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+"{\"id\": \"12258660\", \"name\": \"Dawna C. ZANE, Plaintiff-Appellee-Respondent, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, Defendant-Appellant-Petitioner\", \"name_abbreviation\": \"Zane v. Liberty Mutual Fire Insurance Co.\", \"decision_date\": \"2007-08-14\", \"docket_number\": \"No. 27317\", \"first_page\": \"60\", \"last_page\": \"79\", \"citations\": \"115 Haw. 60\", \"volume\": \"115\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T21:40:03.954139+00:00\", \"provenance\": \"CAP\", \"judges\": \"MOON, C.J., LEVINSON, NAKAYAMA, and DUFFY, JJ., and Circuit Judge STRANCE, in place of ACOBA, J., Recused.\", \"parties\": \"Dawna C. ZANE, Plaintiff-Appellee-Respondent, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, Defendant-Appellant-Petitioner.\", \"head_matter\": \"165 P.3d 961\\nDawna C. ZANE, Plaintiff-Appellee-Respondent, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, Defendant-Appellant-Petitioner.\\nNo. 27317.\\nSupreme Court of Hawai'i\\nAug. 14, 2007.\\nWard F.N. Fujimoto (Ward F.N. Fujimoto and Randall Y.S. Chung, of Matsui Chung, on the briefs), Honolulu, for the defendant-appellant-petitioner Liberty Mutual Fire Insurance Company.\\nBert S. Sakuda (Bert S. Sakuda and Geoffrey K.S. Komeya, of Cronin, Fried, Sekiya, Kekina & Fairbanks, on the brief), Honolulu, for the plaintiff-appellee-respondent Dawna C. Zane.\\nMOON, C.J., LEVINSON, NAKAYAMA, and DUFFY, JJ., and Circuit Judge STRANCE, in place of ACOBA, J., Recused.\", \"word_count\": \"11280\", \"char_count\": \"71111\", \"text\": \"Opinion of the Court by\\nLEVINSON, J.\\nOn January 23, 2007, the defendant-appellant-petitioner Liberty Mutual Fire Insurance Company (Liberty Mutual) filed an application for a writ of certiorari urging us to review the published opinion of the Intermediate Court of Appeals (ICA) in Zane v. Liberty Mut. Fire Ins. Co., No. 27317 (Oct. 31, 2006) [hereinafter, \\\"slip op.\\\" or \\\"Zane I\\\"], which vacated the first circuit court's April 25, 2005 judgment, the Honorable Eden Elizabeth Hifo presiding, granting summary judgment in favor of the plaintiff-appellee-respondent Dawna C. Zane and against Liberty Mutual, and remanded the matter to the circuit court for further proceedings. In its application, Liberty Mutual urged that: (1) notwithstanding DaimlerChrysler's settlement with Zane in the underlying tort action, see infra section I.C, its self-insurance was \\\"applicable\\\" within the meaning of Hawai'i Revised Statutes (HRS) \\u00a7 431:100-103 (Supp.1999) such that its bodily injury (BI) coverage limit should offset the amount of Zane's underinsured injuries for which Liberty Mutual, as her underinsured motorist (UIM) carrier, would otherwise be responsible; and (2) Liberty Mutual's consent to Zane's settlement with DaimlerChrysler did not estop Liberty Mutual from asserting the aforementioned offset pursuant to Taylor v. Gov't Employees Ins. Co., 90 Hawai'i 302, 978 P.2d 740 (1999), and Gov't Employees Ins. Co. v. Dizol, 176 F.Supp.2d 1005 (D.Haw. 2001). Zane filed a timely response.\\nWe accepted Liberty Mutual's application to correct the ICA's erroneous holding that DaimlerChrysler, solely by virtue of it (1) never having been adjudicated liable to Zane and (2) apparently having settled only for the anticipated expenses of litigation and not an amount representing a compromised or pro rata discount of clear liability value, as a matter of law could not be a \\\"tortfeasor\\\" for purposes of the Taylor rule, see supra note 2, such that Zane's UIM benefits were not offset by an amount equal to the gap between the amount of DaimlerChrysler's settlement and its (in this case, effectively infinite) BI limit. For the reasons discussed infra in section III.B, we hold that there remains a genuine issue of material fact as to whether Liberty Mutual represented to Zane that it would not employ the Taylor rule as a basis for reduction of her benefits and, accordingly, vacate the ICA's opinion in Zane I and the judgment arising therefrom, vacate the circuit court's judgment, and remand this matter, to the circuit court for further proceedings. As guidance on remand, should the trier of fact find that no estoppel occurred, we disagree with Zane's position that a settling but\\u2014by agreement of the parties\\u2014 factually non-liable party is, per se, not a \\\"tortfeasor\\\" for purposes of the \\\"Taylor rule.\\\" Inasmuch as Zane failed to brief her alternative argument on appeal, advanced instead in her April 25, 2007 motion for reconsideration, that the insurance of a non-owner/operator of an underinsured motor vehicle is not applicable to the Taylor gap, that contention is waived for purposes of this appeal, and we do not consider it at this time.\\nI. BACKGROUND\\nA. The Taylor Line\\nDespite the parties' agreement with the general rule of Taylor and its progeny, we recite the relevant analysis of those cases by way of orientation.\\nIn Taylor, the plaintiff Rosalina Taylor, who held a UIM insurance policy through the defendant Government Employees Insurance Company (GEICO), \\\"was injured in a collision with a vehicle driven by Mary McKaig, who was insured . by State Farm Mutual Automobile Insurance Company (State Farm).\\\" 90 Hawai'i at 304, 978 P.2d at 742. In accordance with a consent-to-settle clause in GEICO's UIM policy (i.e., \\\"[UIM] coverage does not apply . if the insured . has made a settlement . without our prior written consent\\\" (emphasis omitted)), Taylor informed GEICO \\\"that State Farm had offered to settle [her] claim\\\" and requested GEICO's \\\"permission to settle.\\\" Id. GEI-CO responded that it \\\"w[ould] not grant concurrence with regard to . [Taylor's] settlement as [she] ha[d] not obtained the [BI] policy limits of [State Farm].\\\" Id. (emphasis and internal quotation signals omitted). Nevertheless, Taylor settled with and released McKaig and State Farm for an amount less than the BI limits of McKaig's policy, after which GEICO refused to pay UIM benefits and Taylor sued for declaratory relief. Id. at 305, 978 P.2d at 743. The circuit court granted GEICO's motion for summary judgment, and Taylor appealed. Id. Our analysis centered on the validity of GEICO's consent clause and the reasonableness of GEICO's refusal to give consent. We declined to disapprove consent-to-settle clauses in UIM policies across the board, but held that \\\"a UIM carrier's grounds for denying UIM benefits under a consent-to-settle provision in a UIM policy must be reasonable, in good faith, and within the bounds of the intent underlying HRS \\u00a7 431:10C-301(b)(4) [ (requiring motor vehicle insurance policies to include UIM coverage) ].\\\" Id. at 309, 311-12, 978 P.2d at 747, 749-50; accord id. at 315, 978 P.2d at 753 (Nakayama, J., concurring). GEICO's asserted reason for denial\\u2014essentially that Taylor sought to settle for less than State Farm's BI limit\\u2014was unreasonable inasmuch as it denied Taylor \\\"the perfectly reasonable choice of saving months, if not years, of delay, trial preparation expense, and all the ensuing wear and tear by simply accepting the offer and, as a condition of proceeding with h[er] UIM claim, foregoing the difference between the tortfeasor's policy limit and the tortfeasor's insurer's offer.\\\" See id. at 313-14, 978 P.2d at 751-52 (majority opinion); cited in Granger v. Gov't Employees Ins. Co., 111 Hawai'i 160, 168, 140 P.3d 393, 401 (2006) (where plaintiff had compromised with tortfeasors for $90,000.00 of their $100,000.00 limit, reaffirming that \\\"[i]f the victim does accept less than the tortfeasor's policy limits, his [or her] recovery against his [or her] UIM carrier must nevertheless be based on a deduction of the full policy limits\\\" (emphasis and internal quotation signals omitted) (some bracketed material added and some in original)). Consequently, because \\\"[t]he UIM carrier will not be responsible for covering [the difference or \\\"gap\\\" between the settlement amount and the tortfeasor's liability policy limits] as a component of its obligation to compensate its insured for injury and damage exceeding the tortfeasor's policy limits ., there is no legitimate reason for the UIM carrier to refuse to consent to a settlement on that basis.\\\" Taylor, 90 Hawai'i at 314, 978 P.2d at 752.\\nIn Dizol, the decedent Kevin Dizol was a passenger in a van the driver of which had been drinking at a bar before the subject accident. 176 F.Supp.2d at 1009. The driver was covered by a $35,000.00 BI policy. Id. at 1010. Dizol's estate sued the bar and the deceased driver's estate, and settled (1) with the bar for less than its BI limit and (2) with the driver's estate for its policy limit. See id. Dizol's \\\"projected loss of earnings\\\" was greater than the total of the payments actually received, by a difference of $17,177.00, but less than the sum of the defendants' BI policy limits. See id. Dizol held a UIM policy for $70,000.00, but his estate had settled without the consent of his UIM insurer. Id. The UIM insurer brought a declaratory action against Dizol's estate, seeldng \\\"a set off against\\\" the estate's UIM benefits \\\"of . the full amount of [BI] coverage available to . [the bar].\\\" See id. at 1012. The UIM insurer subsequently moved for summary judgment, which the United States District Court for the District of Hawai'i granted in relevant part. See id. at 1030-31, 1032 & n. 33, 1033. While the UIM insurer was unaware of and had not consented to the tort settlement, the court extended the Taylor rule to the facts of Dizol. The court concluded \\\"that under Hawai[']i law, amounts forgone in below[-]policy[-]limits settlements with joint tortfeasors without the UIM carrier's consent are properly used to offset the carrier's liability.\\\" Id. at 1033 (emphasis added).\\nB. The Motor Vehicle Accident\\nThe present matter arose out of a February 10, 2000 motor vehicle accident. Zane was a passenger in a Dodge Neon automobile that was manufactured by DaimlerChrysler, driven by Richard Thomas, and insured by Liberty Mutual under both BI and UIM coverages. Slip op. at 2-3. The Neon and another vehicle, driven by Sarah Kim and insured by State Farm, collided at an intersection in Honolulu. Id. at 2. The accident rendered Zane a paraplegic. Id. Zane sued Thomas, Kim, and DaimlerChrysler. Id. at 3.\\nC. The Settlement And Proceedings Before The Circuit Court\\nThrough mediation with retired circuit court judge E. John McConnell, Thomas and Kim and their insurers, Zane, and Daimler-Chrysler reached a settlement, under the terms of which DaimlerChrysler contributed $200,000.00, Kim contributed her BI limit of $100,000.00, and Thomas contributed his BI limit of $1,350,000.00; furthermore, under a prior settlement agreement, Zane's parents' insurer, AIG Hawai'i Insurance Company, Inc. (AIG), contributed $40,000.00. Thus, Zane recovered a total of $1,690,000.00. Id. The parties readily agree that the total value of Zane's injuries would exceed $1,690,000.00.\\nAt some point, Zane applied for UIM benefits representing the difference between $1,690,000.00 and her actual damages. As both parties agree, \\\"Liberty Mutual initially accepted coverage, but\\\" then \\\"refused to tender [UIM] benefits on the theory that 'it appear[ed] that . Kim,' \\\" i.e., the driver of the \\\"other\\\" car and, hence, the underinsured motorist from Zane's perspective, \\\" Vas not negligent for the bodily injuries sustained by . Zane.' \\\" Liberty Mutual having denied her claim, Zane initiated the present matter, seeking a declaratory judgment in the circuit court that she was entitled to UIM benefits as Thomas's passenger. Id. The parties agree that Liberty Mutual gave prior consent to the act of settling with DaimlerChrysler and its codefendants, but disagree as to whether Liberty Mutual also represented to Zane that it understood and either agreed or did not dispute that DaimlerChrysler's limitless self-insurance would be excluded from the calculation of the Taylor \\\"gap,\\\" i a, that Liberty Mutual would compensate Zane for her damages exceeding the settlement amount without regard to DaimlerChrysler's infinite BI self-insurance coverage. The manner by which Zane communicated the terns and circumstances of the settlement, Liberty Mutual's understanding thereof, and its representations, if any, to Zane, determine whether Liberty Mutual was estopped from deducting the value of the Taylor \\\"gap,\\\" inclusive of DaimlerChrysler's unlimited BI self-insurance, from Zane's UIM benefits. See discussion infra section III.B.\\n1. Circuit court filings\\nIn her May 8, 2002 complaint, Zane averred, inter alia, as follows:\\n13.... Liberty Mutual inquired about the terms of the DaimlerChrysler settlement. On December 20, 2001 Liberty Mutual senior claim specialist ] Colin M. Chang . was informed that the Daimler-Chrysler contribution was . $200,000.\\n14. Liberty Mutual thereupon gave its verbal approval of the [BI] liability settlement and thereafter confirmed . by letter dated December 20, 2001 that \\\"we . do not object to [Zane] resolving her [BI] liability claims against the liable parties.\\\"\\n15. Liberty Mutual also requested a copy of the DaimlerChrysler Release for its files on January 7, 2002. Zane advised Liberty Mutual that the formal settlement agreement was not yet finalized and thereafter forwarded a copy of the finalized and signed release.\\n26. Liberty Mutual consented to the liability settlement with DaimlerChrysler and may not now object to that settlement as a basis for denying [UIM] benefits.\\n(Emphases added.) Zane prayed for \\\"[a] declaration of the rights and obligations of the parties under the Liberty Mutual policy\\\" and \\\"[a] declaration that Liberty Mutual must provide [UIM] coverage to Zane.\\\" On May 20, 2002, Liberty Mutual removed the present matter to the United States District Court for the District of Hawaii. On May 21, 2002, in the United States District Court, Liberty Mutual filed its answer to Zane's complaint and appended its own counterclaim. In its answer and its responsive pretrial statement, Liberty Mutual admitted the averments in Zane's complaint, set forth supra, with the exception of the boldface language. Liberty Mutual also conceded in its responsive pretrial statement that it \\\"consented to the liability settlement with DaimlerChrysler and may not now object to that settlement as a basis for denying [UIM] benefits.\\\" (Emphases added.) On June 28, 2002, in the United States District Court, Liberty Mutual filed an amended counterclaim against Zane in which it alleged in relevant part that DaimlerChrysler's self-insurance should completely offset Zane's claim for UIM benefits:\\n[Liberty Mutual] is entitled to a credit for the total limits of any and all [BI] liability insurance and self-insurance available to satisfy [Zane]'s claims . and the total amount of such limits exceeds the amount of damages .; [and]\\n. [Liberty Mutual] is entitled to a credit for the total amount of settlement proceeds paid for the benefit of [Zane] in connection with [her] claims....[ ]\\nLiberty Mutual prayed for a declaratory judgment \\\"that [Zane] is not entitled to . [ ]UIM . benefits from [Liberty Mutual].\\\"\\nThe United States District Court remanded the case to the state circuit court on October 31, 2002.\\nOn May 16, 2003, both parties moved for summary judgment. In her motion, Zane characterized DaimlerChrysler's settlement amount as \\\"nuisance value\\\" and argued that, inasmuch as \\\"[n]either [she], Liberty Mutual nor State Farm were able to develop a viable product liability claim\\\" against Daimler-Chrysler, DaimlerChrysler was not an \\\"actual responsible tortfeasor[ ]\\\" and its insurance or self-insurance did not constitute an \\\"applicable [BI] liability . policy\\\" to \\\"be exhausted before payment of UIM benefits.\\\" (Emphasis in original.) (Internal quotation signals omitted.) (Quoting Taylor, 90 Hawai'i at 313, 978 P.2d at 751; Dizol, 176 F.Supp.2d at 1027, 1030, 1033; Mulholland v. State Farm Mut. Auto. Ins. Co., 171 Ill.App.3d 600, 122 Ill.Dec. 657, 527 N.E.2d 29, 35-36 (1988); Arenson v. Am. Reliance Ins. Co., 284 N.J.Super. 337, 665 A.2d 394, 397 (1994); Colonial Penn Ins. Co. v. Salti, 84 A.D.2d 350, 446 N.Y.S.2d 77, 80-81 (1982).) (Citing Tate v. Secura Ins., 587 N.E.2d 665 (Ind.1992).)\\nIn her May 27, 2003 memorandum in opposition to Liberty Mutual's motion for summary judgment, Zane contended that Liberty Mutual's consent to the settlement reflected not only its willingness to waive any subrogation rights against DaimlerChrysler, but also its understanding that DaimlerChrysler's settlement amount was merely \\\"nuisance value\\\" and that its self-insurance would not be available to offset Zane's UIM claim. Zane attached to her memorandum in opposition (1) affidavits by her attorneys Keith K.H. Young, Denise K.H. Kawatachi, and Bert S. Sakuda, and (2) the various exhibits that they purported to authenticate. Young averred that he had\\nspoke[n] to Chang and fully advised Liberty Mutual of the facts of the settlement, circumstances requiring abandonment of the product liability claim for a nuisance value settlement of $200,000 approximating . defense costs, the reasons[ ] that no viable product liability claim existed, and requested consent to the liability settlement without prejudicing Zane's right to payment of UIM benefits. [Chang] acknowledged understanding the situation and extended Liberty Mutual's consent to settlement of the liability claims as discussed without prejudicing Zane's right to payment of UIM benefits. . [I]t was understood that Liberty Mutual would continue processing Zane's request for UIM benefits (which had already been requested) on the merits given Liberty Mutual's consent to the liability settlement.