text:
    STATE of Hawai'i, Plaintiff-Appellant, v. Troy HOSAKA, Defendant-Appellee
    NO. CAAP-16-0000716
    Intermediate Court of Appeals of Hawai'i.
    MAY 17, 2019
    On the briefs:
    Brian R. Vincent, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellant.
    Howard K.K. Luke, Honolulu, for Defendant-Appellee.
   LEONARD, PRESIDING JUDGE, REIFURTH AND CHAN, JJ.

OPINION OF THE COURT BY CHAN. J.

Plaintiff-Appellant State of Hawai'i (State) appeals from the Findings of Fact; Conclusions of Law and Order Granting Defendant's Motion to Suppress Breath Test (Order Granting Motion to Suppress), filed on September 26, 2016, in the Circuit Court of the First Circuit (circuit court).

I. BACKGROUND

On January 11, 2016, Defendant-Appellee Troy Hosaka (Hosaka) was arrested by a Honolulu Police Department (HPD) officer for the offenses of Habitually Operating a Vehicle Under the Influence of an Intoxicant (Habitual OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E-61.5 (Supp. 2016), and Operating a Vehicle After License and Privilege Have Been Suspended or Revoked for Operating a Vehicle Under the Influence of an Intoxicant (Operating Vehicle After License Suspended/Revoked), in violation of HRS § 291E-62(a)(2) (Supp. 2016).

After Hosaka's arrest, the arresting officer read to Hosaka the provisions of the form titled "USE OF INTOXICANTS WHILE OPERATING A VEHICLE IMPLIED CONSENT FOR TESTING" (Implied Consent Form). The Implied Consent Form informed arrested individuals of the following information:

Pursuant to chapter 291E, Hawaii Revised Statutes (HRS), Use of Intoxicants While Operating a Vehicle, you are being informed of the following:
1. ___ Any person who operates a vehicle upon a public way, street, road, or highway or on or in the waters of the State shall be deemed to have given consent to a test or tests for the purpose of determining alcohol concentration or drug content of the person[']s breath, blood, or urine as applicable.
2. ___ You are not entitled to an attorney before you submit to any tests [sic] or tests to determine your alcohol and/or drug content.
3. ___ You may refuse to submit to a breath or blood test, or both for the purpose of determining alcohol concentration and/or blood or urine test, or both for the purpose of determining drug content. If you do refuse, then none shall be given, except as provided in section 291E-21. However, if you refuse to submit to a breath, blood, or urine test, you may be subject to up to the sanctions of 291E-65 if you are under 21 years of age at the time of the offense. In addition, you may also be subject to the procedures and sanctions under chapter 291E, part III.

Hosaka initialed next to each section to indicate his acknowledgment of the information provided therein. Hosaka also initialed next to "AGREED TO TAKE A BREATH TEST AND REFUSED THE BLOOD TEST" and signed his name at the bottom of the form. Upon Hosaka's signing of the Implied Consent Form, an HPD officer administered a breath test to Hosaka and the results of the breath test were incorporated into the police reports generated for this case.

The State charged Hosaka with: one count of Habitual OVUII, in violation of HRS §§ 291E-61.5(a)(1) and (a)(2)(A) (Supp. 2016) and/or 291E-61.5(a)(1) and (a)(2)(c) (Supp. 2016); and one count of Operating Vehicle After License Suspended/Revoked, in violation of HRS § 291E-62(a)(2) (Supp. 2016).

On August 10, 2016, Hosaka filed a Motion to Suppress Breath Test (Motion to Suppress) to preclude the use of any evidence derived from the breath test at trial. Hosaka contended that the Implied Consent Form did not follow the procedure required by HRS §§ 291E-11 (2007) and 291E-15 (Supp. 2015), rendering his purported consent to be involuntary, and therefore the breath test constituted a warrantless search in violation of his due process rights.

On September 7, 2016, at the hearing on the Motion to Suppress, the circuit court orally granted the Motion to Suppress. The circuit court subsequently issued its Order Granting Motion to Suppress on September 26, 2016.

II. POINTS OF ERROR

On appeal, the State contends that the circuit court erred in making the following conclusions of law in granting Hosaka's Motion to Suppress:

(1) that the standard HPD Implied Consent Form "does not comply with the requirements and mandate of HRS Sections 291E-11, 291E-15, and 291E-65, read in pari materia ," because it does not give an OVUII suspect an "unencumbered choice to refuse to submit to a test for alcohol concentration" and that therefore any purported consent given by an OVUII suspect pursuant to that form is "null and void";

(2) that "burdening an arrestee's election to refuse with any significant sanctions cannot help but render any subsequent purported consent legally insufficient and therefore null and void"; and

(3) that because "[t]here is categorically no possibility for an arrestee to know that the sanctions are solely administrative rather than criminal, much less exactly what those sanctions specifically are, or even what they may be," it is "simply not possible" for an arrestee to give " 'knowing' or 'intelligent' " consent.

III. STANDARDS OF REVIEW

A trial court's ruling on a motion to suppress evidence is reviewed de novo to determine whether the ruling was "right" or "wrong." State v. Edwards, 96 Hawai'i 224, 231, 30 P.3d 238, 245 (2001). "[F]actual determinations made by the trial court deciding pretrial motions in a criminal case [are] governed by the clearly erroneous standard[,]" and "conclusions of law are reviewed under the right/wrong standard." Id. (quoting State v. Eleneki, 92 Hawai'i 562, 564, 993 P.2d 1191, 1193 (2000) ).

Statutory interpretation is "a question of law reviewable de novo ." State v. Levi, 102 Hawai'i 282, 285, 75 P.3d 1173, 1176 (2003) (citation omitted). Statutory construction is guided by established rules:

First, the fundamental starting point for statutory interpretation is the language of the statute itself. Second, where the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning. Third, implicit in the task of statutory construction is our foremost obligation to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. Fourth, when there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists.

State v. Bayly, 118 Hawai'i 1, 6, 185 P.3d 186, 191 (2008) (citation omitted).

IV. DISCUSSION

A. Compliance with Hawai'i Law Governing Use of Intoxicants

The State argues that the Implied Consent Form fully complied with the requirements of HRS §§ 291E-11, 291E-15, and 291E-65, read in pari materia. The State contends that the circuit court erred in concluding that an OVUII arrestee must be given an "unencumbered choice to refuse to submit to a test for alcohol concentration" because the plain language of the statutes does not contain such a requirement. The State also argues that the proper result of a failure to comply with the procedure established in HRS § 291E-15 is the prohibition of the imposition of sanctions under part III or IV of HRS chapter 291E, rather than the suppression of an otherwise valid breath test.

We first address whether the Implied Consent Form complies with the requirements provided in the relevant statutory provisions. This state's implied consent statute is HRS § 291E-11 (2007), which provides, in relevant part:

§ 291E-11 Implied consent of operator of vehicle to submit to testing to determine alcohol concentration and drug content. (a) Any person who operates a vehicle upon a public way, street, road, or highway or on or in the waters of the State shall be deemed to have given consent, subject to this part, to a test or tests approved by the director of health of the person's breath, blood, or urine for the purpose of determining alcohol concentration or drug content of the person's breath, blood, or urine, as applicable.
(b) The test or tests shall be administered at the request of a law enforcement officer having probable cause to believe the person operating a vehicle upon a public way, street, road, or highway or on or in the waters of the State is under the influence of an intoxicant or is under the age of twenty-one and has consumed a measurable amount of alcohol, only after:
(1) A lawful arrest; and
(2) The person has been informed by a law enforcement officer that the person may refuse to submit to testing under this chapter.

Under the implied consent statute, all drivers on roads in Hawai'i are deemed to have given consent to submit to a test of their breath, blood, or urine for the purpose of determining alcohol concentration or drug content. Before such test is administered, however, the officer must inform the individual that the individual has a right to refuse to submit to testing and so withdraw his or her implied consent.

At the time of Hosaka's arrest, HRS § 291E-15 (Supp. 2015) provided:

§ 291E-15 Refusal to submit to breath, blood, or urine test; subject to administrative revocation proceedings. If a person under arrest refuses to submit to a breath, blood, or urine test, none shall be given, except as provided in section 291E-21. Upon the law enforcement officer's determination that the person under arrest has refused to submit to a breath, blood, or urine test, if applicable, then a law enforcement officer shall:
(1) Inform the person under arrest of the sanctions under section 291E-41, 291E-65, or 291E-68 ;[ ] and (2) Ask the person if the person still refuses to submit to a breath, blood, or urine test, thereby subjecting the person to the procedures 3 and sanctions under part III or section 291E-65, as applicable;
provided that if the law enforcement officer fails to comply with paragraphs (1) and (2), the person shall not be subject to the refusal sanctions under part III or IV.

