominees.  We would appreciate the submission of your comments as soon as possible, but no later than 12 noon, Friday, January 4, 2013).  Please be as specific as possible in your comments and confine them to the following criteria used by the HSBA Board in reviewing a nominee:

 Integrity and Diligence

Legal Knowledge and Ability

Professional Experience

Judicial Temperament

Financial Responsibility

Public Service

Health

Ability to fulfill the responsibilities and duties of the position

 You may submit your comments to president@hsba.org, which is a confidential account at the HSBA.  Alternatively, you may provide comments to any HSBA Board member directly, or you may fax comments to the HSBA at 808-521-7936.

 

Please take the time to read the Governor’s press release and the Judiciary's Press Release.

 All identifying information will be removed from your email comments before they are reviewed by the Board.  This ensures that your comments will remain confidential.  As is our procedure, the HSBA Board will interview these nominees and submit testimony at the Senate confirmation hearing based on a ranking in accordance with HSBA and ABA standards.

 Thank you for your participation in this important process. 

 Carol K. Muranaka

HSBA President

Chief Justice Seeks Comments on First Circuit, Family Court Nominees

We received the following email from the HSBA today regarding the nominees to the District Family Court of the First Circuit:

To members of the HSBA:

 Chief Justice Mark E. Recktenwald has released the list of judicial nominees that were provided to him by the Judicial Selection Commission to fill a newly created position at District Family Court of the First Circuit (Island of Oahu). The names of the nominees are:

 Brian A. Costa

Nelson W.S. Goo

Timothy E. Ho

Judith A. Schevtchuk

Curtis E. Sherwood

Kevin A. Souza

 Comments on the nominees must be sent no later than FRIDAY, DECEMBER 7, 2012 to:

 Chief Justice Mark E. Recktenwald

Supreme Court of Hawaii

417 S. King Street

Honolulu, HI 96813

Fax: 539-4703

Email: chiefjustice@courts.hawaii.gov   

 Please see the Judiciary’s press release. After the Chief Justice makes his selection, the HSBA will conduct an evaluation and an interview of the nominee.

 Thank you for your participation in this important process.

 Carol K. Muranaka

HSBA PRESIDENT

 

Evaluation of Hawaii Circuit Court Judges

The Hawaii Judiciary is conducting online evaluations of various Hawaii circuit court judges.  We recevied the following information via email:

This is a joint email from Chief Justice Mark E. Recktenwald and HSBA President Carol K. Muranaka. The Judiciary is conducting an online evaluation of Circuit Court Judges Patrick W. Border, Derrick H.M. Chan, Virginia Lea Crandall, Dexter D. Del Rosario, Glenn J. Kim, Edward H. Kubo Jr., Edwin C. Nacino, Greg K. Nakamura, and Karl K. Sakamoto.

The Judiciary and the HSBA encourage all members to participate in the evaluation process. If an insufficient number of evaluations for a particular judge is received, then that judge will not be evaluated. An independent consultant has determined that at least eighteen evaluations must be submitted in order for a judge to receive a reliable and accurate evaluation report.

 While this online judicial evaluation differs from the HSBA's judicial evaluation survey, both programs are designed to give you the opportunity to provide meaningful input concerning individual judges. Judges are receptive to receiving your comments, suggestions, and feedback. Your evaluations serve to enhance judicial performance and improve the judicial skills and techniques of Hawai'i’s judges.

 Please access [an individual link is provided to each attorney] to commence your judicial evaluations. The link is unique to your email address, so please do not forward this email. You may exit and later return to the evaluations simply by clicking this link. The judicial evaluations will remain accessible to you until August 17, 2012.

 To ensure security and confidentiality, the evaluation process is conducted by SurveyMonkey. It is administered by eHawaii.gov, which is independent of the Judiciary and the HSBA. Only composite results are transmitted to the Judiciary.

 The evaluation is designed to obtain fair assessments from attorneys who have actually appeared before the evaluated judge. Please ensure that your evaluation is based solely on your direct experience and not obtained through hearsay or through other means.

 If you did not appear before a judge, enter that option after selecting the judge's name. Also, if you do not wish to participate in future judicial evaluations, please select [an individual link is provided to each attorney] , and you will be removed from this mailing list.

 Thank you in advance for your participation. Click  [an individual link is provided to each attorney] for a list of Frequently Asked Questions. For other questions, please contact Michael Oki at (808)539-4870.

Sincerely,

Mark E. Recktenwald Chief Justice Supreme Court of Hawai'i

Carol K. Muranaka President Hawaii State Bar Association

 

HSBA Seeks Comments on Second Circuit Court Nominee Peter T. Cahill

We received the following email today from the HSBA regading the nominatioh of Mr. Peter T. Cahill to the Second Circuit Court: To members of the HSBA: Governor Neil Abercrombie has announced, subject to Senate confirmation, the nomination of Peter T. Cahill as Circuit Court Judge of the Second Circuit. In order to allow the HSBA Board to provide an informed recommendation to the Senate Committee on Judiciary and Labor, please submit your comments on this appointee.  We would appreciate the submission of your comments as soon as possible, but no later than 12 noon, Friday, June 15, 2012.  Please be as specific as possible in your comments and confine them to the following criteria used by the HSBA Board in reviewing an appointee: Integrity and Diligence Legal Knowledge and Ability Professional Experience Judicial Temperament Financial Responsibility Public Service Health Ability to fulfill the responsibilities and duties of the position You may submit your comments to president@hsba.org, which is a confidential account at the HSBA.  Alternatively, you may provide comments to any HSBA Board member directly, or you may fax comments to the HSBA at 808-521-7936.  Please take the time to read the story in the Star-Advertiser. All identifying information will be removed from your email comments before they are reviewed by the Board.  This ensures that your comments will remain confidential.  As is our procedure, the HSBA Board will interview the appointee and submit testimony before the Senate Committee on Judiciary and Labor on whether the appointee is qualified or not qualified. Thank you for your participation in this important process.  Carol K. Muranaka HSBA PRESIDENT