\\n(Emphases added.) Young further attested that,\\n[u]p until the time Zane finalized the . settlement . on March 8, 2002, communications to and from Liberty Mutual were all premised on the understanding that Zane's UIM claim was being processed without any claim that Liberty Mutual did not owe UIM benefits because of the failure to exhaust DaimlerChrysler's policy limits. Had Liberty Mutual reneged on its consent and denied benefits . at any time ., he [sic] would not have proceeded with the liability settlement.\\nThe attached Exhibit 1 appears to be Chang's January 30, 2002 letter to Kawata-ehi, implying his awareness of the impending settlement.\\nIn Liberty Mutual's May 27, 2003 memorandum in opposition and its own cross-motion, it argued that: (1) by virtue of Daimler-Chrysler's posture as a settling defendant, Liberty Mutual was entitled to the Taylor offset in the amount of DaimlerChrysler's \\\"unlimited\\\" BI self-insurance (a) regardless of Liberty Mutual's consent and (b) regardless of whether DaimlerChrysler's compromise reflected mere \\\"nuisance value\\\"; and (2) in any case, DaimlerChrysler's $200,000.00 settlement \\\"cannot be reasonably described as a 'nuisance value.'\\\" (Citing, e.g., Taylor, 90 Hawai'i at 313-14, 978 P.2d at 751-52; Dizol, 176 F.Supp.2d at 1027-33.) Furthermore, in its May 30, 2003 reply to Zane's memorandum in opposition, Liberty Mutual challenged Zane's characterization of the communications between the parties. Liberty Mutual countered that Zane was aware that it planned to rely on the Taylor rule to offset her UIM claim, inasmuch as it \\\"did, in fact, communicate the Dizol . case to [Zane's] counsel's attention as early as January 8, 2002.\\\" Liberty Mutual continued:\\n[Zane] can point to no affirmative representation or conduct by Liberty Mutual specifically indicating that such an offset or credit would not apply and any reliance by [Zane] upon the absence of such a representation or affirmative conduct would have been unreasonable....\\n. More importantly, . [d]uring a January 8, 2002 telephone conversation between . Chang and . Kawatachi . with regard to . Zane's UIM claim, [Chang] specifically told . Kawatachi that [the] offset discussed in . Dizol . may be applicable to [Zane]'s claim and . Kawatachi said . that she would look at . Dizol and get back to [him], but never did.\\n. [Zane] did not finalize her settlement with DaimlerChrysler . until March 8, 2002....\\n(Some emphases added and some in original.) (Some capitalization omitted.) Liberty Mutual cited the attached declaration of Chang, which, indeed, propounded that he spoke with Kawatachi on January 8, 2002 and informed her \\\"that [the] offset discussed in . Dizol . may be applicable to . Z[ane]'s claim.\\\"\\n2. The hearing in the circuit court\\nAt the circuit court's June 4, 2003 hearing, Zane conceded the general principle of the Taylor rule, see supra note 2; however, she urged that DaimlerChrysler was not an actu al tortfeasor in light of the \\\"nuisance value\\\" of its settlement payment and that, consequently, its self-insurance was not \\\"applicable,\\\" see HRS \\u00a7 431:100-103, supra note 1, to the Taylor offset:\\n[ZANE:] . Taylor held that a credit is due the [UIM] earner for the difference in the amount of the settlement paid and the policy limits of the [UIM] tort[ Jfeasor....\\nAnd we don't have a problem with that....\\nBut what is a tort[ ]feasor? A tort[ ]fea-sor is\\u2014... and this is a definition out of Black[']s [Law Dictionary]\\u2014-a wrongdoer, an individual or a business that commits or is guilty of a tort.\\nNow, . [n]one of the parties here could establish any wrongdoing or a tort that [Daimler]Chrysler was guilty of.\\nAnd none of those parties could develop a viable product liability claim against [Daimler] Chrysler. And that is undisputed.... Therefore, [Daimler]Chrysler was not a tort[ ]feasor. And not being a tort[ ]feasor, Taylor simply doesn't apply when it speaks of a credit that's due for the policy limits....\\n. Vassiliu [v. Daimler Chrysler Corp., 356 N.J.Super. 447, 813 A.2d 547 (2002), rev'd in part on other grounds, 178 N.J. 286, 839 A.2d 863 (2004),] . discuss[ed] the situation where . a party has no liability[.] And . when you speak of available insurance, you speak of available insurance for . actual, responsible tort[ ]feasors, as opposed to parties that don't have liability or responsibility.\\n. Mulholl [and] comes to the same conclusion, that when you talk about a credit, you are talking about a credit against an actual tort[ ]feasor.[ ]\\nAnd Midholl [and] actually discusses . the situation where a plaintiff files suit initially against everybody that might be involved.... [A]s the ease goes on and it is determined that there is no liability against certain parties, .\\n. that's okay.... Because the alternative . is that the plaintiff only sues the most liable one. And the UIM carrier then loses its subrogation rights against all the other potential tort[ ]feasors....\\nBy suing everyone initially, . the plaintiff actually ends up protecting the subrogation rights of the UIM carrier against all potential tort[ ]feasors. And then ., you sort out the liability....\\nTHE COURT: . Are you saying that you have to have a judgment?\\n[ZANE]: No.\\n. [I]ssues of liability . are under UIM policies the subject of arbitration....\\nSo . if the parties disagree whether the compromise was due to just simply wanting to forgo the expenses of litigation, or whether it was a liability question, that would be an issue for arbitration. Although I think in most cases that becomes pretty obvious. Where you sav[e] 5,000 [dollars] off the policy, . that's being done for convenience.\\nWhere you tak[e] five percent of the policy, . obviously there are some liability questions.\\nZane then broached the issue of Liberty Mutual's representations, if any, concerning its intention to forgo the Taylor credit:\\nIn this case, [Zane] ha[s] from day one been very specific about what was consented to. Full disclosure was made to Liberty Mutual that this is a situation of no liability. .\\nWe were taking $200,000. And to make sure we didn't get in that Taylor bind of then not being able to collect, we simply went to [Liberty Mutual] and said look, this is the situation. We want your consent to this, so that we can proceed with the UIM claim.\\n. [I]n [its] reply memorandum Liberty Mutual has attached the declaration of the adjuster himself who participated throughout the entire proceeding....\\n. [It] says only that sometime in January he talked to . [Zane]'s lawyer and brought up the Dizol case....\\n. And what's really telling about this affidavit is not what it says, but what it doesn't say.\\nThis affidavit doesn't say no, I never agreed with [Zane]'s lawyer when he called me in [sic] December 20th . that this settlement was for nuisance value....\\n(Emphases added.) Liberty Mutual responded that\\nDaimlerChrysler is a joint tort[ ]fea-sor.... [U]nder our [U]niform [Contribution [A]mong [T]ortfeasors [A]ct[, HRS ch. 663, pt. II (Supp.1999) (UCATA), ] it's not necessary that a judgment or . a[n] ultimate finding of liability be made in order for a party to be determined to be a joint tort[ ]feasor.\\n. [T]he parties reached a settlement in the amount of $200,000.... But . reasonably speaking it cannot be determined that a $200,000 settlement is a nuisance value settlement.\\n. The injuries in this case were indeed high. But nuisance value does not depend necessarily on the injuries.... [N]uisance value is a ease in which there is no liability and the defendant merely throws some money on the table. In other words, notwithstanding the finding of liability, [sic\\u2014 presumably, \\\"notwithstanding the lack of a finding of liability]\\nAnd . in this case the amount of the settlement, as well as the fact of the settlement itself, confirm[] DaimlerChrysler's position as a joint tort[ jfeasor.\\n. [F]or example, . in [Gump v. Wal-Mart Stores, 93 Hawai'i 417, 5 P.3d 407 (2000) ], M[ ]cDonald's, the settling defendant, was considered to be a joint tort[ jfeasor, even though there was no ultimate finding of liability....\\n. [Tjhey did make a settlement. And in the Court's view that confirmed their status as a joint tort[ ]feasor.... [U]nder HRS[ \\u00a7 ] 663\\u2014ll[ ] the definition of a joint tort[]feasor again does not turn on the ultimate finding of liability or non-liability. What it basically states is that a party can be deemed to be a joint tort[ ]feasor, whether or not judgment is recovered against all or some of the tort[ jfeasors in the case.\\n. [Zane] did request that Liberty Mutual consent. That's undisputed. It is undisputed that Liberty Mutual consented to the settlement. .\\nThe reason why we attached [Chang's declaration to our May 30, 2003 reply] . is that in [her May 27, 2003] memorandum in opposition what [Zane] was arguing . was that [she] didn't know about this [ (ie., the Taylor/Dizol rule) ] before they finalized the settlement.\\n. Liberty Mutual was not required to advise them of the applicable law.\\n. If [Zane] is [making an estoppel claim], . it's simply not supported on the record before the Court. And any reliance by [Zane]\\u2014for one thing, there was no representation made by . Chang that he would not be asserting a credit. Silence cannot create an estoppel. And . any reliance upon that wouldn't.\\n. Under Taylor [it] is simply not our place to object to the settlement. And Taylor strongly advises [UIM] insurers to consent to settlement. And we did that in this ease.\\n. [B]ut . it would be counter-intuitive . to suggest that every time a[UIM] insurer consents to a settlement^] . that would foreclose it from asserting the credit and the offset[ ]....\\n. I believe that [Taylor ] did everything but sa[y] that you have to consent. But I think what they were trying to do again is to encourage [UIM] insurers to consent, so that they would not get in the way of an underlying [BI] settlement.\\n(Emphases added.) Liberty Mutual emphasized that \\\"the Taylor credit\\\"\\u2014i.e., the insured's waiver of the difference between the settlement amount and the \\\"applicable\\\" BI limits\\u2014\\napplies irrespective of whether or not [the insurer's] consent is obtained.... [Because that's the exact thing that they were trying to encourage by giving the carriers the credit on the back hand. And what they wanted to tell the carrier is there is no reason for you not to continue as long as you get the credit on the back hand.\\n. It is undisputed that Liberty Mutual consented to the settlement.... Our only point is that we should be entitled to the full credit . under . Dizol .\\nNevertheless, the circuit court ruled that the purpose of getting the consent, which was made known to Liberty Mutual, was so that the credit would not kick in. And no one's argued to the Court, and the Court does not find, that even if you are entitled to the credit that you can't give it up. And the Court finds that they did.... [U]nder the peculiar, undisputed facts of this, the consent constituted not only a consent but also a waiver of any claim to a credit beyond the 200,000[ dollars].\\nAccordingly, the circuit court granted summary judgment in Zane's favor and against Liberty Mutual:\\nLiberty Mutual would have been entitled to a credit for joint tortfeasor Daimler-Chrysler ., in connection with the underlying accident, but, having consented to the liability settlement with DaimlerChrys-ler, Liberty Mutual may not now object to that settlement as a basis for denying [UIM] benefits, and . may not now claim said credit and[,] accordingly, the. Court grants . Zane's Motion for Summary Judgment and denies . Liberty Mutual's Motion for Summary Judgment.\\nIssues relating to the liability of . Kim or . Zane's damages may be submitted to arbitration....\\nThe circuit court's April 25, 2005 judgment effectively \\\"ordered Liberty Mutual to provide full . UIM[ ] coverage benefits to Zane, without any credit/offset for . self-insurance applicable to . DaimlerChrys-ler[ ].\\\" See op. at 62-63, 165 P.3d at 963-64.\\nD. Proceedings On Direct Appeal\\nOn direct appeal, Liberty Mutual noted Chang's May 30, 2003 declaration, see supra section I.C.l, and argued that the circuit court erroneously \\\"equat[ed] Liberty Mutual's . consent to the liability settlement . with the substantively different proposition that [it] waived its rights to\\\" invoke the Taylor rule:\\nIn order to sustain such an estoppel, [Zane] bears the burden of showing that (1) Liberty Mutual engaged in an affirmative representation or conduct, (2) [Zane] detrimentally relied upon that affirmative representation or conduct, and (3) such reliance was reasonable.[ ]\\n. [Zane] can point to no affirmative representation or conduct by Liberty Mutual specifically indicating that such an offset or credit would not apply and, since Liberty Mutual communicated its intent to assert this offset/credit before the finalization of [Zane]'s DaimlerChrysler settle ment, any reliance by [Zane] upon the absence of such a representation or affirmative conduct would have been unreasonable. .\\nLiberty Mutual heeded Taylor and consented to [ZaneJ's underlying settlement and should not be penalized for doing what Taylor told it to do....\\n(Emphases in original.) (Internal quotation signals and some capitalization omitted.) (Citing County of Kauai v. Scottsdale Ins. Co., 90 Hawai'i 400, 403 n. 1, 978 P.2d 838, 841 n. 1 (1999).) In its reply brief, Liberty Mutual emphasized that a representation by a party that may give rise to a waiver or an estoppel \\\" 'must be clearly made to appear' \\\" and \\\" 'leave no opportunity for a reasonable inference to the contrary.' \\\" (Emphasis omitted.) (Quoting Anderson v. Anderson, 59 Haw. 575, 587, 585 P.2d 938, 945 (1978); Hewahewa v. Lalakea, 35 Haw. 213, 220 (1939).)\\nIn her answering brief, Zane cited Young's May 27, 2003 affidavit and reiterated her position that Liberty Mutual's consent to her settlement with DaimlerChrysler waived its entitlement to invoke the Taylor rule.\\nIn Zane I, the ICA first addressed the estoppel question. The ICA concurred with Liberty Mutual that, on the present record, its conduct did not give rise to estoppel as a matter of law:\\n[Tjhere are genuine issues of material fact regarding (1) whether Zane relied on Liberty Mutual's consent; (2) if Zane relied on Liberty Mutual's consent, whether Zane reasonably understood said consent to mean that Liberty Mutual would not assert its right to a credit/offset; and (3) if Zane relied on Liberty Mutual's consent, whether Zane's reliance was reasonable, given that Liberty Mutual claims it notified Zane of its intention to assert its right to a credit/offset prior to the finalization of Zane's settlement with DaimlerChrysler.\\nSlip op. at 17. Specifically, with respect to the reasonableness of any reliance by Zane, the ICA noted that, \\\"[i]n her Complaint, Zane claimed that '[although Liberty Mutual was itself involved in the [BI] liability suit, Zane nonetheless went through the formality of requesting written permission to settle the liability claims in order to 'preserve [UIM] benefits.'\\\" Id. at 19 (emphasis in Zane I) (some brackets added and some in original). The ICA seems to have implied that this statement, as well as the \\\"[a]dmitted [f]act[ ]\\\" that \\\"Liberty Mutual consented to the liability settlement with DaimlerChrysler and may not now object to that settlement as a basis for denying [UIM] benefits,\\\" see supra section I.C.l, is subject to multiple interpretations. See slip op. at 19-20. Moreover, the ICA recognized an unresolved genuine issue of material fact concerning the existence and content of alleged communications between Chang and Kawatachi. See id. at 20-21. Accordingly, the ICA held that \\\"the circuit court erred by . holding that Liberty Mutual was estopped from asserting its right to a credit/offset.\\\" Id. at 21 (emphasis omitted).\\nNonetheless, the ICA deemed the circuit court's error to be \\\"harmless\\\" inasmuch as Liberty Mutual was not \\\"entitled to an offset for the 'gap' referred to in Taylor and Dizol . because DaimlerChrysler was not an actual tortfeasor.\\\" See id. The ICA acknowledged that this court\\nwrote in Taylor ., 90 Hawai'i [at] 314, 978 P.2d [at] 752 ., that \\\"[b]y settling for less than policy Emits, the UIM insured agrees to forego compensation for the difference between the settlement amount and the tortfeasor's liability policy limits.\\\" This means that the \\\"UIM carrier will not be responsible for covering that 'gap' as a component of its obligation to compensate its insured for injury and damage exceeding the tortfeasor's policy limits.\\\" Id. Additionally, the United States District Court . explained in Dizol . that \\\"a UIM carrier has a statutory right to be contractually liable to indemnify its insured only for the amount in excess of the tortfeasor's liability coverage.\\\" . 176 F.Supp.2d at 1031....\\nSlip op. at 14, 21-22. However, the ICA agreed with Zane that DaimlerChrysler was not a tortfeasor: \\\"Black's Law Dictionary 1497 (7th ed.1999) defines 'tortfeasor' as '[o]ne who commits a tort; a wrongdoer.' In the instant case, Judge McConnell did not find DaimlerChrysler to be liable to Zane or, in other words, a tortfeasor.\\\" Id. at 22 (brackets in original). The ICA essentially accepted at face value Zane's characterization of DaimlerChrysler's settlement amount as \\\"nuisance value\\\" and concluded that, as a matter of law, DaimlerChrysler was not a tortfeasor because of the \\\"undisputed\\\" facts that:\\n(1) Discovery and ease preparation did not support a viable product liability claim against DaimlerChrysler.\\n(2) Because no viable basis for liability existed, the product liability claim against DaimlerChrysler could not be successfully resolved.\\n(3) The best that Judge McConnell could achieve was a mediated settlement for a \\\"nuisance value\\\" payment of $200,000 by DaimlerChrysler....\\n(4) Young recommended to Zane that she accept the mediated settlement because there was no viable product liability claim against DaimlerChrys-ler and no reasonable prospect of recovering more from Daimler-Chrysler at trial.