(Emphases added). We construe HRS § 291E-15 as requiring that the arrestee have an initial opportunity to refuse to submit to testing before being informed of the possible sanctions for such refusal. Under HRS § 291E-15(2), the arrestee must then have a second opportunity, after being informed about the possible sanctions, to refuse to submit to testing. Read in pari materia with HRS § 291E-11 -- which provides that a test may be administered under the implied consent scheme only where there has been an arrest and the arrestee has been informed of the right to refuse -- HRS § 291E-15 provides further instruction in cases where an arrestee exercises the right to withdraw consent and refuses to submit to testing.

The distinction between the two separate opportunities to refuse to submit to testing is further illustrated in HRS § 291E-65 (Supp. 2016), which applies to an arrestee who is under the age of twenty-one at the time of arrest, and establishes administrative sanctions for the refusal to consent and the procedure leading up to the imposition of such sanctions. At the time of Hosaka's arrest, HRS § 291E-65 (Supp. 2016) provided, in relevant part:

§ 291E-65 Refusal to submit to testing for measurable amount of alcohol; district court hearing; sanctions; appeals; admissibility. (a) If a person under arrest for operating a vehicle after consuming a measurable amount of alcohol, pursuant to section 291E-64, refuses to submit to a breath or blood test, none shall be given, except as provided in section 291E-21, but the arresting law enforcement officer, as soon as practicable, shall submit an affidavit to a district judge of the circuit in which the arrest was made, stating:
(1) That at the time of the arrest, the arresting officer had probable cause to believe the arrested person was under the age of twenty-one and had been operating a vehicle upon a public way, street, road, or highway or on or in the waters of the State with a measurable amount of alcohol;
(2) That the arrested person was informed that the person may refuse to submit to a breath or blood test, in compliance with section 291E-11 ;
(3) That the person had refused to submit to a breath or blood test;
(4) That the arrested person was:
(A) Informed of the sanctions of this section; and then
(B) Asked if the person still refuses to submit to a breath or blood test, in compliance with the requirements of section 291E-15 ; and
(5) That the arrested person continued to refuse to submit to a breath or blood test.
(b) Upon receipt of the affidavit, the district judge shall hold a hearing within twenty days. The district judge shall hear and determine:
(1) Whether the arresting law enforcement officer had probable cause to believe that the person was under the age of twenty-one and had been operating a vehicle upon a public way, street, road, or highway or on or in the waters of the State with a measurable amount of alcohol;
(2) Whether the person was lawfully arrested;
(3) Whether the person was informed that the person may refuse to submit to a breath or blood test, in compliance with section 291E-11 ;
(4) Whether the person refused to submit to a test of the person's breath or blood;
(5) Whether the person was:
(A) Informed of the sanctions of this section; and then
(B) Asked if the person still refuses to submit to a breath or blood test, in compliance with the requirements of section 291E-15 ; and
(6) Whether the person continued to refuse to submit to a breath or blood test.
(c) If the district judge finds the statements contained in the affidavit are true, the judge shall suspend the arrested person's license and privilege to operate a vehicle as follows:
(1) For a first suspension, or any suspension not preceded within a five-year period by a suspension under this section, for a period of twelve months; and
(2) For any subsequent suspension under this section, for a period not less than two years and not more than five years.
(d) An order of a district court issued under this section may be appealed to the supreme court.

(Emphases added). Under HRS § 291E-65, the district court may only impose administrative sanctions (in the form of a suspension of the arrestee's license and privilege to operate a vehicle) upon its determination that a delineated process was adhered to by the arresting officer. Notably, this process includes two distinct opportunities for the arrestee to refuse to submit to testing - once after being informed of the right to refuse and before being informed of possible sanctions for a refusal, and once again after being informed of the possible sanctions for refusal.

This reading of HRS §§ 291E-11 and 291E-15 is further supported by the committee reports on the bill that substantially amended HRS § 291E-15 into the form applicable at the time of Hosaka's offense. House Bill No. 3257 (H.B. No. 3257) was introduced in the Hawai'i Legislature in 2006 and eventually enacted into law as Act 64. 2006 Haw. Sess, Laws Act 64, at 96-101. Committee reports regarding H.B. No. 3257 discussed the bill's purpose as simplifying the implied consent process for OVUII arrestees by, inter alia, only requiring law enforcement officers to inform an arrestee of the possible sanctions if the arrestee initially refuses.

The Committee on Transportation stated:

Specifically, this measure provides that a law enforcement officer is only required to inform a suspect of possible sanctions that may be imposed for the suspect's refusal to take a test to determine alcohol concentration in the suspect's breath or blood or drug content of the suspect's blood or urine only if the person withdraws the consent to testing that is implied when operating a motor vehicle on a public highway or in the public waters of Hawaii.
....
... This measure is an attempt to simplify [the implied consent] process while protecting the rights of the accused by clarifying that information on the consequences of refusing to submit to a blood, breath, or urine test only need to be read to an individual if the individual refuses to submit to such a test. Your Committee believes that this bill will support law enforcement and increase traffic safety.

H. Stand. Comm. Rep. No. 310-06, in 2006 House Journal, at 1217-18 (emphases added). The Committee on Judiciary and Hawaiian Affairs similarly stated: "Your Committee further finds that under this measure, drivers who first refuse to submit to a breath, blood, or urine test may change their minds after they are informed of the sanctions resulting from a refusal ...." Sen. Stand. Comm. Rep. No. 3303, in 2006 Senate Journal, at 1587 (emphasis added). The 2006 amendment to HRS § 291E-15 accomplishes the legislature's intent to simplify the implied consent process by only requiring the arresting officer to inform the arrestee of the possible sanctions after the arrestee initially refuses, thereby allowing an arresting officer to avoid additional steps of informing an arrestee of possible sanctions if the arrestee decides to consent to testing and forgo his or her right to refuse (with knowledge of the right to refuse under HRS § 291E-11 ). Thus, the committee reports support our reading of HRS § 291E-15 as providing that an arrestee is to be given an initial opportunity to refuse to submit to testing before he or she is informed of the possible sanctions for a refusal to consent, and then the arrestee is to again be asked if he or she still refuses after being informed of the possible sanctions.

Based on our reading of HRS §§ 291E-11 and 291E-15, read in pari materia, and our interpretation of the legislative intent behind these statutes, we conclude that the Implied Consent Form did not comport with the procedure set forth in HRS §§ 291E-11 and 291E-15 because it did not provide an initial opportunity for Hosaka to refuse to submit to testing before being informed of possible sanctions.

We now turn to whether suppression of the breath test was a proper remedy for the arresting officer's failure to provide an initial opportunity to refuse. In support of the suppression of his breath test, Hosaka contends that the Implied Consent Form inaccurately implemented the procedure set forth in HRS § 291E-15 and therefore inaccurately stated that sanctions may be imposed. In so arguing, Hosaka relies on a provision in HRS § 291E-15 directing that "if the law enforcement officer fails to comply with paragraphs (1) and (2)," the arrestee "shall not be subject to the refusal sanctions under part III or IV." Based on this provision, Hosaka argues that sanctions would not be imposed due to the failure to follow the procedure and the Implied Consent Form included information that was inaccurate because it incorrectly provided that the arrestee may be subject to sanctions as a result of refusing to take a breath test. Hosaka thus contends that because of this inaccurate information, his consent was illegally obtained and therefore null and void. See Wilson, 92 Hawai'i at 53-54, 987 P.2d at 276-77 (affirming the suppression of the results of a blood alcohol test because the implied consent form provided "inaccurate and misleading" information on the penalties for failing a blood alcohol test, rendering a defendant's consent to submit to such a test not knowing and intelligent).

We do not agree with Hosaka's interpretation of HRS § 291E-15 as barring the imposition of sanctions where an arrestee was not given two distinct opportunities to refuse to submit to testing. Rather, we interpret the provision as barring the imposition of sanctions where the arrestee was not informed of the sanctions . In directing when sanctions shall not be imposed, the statute specifically refers to a failure to comply with "paragraphs (1) and (2)," which only provide that an arresting officer (1) inform the arrestee of the possible sanctions and then (2) give the arrestee an opportunity to refuse upon being informed of the possible sanctions. A bar on the imposition of sanctions does not result from a failure to give an arrestee the initial opportunity to refuse -- it only results from a failure to inform of the sanctions with an opportunity to refuse at that time.

In this case, the Implied Consent Form did inform Hosaka of the possible sanctions and Hosaka was given an opportunity to refuse with that information in mind. The Implied Consent Form therefore complied with paragraphs (1) and (2) of HRS § 291E-15 and it correctly stated that sanctions may be imposed. Accordingly, the Implied Consent Form did not include inaccurate or misleading information about whether sanctions may be imposed and Hosaka's consent cannot be considered uninformed on this basis. Thus, the circuit court erred in granting Hosaka's Motion to Suppress on the basis that the Implied Consent Form contained inaccurate or misleading information because it did not comply with the procedure set forth in HRS §§ 291E-11 and 291E-15.

B. Civil Administrative Sanctions

The State next contends that the circuit court erred when it concluded that an arrestee's consent is insufficient and therefore null and void where the arrestee's election to refuse to consent is "burden[ed]" by "any significant sanction[ ]" and not just criminal sanctions. The State also contends that the circuit court erred when it concluded that because there is "no possibility for an arrestee to know that the sanctions [referenced in the Implied Consent Form] are solely administrative rather than criminal, much less exactly what those sanctions specifically are, or even what they may be ," it is "simply not possible" for an arrestee to give " 'knowing' or 'intelligent' " consent.

The Implied Consent Form includes references to the statutory sections establishing civil administrative sanctions in the form of a suspension or extended revocation of an arrestee's driver's license. See HRS §§ 291E-41, 291E-65. The circuit court appears to have weighed the significance of these civil administrative sanctions just as heavily as that of criminal sanctions, which the Hawai'i Supreme Court has deemed improper.

In State v. Yong Shik Won, 137 Hawai'i 330, 372 P.3d 1065 (2015), the Hawai'i Supreme Court held that the threat of criminal sanctions effectively coerces an arrestee into consenting to a blood alcohol concentration (BAC) test, rendering the arrestee's consent involuntary. However, the supreme court explicitly noted that its holding did not affect the civil penalties resulting from a refusal to submit to BAC testing. Id. at 349 n.34, 372 P.3d at 1084 n.34 ("It bears repeating here that this opinion does not concern the civil administrative penalties attendant to a driver's refusal of BAC testing. Those types of sanctions are not affected in any way by our decision." (Internal citations omitted)). The supreme court pointed out that it has upheld civil license revocation on several occasions. Id. at 334, 372 P.3d at 1069 (citing Dunaway v. Admin. Dir. of Courts, 108 Hawai'i 78, 87, 117 P.3d 109, 118 (2005) ; Kernan v. Tanaka, 75 Haw. 1, 22, 856 P.2d 1207, 1218 (1993) ; State v. Severino, 56 Haw. 378, 380-81, 537 P.2d 1187, 1189 (1975) ).

Under the holding in Won, "the police could obtain a valid consent to testing from an arrested driver by omitting the warning that refusal to consent would subject the driver to criminal penalties" and only advising the driver of the statutory civil administrative penalties. State v. Wilson, 141 Hawai'i 459, 462-63 & 463 n.7, 413 P.3d 363, 366-67 & 367 n.7 (App. 2018) (citing Won, 137 Hawai'i at 349 n.34, 372 P.3d at 1084 n.34 ), cert. granted, No. SCWC-15-0000682, 2018 WL 2949142 (Haw. June 13, 2018). The form at issue in Won stated that if the arrestee refused to submit to testing, the arrestee "shall be subject to up to thirty days imprisonment and/or fine up to $1,000 or the sanctions of 291E-65, if applicable[,]" and "shall also be subject to the procedures and sanctions under chapter 291E, part III." Won, 137 Hawai'i at 335, 372 P.3d at 1070. In this case, the Implied Consent Form omitted the reference to the criminal sanctions of imprisonment and the $1,000 fine and used the word "may" in place of the word "shall." It only advised Hosaka of the statutory civil administrative penalties and therefore was in a form that the supreme court stated would result in valid consent. See id. at 349 n.34, 372 P.3d at 1084 n.34. Viewing Won as controlling precedent, we conclude that Hosaka's consent given pursuant to the Implied Consent Form was valid.

Thus, the circuit court erred in concluding that burdening an arrestee's election to refuse to submit to testing with any significant sanctions renders the arrestee's consent invalid, and also erred in relying on the grounds that the arrestee cannot know what exactly the sanctions are and that the sanctions are solely administrative. The circuit court accordingly erred in granting Hosaka's Motion to Suppress on this basis.

V. CONCLUSION

Based on the foregoing, the "Findings of Fact; Conclusions of Law and Order Granting Defendant's Motion to Suppress Breath Test" entered on September 26, 2016, in the Circuit Court of the First Circuit, is vacated and we remand this case for further proceedings.

      The Honorable Glenn J. Kim presided.

      The Implied Consent Form is identified as "HPD-396K (R-11/15)" at the bottom left of the form.

      HRS § 291E-68, which provided for criminal sanctions, was repealed by the legislature in 2016 in response to Hawai'i case law. See 2016 Haw. Sess. Laws Act 17, § 2 at 21. At the same time, HRS § 291E-15 was amended to remove the reference to HRS § 291E-68. See id. § 1 at 21. Because of these legislative amendments, we do not address HRS § 291E-68 as a requirement in our discussion of the implied consent scheme herein.

      Although HRS § 291E-65 deals with administrative matters of an arrest under HRS § 291E-64 (2007) (Operating a vehicle after consuming a measurable amount of alcohol) for a person under the age of twenty-one at the time of the offense, the procedure leading up to whether the administrative sanctions are to be imposed on the arrestee is sufficiently related to our analysis of Hosaka's rights in his criminal proceedings because administrative matters of license suspensions/revocations and their criminal counterparts are part of the same statutory scheme to prevent and address drunk driving. See State v. Wilson, 92 Hawai'i 45, 52, 987 P.2d 268, 275 (1999).

      Our interpretation is also supported by part III of HRS Chapter 291E, which addresses the administrative revocation process for suspension of a person's license and privilege to operate a vehicle. Within part III, HRS § 291E-41 (c) (Supp. 2016) provides that sanctions are to be imposed for a person's refusal to submit to testing where the person is informed: (1) that the person may refuse to submit to testing pursuant to HRS § 291E-11 ; and (2) of the sanctions under part III of HRS chapter 291E and then asked if the person still refuses to submit to a test, pursuant to HRS § 291E-15. The requirement of giving an arrestee an initial opportunity to refuse before being informed of the sanctions is not considered in determining whether sanctions are to be imposed. Thus, a failure to provide the initial opportunity to refuse does not bar the imposition of such sanctions.

      We also note that, as discussed supra, the legislative intent behind offering an initial opportunity for the arrestee to refuse was to simplify and shorten the implied consent process for law enforcement officers. Based on this reasoning, a failure to give an arrestee the initial opportunity to refuse does not affect the admissibility of a breath test to which an arrestee otherwise consented.

      This case is distinguishable from other cases in which the supreme court held that the arrestee did not knowingly and intelligently consent to the breath test. In those cases, the arresting officer provided information that was inaccurate or incomplete so as to mislead the arrestee. See, e.g., Castro v. Admin. Dir. of the Courts, 97 Hawai'i 463, 468-70, 40 P.3d 865, 870-73 (2002) (holding that where the meaning of "prior alcohol enforcement contact" was not explained when arrestee was advised of the potential length of license revocation for refusal to take a BAC test or for failing such a test, arrestee's consent was not knowingly and intelligently made); Wilson, 92 Hawai'i 45, 51, 987 P.2d 268, 274 (holding that the arresting officer's statement to an arrestee that a three month revocation would apply for failing the test was inaccurate and misleading when in fact the arrestee was subject to revocation for up to one year). Here, it is undisputed that the Implied Consent Form provided information that was accurate. There was no information given in the Implied Consent Form that was only partially complete so as to mislead Hosaka into consenting to the testing. The Implied Consent Form complied with the mandate in HRS § 291E-15 for an arresting officer to "[i]nform the person under arrest of the sanctions under section 291E-41 [ ] [or] 291E-65."


source: Caselaw Access Project

license: Public Domain

text:
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    Affirmed.


text:
    James K. LIBERO, Petitioner-Appellant, v. STATE of Hawai'i, Respondent-Appellee
    NO. CAAP-18-0000084
    Intermediate Court of Appeals of Hawai'i.
    June 27, 2019.
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Jesse W. JONES, Defendant-Appellant
    NOS. CAAP-16-0000096 & CAAP-16-0000597
    Intermediate Court of Appeals of Hawai'i.
    June 27, 2019
    MEMORANDUM OPINION
    Affirm. Vacate. Remand.


text:
    VENTURES TRUST 2013-I-H-R BY MCM CAPITAL PARTNERS, LLC, its Trustee, Plaintiff-Appellee, v. Andrea LAURIN, Defendant-Appellant, and Andrea Giammettei; Mortgage Electronic Registration Systems, Inc. solely as nominee for Home Savings Mortgage, Inc.; Waiakoa Estates Property Owners Association, Defendants-Appellees, and John Does 1-50; Jane Does 1-50; Doe Partnerships 1-50; Doe Corporations 1-50; Doe Entities 1-50; and Doe Governmental Units 1-50, Defendants
    NOS. CAAP-17-0000849 AND CAAP-18-0000032
    Intermediate Court of Appeals of Hawai'i.
    June 26, 2019.
    SUMMARY DISPOSITION ORDER
    Affirm.