\\n(5) Young spoke to Chang and fully advised Liberty Mutual of the facts of the settlement and the circumstances requiring abandonment of the product liability claim for a nuisance value settlement of $200,000 ., and Young requested consent to the liability settlement without prejudicing Zane's right to payment of UIM benefits.\\nFurthermore, there is nothing in the record on appeal indicating that Daimler-Chrysler was liable to Zane for the accident.\\nId. at 24-25. In short, the ICA adopted Zane's position that the maximum \\\"applicable\\\" coverage beneath which an insured is not entitled to UIM benefits does not include the BI coverage of a party who has settled with the insured but is not an \\\"actual tortfea-sor,\\\" viewing \\\"actual tortfeasor\\\" to mean a defendant who has undergone the \\\" 'equivalent [of] an adjudication of liability through litigation or arbitration.' \\\" See id. at 22, 23 & n. 5, 24 (quoting Vassiliu, 813 A.2d at 553; Arenson, 665 A.2d at 396-97; Allstate Ins. Co. v. Dejbod, 63 Wash.App. 278, 818 P.2d 608, 611-12 (1991)).\\nFinally, the ICA held that Liberty Mutual was entitled to a $200,000.00 offset representing DaimlerChrysler's actual settlement proceeds, contrary to the circuit court's conclusion. See id. at 27. On that basis, the ICA vacated and remanded the circuit court's April 25, 2005 judgment for further proceedings. See id.\\nOn January 23, 2007, Liberty Mutual timely filed the present application for a writ of certiorari. On February 6, 2007, Zane filed her timely response. On April 16, 2007, we handed down an opinion in this matter (Zane II). On April 25, 2007, Zane moved for reconsideration, after which we vacated Zane II, ordered that it remain unpublished, and replaced it with this amended opinion.\\nII. STANDARD OF REVIEW\\nWe review the circuit court's grant or denial of summary judgment de novo. Hawai'i C[m]ty[.] Fed[.] Credit Union v. Keka, 94 Hawai'i 213, 221, 11 P.3d 1, 9 (2000). The standard for gran\\u00fa ing a motion for summary judgment is settled:\\n[S]ummary 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 as to any material fact and that the moving party is entitled to judgment as a matter of law. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. The evidence must be viewed in the light most favorable to the non-moving party. In other words, we must view all of the evidence and the inferences drawn therefrom in the light most favorable to the party opposing the motion.\\nId. (citations and internal quotation marks omitted).\\nQuerub\\u00edn v. Thronas, 107 Hawai'i 48, 56, 109 P.3d 689, 697 (2005) (quoting Durette v. Aloha Plastic Recycling, Inc., 105 Hawai'i 490, 501, 100 P.3d 60, 71 (2004) (quoting Simmons v. Puu, 105 Hawai'i 112, 117-18, 94 P.3d 667, 672-73 (2004) (quoting Kahale v. City & County of Honolulu, 104 Hawai'i 341, 344, 90 P.3d 233, 236 (2004) (quoting SCI Mgmt. Corp. v. Sims, 101 Hawai'i 438, 445, 71 P.3d 389, 396 (2003) (quoting Coon v. City & County of Honolulu, 98 Hawai'i 233, 244-45, 47 P.3d 348, 359-60 (2002)))))).\\nIII. DISCUSSION\\nA. Introduction\\nIn its application for a writ of cer-tiorari, Liberty Mutual argues that: (1) \\\"any dispute as to DaimlerChrysler's status as a 'joint tortfeasor' was never properly before the ICA\\\" inasmuch as Zane \\\"did not file any cross-appeal\\\" (quoting Doe v. Doe, 99 Hawai'i 1, 12-13, 52 P.3d 255, 266-67 (2002)); (2) in any case, DaimlerChrysler was a joint tort-feasor for purposes of determining what coverage was \\\"applicable\\\" to Zane, as Zane conceded by naming it as a defendant in her own complaint; (3) regardless of any liability or lack thereof on the part of DaimlerChrysler, Zane, by settling with DaimlerChrysler, \\\"for[went]\\\" the recovery of any amount between the settlement figure and Daimler-Chrysler's BI limit (citing Taylor, 90 Hawai'i at 313, 978 P.2d at 751; Dizol, 176 F.Supp.2d at 1027-33); and (4) Liberty Mutual's assent to the settlement did not \\\"give rise to an estoppel\\\" (citing, e.g., Enoka v. AIG Haw. Ins. Co., 109 Hawai'i 537, 558, 128 P.3d 850, 871 (2006); Broida v. Hayashi, 51 Haw. 493, 464 P.2d 285 (1970); Nationwide Mut. Fire Ins. Co. v. Salkin, 163 F.Supp.2d 512 (E.D.Pa.2001); Fickbohm v. St. Paul Ins. Co., 133 N.M. 414, 63 P.3d 517 (N.M.Ct.App. 2003); Liberty Mut. Ins. Co. v. Staltare, 236 A.D.2d 539, 654 N.Y.S.2d 154 (1997); Safeco Ins. Co. v. Woodley, 102 Wash.App. 384, 8 P.3d 304 (2000); Eklund v. Farmers Ins. Exch., 86 P.3d 259 (Wyo.2004)). (Some capitalization omitted.)\\nWe agree with the ICA that the parties' filings produced genuine issues of material fact as to Liberty Mutual's representations, if any, to Zane, not to mention the existence and reasonableness of her reliance on any such representations. However, we believe that the ICA erred in adopting Zane's position that DaimlerChrysler was not a tortfea-sor for Taylor purposes because it settled for \\\"nuisance value.\\\"\\nB. The Estoppel Question\\u2014i.e., Whether Liberty Mutual Represented To Zane That It Would Not Rely On The Taylor Rule\\u2014Turns On Unresolved Genuine Issues Of Material Fact.\\nBased upon the evidence proffered by the parties in their filings in the circuit court, summary judgment was premature. On the one hand, Zane alleged in her complaint, and Liberty Mutual admitted, that Liberty Mutual \\\"consented to the liability settlement.\\\" See supra section I.C. On the other hand, that admission, in and of itself, does not establish a patent waiver of Liberty Mutual's entitlement to a Taylor credit for Daimler-Chrysler's self-insurance in excess of $200,000.00. Liberty Mutual's admission that it \\\"may not now object to th[e] settlement as a basis for denying [UIM] benefits\\\" is subject to differing interpretations. Taylor admonishes that a UIM insurer may not withhold consent simply to coerce its insured into either trying her case or abandoning her UIM claim. As we insinuated in oral argument, Liberty Mutual's admission, phrased, as it is, in these particular words, could reasonably be taken to mean: \\\"Liberty Mutual acknowledges that, pursuant to Taylor, it cannot withhold all UIM benefits on the 'basis' that Zane breached our contract by settling without exhausting 'applicable' BI coverage.\\\" See Taylor, 90 Hawai'i at 314, 978 P.2d at 752. The negative implication would be: \\\"Nevertheless, Liberty Mutual can still discount a portion of Zane's UIM benefits on another 'basis,' to wit, the gap between the settlement amount and Daimler-Chrysler's limit.\\\" See id. That the discounted \\\"portion\\\" happens to equate to all of Zane's benefits in this particular ease, because of DaimlerChrysler's deeply insured status, is mere happenstance.\\nSimilarly, assuming arguendo the admissibility of the statements in Young's May 27, 2003 affidavit, Chang's having \\\"underst[ood] the situation\\\" and \\\"consent[ed] to settlement . as discussed\\\" do not definitively resolve the dispute in Zane's favor when compared to Liberty Mutual's version of the material facts, to wit, that Chang had alerted \\\"Kawa-taehi that [the] offset discussed in . Dizol . may be applicable to . Z[ane]'s claim.\\\" Given the genuine issues of material fact, we hold that summary judgment was wrongly entered.\\nIn short, the parties' \\\"pleadings . and admissions on file, together with the affidavits,\\\" did not \\\"show that there is no genuine issue as to any material fact and that [either] party [wa]s entitled to a judgment as a matter of law.\\\" See Hawai'i Rules of Civil Procedure Rule 56(c). Further proceedings in the circuit court are necessary to ascertain (1) whether Liberty Mutual's conduct constituted a representation that it would not attempt to reduce Zane's UIM claim by any unpaid portion of DaimlerChrysler's BI coverage and (2) whether Zane reasonably and detrimentally relied thereon.\\nC. The Only Argument That Zane Properly Preserved To Rebut Liberty Mutual's Assertion Of The Taylor Offset\\u2014ie., That The Parties Agreed That Daimler-Chrysler Was Not Liable\\u2014Is Meritless\\n1. Introduction\\nEssential to our framing of the remaining point of error is the particular language with which Zane contested the \\\"applicability]\\\" of DaimlerChrysler's insurance to the Taylor offset. In her motion for reconsideration, she advances a theory that she previously did not assert in her appellate briefing, to wit, that DaimlerChrysler's coverage is not \\\"applicable\\\" because DaimlerChrysler was not an owner or operator of one of the vehicles in the collision. Whereas Zane arguably hinted at this alternative argument before the circuit court, on appeal she did not rely on it and asserted instead that, inasmuch as Daim-lerChrysler was not liable in any capacity, its insurance did not apply to the Taylor gap.\\nBecause the thrust of Liberty Mutual's appeal was the circuit court's finding of es-toppel, we would not expect Zane to anticipate that the ICA would disturb the circuit court's decision as to the appropriate Taylor credit. Nevertheless, she willingly ventured into the question of DaimlerChrysler's applicability under Taylor, and did not contend in the alternative that DaimlerChrysler was not an owner or operator. Accordingly, we address only the question before us: whether the term \\\"tortfeasor,\\\" as employed in Taylor, could include a codefendant who has settled for only the estimated costs of litigation. If (1) the fact that DaimlerChrysler is apparently free of \\\"actual\\\" fault absolves it of \\\"tortfeasorship\\\" in the Taylor sense, we must deem DaimlerChrysler's BI coverage to be excluded from the Taylor gap; if, on the other hand, (2) the mere fact that Daimler-Chrysler settled for nuisance value\\u2014if that is what happened'\\u2014does not render it a non-tortfeasor for Taylor purposes, Liberty Mutual would, without more, be entitled to offset Zane's UIM claim with DaimlerChrysler's forgone \\\"limitless\\\" BI coverage. Inasmuch as Zane restricted her argument to the definition of a \\\"tortfeasor\\\" for Taylor purposes, we do not confront the question whether the Taylor gap envelops the BI insurance of even non-owner/operators.\\n2. Zane's only argument on appeal\\nIn Zane's answering brief, she argued in pertinent part that DaimlerChrysler's BI coverage was not \\\"applicable\\\" because Daim-lerChrysler was not a tortfeasor:\\nLiberty Mutual cites cases for the proposition that the liability policies of all parties, whether liable or not, should be considered in the credit.... [T]he cases cited do not apply because they do not involve . contribution by a non-liable party.\\n. Delahoussaye[ v. Madere, 733 So.2d 679 (La.Ct.App.1999) ], did not give any credit for . a non-liable . party's policy limits.\\n. [The defendant] Belcher's payment and policy limits, as [those of] a non-liable party, w[ere] totally excluded by both trial and appellate courts....\\nLiberty Mutual cites Schmidt v. Clothier, 338 N.W.2d 256 (Minn.l983)[,] and Johnson v. Am[.] Family Mut[.] Ins[.] Co., 426 N.W.2d 419 (Minn.l988)[,] for the proposition that it is entitled to a credit for even non-liable parties. Neither case supports that claim....\\nIt makes no sense to require Zane to forego the . contribution from Daimler-Chrysler . where it was obvious that [it] was truly for nuisance value....\\n. Liberty Mutual's contention that Zane [should] be required to pursue a non-liable party conflicts with Taylor's rationale . It is implicit from the context and reasoning . that the court's reference to recovery of the \\\"tortfeasor's liability coverage\\\" refers to a tortfeasor that is liable to the plaintiff. It seems academic that one who is not liable to the plaintiff is by definition not a \\\"tortfeasor.\\\"\\nLiberty Mutual's policy requirement to exhaust insurance policy limits applies only to \\\"applicable\\\" policies.... DaimlerChrys-ler's policy was not applicable because there was no liability.\\n. [Insurance coverage of parties that are not liable are simply not \\\"applicable\\\" to the loss and do not violate Liberty Mutual's provision requiring exhaustion of applicable liability policies.\\n(Citation omitted.) Then, in her response to Liberty Mutual's cert application, Zane argued:\\nLiberty Mutual does not challenge the undisputed fact that discovery and case preparation did not support a claim against DaimlerChrysler (hence DaimlerChrysler was not a tortfeasor).... The ICA's conclusion that DaimlerChrysler was not legally responsible for Zane's injuries is clearly supported....\\n. [T]he ICA decision was based on the fact that all parties agreed that Daimler-Chrysler was not a tortfeasor after discovery and case preparation failed to develop a viable theory of liability against Daimler-Chrysler.\\n. [U]nlike . Taylor, in the instant case it was undisputed that DaimlerChrys-ler[ ] was not legally responsible for Zane's injuries and[,] thus, not a tortfeasor. Therefore, Da[im]lerChrysler's insurance was not less than its liability . because it was not liable .\\n. \\\"A party is liable within the meaning of [HRS \\u00a7 ] 663-ll[, see supra note 9,] if the injured person could have recovered damages in a direct action against that party[] had the injured person chosen to pursue such an action.\\\" Gump ., 93 Hawai'i [at] 422, 5 P.3d [at] 412....\\n(Some emphases added and one omitted.) (Heading omitted.) (Quoting Zane I at 24.) In sum, Zane represented on appeal that DaimlerChrysler's BI coverage did not apply to the Taylor gap because DaimlerChrysler, having settled for what the parties agree was nuisance value rather than a liquidation of \\\"actual\\\" fault, was not a tortfeasor for purposes of the Taylor rule.\\n3. Zane's asserted basis for reconsideration\\nIn her motion for reconsideration, Zane attempts to recast her position on appeal as being that DaimlerChrysler was not an owner or operator of an underinsured motor vehicle. Citing (for the first time ever) State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 809, 818-21 (Ala.2005), Zane argues that, inasmuch as (1) she implicated DaimlerChrysler as a defendant upon a theory of products liability, and (2) Daimler-Chrysler was not an owner or operator of a motor vehicle, DaimlerChrysler's funds \\\"have nothing to do with motor vehicle insurance,\\\" whereas HRS \\u00a7 431:100-103 and -301(b)(4) (Supp.1998) \\\"expressly and exclusively re-fer\\u00ed ] to motor vehicle [BI] insurance and motor vehicle self-insurance.\\\" Zane adds that, pursuant to Kang v. State Farm Mut. Auto. Ins. Co., 72 Haw. 251, 815 P.2d 1020 (1991), Thomas's vehicle, in which Zane rode, was not an underinsured motor vehicle, inasmuch as Zane was covered by Thomas's BI policy and cannot simultaneously recover from his UIM insurance. In essence\\u2014from Zane's newly resurrected perspective\\u2014, Da-imlerChrysler was not an owner or operator of any vehicle, let alone an underinsured one, and its BI insurance is not \\\"applicable\\\" within the meaning of HRS \\u00a7 431:100-103. We believe this argument to be belated and, accordingly, waived for purposes of this appeal. There is no reason why Zane could not have asserted this theory as an alternative to the position that she actually raised\\u2014that a UIM insured cannot forfeit the BI coverage of a settling defendant that is not a tortfeasor. Indeed, she is free to raise it on remand.\\n4. The fact that an alleged tortfeasor has settled for \\\"nuisance value\\\" does not, absent more, erase an insurer's right to offset its insured's UIM claim by an amount equal to the tortfeasor's forgone BI coverage.\\nHaving clarified the narrow scope of Zane's argument, we now proceed to answer the sole question she has preserved for our review: does the fact that a defendant has settled with the plaintiff for an amount that the parties agree represents only the costs of litigation and not a liquidation or compromised representation of liability, absent more, remove that defendant's BI coverage from the universe of insurance \\\"applicable\\\" as a Taylor offset? We answer the question in the negative.\\nIn the event that the circuit court, on remand, rejects Zane's estoppel theory, we now provide guidance on the applicability of the Taylor rule under circumstances in which a settling defendant pays arguably negligible consideration for its release. We conclude that the record did not enable the ICA to conclude as a matter of law that Daimler-Chrysler was not a tortfeasor for Taylor offset purposes.\\na. Taylor, Dizol, and Granger labeled the settling defendants \\\"tortfeasors\\\" notwithstanding the lack of adjudication.\\nThe inescapable implication of Taylor is that, in the context of a motor vehicle tort, it is the plaintiffs prerogative to settle with an alleged tortfeasor and thereby waive any UIM coverage of the gap between the compromise and the tortfeasor's BI limit. We believe that the choice of whether or not to settle with any particular defendant, with its consequent benefits and detriments, remains with the plaintiff even when discovery is fruitless. We disagree with Zane's implication that adjudication, arbitration, or admission of fault is a precondition of a Taylor offset. We agree with Liberty Mutual that, where a UIM insured has settled with an alleged tortfeasor, the UIM insurer is not barred from discounting its financial responsibility for its insured's damages merely because the insured asserts that the defendant was not liable, regardless of (1) the defendant's \\\"negligible\\\" settlement amount and/or (2) the UIM insurer's consent to the mere act of settling (holding aside the estoppel controversy).