text:
    VICTORIA WARD CENTER, L.L.C., a Delaware limited liability company, Plaintiff/Counterclaim-Defendant/Appellee/Cross-Appellant, v. GOLD GUYS HOLDINGS, LLC, a Minnesota limited liability company, dba Gold Guys Hawaii, LLC, a Hawaii limited liability company, Defendant/Counterclaim-Plaintiff/Appellant/Cross-Appellee, and Shane A. Maguire, Defendant/Appellant/Cross-Appellee
    Victoria Ward Center, L.L.C., a Delaware limited liability company, Plaintiff/Counterclaim-Defendant/Appellee/Cross-Appellant, v. Gold Guys Holdings, LLC, a Minnesota limited liability company, dba Gold Guys Hawaii, LLC, a Hawaii limited liability company, Defendant/Counterclaim-Plaintiff/Appellant/Cross-Appellee, and Shane A. Maguire, Defendant/Appellant/Cross-Appellee
    Victoria Ward Center, L.L.C., a Delaware limited liability company, Plaintiff/Counterclaim-Defendant/Appellee/Cross-Appellant, v. Gold Guys Holdings, LLC, a Minnesota limited liability company, dba Gold Guys Hawaii, LLC, a Hawaii limited liability company, Defendant/Counterclaim-Plaintiff/Appellant/Cross-Appellee, and Shane A. Maguire, Defendant/Appellant/Cross-Appellee
    NOS. CAAP-16-0000211 CAAP-16-0000581 AND CAAP-16-0000622
    Intermediate Court of Appeals of Hawai'i.
    June 27, 2019
    MEMORANDUM OPINION
    AFFIRM. VACATE. Remand.


text:
    TRUSTEES OF the ESTATE OF Bernice Pauahi BISHOP, also known as Kamehameha Schools, Plaintiffs-Counterclaim Defendants/Appellees, v. Ronald G.S. AU, Defendant-Counterclaimant/Appellant
    NO. CAAP-16-0000235
    Intermediate Court of Appeals of Hawai'i.
    June 28, 2019.
    On the briefs:
    Ronald G.S. Au, Defendant/Counterclaimant-Appellant, pro se.
    Dennis W. Cheong Kee, Christopher T. Goodin, (Cades Schutte), for Plaintiffs/Counterclaim Defendants-Appellees.
    (By: Ginoza, Chief Judge, Fujise and Reifurth, JJ.)
   SUMMARY DISPOSITION ORDER

Defendant-Counterclaimant/Appellant Ronald G.S. Au (Au) appeals from the February 29, 2016 "Order Granting [Plaintiffs-Counterclaim Defendants/Appellees' Trustees of the Estate of Bernice Pauahi Bishop also known as Kamehameha Schools (KS) ] Motion to Declare Ronald G.S. Au a Vexatious Litigant Filed on December 29, 2015" (Order) entered by the Circuit Court of the First Circuit (Circuit Court).

On appeal, Au contends the Circuit Court: (1) erred by interpreting the Hawaii Revised Statutes (HRS) 634J-l (2016) definition of "plaintiff" to apply to a defendant/counterclaimant for the purpose of determining which party may be deemed a vexatious litigant; (2) could not deem Au a vexatious litigant without first finding the underlying motions to have been filed in bad faith, unmeritorious, frivolous, or solely intended to cause delay; (3) abused its discretion by concluding Au's April 22, 2015 Hawai'i Rules of Civil Procedure (HRCP) Rule 60(b) motion constituted an impermissible second motion for reconsideration; (4) erred by failing to specify in what respect his seven motions sought to relitigate the merits of the summary judgment granted in KS's favor and by considering motions on appeal in CAAP-15-0000466 to deem Au to be a vexatious litigant; and (5) erred by not making necessary findings of fact (FOF) and conclusions of law (COL) in determining Au to be a vexatious litigant as required by HRCP Rule 52(a).

After reviewing the record on appeal and the relevant legal authorities, and giving due consideration to the issues raised and the arguments made by the parties, we resolve Au's arguments as follows and affirm.

1. Au contends the Circuit Court erred by interpreting the HRS § 634J-1 definition of "plaintiff" to apply to him as a defendant-counterclaimant for the purpose of determining which party may be deemed a vexatious litigant.

On the motion, the Circuit Court ruled:

1. In looking at Haw. Rev. Stat. Ch. 634J ("Ch. 634J"), the Court agrees that the individual covered by Ch. 634J, meaning the plaintiff, is not necessarily the plaintiff in and of itself but, as pointed out by counsel for KS, the definition is more expansive, defining plaintiff as a person who commences, institutes, or maintains litigation, or causes it to be maintained.

The court's statutory interpretation is reviewed de novo based on the following factors:

First, the fundamental starting point for statutory interpretation is the language of the statute itself. Second, where the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning. Third, implicit in the task of statutory construction is our foremost obligation to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself.

State v. Dunbar, 139 Hawai'i 9, 13, 383 P.3d 112, 116 (App. 2016) (citations and block formatting omitted). The language of HRS § 634J-l provides, " 'Plaintiff' means the person who commences, institutes or maintains litigation or causes it to be commenced, instituted, or maintained, including an attorney at law acting on the attorney's own behalf." Au urges reading the word plaintiff as it is commonly understood, in accordance with the general rule. HRS § 1-14 (2009) ("The words of a law are generally to be understood in their most known and usual signification."). However, "[t]he legislature has a broad power to define terms for a particular legislative purpose, and the courts, as a general rule of construction, are bound to follow legislative definitions of terms rather than commonly accepted dictionary, judicial or scientific definitions." State v. Kantner, 53 Haw. 327, 329, 493 P.2d 306, 308 (1972) ; see also Walling v. Portland Terminal Co., 330 U.S. 148 (1947) (statutory definition of "employees" contained in Fair Labor Standards Act held binding on the court).

Here, the Legislature, by providing a unique definition for the word "plaintiff," has manifested a clear intent to give meaning to the word which is different from the dictionary definition. Thus, we must give effect to the intent of the Legislature obtained from the language of the statute.

For the purposes of HRS § 634J-1, Au is a plaintiff because he is "the person who ... maintains litigation or causes it to be ... maintained [.]" HRS § 634J-1 (emphasis added). Webster's provides two definitions that support this reading; maintain means "to sustain against opposition or danger" or "to continue or persevere in[.]" Maintain, Merriam-Webster's Collegiate Dictionary (11th ed. 2003). HRS § 634J-1 provides " 'Litigation' means any civil action or proceeding, commenced, maintained, or pending in any state or federal court of record." It is undisputed that Au filed his counterclaims as well as numerous motions, and that several of these filings prolonged the proceedings after the granting of summary judgment. ,

Au further appears to argue that, because some of his counterclaims were compulsory, the Circuit Court could not consider the Motion for Reconsideration to constitute a basis for deeming him a vexatious litigant. Au cites no authority supporting this argument. In- any event, the issue is not whether the counterclaims were compulsory, but whether a counterclaimant meets the definition of plaintiff for the purposes of a vexatious litigant provided by HRS § 634J-1 as determined by his conduct of litigation.

Therefore, Au's first argument is without merit.

2, 3, and 4. Au argues that the Circuit Court erred in its determination that he was a vexatious litigant.

The standard of review for a vexatious litigant determination is abuse of discretion. Ek v. Boggs, 102 Hawai'i 289, 294, 75 P.3d 1180, 1185 (2003). "The trial court abuses its discretion when it clearly exceeds the bounds of reason or disregards rules or principles of law or practice to the substantial detriment of a party litigant." State v. Plichta, 116 Hawai'i 200, 214, 172 P.3d 512, 526 (2007) (citations and internal quotation marks omitted). We have previously said, "HRS § 634J-l sets forth three separate definitions for 'vexatious litigant[,]' and a plaintiff is a vexatious litigant if he or she meets any of the three definitions." Grindling v. Maui Police Dept., 127 Hawai'i 241, 277 P.3d 335, CAAP-11-0000004, 2012 WL 1834686, at *1 (App. May 21, 2012) (SDO) (footnote omitted).

Here, the court concluded Au met two of the definitions of a vexatious litigant, either under HRS § 634J-1(2) (relitigation of claims finally resolved) or, in the alterative, subsection (3) (filing bad faith, unmeritorious filings, unnecessary discovery or frivolous tactics). See n.2 supra.