\\nZane's attempt to distinguish Daim-lerChrysler from the alleged tortfeasors in Taylor, Dizol, and, by implication, Granger, is unpersuasive. In none of those cases was a single settling defendant actually adjudged to be factually liable, yet both this court and the Dizol court deemed the settling defendants to be \\\"joint tortfeasors\\\" for UIM purposes. Many, if not most, settlement agreements contemplate that the settling defendant will be absolved of further liability to the plaintiff and the plaintiffs potential sub-rogee insurer. Nevertheless, we believe that a plaintiff/UIM insured who names a defendant and retains the defendant in the suit all the way to settlement assumes both the potential benefit of a defendant's ample insurance and the risk that the defendant's BI limit may far exceed the feasible settlement value; a defendant's settlement alone does not extinguish its \\\"tortfeasor\\\" status for purposes of offsetting a UIM claim. Cf., e.g., Doe Parents No. 1 v. State, Dep't of Educ., 100 Hawai'i 34, 41, 55, 56 & n. 30, 87 n. 50, 58 P.3d 545, 552, 566, 567 & n. 30, 598 n. 50 (2002) (where trial court dismissed plaintiffs' claims against one of two codefendants before trial because the claims had earlier been discharged in bankruptcy, the dismissed party could not be a \\\"joint tortfeasor\\\").\\nb. Dejbod, Vassiliu, and Mulholland\\nThe ICA erroneously relied on foreign authority that is dissonant with the Taylor line.\\nThe Washington Court of Appeals's holding, in Dejbod, that \\\"[t]he fact that a liability carrier voluntarily settles . does not, without more, establish . that [its] insured's [BI] policy is 'applicable' to the claimant,\\\" 818 P.2d at 612, is simply incompatible with Taylor and Granger, in which we contemplated the offset of settling defendants' entire BI limits despite the lack of any adjudication of fault. Cf supra sections I.A and III.C.4.a.\\nIn Vassiliu, the widow of the decedent UIM insured had sued (1) the driver of the other motor vehicle in the subject accident and (2) DaimlerChrysler, which was the manufacturer and seller of her husband's car. 813 A.2d at 549. The parties agreed that the plaintiffs burden against DaimlerChrysler revealed itself to be \\\"insurmountable,\\\" and DaimlerChrysler \\\"settled for $215,000.00 without concession of liability on its part.\\\" Id. at 550. The plaintiff sought a declaratory judgment against the decedent's UIM insurers for the full extent of the governing UIM policies. See id. at 550-51.\\nThe defendant insurers argued that they were not obliged to cover any of the decedent's injuries inasmuch as the $215,000.00 payment from DaimlerChrysler exceeded the total UIM limits of $200,000.00. Id. at 551. The New Jersey Superior Court's Law Division disagreed, and the Appellate Division affirmed. Id. at 551, 552-53, 556. Construing a New Jersey statute similar to HRS \\u00a7 431:10C-103's definition of an underin-sured motor vehicle, see supra note l, the Appellate Division reasoned, in the portion of its opinion quoted by the ICA, slip op. at 23, that\\n[\\\"]when the statute . speaks of 'available' insurance coverage, it plainly refers to that of persons who are actual responsible tortfeasors and not that of those who may have been 'involved' in the accident without being liable under the law. To rule otherwise would lead to the result that [UIM] coverage would be eliminated whenever entirely blameless persons involved in an accident happen to be heavily insured.[\\\"]\\n813 A.2d at 553 (emphasis added) (quoting Gold v. Aetna Life & Cas. Ins. Co., 233 N.J.Super. 271, 558 A.2d 854, 857 (1989)).\\nThe ICA overlooked a critical distinction from the present matter. After the settlement in Vassiliu, the remaining driver and the plaintiff proceeded to a bench trial. Id. at 550 & n. 2. The judge adjudicated liability with respect to the driver, allocating 100% of the fault to her; \\\"[h]e found no evidence of fault on the part of [DaimlerChrysler].\\\" See id. at 550.\\nFinally, Zane completely misapprehends Mulholland. That case concerned a UIM insurer's exhaustion clause, which provided that \\\" 'there is no coverage until the limits of liability of all [BI] . insurance policies . that apply . have been used up by payment of judgments or settlements.'\\\" 122 Ill.Dec. 657, 527 N.E.2d at 35 (emphases omitted). An Illinois trial court had construed the term \\\"apply\\\" narrowly, i.e., such that an insured need not exhaust the coverage of tortfeasors against which \\\" 'a reasonably viable cause of action' \\\" did not exist. Id. at 35-37.\\nThe Illinois Appellate Court disavowed, at least in dictum, the lower court's analysis to which Zane alluded in the June 4, 2003 hearing. The appellate court balked at the practical difficulty of \\\"pretry[ing] the ease and rul[ing] on the . reasonable] viability]\\\" of a claim, but affirmed on unrelated grounds, to wit, that \\\"the exhaustion clause . is against public policy and therefore unenforceable,\\\" accord Taylor, 90 Hawai'i at 312, 313 & n. 10, 978 P.2d at 750, 751 & n. 10. See 527 N.E.2d at 37, 40-41.\\nc. Gump\\nIn addition to Taylor, Dizol, and Granger, Gump illustrates that we have applied the term \\\"joint tortfeasor\\\" to erstwhile defendants whose fault was never adjudicated. In that case, the plaintiff \\\"slipped on a french fry outside [a] McDonald's restaurant but inside the premises of Wal-Mart and sustained injuries. The restaurant [wa]s located inside the . Wal-Mart.\\\" 93 Hawai'i at 419, 5 P.3d at 409. The plaintiff released McDonald's pursuant to settlement, but proceeded to trial against Wal-Mart. Id. After \\\"[t]he jury . apportioned liability 95% to Wal-Mart and 5% to\\\" the plaintiff and awarded damages, Wal-Mart moved for \\\"a new trial in which McDonald's [w]ould be included on the special verdict form.\\\" Id. The trial court denied the motion and Wal-Mart appealed. Id. On certiorari to the ICA, we ultimately upheld the trial court's omission of McDonald's from the special verdict form inasmuch as Wal-Mart had not cross-claimed against McDonald's, but we agreed that McDonald's was a joint tortfea-sor, on no other basis than its having been named as a defendant. See id. at 422-23, 5 P.3d at 412-13.\\nd. Summary\\nAn actual adjudication of fault is not a prerequisite to a party's qualification as a \\\"tortfeasor\\\" for purposes of the Taylor rule. Having elected not to proceed to an adjudication of DaimlerChrysler's fault, Zane bore the consequences of recovering any settlement amount, however \\\"meager,\\\" from Da-imlerChrysler. Moreover, a UIM insurer's consent to settlement, absent more, does not constitute a waiver of the Taylor \\\"gap.\\\"\\nStill, the record on appeal reflects a genuine issue of material fact with respect to whether Liberty Mutual communicated to Zane that it did not consider DaimlerChrys-ler's self-insurance exceeding $200,000.00 to be a Taylor \\\"gap.\\\" Inasmuch as the estop-pel question was not ripe for summary judgment, we remand to the circuit court. On remand, the parties may, if they wish, file new motions for summary judgment on whatever supportable grounds they choose to assert.\\nIV. CONCLUSION\\nWe (1) vacate the ICA's opinion in Zane I and the judgments of the ICA and the circuit court and (2) remand to the circuit court for further proceedings consistent with the foregoing analysis.\\n. HRS \\u00a7 431:100-103 defines \\\"[u]nderinsured motor vehicle\\\" as \\\"a motor vehicle with respect to the ownership, maintenance, or use for which [the] sum of the limits of all [BI] liability insurance coverage and self-insurance applicable at the time of loss is less than the liability for damages imposed by law.\\\" (Emphasis added.) Effective April 19 and 27, 2000, the legislature amended this section in respects not germane to the present matter. See 2004 Haw. Sess. L. Act 10, \\u00a7 13, 14, and 18(3) and (4) at 24-25; 2000 Haw. Sess. L. Act 24, \\u00a7 4 and 15 at 41, 47, Act 66, \\u00a7 1 and 3 at 122.\\n. We noted in Taylor that, by settling with an alleged tortfeasor in a motor vehicle personal injury case for less than the alleged tortfeasor's BI policy limits, a \\\"UIM insured agrees to forego compensation for the difference between the settlement amount and the tortfeasor's liability policy limits. The UIM carrier will not be responsible for covering that 'gap,' \\\" 90 Hawai'i at 313, 978 P.2d at 751. For further discussion, see infra section I.A. We reaffirmed this principle in Granger v. Gov't Employees Ins. Co., 111 Hawai'i 160, 168, 140 P.3d 393, 401 (2006), and the United States District Court for the District of Hawai'i recognized it in Dizol, 176 F.Supp.2d at 1031-33. (Neither the present application nor Zane I cites Granger, although it was handed down before Zane I, on August 9, 2006.) In the present matter, Zane concedes that the Taylor rule would control but for, as she maintains, DaimlerChrysler's lack of tortfeasor status. See infra section I.C.2.\\n. Neither the record nor the parties address whether the BI limits under the AIG policy exceeded $40,000.00.\\n. Zane's status as Liberty Mutual's UIM insured is grounded in the UIM policy's definition of \\\"[i]nsured'' as, inter alia, \\\"[a]ny other person occupying your [i.e., the insured signatory's] covered auto.\\\" (Emphases omitted.)\\n. In her April 25, 2007 motion for reconsideration, Zane contends that, in our earlier version of this opinion, Zane v. Liberty Mutual Fire Ins. Co., No. 27317 (Haw. Apr. 16, 2007), we incorrectly described DaimlerChrysler's BI coverage as \\\"self-insurance.\\\" Zane argues that \\\"Daimler-Chrysler is 'self-insured in the lay, general sense of the term [i.e. not insured by a commercially purchased [BI] liability insurance policy), but clearly not with respect to an 'underinsured motor vehicle.'\\\" In other words, in Zane's view, \\\"self-insurance\\\" is a term of art referring to the BI coverage of motor vehicle owners who formally register as \\\"self-insurers\\\" by the procedure set forth in HRS \\u00a7 431:10C-105. DaimlerChrysler apparently not being a \\\"self-insurer\\\" for purposes of HRS \\u00a7 431:10C-105, Zane believes that DaimlerChiysler's BI limit is \\\"frustratingly ambiguous\\\" because, whereas \\\"self-insurers\\\" must \\\"provide!] securities affording security substantially equivalent to that afforded under a motor vehicle insurance policy,\\\" DaimlerChrysler's BI limit was never fixed through formal registration or by operation of a contract. We disagree with Zane's conclusion.\\nFrom the outset, Zane has held out, and we have therefore assumed for purposes of our analysis, that DaimlerChrysler carried BI \\\"insurance,\\\" which was \\\"unlimited\\\" for \\\"Taylor gap\\\" purposes. See, e.g., Zane's Mot. for Summary J. at 9 (\\\"Insurance coverage for DaimlerChrysler is, for all practical purposes, unlimited.''); Transcript of Proceedings 6/4/03 at 12-13 (Zane: \\\"[Daimler]Chrysler's insurance is, for all practical purposes, unlimited\\u2014... for this case it is.\\\"). In other words, Zane has consistently admitted that DaimlerChrysler was covered\\u2014 though probably by its own coffers\\u2014in an amount that exceeded the total amount of Zane's otherwise unrecovered damages.\\nWe acknowledge Zane's concern that if, in a different case, a settling defendant were un- or underinsured, and yet happened to be endowed with great wealth of a value that was not crystallized by agreement of the parties or judicial admission, to characterize the defendant as \\\"insured\\\" or \\\"self-insured\\\" would invite a dispute over the limit of the defendant's BI \\\"coverage.\\\" Nevertheless, that is not the case before us. By Zane's unwavering judicial admission, Daimler-Chiysler's deep pockets are a source of BI \\\"insurance\\\" the limit of which is definitive for present purposes.\\n. In her pretrial statement, Zane added that\\nLiberty Mutual, despite having given its consent to settle the liability claims and Zane's dismissal of the liability claims in reliance on Liberty Mutual's consent, has now reneged on its consent.... Of course it is now impossible for Zane to recover the balance of her damages from DaimlerChrysler because she settled the liability claim and dismissed the action against DaimlerChrysler with prejudice after receiving Liberty Mutual's consent and in reliance thereon.\\n. Zane does not contest this second premise. See infra note 13 and accompanying text.\\n. Young presumably means either \\\"and the reasons\\\" or \\\"the reason being.\\\"\\n. But see infra section III.C.4.b.\\n. Effective June 28, 2001 and June 4, 2003, the legislature amended the UCATA in immaterial respects. See 2003 Haw. Sess. L. Act 146, \\u00a7 1 and 4 at 343-44; 2001 Haw. Sess. L. Act 300, \\u00a7 3, 4, and 7 at 876-77.\\n. HRS \\u00a7 663-11 (1993), entitled \\\"Joint tortfea-sors defined,\\\" provides: \\\"For the purpose of [the UCATA,] the term 'joint tortfeasors' means two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.\\\"\\n. As a general matter, we believe Liberty Mutual correctly describes the elements of equitable estoppel. \\\"[T]he party invoking equitable estop-pel must show that 'he or she has detrimentally relied on the representation or conduct of the person sought to be estopped, and that such reliance was reasonable. Such requirement, however, may be dispensed with in order to prevent manifest injustice.' \\\" AIG Haw. Ins. Co. v. Smith, 78 Hawai'i 174, 179, 891 P.2d 261, 266 (1995) (emphasis and citations omitted) (quoting Doherty v. Hartford Ins. Group, 58 Haw. 570, 573, 574 P.2d 132, 134-35 (1978)), quoted in State Farm Mut. Auto. Ins. Co. v. GTE Hawaiian Tel. Co., 81 Hawai'i 235, 244, 915 P.2d 1336, 1345 (1996).\\n. The ICA noted that, based upon the language of its UIM policy, Liberty Mutual's UIM coverage \\\" 'appl[ied] over and above all sums . [p]aid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible.' \\\" Op. at 75, 165 P.3d at 976 (some emphases omitted and one in original) (some brackets added and some in original) (ellipsis in original). The ICA concluded that Daimler-Chrysler \\\"may\\\" have \\\"be[en] . legally responsible\\\" and, therefore, its payment of $200,000.00 to Zane entitled Liberty Mutual to a pro tanto credit. Id. Zane does not contest this aspect of the ICA's decision, and we agree with it.\\n. This point is meritless. Zane was hardly aggrieved by the circuit court's adoption of her position. We cannot imagine why Zane would or should have anticipated the need to challenge on cross-appeal the circuit court's dictum that the Taylor rule would have favored Liberty Mutual were it not estopped. In any case, while, \\\"[o]rdinarily, an appellee is not entitled on appellate review to attack a judgment without a cross appeal[,] . '[it] seems that no cross appeal is necessary [to] review a question closely related, in substance, to a question raised by the appeal.' Certainly, what is [sauce] for the goose is . [sauce] for the gander.\\\" Shoemaker v. Takai, 57 Haw. 599, 607, 561 P.2d 1286, 1291 (1977).\\n. In reply to Liberty Mutual's objection that Zane \\\"is . raising this argument for the first time on this appeal,\\\" Zane notes that, \\\"in [her] opposition to Liberty Mutual's motion for summary judgment in the [circuit] court,\\\" she \\\"raised these arguments.\\\" (Citing Mem. in Opp. to Mot. for Summary J. at 13.)\\n. In hindsight, we realize that, at oral argument, Zane may have alluded to her new argument, which we assumed was a reiteration of her general theory that, inasmuch as DaimlerChrys-ler was not \\\"legally responsible,\\\" its self-insurance was not applicable:\\n[Zane:] . In our argument below, we said [the Taylor credit] didn't apply in this particular case for several reasons. Number one, the policy itself distinguished how you handle the policy limits of a[UIM] and of anybody else. As to the [UIM] the policy is very specific. The policy says (and in this case the [UIM] would have been . Kim), . \\\"We will pay under this coverage only after the limits of liability under any applicable [BI] liability bonds or policies have been exhausted by payment o[f] judgments or settlements].\\\" That is in the \\\"INSURING AGREEMENT\\\" dealing with un-derinsured motor vehiclefe].\\u2014\\n[Justice Levinson:] Which is another way of framing, isn't it, the question whether Daimler-Chrysler's unlimited BI self-insurance was applicable or not?\\n[Zane:] . No, because . [the \\\"LIMIT OF LIABILITY\\\" section] . applies to others.... And it says this: \\\"Any amounts otherwise payable for damages under this coverage apply over and above all sums: 1. Paid . by or on behalf of persons or organizations who may be legally responsible.\\\" (Emphasis omitted.)\\n[Justice Levinson:] In other words, tortfea-sors.\\n[Zane:] Correct. Non-auto tortfeasors. But there, you don't get a credit for the policy limit; you get a credit for the amount paid. So the policy itself sets up that distinction. And it's a very important distinction because you don't need to reach issues of waiver or lortfeasor[ status]....\\nMP3: Oral Argument, Hawai'i Supreme Court, 24:00 to 25:55 (Mar. 21, 2007), available at http://state.hi.us/jud/oa/07/SCoa032101-\\u2014 11amr.mp3. Nonetheless, it goes without saying that legal grounds raised for the first time in oral argument before the court of last resort are late to the dance. See, e.g., Hawaii Rule of Appellate Procedure 28(c) (concerning answering briefs); Houghtailing ex rel. Steere v. De La Nux, 25 Haw. 438, 444 (1920); Hana Ranch, Inc. v. Kaholo, 2 Haw.App. 329, 332-33, 632 P.2d 293, 295-96 (1981).\\n. HRS \\u00a7 431:10C-301(b) provides in relevant part:\\nA motor vehicle insurance policy shall include:\\n(4) Coverage for loss resulting from [BI] . suffered by any person legally entitled to recover damages from owners or operators of underinsured motor vehicles....\\n. We cannot help but notice that \\\"negligible\\\" does not roll off the tongue when one speaks of $200,000.00, almost twelve percent of a $1,690,000.00 settlement.\\n. The Dizol court avoided the issue that now confronts us because \\\"[i]t [wa]s undisputed that [the driver] and [the bar] were 'joint tortfea-sors.' \\\" See 176 F.Supp.2d at 1022 (emphasis added).\\n. N.J. Stat. Ann. \\u00a7 17:28-1.l.e(l) provides in relevant part:\\nA motor vehicle is underinsured when the sum of the limits of liability under all [BI] and property damage liability bonds and insurance policies available to a person against whom recovery is sought for [BI] or property damage is, at the time of the accident, less than the applicable limits for [UIM] coverage afforded under the motor vehicle insurance policy held by the person seeking that recovery.\\n(Emphasis added.)\"}"

haw/12258704.json

@@ -0,0 +1 @@
+"{\"id\": \"12258704\", \"name\": \"State v. Kaheaku\", \"name_abbreviation\": \"State v. Kaheaku\", \"decision_date\": \"2006-12-08\", \"docket_number\": \"26968\", \"first_page\": \"58\", \"last_page\": \"58\", \"citations\": \"113 Haw. 58\", \"volume\": \"113\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T18:09:38.368682+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Kaheaku\", \"head_matter\": \"26968\\nState v. Kaheaku\", \"word_count\": \"5\", \"char_count\": \"32\", \"text\": \"Affirmed\"}"

haw/12259002.json

@@ -0,0 +1 @@
+"{\"id\": \"12259002\", \"name\": \"State v. Williams\", \"name_abbreviation\": \"State v. Williams\", \"decision_date\": \"2005-11-16\", \"docket_number\": \"26823\", \"first_page\": \"68\", \"last_page\": \"68\", \"citations\": \"109 Haw. 68\", \"volume\": \"109\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T23:53:15.564012+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Williams\", \"head_matter\": \"26823\\nState v. Williams\", \"word_count\": \"5\", \"char_count\": \"33\", \"text\": \"Affirmed\"}"

haw/12259049.json

@@ -0,0 +1 @@
+"{\"id\": \"12259049\", \"name\": \"Akui v. Moke\", \"name_abbreviation\": \"Akui v. Moke\", \"decision_date\": \"2002-12-20\", \"docket_number\": \"24474\", \"first_page\": \"44\", \"last_page\": \"44\", \"citations\": \"101 Haw. 44\", \"volume\": \"101\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T22:25:39.391337+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Akui v. Moke\", \"head_matter\": \"Akui v. Moke\\n24474\\n12/20/2002\", \"word_count\": \"6\", \"char_count\": \"39\", \"text\": \"Affirmed\"}"

haw/12259166.json

@@ -0,0 +1 @@
+"{\"id\": \"12259166\", \"name\": \"State v. Maluia\", \"name_abbreviation\": \"State v. Maluia\", \"decision_date\": \"2004-11-29\", \"docket_number\": \"25689\", \"first_page\": \"80\", \"last_page\": \"80\", \"citations\": \"106 Haw. 80\", \"volume\": \"106\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T23:42:25.121936+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Maluia\", \"head_matter\": \"November 29, 2004\\n25689\\nState v. Maluia\", \"word_count\": \"8\", \"char_count\": \"49\", \"text\": \"Affirmed\"}"

haw/12259281.json

@@ -0,0 +1 @@
+"{\"id\": \"12259281\", \"name\": \"State v. Adam\", \"name_abbreviation\": \"State v. Adam\", \"decision_date\": \"2005-04-20\", \"docket_number\": \"26259\", \"first_page\": \"72\", \"last_page\": \"72\", \"citations\": \"107 Haw. 72\", \"volume\": \"107\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T21:02:21.984407+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Adam\", \"head_matter\": \"April 20, 2005\\n26259\\nState v. Adam\", \"word_count\": \"8\", \"char_count\": \"44\", \"text\": \"Affirmed\"}"

haw/12259796.json

@@ -0,0 +1 @@
+"{\"id\": \"12259796\", \"name\": \"State v. Darick\", \"name_abbreviation\": \"State v. Darick\", \"decision_date\": \"1997-10-17\", \"docket_number\": \"20028\", \"first_page\": \"33\", \"last_page\": \"33\", \"citations\": \"86 Haw. 33\", \"volume\": \"86\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T20:20:51.400764+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Darick\", \"head_matter\": \"State v. Darick\\n20028\\n10/17/97\", \"word_count\": \"6\", \"char_count\": \"40\", \"text\": \"Affirmed\"}"

haw/12259846.json

@@ -0,0 +1 @@
+"{\"id\": \"12259846\", \"name\": \"Mawae-Idemoto v. Au\", \"name_abbreviation\": \"Mawae-Idemoto v. Au\", \"decision_date\": \"1998-08-27\", \"docket_number\": \"20842\", \"first_page\": \"213\", \"last_page\": \"213\", \"citations\": \"89 Haw. 213\", \"volume\": \"89\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T19:24:10.176955+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Mawae-Idemoto v. Au\", \"head_matter\": \"20842\\nMawae-Idemoto v. Au\", \"word_count\": \"5\", \"char_count\": \"35\", \"text\": \"Affirmed\"}"