Supporting its determination, the Circuit Court identified the fact that summary judgment was granted against Au on September 18, 2013, as representing a final determination, (the Summary Judgment Order) the court denied his formal motion for reconsideration on April 30, 2014, and thereafter, Au filed "approximately seven motions" under different titles asking the court to relitigate the Summary Judgment Order. These motions were not identified in the Order, however KS identified Au's seven motions in its motion to declare Au a vexatious litigant and at the hearing on its motion, identifying each of Au's motions by their filing dates.

After conducting an independent review of these motions, we agree with the Circuit Court that the motions essentially "relitigate the merits of the issues that the Court already disposed of by granting the Summary Judgment Motion." "[M]otions for reconsideration or for relief from judgment under [HRCP] Rule 60(b) (2006) are not 'device[s] to relitigate old matters or to raise arguments or evidence that could and should have been brought during the earlier proceeding.' " Trs. of the Estate of Bishop v. Au, 141 Hawai'i 248, 407 P.3d 1284, CAAP-15-0000466, 2017 WL 6614566, at *3 (App. Dec. 22, 2017) (SDO) (Au I), (quoting Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawaii 92, 104, 176 P.3d 91, 103 (2008) ). In his September 25, 2013 motion for reconsideration, Au argued that the Circuit Court should have considered matters that were on file at the time of KS's motion for summary judgment on their claims. As this court held in Au I, Au's April 22, 2015 HRCP Rule 60(b) motion presented an argument based on information-the county's property tax refund--that Au knew or should have known about at the time of the summary judgment motions (the Overcharge Argument). Au I, at *3. In his May 21, 2015 motion for reconsideration, Au again asserted the Overcharge Argument, that there was a "gross error" in the computation of the summary judgment's damage award. The May 29, 2015 motion for reconsideration of the summary judgment granted on his counterclaim again makes the Overcharge Argument and adds Au's claim that KS unilaterally imposed financial qualifications on his assignee and repeats arguments in opposition to the summary judgment. In his June 29, 2015 motion to vacate the June 12, 2015 Judgment, he argues the judgment was premature because a motion to reconsider had not been decided but also makes the Overcharge Argument. Au's August 25, 2015 HRCP Rule 60(b) motion alleged that the June 12, 2015 Judgment was not in fact the final judgment and was a mistake, depriving him of his right to appeal. Finally, more than six months after the June 12, 2015 Final Judgment was entered, Au filed a motion to stay enforcement of the same, and again making the Overcharge Argument.

Thus, Au meets the HRS § 634J-1(2) definition of a vexatious litigant because he continued to relitigate or attempt to relitigate issues of law or fact finally determined against him. See Taylor v. Kahala Hotel Inv'rs, 142 Hawai'i 209, 416 P.3d 930, CAAP-17-0000512, 2018 WL 1870545, at *1 (App. Apr. 19, 2018) (SDO) (affirming finding that Taylor was a vexatious litigant for, inter alia , repeatedly filing motions to relitigate matters already adjudicated). Therefore, we cannot say the trial court exceeded the bounds of reason or disregarded rules or principles of law or practice in making this determination. Thus, the Circuit Court did not abuse its discretion in finding Au to be a vexatious litigant.

In point of error (2), Au asserts that under HRS § 634J-1(3), the Circuit Court could not deem him a vexatious litigant without first finding the underlying motions to have been filed in bad faith, unmeritorious, frivolous, or solely intended to cause delay.

Hawai'i appellate courts have defined "bad faith" as "actual or constructive fraud or a neglect or refusal to fulfill some duty ... not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive." Bank of Hawaii v. Kunimoto, 91 Hawaii 372, 390, 984 P.2d 1198, 1216 (1999) (citation and internal quotation marks omitted). However, the words "bad faith" need not be explicitly stated in the sanctioning order. Id. This court addressed this issue in In re Marn Family Litig., 129 Hawai'i 105, 294 P.3d 1091, No. 29448, 2013 WL 514255, at *2 (App. Feb. 12, 2013) (SDO). There, we found the record supported finding Marn acted in bad faith by making repeated filings attempting to circumvent a 10-page limit. Id.

Here, as demonstrated above, Au filed numerous and duplicative motions essentially challenging the original summary judgment order. Therefore, the Circuit Court could infer bad faith from Au's insistence on refiling the same issues in differently titled motions absent a specific finding of bad faith.

Because there is a sufficient basis in the record to find Au a vexatious litigant under HRS § 634J-1(2), we need not address Au's specific argument with regard to HRS § 634J-1(3) that there was no finding the motions were "unmeritorious, frivolous, or solely intended to cause delay". Thus, Au's claim is without merit.

In point of error (3), Au argues the Circuit Court abused its discretion by concluding Au's April 22, 2015 HRCP Rule 60(b) motion constituted an impermissible second motion for reconsideration. We note that Au spends the entirety of the body of this point of error relitigating the merits of the Overcharge Argument, which this court recently found without merit. Au I, 2017 WL 6614566, at *3. However, taking what we can of the argument from the point of error itself, it appears Au is arguing the designation of the April 22, 2015 motion as a Rule 60(b) was somehow taken into account in the determination that Au is a vexatious litigant. This argument does not comport with the facts. The Circuit Court's order specifies, "[n]otwithstanding the different titles of these motions, the motions in essence ask the Court to reconsider, to correct, to modify, or to adjust the Summary Judgment Order and to in essence relitigate the merits of the issues that the Court already disposed of by granting the Summary Judgment Motion" (emphasis added). Here, irrespective of the depiction of the nature of the motion by the court, the court made the finding Au was a vexatious litigant based on the content of the motions. We agree with the Circuit Court's depiction of these motions. Thus, Au's argument is without merit.

In point of error (4), Au argues the Circuit Court erred by not specifying all seven motions in its Order, thereby forcing Au and this court to speculate as to the basis for concluding Au is a vexatious litigant. Moreover, Au argues that, because these motions were on appeal in CAAP-15-0000466, our determination of whether those motions were meritorious or justified was relevant to the Circuit Court's vexatious litigant determination. While the Circuit Court did not specify the seven motions in its Order, the record is clear what the basis of its Order was because the hearing transcript and KS's motion makes clear which seven motions the court relied on in deeming Au a vexatious litigant.

Au also argues the court placed an undue burden on him on appeal by failing to detail where in Au's motions the court found attempts to relitigate matters already decided. In our review of the motions identified in the transcript of the hearing, we find an adequate basis in the record to support the court's determination Au is a vexatious litigant for his repeated assertion of the Overcharge Argument. Therefore, Au's argument is without merit.

Au also appears to argue that we must determine the merits of the motions underlying the Circuit Court's ruling to determine whether it was correct in concluding that Au was a vexatious litigant, or that the Circuit Court could not deem Au a vexatious litigant on the basis of motions that had been appealed. Recently, this court concluded the underlying motions were unmeritorious. See Au I, 2017 WL 6614566. However, even absent that holding, the trial court's decision would enjoy a presumption of correctness and regularity. Pink v. Castro, 130 Hawai'i 303, 309 P.3d 971, No. 30376, 2013 WL 3863106, at *1 (App. Jul. 26, 2013) (SDO) (quoting Ala Moana Boat Owners' Ass'n v. State, 50 Haw. 156, 158, 434 P.2d 516, 518 (1967) ). The court was therefore entitled to rely on its prior rulings. Thus, Au's argument is without merit.

5. Au contends the Circuit Court was required by HRCP Rule 52(a) to make FOFs and COLs to support the Order. To make this argument, Au draws a parallel between HRS ch. 634J penalties and HRS § 607-14.5 (2016), a fee and cost shifting provision. This reliance is inapposite because HRS § 607-14.5(b) requires "the court must find in writing that all or a portion of the claims or defenses made by the party are frivolous and are not reasonably supported by the facts and the law in the civil action." (emphasis added). HRS Chapter 634J has no such parallel requirement. HRCP Rule 52(a) provides, in pertinent part, "[f]indings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion" except those concerning amendment of a judgment or judgment on partial findings. HRCP Rule 52 does not apply, and therefore, it was unnecessary for the court to make findings or conclusions of law. Therefore, Au's claim is without merit.

For the foregoing reasons, the February 29, 2016 "Order Granting Plaintiffs/Counterclaim Defendants' Motion to Declare Ronald G.S. Au a Vexatious Litigant Filed on December 29, 2015," entered by the Circuit Court of the First Circuit is affirmed.

      The Honorable Rhonda A. Nishimura presided.