haw/12259922.json

@@ -0,0 +1 @@
+"{\"id\": \"12259922\", \"name\": \"STATE of Hawai'i, Plaintiff-Appellee, v. Adam RUGGIERO, Defendant-Appellant\", \"name_abbreviation\": \"State v. Ruggiero\", \"decision_date\": \"2007-06-05\", \"docket_number\": \"No. 26940\", \"first_page\": \"227\", \"last_page\": \"260\", \"citations\": \"114 Haw. 227\", \"volume\": \"114\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-11T00:18:50.140822+00:00\", \"provenance\": \"CAP\", \"judges\": \"LEVINSON, J., with whom DUFFY, J. joins; NAKAYAMA, J., Concurring and Dissenting, with whom MOON, C.J., joins; and ACOBA, J., Concurring and Dissenting Separately.\", \"parties\": \"STATE of Hawai'i, Plaintiff-Appellee, v. Adam RUGGIERO, Defendant-Appellant.\", \"head_matter\": \"160 P.3d 703\\nSTATE of Hawai'i, Plaintiff-Appellee, v. Adam RUGGIERO, Defendant-Appellant.\\nNo. 26940.\\nSupreme Court of Hawai'i.\\nJune 5, 2007.\\nArleen Y. Watanabe, Deputy Prosecuting Attorney, on the briefs, for the plaintiff-ap-pellee State of Hawai'i.\\nDeborah L. Kim and Marcus L. Landsberg IV, Deputy Public Defenders, on the briefs, for the defendant-appellant Adam Ruggiero.\\nLEVINSON, J., with whom DUFFY, J. joins; NAKAYAMA, J., Concurring and Dissenting, with whom MOON, C.J., joins; and ACOBA, J., Concurring and Dissenting Separately.\", \"word_count\": \"22642\", \"char_count\": \"135594\", \"text\": \"Opinion by\\nLEVINSON, J.\\nThe defendant-appellant Adam Ruggiero appeals from the September 30, 2004 judgment and sentence of the district court of the second circuit, the Honorable Douglas H. Ige presiding, convicting him of operating a vehicle under the influence of an intoxicant [hereinafter, \\\"DUI\\\"], in violation of Hawai'i Revised Statutes (HRS) \\u00a7 291E-61 (Supp.2003), see infra note 10.\\nOn appeal, Ruggiero asserts that the district court erred in sentencing him as a repeat offender, pursuant to HRS \\u00a7 291E-61(b) and (e), see infra note 10, inasmuch as nine days after his DUI arrest but prior to his conviction and sentencing, this court, in summary disposition order (SDO) No. 25671 (March 19, 2004) [hereinafter, \\\"SDO No. 25671\\\"], reversed his previous January 29, 2003 DUI conviction, thereby, Ruggiero alleges, removing the basis for the enhanced penalty.\\nFor the reasons discussed infra in section III, we hold that the language set forth in HRS \\u00a7 291E-61(c), see infra note 10, manifests a clear- legislative intent to create a status offense in HRS \\u00a7 291E-61 and, therefore, that it was not a violation of Ruggiero's due process rights, guaranteed by section 1 of the fourteenth amendment to the United States Constitution and article I, section 5 of the Hawai'i Constitution to sentence him as a second-time offender on the basis of a prior conviction that was valid at the time of his arrest for the present offense.\\nHowever, in keeping with the due process protections articulated in State v. Cummings, 101 Hawai'i 139, 142-43, 63 P.3d 1109, 1112-13 (2003), State v. Israel, 78 Hawai'i 66, 73, 890 P.2d 303, 310 (1995), and State v. Schroeder, 76 Hawai'i 517, 525, 880 P.2d 192, 200 (1994), see infra section III.C.5, in order for his conviction and sentencing as a second-time offender to be valid, Ruggiero's prior conviction, as an essential element of the offense charged, had to be alleged in the complaint and proven beyond a reasonable doubt at trial. Insofar as the complaint in the present matter failed to allege Ruggiero's prior conviction, it was insufficient to charge Ruggiero with a violation of HRS \\u00a7 291E-61(a) and (b)(2) as a second-time offender. We therefore vacate his conviction of and sentence for driving under the influence for the second time within a five-year period, in violation of HRS \\u00a7 291E-61(a) and (b)(2) and remand to the district court for the entry of a judgment of conviction for driving under the influence of an intoxicant with no prior offenses, in violation of HRS \\u00a7 291E-61(a) and (b)(1), see infra note 10, and sentencing in accordance therewith. State v. Elliott, 77 Hawai'i 309, 313, 884 P.2d 372, 376 (1994). We affirm the district court's judgment with respect to Ruggiero's convictions of the infractions alleged in Counts II, III, and IV of the complaint, none of which Ruggiero appealed, see infra note 3.\\nI. BACKGROUND\\nOn March 10, 2004\\u2014while his appeal of a January 29, 2003 conviction for operating a vehicle under the influence of an intoxicant, in violation of HRS \\u00a7 291E-61(a)(l) (Supp. 2002), was pending before this court\\u2014Rug-giero was again arrested for DUI. Nine days later, on March 19, 2004, we reversed the January 29, 2003 conviction on the grounds that the prosecution failed to' prove an essential element of the offense.\\nFollowing from the March 10, 2004 arrest, on April 19, 2004, Ruggiero was charged by complaint with, inter alia, DUI (Count I), in violation of HRS \\u00a7 291E-61 (Supp.2003), see infra note 10. On September 8, 2004, the district court of the second circuit, the Honorable Douglas H. Ige presiding, conducted a trial and convicted Ruggiero, inter alia, of that charge.\\nThe district court then proceeded to the sentencing phase of the trial, whereupon the plaintiff-appellee State of Hawai'i [hereinafter, \\\"the prosecution\\\"] moved for an enhanced sentence based on the prior January 29, 2003 conviction. After a conference in chambers, the district court made the following statement:\\n[Ruggiero]'s co-counsel[ ] brought to the Court's attention that the conviction that the prosecution is relying on for [DUI] that occurred on October 6, 2002 whereby the defendant was convicted on January 29, 2003, had been appealed and the Supreme Court by summary disposition order reversed the conviction [on March 19, 2004].\\nSo the defense was arguing that, accordingly, it should not be considered as a prior conviction. There is a provision, however, in [HRS \\u00a7 ]291[E-]61(c), whereby it states that any judgment on a verdict of a finding of guilty . that at the time of the offense has not been expunged by pardon, reverse[d], [or] set aside shall be deemed a prior conviction under this section.\\nThe question now is the legal [e]ffect of that statutory provision. Because the reversal took place on March . 19, 2004.... And the date of this violation was March 10, 2004, nine days earlier. So at the time of the commission of this offense, that conviction had not been reversed by the Supreme Court.\\nThe district court then continued the sentencing hearing to allow both parties to brief the issue of whether Ruggiero's prior conviction could serve as the basis for an enhanced sentence as a repeat offender, pursuant to HRS \\u00a7 291E-61(c), see infra note 10. In his memorandum in opposition, Ruggiero argued only that the language of the statute was ambiguous and that the ambiguity should therefore be construed in his favor.\\nAt the September 30, 2004 hearing, Rug-giero reiterated the argument set forth in his memorandum. The district court asked Ruggiero's counsel whether any other arguments came to mind:\\nThe Court: [I]s there anything outside the clear reading of the statute .\\n\\u2014constitutional grounds, anything else that would prevent the Court from . applying the clear reading of the statute^]\\nCounsel: Just, your Honor, in the interest of justice and fairness the first conviction should not count as it was overturned before this current conviction. .\\nFirst, he already completed classes and other requirements for the first conviction that was overturned, even though it was overturned. He has faced those penalties already for that offense.\\nSecond, your Honor, the legislative history does not indicate a reason for the language of the statute at issue. So, basically, your Honor, he is punished for the first offense, although it's overturned. Now he faces a second conviction and a second conviction penalties.\\nYour Honor, the legislature may have intended that the language of the statute provides notice to defendants about their convictions so that they can conform their behavior, but here Mr. Ruggiero had a valid issue for appeal and believed he would win on appeal[;] therefore he wasn't on notice that he would be facing a second conviction penalty.\\nThe Court: Well, you're making the arguments that you made in your . written\\u2014I don't need you to read it back to me.... So, anything else?\\nCounsel: No, your honor.\\n(Some capitalization altered.) The district court then concluded that\\n[o]n the clear reading of [HRS \\u00a7 291E-61(c) ] when the defendant committed this offense it would have been his second. There was a previous conviction that had not yet been overturned by the appellate courts.\\nThe Court believes that that reading of that statute is clear'. It's not ambiguous. And at the time of the commission of this offense on March 10, 2004, the conviction of the previous [DUI] [that] occurred on October 6, 2002[,] resulting in conviction on January 29th, 2003[,] had not been set aside.\\n[T]he Court has not been cited [and no] argument has been made to the Court . whereby any statutory or constitutional provision or requirement would prevent the Court from . interpreting or applying the statute as it clearly reads in the statute.\\nSo the Court will find that this offense is the second offense for the defendant within a five year period under [HRS \\u00a7 ]291E-61.\\nThe court proceeded to sentence Ruggiero, as a second-time offender, to fines, fourteen days in jail, and a one-year license suspension.\\nRuggiero filed a timely notice of appeal on October 29, 2004.\\nII. STANDARD OF REVIEW\\n\\\"[T]he interpretation of a statute '... is a question of law reviewable de novo.\\\" State v. Arceo, 84 Hawai'i 1, 10, 928 P.2d 843, 852 (1996)....\\nGray v. Admin[.] Dir[.] of the Court, 84 Hawai'i 138, 144, 931 P.2d 580, 586 (1997). Furthermore, our statutory construction is guided by established rules:\\nWhen construing a statute, our foremost obligation is 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. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.\\nWhen there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists.\\nIn construing an ambiguous statute, \\\"[t]he meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning.\\\" HRS \\u00a7 1-15(1) [ (1993) ]. Moreover, the courts may resort to extrinsic aids in determining legislative intent. One avenue is the use of legislative history as an interpretive tool.\\nGray, 84 Hawai'i at 148, 931 P.2d at 590 (footnote omitted). This court may also consider \\\"[t]he reason and spirit of the law, and the cause which induced the legislature to enact it . to discover its true meaning.\\\" HRS \\u00a7 1-15(2).... \\\"Laws in pari materia, or upon the same subject matter, shall be construed with reference to each other. What is clear in one statute may be called upon in aid to explain what is doubtful in another.\\\" HRS \\u00a7 1-16 (1993).\\nState v. Koch, 107 Hawai'i 215, 220-21, 112 P.3d 69, 74-75 (2005) (some internal citations omitted) (some brackets and ellipses added and some in original) (quoting State v. Kaua, 102 Hawai'i 1, 7-8, 72 P.3d 473, 479-480 (2003) (quoting State v. Rauch, 94 Hawai'i 315, 322-23, 13 P.3d 324, 331-32 (2000) (quoting State v. Kotis, 91 Hawai'i 319, 327, 984 P.2d 78, 86 (1999) (quoting State v. Dudoit, 90 Hawai'i 262, 266, 978 P.2d 700, 704 (1999) (quoting State v. Stocker, 90 Hawai'i 85, 90-91, 976 P.2d 399, 404-05 (1999) (quoting Ho v. Leftwich, 88 Hawai'i 251, 256-57, 965 P.2d 793, 798-99 (1998) (quoting Korean Buddhist Dae Won Sa Temple v. Sullivan, 87 Hawai'i 217, 229-30, 953 P.2d 1315, 1327-28 (1998)))))))). Nonetheless, absent an absurd or unjust result, see State v. Haugen, 104 Hawai'i 71, 77, 85 P.3d 178, 184 (2004), this court is bound to give effect to the plain meaning of unambiguous statutory language and may only resort to the use of legislative history when interpreting an ambiguous statute. State v. Valdivia, 95 Hawai'i 465, 472, 24 P.3d 661, 668 (2001).\\nIII. DISCUSSION\\nA. Ruggiero Failed To Preserve His Constitutional Arguments For Appeal.\\nIn opposing the imposition of a repeal offender sentence, Ruggiero relied virtually exclusively on statutory arguments, principally that HRS \\u00a7 291E-61(c), see infru note 10, was ambiguous. As we have noted, his only departure from that line of argument, raised in his memorandum in opposition to the enhanced sentence and again at the September 30, 2004 sentencing hearing, was that \\\"the interest of justice and fairness\\\" weighed against Iris vacated conviction being used as the basis for sentencing him as a second-time offender.\\nRuggiero contends that the invocation of \\\"justice and fairness\\\" is sufficient to preserve for appeal constitutional grounds for vacating the district court's September 30, 2004 judgment and sentence. (Quoting Lisenba v. California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166 (1941), for the proposition that \\\"denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice\\\") In so arguing, Ruggiero essentially contends that the invocation was sufficient to put the district court on notice that he was arguing that his right to due process was violated by the enhanced sentence. The record reflects, however, that the district court gave him ample opportunity to articulate a due process ground with specificity. Inasmuch as Rug-giero was represented by counsel and failed to invoke, either in his brief or in oral argument, the protections of either the United States or Hawai'i Constitutions, to accept Ruggiero's contentions (1) that the district court erred in its ruling on his purported constitutional arguments and (2) that he adequately preserved those arguments for appeal would be to conclude that virtually any invocation of basic fairness is sufficient to preserve virtually any conceivable constitutionally-based argument for appeal.\\nWe hold that Ruggiero failed to preserve the constitutional arguments for appeal and, therefore, we may only reach the merits of his arguments by noticing plain error on the district court's part. See HRPP Rule 52(b); In re John Doe, Born on January 25, 1985, 102 Hawai'i 75, 87, 73 P.3d 29, 41 (2003); State v. Jenkins, 93 Hawai'i 87, 101, 997 P.2d 13, 27 (2000); State v. McGriff 76 Hawai'i 148, 155, 871 P.2d 782, 789 (1994) (this court may sua sponte notice plain errors that affect a defendant's substantial rights).\\nB. The Parties' Arguments Regarding The Enhanced Sentence\\n1. Ruggiero's argument\\nRuggiero proposes that the district court erred in premising his sentence on the commission of a second offense within a five-year period, pursuant to HRS \\u00a7 291E-61(b)(2), see infra note 10, because the prior conviction was a nullity due to constitutional defects. He asserts that sentencing him according to the provisions set forth for second-time offenders \\\"denies [him] his Due Process and Double Jeopardy rights\\\" under the fifth and fourteenth amendments to the United States Constitution and Article I, \\u00a7 5 and 10 of the Hawai'i Constitution. (Citing State v. Sinagoga, 81 Hawai'i 421, 918 P.2d 228 (App.1996).)\\nRuggiero contends that HRS \\u00a7 291E-61 is a purely recidivist statute and that the dis- triet court erred by failing to follow the sentencing procedure prescribed by the Intermediate Court of Appeals (ICA) in Sinagoga, 81 Hawai'i at 447, 918 P.2d at 254, for the ordinary sentencing of repeat offenders, which he contends requires that the sentencing court confirm that any prior convictions upon which an enhanced sentence will be based are valid at the time of sentencing. He maintains that under a straightforward recidivist statute, due process requires that enhanced sentences be based on convictions that are valid at the time of sentencing. (Citing State v. Veikoso, 102 Hawai'i 219, 74 P.3d 575 (2003); State v. Shimabukuro, 100 Hawai'i 324, 60 P.3d 274 (2002); State v. Hahn, 238 Wis.2d 889, 618 N.W.2d 528, 535 (2000).)\\n2. The prosecution's arguments\\nThe prosecution asserts that, by amending HRS \\u00a7 291E-61(c) to require the sentencing court to treat the time of commission of the subsequent offense as the touchstone for determining the validity of prior convictions for sentencing purposes, the legislature clearly intended to create a status offense. Therefore, the prosecution argues, the underlying-predicate conviction need only be valid at the time of the commission of the subsequent offense, regardless of whether the underlying conviction is later vacated. (Citing State v. Lobendahn, 71 Haw. 111, 113, 784 P.2d 872, 873 (1989).) This reading of HRS \\u00a7 291E-61, the prosecution maintains, comports with the legislative intent to deal harshly with \\\"scofflaws\\\" who reoffend while appealing previous DUI convictions. (Quoting Sen. Stand. Comm. Rep. No. 1185, in 2003 Senate Journal, at 1523.)\\nC. While The District Court Did Not Plainly Err In Applying HRS \\u00a7 29lE-61(c), It Plainly Erred In Convicting And Sentencing Ruggiero As A Second-Time Offender.\\n1. A status offense statute requires only that the conviction be valid at the time of the commission of the subsequent violation.\\nConviction of or imposition of sentence for a \\\"status\\\" offense, in which one element of the offense is the status of the defendant at the time of the alleged violation, does not require that the conviction continue to be valid at the time of sentencing. See Lobendahn, 71 Haw. at 113, 784 P.2d at 873, quoted in Veikoso, 102 Hawai'i at 227 n. 5, 74 P.3d at 583 n. 5 (\\\"In Lobendahn we held that, inasmuch as the statute created a 'status offense,' the subsequent invalidation of the predicate felony conviction did not affect the validity of the criminal possession charge because the defendant was 'a convicted felon at the time he possessed the firearm and ammunition. Such possession was unlawful and the subsequent reversal of the conviction does not then render such possession lawful.' \\\"). But see United States v. Bagley, 837 F.2d 371, 374-75 (9th Cir.1988) (concluding that a prior felony conviction obtained in violation of federal constitutional rights cannot serve as the basis for a subsequent conviction under a federal law prohibiting felons from possessing firearms).\\n2. Under a purely recidivist statute, a conviction must continue to be valid at the time of adjudication and sentencing.\\nPurely recidivist statutes address repeat offender behavior by increasing the punishment for every subsequent violation. See Shimabukuro, 100 Hawai'i at 330, 60 P.3d at 280 (Levinson, J., concurring) (noting that HRS \\u00a7 291-4(b) (Supp.1998) \\\"created an escalating sentencing scheme keyed to the defendant's degree of recidivism\\\"); id. at 333, 60 P.3d at 283 (Nakayama, J., dissenting) (noting that HRS \\u00a7 291E-61 (Supp. 2001) resembled a recidivist statute in that \\\"the amended version includes, in its plain language, a 'multiplier' effect or enhanced sentencing\\\" for the repeat offender).\\nIn contrast to a status offense, under a purely recidivist statute, if a conviction was valid at the time of the commission of a subsequent offense but was later invalidated prior to adjudication of the subsequent offense, the defendant's conviction for that subsequent offense may not be based on the vacated conviction. See Shimabukuro, 100 Hawai'i at 330-32, 60 P.3d at 280-82 (Levinson, J., concurring) (reasoning that, inasmuch as at the time of adjudication of the habitual DUI offense at issue, one of the defendant's prior DUI convictions had been vacated, he could therefore not be convicted of habitual drunk driving\\u2014as to which three prior convictions was a requisite attendant circumstance\\u2014because, in light of the vacated conviction, at the time of adjudication he had been lawfully convicted of DUI only twice).\\nIn Veikoso, this court characterized the Shimabukuro analysis as follows:\\n[ejentral to the judgment in Shimabukuro . was the fact that the defendant . had succeeded in having one of his prior convictions vacated by the rendering court prior to entering his . guilty plea . A majority of this court agreed . that the vacated conviction could not be used to establish culpability....\\n102 Hawai'i at 222, 74 P.3d at 578. We further reasoned in Veikoso that,\\n[w]here a defendant succeeds in having a prior conviction expunged, reversed, or set aside, its use in connection with proceedings relating to subsequent offenses will be limited. Similarly, a defendant who succeeds in having prior convictions expunged, reversed, or set aside after they have been used to support guilt or enhance punishment in subsequent proceedings may have a basis for attacking that subsequent conviction or enhanced punishment.\\nId. at 226-27, 74 P.3d at 582-83 (emphasis in original). If a defendant who succeeds af ter sentencing in having a prior conviction expunged or vacated \\\"may have a basis for attacking that subsequent conviction or enhanced punishment,\\\" id., it follows, a fortiori, that a defendant who, at sentencing, has, through direct appeal, succeeded in having a prior conviction vacated as constitutionally defective, has grounds for opposing an enhanced sentence based upon that invalid conviction.\\n3. HRS \\u00a7 291E-61 (Supp.2001), a recidivist statute, required that any necessary prior convictions be valid at the time of adjudication and sentencing, but the 2003 amendments transformed HRS \\u00a7 29lE-61(b)(l) to (3) into status offenses.\\nHRS \\u00a7 291E-61 (Supp.2001), see supra note 10, \\\"created an escalating sentencing scheme keyed to the defendant's degree of recidivism,\\\" Shimabukuro, 100 Hawaii at 330, 60 P.3d at 280 (Levinson, J., concurring), and was devoid of language indicating, for purposes of sentencing, that any prior conviction upon which the sentence was premised need only be valid at the time of the commission of the subsequent offense. Therefore, consistent with Shimabukuro and Veikoso, pursuant to HRS \\u00a7 291E-61(b) (Supp.2001), any prior convictions to which a defendant's punishment was pegged would necessarily have had to be viable at the time of adjudication and sentencing.\\nIn 2003, however, the legislature manifested a clear intent to transform HRS \\u00a7 291E-61(b)(1) to (3) into three separate status offenses by adding the following language to HRS \\u00a7 291E-61(c): \\\"Any judgment on a verdict or a finding of guilty . that at the time of the offense has not been expunged by pardon, reversed, or set aside shall be deemed a prior conviction under this section.\\\" (Emphasis added.)\\nThe conclusion that the legislature intended that HRS \\u00a7 291E-61(b)(1) to (3) be treated as status offenses is reinforced by the legislative history surrounding the creation, through the same legislation, of the separate offense of habitual intoxicated driving: As part of the 2003 amendments, the legislature excised the class C felony for four convictions within ten years set forth in HRS \\u00a7 291E-61(b)(4), see supra note 10, and renumbered it as a wholly separate offense, entitled \\\"Habitually operating a vehicle under the influence of an intoxicant,\\\" codified at HRS \\u00a7 291E-61.5. The Senate expressly indicat ed that it was creating a status offense in HRS \\u00a7 291E-61.5: the Senate Committee on Transportation, Military Affairs, and Government Operations explained that it \\\"amended the provisions of the habitual drunk driver offense so that it is clearly a status offense.\\\" Sen. Stand. Comm. Rep. No. 1185, in 2003 Senate Journal, at 1523. The Senate Committee on the Judiciary and Hawaiian Affairs further noted that it found\\nthat being punished as a status offender rather than receiving an enhanced sentence has distinct implications. Status offenders receive a specific punishment as long as the offender meets the criteria at the time the offender reoffends. The offender cannot defeat the charge by having a previous conviction reversed on a subsequent appeal. By contrast, enhanced sentences can be avoided if any prior convictions that are the basis for an enhanced sentence are overturned.\\nYour Committee believes it is important that the habitually impaired driver understand that he or she will be charged with a felony for any further impaired driving arrests, even if one of [the driver's] prior convictions is reversed after their arrest.\\nSen. Stand. Comm. Rep. No. 1268, in 2003 Senate Journal, at 1564. In order to effectuate its intent, the legislature included the following language in HRS \\u00a7 291E-61.5(b):\\nFor the purposes of this section:\\n\\\"Convicted three or more times .\\\" means that, at the time of the behavior for which the person is charged under this section, the person had three or more times within ten years of the instant offense . [a] judgment . that, at the time of the instant offense, had not been expunged by pardon, reversed or set aside.\\n(Emphases added.) This language strongly resembles the amended language of HRS \\u00a7 291E-61(c), see supra note 10 (\\\"Any judgment on a verdict or a finding of guilty . that at the time of the offense has not been expunged by pardon, reversed, or set aside shall be deemed a prior conviction under this section.\\\"). Both the plain language of and the legislative history surrounding the 2003 amendments, accordingly, reflect a clear legislative intent that HRS \\u00a7 291E-61(b)(1) to (3) be treated as separate status offenses. We therefore hold that the 2003 amendments to HRS \\u00a7 291E-61 transformed HRS \\u00a7 291E-61 (b)(1) to (3) into status offenses.\\n4. The amendments to HRS \\u00a7 291E-61 do not alter this court's conclusion in State v. Domingues that HRS \\u00a7 29lE-61(b)(l) to (U) describe intrinsic elements that the prosecution is required to plead and prove beyond a reasonable doubt.\\nEffective January 1, 2002, the legislature repealed an earlier DUI law, HRS \\u00a7 291-4.4 (Supp.2000), and enacted HRS \\u00a7 291E-61 (Supp.2001), see supra note 10. See 2000 Haw. Sess. L. Act 189, \\u00a7 21, 23, 32, and 41 at 405-06, 425-27, 432-33.\\nIn State v. Domingues, 106 Hawai'i 480, 107 P.3d 409, (2005), this court confronted the question whether HRS \\u00a7 291E-61 (Supp.2001) was a substantial reenactment of HRS \\u00a7 291-4.4. In Domingues, the defendant had been arrested in August 2001 for violating HRS \\u00a7 291-4.4, in effect at the time, but was subsequently indicted in March 2002 under the same law, three months after its repeal. 106 Hawai'i at 482-83, 107 P.3d at 411-12. This court analyzed the structure and purpose of the two statutes and held that the legislature had substantially reenacted HRS \\u00a7 291-4.4 as HRS \\u00a7 291E-61. Id. at 482, 107 P.3d at 411. In reaching that holding, this court concluded that the language of HRS \\u00a7 291E-61(b)(1) to (4), see supra note 10, \\\"describes attendant circumstances that are intrinsic to and 'enmeshed' in the hierar chy of offenses that HRS \\u00a7 291E-61 as a whole describes.\\\" Id. at 487, 107 P.3d at 416 (citing HRS \\u00a7 702-205 (1993) (defining elements of an offense)). This court thereby concluded that, as attendant circumstances and, therefore, essential elements of the offense intrinsic to the commission of the crime charged, \\\"such aggravating circumstances 'must be alleged in the [charging instrument] in order to give the defendant notice that they will be relied on to prove the defendant's guilt and support the sentence to be imposed, and they must be determined by the trier of fact.' \\\" Id. at 487-88, 107 P.3d at 416-17 (quoting Schroeder, 76 Hawaii at 528, 880 P.2d at 203). That was required, we concluded, because\\n[\\\"i]t is an impermissible dilution of the jury's role as factfinder to remove the responsibility for determining the existence of facts leading to the imposition of a particular' punishment.... We hold that when a fact susceptible to jury determination is a predicate to the imposition of an enhanced sentence, the Hawaii Constitution requires that such factual determinations be made by the trier of fact. The legislature may not dilute the historical province of the jury by relegating facts necessary to the imposition of a certain penalty for criminal behavior to the sentencing court. The jury is the body responsible for determination of intrinsic facts necessary for the imposition of punishment for an offense criminalized by the legislature. The analysis in Schroeder protects the jury's role by mandating that the determination of facts intrinsic to the offense be made by the trier of faet.[\\\"]\\nId. at 488, 107 P.3d at 417 (quoting State v. Tafoya, 91 Hawai'i 261, 270, 273, 982 P.2d 890, 899, 902 (1999)) (emphases omitted).\\nThe language of HRS \\u00a7 291E-61(b)(1) to (3) remains unchanged by the 2003 amendments and, while the legislature, as noted supra in section III.C.3, excised the class C felony from HRS \\u00a7 291E-61(b)(4), it inserted a new aggravating factor into \\u00a7 291E-61(b)(4), imposing additional punishments beyond those provided for in HRS \\u00a7 291E-61(b)(1) to (3), for any adult convicted of operating a vehicle while under the influence and with a passenger under the age of fifteen years in or on the vehicle, see supra note 10. The Domiugues analysis, therefore, retains its vitality, inasmuch as considex-ations of due process continue to require that the aggravating factors set forth in HRS \\u00a7 291E-61(b) \\u2014all of which remain \\\"attendant circumstances that are intrinsic to and 'enmeshed' in the hierarchy of offenses that HRS \\u00a7 291E-61 as a whole describes,\\\" Domingues, 106 Hawai'i at 487, 107 P.3d at 416\\u2014be alleged in the charging instrument and proven beyond a reasonable doubt at trial.\\n5. The district cowi plainly erred in convicting Ruggiero as a second time DU I offender pursuant to HRS \\u00a7 291E-61(a) and (b)(2).\\nThis court's holding in Tafoya requires that the essential elements of any offense be alleged in the complaint and found beyond a reasonable doubt by the trier of fact. 91 Hawai'i at 270, 273, 982 P.2d at 899, 902; see also Schroeder, 76 Hawai'i at 528, 880 P.2d at 203. Inasmuch as we conclude, supra, that a prior conviction, as described in HRS \\u00a7 291E-61(b)(2) (Supp.2003), is an elemental attendant circumstance, intrinsic to the offense of operating a vehicle under the influence of an intoxicant, it was necessary that Ruggiero's prior conviction be alleged in the charging instrument and proven at trial as preconditions to his present conviction of operating a vehicle under the influence of an intoxicant for the second time within five years, in violation of HRS \\u00a7 291E-61(a) and (b)(2).\\nThe complaint charging Ruggiero with a violation of HRS \\u00a7 291E-61 was silent with respect to the attendant circumstance of any prior conviction, see supra note 3, and, therefore, was insufficient as a matter of law in charging a violation of HRS \\u00a7 291E-61(a) and (b)(2), because\\n[i]t is well settled that an \\\"accusation must sufficiently allege all of the essential elements of the offense charged,\\\" a requirement that \\\"obtains whether an accusation is in the nature of an oral charge, information, indictment, or complaint[.]\\\" State v. Jendrusch, 58 Haw. 279, 281, 567 P.2d 1242, 1244 (1977)[; accord . Israel, 78 Hawai'i at] 69-70, 890 P.2d [at] 306-07 .; . Elliott, 77 Hawai'i [at] 311, 884 P.2d [at] 374.... Put differently, the sufficiency of the charging instrument is measured, inter alia, by \\\"whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he [or she] must be prepared to meet[.]\\\" State v. Wells, 78 Hawai'i 373, 379-80, 894 P.2d 70, 76-77 (1995) (citations and internal quotation marks omitted) (brackets in original). \\\"A charge defective in this regard amounts to a failure to state an offense, and a conviction based upon it cannot be sustained, for that would constitute a denial of due process.\\\" Jendrusch, 58 Haw. at 281, 567 P.2d at 1244 (citations omitted).\\nCummings, 101 Hawai'i at 142, 63 P.3d at 1112 (some bracketed material added and some in original) (quoting State v. Merino, 81 Hawai'i 198, 212, 915 P.2d 672, 686 (1996)).\\nFor\\n0]ust as the [S]tate must prove beyond a reasonable doubt all of the essential elements of the offense charged, the State is also required to sufficiently allege them and that requirement is not satisfied by the fact that the accused actually knew them and was not misled by the failure to sufficiently allege all of them.\\nIsrael, 78 Hawai'i at 73, 890 P.2d at 310 (brackets in original) (quoting State v. Tuua, 3 Haw.App. 287, 293, 649 P.2d 1180, 1184-85 (1982)).\\nIn State v. Motta, 66 Haw. 89, 657 P.2d 1019 (1983), we adopted a \\\"standard for post-conviction challenges to indictments [that] means we will not reverse a conviction based upon a defective indictment unless the defendant can show prejudice or that the indictment cannot within reason be construed to charge a crime.\\\" Id. at 92, 657 P.2d at 1020. But Ruggiero does not \\\"challenge\\\" the sufficiency of the complaint against him on appeal; rather he challenges only his sentence as a second-time offender. Therefore, any review of the sufficiency of the complaint under the Motta standard has to be undertaken on the basis of plain error.\\n\\\"We may recognize plain error when the error committed affects substantial rights of the defendant.\\\" State v. Cullen, 86 Hawai'i 1, 8, 946 P.2d 955, 962 (1997) (citations and internal quotation signals omitted)[; s]ee also Hawaii Rules of Penal Procedure (HRPP) Rule 52(b) . (\\\"Plain error or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.\\\").\\nState v. Staley, 91 Hawai'i 275, 282, 982 P.2d 904, 911 (1999) (quoting [State v.] Maumalanga, 90 Hawai'i [58,] 63, 976 P.2d [372,] 377 [ (1998) ], (quoting [State v.] Da via, 87 Hawai'i [249,] 253, 953 P.2d [1347,] 1351 [ (1998) ])).\\nJenkins, 93 Hawai'i at 101, 997 P.2d at 27.\\nRuggiero does not claim that the complaint \\\"prejudiced\\\" him; rather, he filed his appeal solely to reduce his sentence to that of a first-time offender. While the complaint\\u2014by omitting any mention of a prior DUI conviction\\u2014substantially prejudiced him with regard to defending against a DUI charge as a second-time offender, cf. State v. Kekuewa, 112 Hawai'i 269, 145 P.3d 812 (App.2006), Ruggiero concedes that he is subject to sentencing under HRS \\u00a7 291E-61(b)(1) as a first-time offender.