      HRS § 634J-l provides, in relevant parts:
      Unless otherwise clear from the context, as used in this chapter:
      "Defendant" means a person (including a corporation, association, partnership, firm, or governmental entity) against whom litigation is brought or maintained, or sought to be brought or maintained.
      "In propria persona" means on the person's own behalf acting as plaintiff.
      "Litigation" means any civil action or proceeding, commenced, maintained, or pending in any state or federal court of record.
      "Plaintiff" means the person who commences, institutes or maintains litigation or causes it to be commenced, instituted, or maintained, including an attorney at law acting on the attorney's own behalf.
      ....
      "Vexatious litigant" means a plaintiff who does any of the following:
      (1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five civil actions other than in a small claims court that have been:
      (A) Finally determined adversely to the plaintiff; or
      (B) Unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing;
      (2) After litigation has been finally resolved against the plaintiff, relitigates or attempts to relitigate in propria persona and in bad faith, either:
      (A) The validity of the determination against the same defendant or defendants as to whom the litigation was finally determined; or
      (B) The cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined;
      (3) In any litigation while acting in propria persona, files, in bad faith, unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay; or
      (4) Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence.

      Au enumerates four Points of Error, but the argument section contains five headings and arguments in a different order. The headings will be treated as Points of Error, the headings have been restyled for clarity.

      Merriam-Webster's Collegiate Dictionary (Webster's) defines plaintiff as "a person who brings a legal action[.]" Plaintiff, Merriam-Webster's Collegiate Dictionary (11th ed. 2003).

      We note that HRS § 634J-1's definition of defendant is similarly broad and encompasses litigation that is "maintained, or sought to be brought or maintained."
      We also note that, at least for the purposes of his counterclaims, Au is a plaintiff as he commenced or instituted those claims. HRS § 634J-1.

      Nor does Au's reliance on Standard Mgmt., Inc., v. Kekona, 98 Hawai'i 95, 43 P.3d 232 (App. 2001) (SMI) convince us otherwise. There, the issue was whether an attorney acting on behalf of clients could be considered a vexatious litigant. Moreover, there is nothing in the legislative history quoted there that redefined the statutory definition of "plaintiff." To the extent that the SMI court determined that a vexatious litigant cannot be a defendant, that determination was dicta. Further SMI did not address the question whether a counterclaimant could be deemed a vexatious litigant.

      KS identified the following motions: (1) September 25, 2013 Motion for Reconsideration of Summary Judgment, denied April 30, 2014; (2) April 22, 2015 HRCP Rule 60(b) Motion to Vacate or Set Aside Interlocutory Order Granting Motion for Summary Judgment, denied June 2, 2015; (3) May 21, 2015 Rule 59(e) Motion for Reconsideration of the May 13, 2015 oral order denying Au's April 22, 2015 Motion to Vacate or Set Aside Summary Judgment Order, denied June 16, 2015; (4) May 29, 2015 Motion for Reconsideration of Order Granting Summary Judgment on Au's First Amended Counterclaim, denied August 19, 2015; (5) June 29, 2015 Motion to Vacate Entry of Final Judgment, denied August 25, 2015; (6) August 25, 2015 HRCP Rule 60(b) Motion for Correction, Modification, or Relief From Judgment, withdrawn September 18, 2015; and (7) Motion to Stay Enforcement of Final Judgment Pending Determination of Supersedeas Bond, denied February 29, 2016. (Motion titles have been shortened).
      Although the Circuit Court specified that the seven motions sought to relitigate the Summary Judgment Order, i.e., summary judgment entered on KS's complaint, the motions identified by KS involved attempts to relitigate judgments entered on both its complaint and Au's counterclaims. As these motions repeatedly asserted what we will refer to as the "Overcharge Argument" infra, they support the Circuit Court's conclusion that Au repeatedly sought to relitigate matters resolved in the Summary Judgment Order, regardless of the judgment he was challenging.

      This despite the fact that Au did file an appeal from the June 12, 2015 Final Judgment, resulting in CAAP-15-0000466 (Au I ).

      As an initial matter, we note Au's argument tracks the language of HRS § 634J-1(3). The court's finding that Au was a vexatious litigant was primarily based on HRS § 634J-1(2) with subsection (3) as an alternative.

      It should be noted, three of the seven motions relied on by the Circuit Court to determine Au to be a vexatious litigant were filed after his Notice of Appeal. Nonetheless, those motions contain substantially the same arguments as those decided in Au I. See 2017 WL 6614566.

      In his reply brief, Au asks this court to take judicial notice of Ouinata v. Nishimura, Civil No. 13-00339 JMS-KSC and provides argument regarding this proceeding. However, "[t]he reply brief shall be confined to matters presented in the answering brief." As there is no argument regarding this separate case in the answering brief, we disregard Au's argument.


text:
    CITIBANK, NA AS TRUSTEE FOR WAMU SERIES 2007-HE2 TRUST, Plaintiff-Appellee, v. William GASPAR ; Joyal Gaspar, Defendants-Appellants, and Hawaiian Ocean View Estates Road Maintenance Corporation, Defendant-Appellee, and John Does 1-50; Jane Does 1-50; Doe Partnerships 1-50; Doe Corporations 1-50; Doe Entities 1-50; and Doe Governmental Units 1-50, Defendants
    NO. CAAP-18-0000493
    Intermediate Court of Appeals of Hawai'i.
    June 28, 2019.
    On the briefs:
    William Gaspar, and Joyal Gaspar, Defendants-Appellants.
    Marvin S.C. Dang, and Amy Jackson, Honolulu, (Law Offices of Marvin S.C Dang, LLLC) for Plaintiff-Appellee.
    (By: Ginoza, Chief Judge, Chan and Hiraoka, JJ.)
   SUMMARY DISPOSITION ORDER

Defendants-Appellants William Gaspar and Joyal Gaspar (collectively, the Gaspars) appeal from the Judgment (Foreclosure Judgment) entered in favor of Plaintiff-Appellee Citibank, NA as Trustee for WAMU Series 2007-HE2 Trust (Citibank) pursuant to the "Findings of Fact; Conclusions of Law; Order Granting Plaintiff's Motion for Summary Judgment as Against All Defendants and for Interlocutory Decree of Foreclosure" (Foreclosure Decree), both filed on May 18, 2018, in the Circuit Court of the Third Circuit (circuit court).

On appeal, the Gaspars contend that the circuit court erred by granting Citibank's December 15, 2017 "Motion for Summary Judgment as Against All Defendants and for Interlocutory Decree of Foreclosure" (MSJ) because genuine issues of material fact remained as to whether Citibank had standing to foreclose on the subject mortgage. Specifically, the Gaspars appear to contend that there was no evidence that Citibank was in possession of the subject "Fixed/Adjustable Rate Balloon Note" (Note) at the time it filed its Complaint and that any purported evidence was inadmissible.

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, as well as the relevant case law, we resolve the Gaspars' appeal as follows.

The appellate court reviews "the circuit court's grant or denial of summary judgment de novo ." Accordingly, "[o]n appeal, an order of summary judgment is reviewed under the same standard applied by the circuit courts. Summary judgment is proper where the moving party demonstrates that there are no genuine issues of material fact and it is entitled to a judgment as a matter of law. In other words, summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law."

Kawashima v. State, 140 Hawai'i 139, 148, 398 P.3d 728, 737 (2017) (block quote format altered) (internal citations omitted). In reviewing a circuit court's grant or denial of a motion for summary judgment, the appellate court "must view all of the evidence and the inferences drawn therefrom in the light most favorable to the party opposing the motion." Crichfield v. Grand Wailea Co., 93 Hawai'i 477, 483, 6 P.3d 349, 355 (2000) (internal quotation marks, brackets, and citation omitted).

The Gaspars first contend that the undated indorsement in blank associated with the Note and attached to the Complaint presents a genuine issue of material fact as to whether Citibank had possession of the Note at the time the Complaint was filed.

"A foreclosing plaintiff must [ ] prove its entitlement to enforce the note and mortgage." Bank of America, N.A. v. Reves-Toledo, 139 Hawai'i 361, 367, 390 P.3d 1248, 1254 (2017) (citations omitted). "A foreclosing plaintiff's burden to prove entitlement to enforce the note overlaps with the requirements of standing in foreclosure actions as '[s]tanding is concerned with whether the parties have the right to bring suit.' " Id. (quoting Mottl v. Miyahira, 95 Hawai'i 381, 388, 23 P.3d 716, 723 (2001) ). "As standing relates to the invocation of the court's jurisdiction, it is not surprising that standing must be present at the commencement of the case." Id. at 368, 390 P.3d at 1255 (citing Sierra Club v. Haw. Tourism Auth., 100 Hawai'i 242, 257, 59 P.3d 877, 892 (2002) ). Thus, a foreclosing plaintiff must establish entitlement to enforce the note and standing to foreclose on the mortgaged property at the commencement of the suit. See id.

A blank indorsement occurs when an indorsement is made by the holder of an instrument and is not a special indorsement; in other words, a blank indorsement is not payable to an identified person. When indorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer or possession alone until specially indorsed.

Id. at 370, 390 P.3d at 1257 (internal citations omitted) (citing Hawaii Revised Statutes (HRS) § 490:3-205(b) (2008) ). When a note being foreclosed upon is indorsed in blank, the relevant question is whether the foreclosing plaintiff possessed the note, or was otherwise a holder of the note, not only at the time the foreclosing plaintiff filed for summary judgment, but also at the time the foreclosing plaintiff brought the foreclosure action. Id. To be entitled to summary judgment, there must be affirmative evidence that the note and indorsement in blank were in the foreclosing plaintiff's possession at the time the complaint was filed. U.S. Bank N.A. v. Mattos, 140 Hawai'i 26, 33, 398 P.3d 615, 622 (2017).

Here, on April 21, 2017, Citibank filed its Complaint against the Gaspars seeking to foreclose on the Gaspars' property due to their alleged breach of the Note and Mortgage originally executed in favor of Washington Mutual Bank. The Complaint indicates that Citibank subsequently acquired the interest in the Note and Mortgage by an "Assignment of Mortgage" recorded in the State of Hawai'i Bureau of Conveyances on April 27, 2009, and that Citibank "is now the owner and holder of the Note and the Mortgage." Attached to the Complaint was the Note with an undated, blank indorsement stamp on the reverse side of the final signature page.

Citibank submitted with its MSJ a "Declaration of Plaintiff in Support of Motion" (Fullmer Declaration) made by Ryan Fullmer, an employee of Select Portfolio Servicing, Inc., (SPS), as affirmative evidence that Citibank possessed the Note at the time of the Complaint. The Fullmer Declaration states that the original Note was executed and delivered to Washington Mutual Bank on January 10, 2007, and that a true and correct copy of the Note including any allonge or endorsement is attached as an exhibit to the MSJ. The Fullmer Declaration further states that the Gaspars' mortgage was assigned to Citibank via an assignment of mortgage recorded in the Bureau of Conveyances of the State of Hawai'i as Document Number 2009-063098 on April 27, 2009. The Fullmer Declaration does not provide a date for any physical transfer of the Note to Citibank's possession.

However, such issue was yet remediable so as to merit summary judgment if Citibank presented affirmative evidence that it was the physical holder of the Note at the time the Complaint was filed. Id. The Fullmer Declaration states that "SPS currently services the loan as attorney-in-fact for [Citibank]." The Fullmer Declaration further states that "[Citibank], directly or through an agent, has possession of the note in this instant action [ ], which has been duly endorsed, and was in possession of the Note at the time of the filing of the complaint." (Emphasis added). The MSJ also included as exhibits documents granting SPS Limited Power of Attorney to act as Citibank's agent and a document from SPS's internal records verifying that the Note was physically located in an SPS facility at the time the Complaint was filed.

If such evidence was admissible and properly authenticated, addressed infra , then Citibank would have successfully met its burden under Mattos and Reyes-Toledo to present affirmative evidence that it was the holder of the physical Note at the time the Complaint was filed.

However, the Gaspars next contend that there were multiple issues regarding the admissibility of the Fullmer Declaration under Hawaii Rules of Evidence (HRE) Rule 803(b)(6) (2016), which provides a hearsay exception for the admission of business records.

Any evidence submitted by a foreclosing plaintiff in support of its motion for summary judgment must be admissible, else it "cannot serve as a basis for awarding or denying summary judgment." Wells Fargo Bank, N.A. v. Behrendt, 142 Hawai'i 37, 44, 414 P.3d 89, 96 (2018) (citations omitted). To qualify as such admissible evidence, a declaration in support of a motion for summary judgment under Hawai'i Rules of Civil Procedure (HRCP) Rule 56(e) (2000), "must be based on personal knowledge, contain facts that would be admissible in evidence, and show that the declarant is competent to testify as to the matters contained within the declaration." Id. at 44, 414 P.3d at 96 (quoting Mattos, 140 Hawai'i at 30, 398 P.3d at 619 ).

In this case, per HRE Rule 803(b)(6), the Fullmer Declaration stated that Fullmer was an officer of SPS, servicer for Citibank related to the Caspars' loan, and that Fullmer had access to and was familiar with the Gaspars' loan records through the regular performance of his job. Furthermore, the Fullmer Declaration indicated that the documents to which Fullmer referred to in preparing his declaration were "maintained by SPS in the course of its regularly conducted business activities and are made at or near the time of the event, by or from information transmitted by a person with personal knowledge. It is the regular practice to keep such records in the ordinary course of a regularly conducted business activity." Thus, the Fullmer Declaration established that Fullmer was a "qualified witness" as to SPS's records because SPS relies on the documents related to the Gaspars' loan, there are further indicia of reliability given SPS's business practices, and the documents constituted "records of regularly conducted activity" that were admissible as a hearsay exception, pursuant to Rule 803(b)(6). See Mattos, 140 Hawai'i at 32, 398 P.3d 621.

However, SPS was not the original servicer of the loan, and the Fullmer Declaration states that SPS's business records incorporated the business records of the previous loan servicer. Thus, the Fullmer Declaration must also establish that Fullmer is a "qualified witness" with regards to records incorporated from the prior loan servicer. Id. at 32-33, 398 P.3d 621-22.

The court in Mattos held that a witness may be qualified to provide the testimony required by HRE Rule 803(b)(6) even if the witness is not employed by the business that created the document or lacks direct, personal knowledge of how the document was created. Id. "There is no requirement that the records have been prepared by the entity that has custody of them, as long as they were created in the regular course of some entity's business." Id. (quoting State v. Fitzwater, 122 Hawai'i 354, 366, 227 P.3d 520, 532 (2010) ). The witness, however, must have enough familiarity with the record-keeping system of the business that created the record to explain how the record was generated in the ordinary course of business. Id.
Records received from another business and incorporated into the receiving business' records may in some circumstances be regarded as "created" by the receiving business. Id. Incorporated records are admissible under HRE Rule 803(b)(6) when a custodian or qualified witness testifies that the documents were incorporated and kept in the normal course of business, that the incorporating business typically relies upon the accuracy of the contents of the documents, and the circumstances otherwise indicate the trustworthiness of the document. See id.; Fitzwater, 122 Hawai'i at 367-68, 227 P.3d at 533-34.

Behrendt, 142 Hawai'i at 45-46, 414 P.3d at 97-98. When reviewing a declaration testifying to the incorporation of records from a previous business (in addition to the declarations required under HRE 803(b)(6) and Fitzwater concerning the employee's familiarity with the records of their own business) the Hawai'i Supreme Court has reviewed an employee's declaration to ascertain whether the employee had knowledge of the record keeping system of the previous business, whether the records were created by the previous business in the normal course of business, and whether the records were received from the previous business and incorporated into the present business's records. Mattos, 140 Hawai'i at 32-33, 398 P.3d 621-22 ; Behrendt, 142 Hawai'i at 45-46, 414 P.3d at 97-98.

In this case, the Fullmer Declaration states that: Fullmer had knowledge of the record keeping system of the previous loan servicer; the previous servicer followed industry-wide standards in keeping and maintaining business records related to mortgage records; and SPS received, verified, incorporated, and currently relies on the prior servicer's records as part of SPS's business records. Accordingly, to the extent that SPS's records incorporated the records of a prior loan servicer, Fullmer was a "qualified witness" who properly authenticated those records via the Fullmer Declaration.

However, while the statements made by Fullmer are necessary to lay a foundation for admissibility under HRE Rule 803(b)(6) with regard to being a qualified witness who may testify as to the reliability of the records at issue, [they] are not sufficient to show trustworthiness on their own [under HRE Rule 803(b)(6) ] when the totality of circumstances indicate the opposite.

Nationstar Mortq. LLC v. Kanahele, No. SCWC-16-0000319, 2019 WL 1931703, at *8 (Haw. May 1, 2019). In Kanahele, the Hawai'i Supreme Court held that conflicting information contained in declarations in support of a motion for summary judgment, without sufficient explanation by the moving party, could render untrustworthy, and thus inadmissible, the record evidence under HRE Rule 803(b)(6), even if the witnesses were otherwise qualified and the evidence was otherwise admissible. Id. at *8 & *10. The supreme court clarified, however, that "not all mistakes, or allegations of mistake, in a company's business records will render that company's record-keeping practices untrustworthy, and therefore render their records inadmissible." Id. at *9. "[V]ague testimony that a company 'kept bad paperwork,' without more, [does] not warrant a conclusion that the company's records as a whole were untrustworthy." Id. (brackets omitted) (quoting State v. Forman, 125 Hawai'i 417, 424-25, 263 P.3d 127, 134-35 (App. 2011) ). Thus, while the totality of the circumstances must be considered when evaluating the trustworthiness of a business record, application of the business records rule cannot be avoided on the basis "that a regular practice is occasionally broken." Id. at *8-9.

In the present case, the Gaspars contend on appeal that the records authenticated by the Fullmer Declaration raise questions regarding whether Citibank actually possessed the Note at the time the Complaint was filed.

The Fullmer Declaration states that the mortgage on the Gaspars' property was assigned to Citibank and recorded on April 27, 2009. There is no information as to whether the original, physical copy of the Note, and indorsement in blank, were delivered to Citibank's (or its agent's) possession at that time. Paragraph three of the Fullmer Declaration states that "Plaintiff [Citibank] does not hold or maintain any of the loan level business records, and thus Plaintiff [Citibank] does not have loan level business records to integrate into SPS's records." (Emphasis added). However, paragraph twelve of the Fullmer Declaration states that "Plaintiff [Citibank], directly or through an agent, has possession of the [N]ote in this instant action[ ], which has been duly endorsed, and was in possession of the Note at the time of the filing of the complaint." (Emphases added). The Fullmer Declaration further states that Exhibit 4 to the MSJ was an excerpt from SPS's internal records indicating that the original Note, and attached indorsement in blank, were located in a specific SPS facility as of April 12, 2017, prior to Citibank's filing of the Complaint on April 21, 2017. Thus, the Fullmer Declaration is internally inconsistent.

Additionally, the Fullmer Declaration and its exhibits do not establish that on April 12, 2017, SPS held the Note on behalf of Citibank. According to Exhibit 8 to the Fullmer Declaration, SPS did not become attorney-in-fact for JPMorgan Chase Bank, National Association (JPMorgan), the "Master Servicer" for Citibank, until October 24, 2017; and JPMorgan did not become attorney-in-fact for Citibank until October 4, 2017. Thus, the record is devoid of any evidence showing that SPS held the Note on behalf of Citibank when the Complaint was filed on April 21, 2017. Because Citibank has not shown that it was entitled to enforce the Note when the Complaint was filed on April 21, 2017, summary judgment was inappropriate. Reves-Toledo, 139 Hawai'i at 368-69, 390 P.3d 1255-56.

The Gaspars also contend on appeal that various prior assignments of the mortgage were invalid because they involved persons named as "robo-signers" in other cases and they were in violation of the relevant pooling and servicing agreement (PSA). As we resolve the case on other grounds, a determination of the legal effect of robo-signing is not necessary at this time. Mattos, 140 Hawai'i at 34, 398 P.3d at 623.

Regarding whether the assignments of the mortgages violated the relevant PSA, the Gaspars do not provide the actual text of the PSA, so there is no evidence that the prior mortgage assignments violated the terms of the PSA. Id. at 35, 398 P.3d at 624. As third parties, unrelated to the PSA, the Gaspars lack "standing to challenge assignments based on alleged violations of the PSA's terms unless the violation would render the assignment void." Id. Accordingly, because the PSA is not in evidence, we do not decide whether any of its terms were violated and, if so, whether any such violation renders an assignment void or voidable.

Based on the foregoing, the May 18, 2018 "Judgment" filed in the Circuit Court of the Third Circuit is vacated. This case is remanded for further proceedings consistent with this opinion.

      Hawaiian Ocean View Estates Road Maintenance Corporation is also named as a Defendant-Appellee, but did not participate in the appeal.

      The Honorable Henry T. Nakamoto presided.

      In its Answering Brief, Citibank argues that the Gaspars' Opening Brief should be stricken for failure to comply with Hawai'i Rules of Appellate Procedure (HRAP) Rule 28 (2016). While it is true that HRAP Rule 28(b) requires that an opening brief on appeal contain certain elements, we acknowledge that Hawai'i's appellate courts "consistently adhere[ ] to the policy of affording [pro se] litigants the opportunity to have their cases heard on the merits, where possible[.]" Hous. Fin. & Dev. Corp. v. Ferguson, 91 Hawai'i 81, 85-86, 979 P.2d 1107, 1111-12 (1999) (citation omitted). This is traditionally true when the HRAP Rule 28(b) violations are chiefly a matter of form and the underlying legal arguments are still ascertainable, as they are in this case. See O'Connor v. Diocese of Honolulu, 77 Hawai'i 383, 386, 885 P.2d 361, 364 (1994) (citations omitted). Accordingly, we address the Gaspars' points of error on the merits.

      HRS § 490:3-205(b) states:
      (b) If an indorsement is made by the holder of an instrument and it is not a special indorsement, it is a "blank indorsement". When indorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specially indorsed.

      HRE Rule 803(b)(6) states in relevant part:
      Hearsay exceptions; availability of declarant immaterial. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
      ....
      (b) Other exceptions.
      ....
      (6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made in the course of a regularly conducted activity, at or near the time of the acts, events, conditions, opinions, or diagnoses, as shown by the testimony of the custodian or other qualified witness, or by certification that complies with rule 902(11) or a statute permitting certification, unless the sources of information or other circumstances indicate lack of trustworthiness.

      HRCP Rule 56(e) states:
      (e) Form of affidavits; further testimony; defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

      Incorporated records are admissible under HRE Rule 803(b)(6) when a custodian or qualified witness testifies that the documents were incorporated and kept in the normal course of business, that the incorporating business typically relies upon the accuracy of the contents of the documents, and the circumstances otherwise indicate the trustworthiness of the document.
      Behrendt, 142 Hawai'i at 97-98, 414 P.3d at 45-46 (citations omitted).


text:
    CIVIL NO. 09-1-0748 (3) Shaun WRIGHT and Annett Wright, Plaintiffs-Appellees, v. MIYAKE CONCRETE ACCESSORIES, INC., Defendant-Appellant, and Doe Defendants 1-100, Defendants, and Miyake Concrete Accessories, Inc., Third-Party Plaintiff-Appellant, v. Samuel S. Kiyabu, dba Kiyabu Construction, Inc., Sandpiper Construction, Inc., a Hawai'i corporation, Despins General Construction, Inc., a Hawai'i corporation, Brian Shimomura and Brian Shimomura & Associates, LLC, a Hawai'i Limited Liability Company, Third-Party Defendants-Appellees, and John Does 1-10, Defendants
    CIVIL NO. 10-1-0191(3) Despins General Construction, Inc., Plaintiff-Appellee, v. Shaun Wright and Annett Wright, Defendants-Appellees, and Shaun Wright and Annett Wright, Counter-claimants-Appellees, v. Despins General Construction, Inc., Counter-Defendant-Appellee
    CIVIL NO. 11-1-0153 (1) Miyake Concrete Accessories, Inc., a Hawai'i corporation, Plaintiff-Appellant, v. Brian S. Shimomura and Brian Shimomura and Associates, LLC, a Hawai'i Limited Liability Company, Defendants-Appellees.
    NOS. CAAP-17-0000813 CAAP-17-0000570 CAAP-17-0000098
    Intermediate Court of Appeals of Hawai'i.
    June 28, 2019.
    SUMMARY DISPOSITION ORDER
    Dismissed.
    Affirmed.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Eduaro PRADO, also known as Era Prado, Defendant-Appellant
    NO. CAAP-17-0000870
    Intermediate Court of Appeals of Hawai'i.
    June 28, 2019.
    SUMMARY DISPOSITION ORDER
    Vacated. Remanded.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Aaron KAEHU, Defendant-Appellant
    NO. CAAP-16-0000086
    Intermediate Court of Appeals of Hawai'i.
    June 28, 2019.
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    FIRST HAWAIIAN BANK, Plaintiff-Appellee, v. Mel Daniel HORNER, Defendant-Appellant, and Talia Lynn Horner; Association of Apartment Owners of 1340 and 1342 Hooli Circle, by its Board of Directors; Defendants-Appellees, and John Does 1-10; Jane Does 1-10; Doe Partnerships 1-10; Doe Corporations 1-10; Doe Entities 1-10; Doe Governmental Units 1-10, Defendants
    NO. CAAP-16-0000860
    Intermediate Court of Appeals of Hawai'i.
    June 28, 2019.
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    WELLS FARGO BANK, N.A., Plaintiff-Appellee, v. Michael R. PIERCE, Anne M. Pierce ; Wells Fargo Bank, N.A.; Princeville at Hanalei Community Association, Defendants-Appellants and John Does 1-50; Jane Does 1-50; Doe Partnerships 1-50; Doe Corporations 1-50; Doe Entities 1-50 and Doe Governmental Units 1-50, Defendants
    NO. CAAP-17-0000553
    Intermediate Court of Appeals of Hawai'i.
    June 28, 2019.
    SUMMARY DISPOSITION ORDER
    Vacated.
    Remanded.