\\nMoreover, on its face, the complaint can reasonably be construed to charge the crime of DUI as a first offense, in violation of HRS \\u00a7 291E-61(a) and (b)(1). It plainly states the elements set forth in HRS \\u00a7 291E-61(a) (\\\"operates or assumes actual physical control of a vehicle\\\") and -61(a)(1) (\\\"[w]hile under the influence of alcohol in an amount sufficient to impair the person's normal mental faculties or ability to care for the person and guard against casualty\\\"). See supra note 3. While the complaint is silent as to the lack of prior DUI convictions, given the unique nature of the element^-the presence of an empty set, that is, the absence of any prior convictions \\u2014silence with respect to prior violations can only betoken that their absence, i.e., the import of HRS \\u00a7 291E-61(b)(1), is implicit in the charge. Ruggiero himself impliedly acknowledges that the complaint was sufficient to charge DUI as a first-time offense when he concedes that he is subject to sentencing as a first time offender under HRS \\u00a7 291E-61(b)(1). And while, in light of Ruggiero's January 29, 2003 DUI conviction, it was within the discretion of the prosecution to pursue a sufficiently articulated charge of DUI as a second-time status offender, it would also have fallen within the prosecution's discretion to charge the lesser included offense of DUI as a first-time offender. See State v. Holbron, 80 Hawai'i 27, 44, 904 P.2d 912, 929 (1995) (\\\"Within constitutional limits, it is always the prosecution's prerogative to undercharge any offense for whatever reason it deems appropriate.... \\\" (Emphasis in original.)); State v. Mendonca, 68 Haw. 280, 283, 711 P.2d 731, 734 (1985) (holding that the prosecution has \\\"the discretion to decide which statutory subsection to charge the accused with\\\"); Territory v. Ouye, 37 Haw. 176, 181 (1945) (noting that the prosecution had the discretion to select which charge upon which it wished to proceed).\\nInasmuch as Ruggiero suffered no substantial prejudice from the complaint in defending against a DUI charge as a first-time offender, and the circuit court made the appropriate findings and conclusions to convict Ruggiero of DUI as a first-time offender, we remand the case to the district court for the entry of judgment of conviction of that offense. See Elliott, 77 Hawai'i at 313, 884 P.2d at 376.\\nIV. CONCLUSION\\nInsofar as (1) the complaint was insufficient to support a conviction of, and sentence for, operating a vehicle under the influence of an intoxicant as a second offense within five years and (2) the district court therefore plainly erred in entering its judgment of conviction and sentence on that count, we vacate the district court's September 30, 2004 judgment and sentence as it pertains to the violation of HRS \\u00a7 291E-61. However, insofar as the complaint was sufficient to support a conviction and sentence as a first-time violator of HRS \\u00a7 291E-61(a) and (b)(1), we remand this matter to the district court for the entry of a judgment of conviction for operating a vehicle under the influence of an intoxicant with no prior offenses, in violation of HRS \\u00a7 291E-61(a) and (b)(1), and for resentencing in accordance therewith. We affirm the district court's judgment in all other respects.\\n. The fourteenth amendment, section 1, provides in relevant part that \\\"[n]o State shall . deprive any person of . liberty, or property, without due process of law.\\\"\\n. Article I, \\u00a7 5 provides in pertinent part that \\\"[n]o person shall be deprived of . liberty or property without due process of law.\\\"\\n. The portion of the complaint charging Ruggie-ro with DUI (Count I) reads in its entirety:\\nThat on or about the 10th day of March, 2004, in the Division of Wailuku, County of Maui, State of Hawai[']i, ADAM M. RUGGIE-RO did operate or assume actual physical control of a vehicle while under the influence of an intoxicant meaning that he was under the influence of alcohol in an amount sufficient to impair his normal mental faculties or ability to care for himself and guard against casualty, thereby committing the offense of Operating a Vehicle Under the Influence of an Intoxicant in violation of Section 291E-61 of the Hawai[']i Revised Statutes.\\nInasmuch as Ruggiero does not appeal his conviction of and sentence for driving without no-fault insurance, in violation of HRS \\u00a7 431:10C-104(a) (Count II), driving a motor vehicle with delinquent tax, in violation of HRS \\u00a7 249-11 (Count III), and failure to signal, in violation of HRS \\u00a7 291C-84(b) (Count IV), we affirm the district court's judgment and sentence regarding those counts.\\n. The only argument that conceivably was not based on statutory construction asserted that \\\"[i]n the interests of justice, [Ruggierol's current conviction should be considered his first offense.\\\"\\n. The fifth amendment to the United States Constitution provides in relevant part that \\\"[n]o person shall . be subject for the same offense to be twice put in jeopardy of life or limb; . nor be deprived of life, liberty, or property, without due process of law....\\\" The fourteenth amendment is set forth in relevant part supra in note 1.\\n. Article I, \\u00a7 10 provides that \\\"[n]o person shall . be subject for the same offense to be twice put in jeopardy.\\\" Effective November 2, 2004, Article I, \\u00a7 10 was amended by Senate Bill No. 2851 in respects immaterial to the present matter by voters in a general election. See 2004 Haw. Sess. L., at 1085. Article I, section 5 is set forth supra in note 2.\\n. In dictum, the ICA in Sinagoga concluded that, \\\"where ordinary sentencing procedures are applicable and there is a possibility that the court may use the defendant's prior conviction(s) as a basis for the imposition or enhancement of a prison sentence,\\\" 81 Hawai'i at 447, 918 P.2d at 254, Hawai'i courts must thereinafter follow a five-step procedure: (1) the court must supply both parties with any relevant presentence reports implicating prior criminal convictions; (2) the defendant must alert the court to any prior convictions that were allegedly uncounseled, \\\"otherwise invalidly entered,\\\" and/or \\\"not against the defendant\\\"; (3) the court must inform the defendant that any prior convictions not challenged at this stage are deemed valid and cannot later be raised, absent good cause, to attack the court's sentence; (4) \\\"with respect to each reported prior conviction that the defendant challenges, the [Hawai'i Rules of Evidence] shall apply and the court shall expressly decide before the sentencing whether the [prosecution has] satisfied its burden of proving to the reasonable satisfaction of the court that the opposite of the defendant's challenge is true\\\"; and (5) \\\"if the court is aware of the defendant's prior . invalid criminal conviction[], it shall not impose or enhance a prison sentence prior to expressly stating on the record that it did not consider it . as a basis for the imposition or enhancement of a prison sentence.\\\" Id. at 447, 918 P.2d at 254.\\nNevertheless, recognizing that the ICA, in permitting defendants to challenge any previous conviction \\\"otherwise invalidly entered,\\\" was opening the door to collateral attacks on prior convictions \\\"whenever the validity of a conviction is challenged,\\\" this court, in State v. Veikoso, 102 Hawai'i 219, 226 n. 8, 74 P.3d 575, 582 n. 8 (2003), expressly directed that the language \\\"otherwise invalid criminal conviction\\\" be disregarded.\\n. Black's Law Dictionary 400 (8th ed.2004) defines a \\\"status crime\\\" as \\\"[a] crime of which a person is guilty by being in a certain condition or of a specific character.\\\" A status offense therefore generally includes, as a material element, a particular condition or characteristic that renders otherwise potentially legal behavior illegal. See, e.g., HRS \\u00a7 134-7 (Supp.2006), which provides in pertinent part that \\\"[n]o person who is a fugitive from justice or is a person prohibited from possessing firearms or ammunition under federal law shall own, possess, or control any firearm or ammunition therefor.\\\" In State v. Lobendahn, 71 Haw. 111, 113, 784 P.2d 872, 873 (1989), a conviction under HRS \\u00a7 134-7 (1985) remained valid despite the underlying predicate felony conviction being overturned later on appeal. See discussion infra in section III.C. 1.\\n. At the time of the decision in Shimabukuro, HRS \\u00a7 291\\u20144(b) provided in pertinent part:\\nA person committing the offense of driving under the influence of intoxicating liquor shall be sentenced as follows .:\\n(1) For the first offense, or any offense not preceded within a five-year period for a conviction under this section, by:\\n(A) A fourteen-hour minimum alcohol abuse rehabilitation program .; and\\n(B) Ninety-day prompt suspension of license .; and\\n(C) Any one or more of the following:\\n(i) Seventy-two hours of community service work;\\n(ii) Not less than forty-eight hours and not more than five days of imprisonment; or\\n(iii) A fine of not less than $150 but not more than $1,000.\\n(2) For an offense which occurs within five years of a prior conviction under this section, by:\\n(A) Prompt suspension of license for a period of one year .;\\n(B) Either one of the following:\\n(i) Not less than one hundred hours of community service work; or\\n(ii) Not less than forty-eight consecutive hours but not more than fourteen days of imprisonment .; and\\n(C) A fine of not less than $500 but not more than $1,500.\\n(3) For an offense which occurs within five years of two prior convictions under this section, by:\\n(A) A fine of not less than $500 but not more than $2,500;\\n(B) Revocation of license for a period of not less than one year but not more than five years; and\\n(C) Not less than ten days but not more than thirty days imprisonment....\\n. HRS \\u00a7 291E-61 (Supp.2001) provided in relevant part that:\\n(a) A person commits the offense of operating a vehicle under the influence of an intoxicant if the person operates or assumes actual physical control of a vehicle:\\n(1) While under the influence of alcohol in an amount sufficient to impair the person's normal mental faculties or ability to care for the person and guard against casualty;\\n(b) A person committing the offense of operating a vehicle under the influence of an intoxicant shall be sentenced as follows without possibility of probation or suspension of sentence:\\n(1) For the first offense, or any offense not preceded within a five-year period by a conviction for an offense under this section .:\\n(A) A fourteen-hour minimum substance abuse rehabilitation program .;\\n(B) Ninety-day prompt suspension of license .;\\n(C) Any one or more of the following:\\n(i) Seventy-two hours of community service work;\\n(ii) Not less than forty-eight hours and not more than five days of imprisonment; or\\n(iii) A fine of not less than $150 but not more than $1,000[.]\\n(2) For an offense that occurs within five years of a prior conviction for an offense under this section . by:\\n(A) Prompt suspension of license . for a period of one year\\n(B) Either one of the following:\\n(i) Not less than two hundred forty hours of community service work; or\\n(ii) Not less than five days but not more than fourteen days of imprisonment .;\\n(C) A fine of not less titan $500 but not more than $1,500[J\\n(3) For an offense that occurs within five years of two prior convictions for offenses under this section .:\\n(A) A fine of not less than $500 but not more than $2,500;\\n(B) Revocation of license . to operate a vehicle for a period not less than one year but not more than five years;\\n(C) Not less than ten days but not more than thirty days imprisonment .\\n(4) For an offense that occurs within ten years of three or more prior convictions for offenses under this section\\n(A) Mandatory revocation of license . for a period of not less than one year but not more than five years;\\n(B) Not less than ten days imprisonment\\nAn offense under this paragraph is a class C felony.\\n(Emphasis added.) As discussed infra, effective January 1, 2004, the legislature amended HRS \\u00a7 291E-61 by excising the class C felony offense for a fourth offense within ten years provided for in HRS \\u00a7 29IE-61(b)(4) and creating a separate offense of habitual drunk driving codified at HRS \\u00a7 291E-61.5, see infra note 13. See 2003 Haw. Sess. L. Act 71, \\u00a7 1, 3, and 7 at 123-27.\\nCentral to the analysis of the present matter, the 2003 amendments also enacted two key changes in HRS \\u00a7 291E-61. HRS \\u00a7 291E-61 (b)(4) was amended to read:\\nAny person eighteen years of age or older who is convicted under this section and who operated a vehicle with a passenger, in or on the vehicle, who was younger than fifteen years of age, shall be sentenced to an additional mandatory fine of $500 and an additional mandatory term of imprisonment of forty-eight hours; provided that the total term of imprisonment for a person convicted under this paragraph and paragraph (1), (2), or (3) shall not exceed thirty days.\\nIn addition, HRS \\u00a7 291E-61(c) was amended to add the underscored language:\\nNotwithstanding any other law to the contrary, any:\\n(1) Conviction under this section . ;\\nshall be considered a prior conviction for the purposes of imposing sentence under this section. Any judgment on a verdict or a finding of guilty, a plea of guilty or nolo contendere, or an adjudication in the case of a minor, that at the time of the offense has not been expunged by pardon, reversed, or set aside shall be deemed a prior conviction under this section.\\n. In fact, Justice Levinson's concurring opinion in Shimabukuro expressly distinguished the recidivist nature of the statute at issue, HRS \\u00a7 291-4.4, see infra note 14, from a status offense, such as the one set forth in HRS \\u00a7 134-7, see supra note 8, and analyzed in Lobendahn. See Shimabukuro, 100 Hawai'i at 330 n. 3, 60 P.3d at 280 n. 3.\\n. This conclusion is supported by Hahn, 238 Wis.2d 889, 618 N.W.2d 528, upon which this court relied in part in Veikoso: in Hahn, the Wisconsin Supreme Court reasoned that \\\" '[i]f the offender succeeds [in challenging the validity of a prior conviction in an appropriate forum], the offender may seek to reopen a sentence imposed as a persistent repeater under [the Wisconsin recidivist statute] if that sentence was based on a vacated conviction.'\\\" 102 Hawai'i at 227, 74 P.3d at 583 (quoting Hahn, 618 N.W.2d at 535).\\n. HRS \\u00a7 291E-61.5 (Supp.2003) provided in pertinent part that:\\n(a) A person commits the offense of habitually operating a vehicle under the influence of an intoxicant if:\\n(1) The person is a habitual operator of a vehicle while under the influence of an intoxicant; and\\n(2) The person operates or assumes actual physical control of a vehicle:\\n(A) While under the influence of alcohol in an amount sufficient to impair the person's normal mental faculties or ability to care for the person and guard against casualty;\\n(b) For the purposes of this section:\\n\\\"Convicted three or more times for offenses of operating a vehicle under the influence\\\" means that, at the time of the behavior for which the person is charged under this section, the person had three or more times within ten years of the instant offense:\\n(1) A judgment on a verdict.... for a violation of this section or [HRS \\u00a7 ]291-4, 291-4.4, or 291-7 as those sections were in effect on December 31,2001;\\nthat, at the time of the instant offense, had not been expunged by pardon, reversed, or set aside. All convictions that have been expunged by pardon, reversed, or set aside prior to the instant offense shall not be deemed prior convictions for the purposes of proving the person's status as a habitual operator of a vehicle while under the influence of an intoxicant.\\nA person has the status of a \\\"habitual operator of a vehicle while under the influence of an intoxicant\\\" if the person has been convicted three or more times within ten years of the instant offense, for offenses of operating a vehicle under the influence of an intoxicant.\\n(c)Habitually operating a vehicle while under the influence of an intoxicant is a class C felony.\\n(Emphases added.) Effective September 1, 2004, the legislature added \\\"; or [HRS \\u00a7 ]291E-61 or 707-702.5\\\" to HRS \\u00a7 291E-61.5(b)(1) to bring it into uniformity with HRS \\u00a7 291E-61.5(b)(2) and (3) and further amended the section in respects immaterial to the present matter. See 2004 Haw. Sess. L. Act 90, \\u00a7 13 and 17 at 362-64. Effective July 5, 2005, the legislature amended HRS \\u00a7 291E-61.5 again, in respects immaterial to the present matter. See 2005 Haw. Sess. L. Act 194, \\u00a7 2 and 5 at 609-10.\\n. HRS \\u00a7 291-4.4 provided in pertinent part:\\n(a) A person commits the offense of habitually driving under the influence of intoxicating liquor . if, during a ten-year period[,] the person has been convicted three or more times for a driving under the influence offense; and\\n(1) The person operates or assumes actual physical control of the operation of any vehicle while under the influence of an intoxicating liquor .;\\n(c) Habitually driving under the influence of intoxicating liquor . is a class C felony.\\n. While both the 2000 and the 2001 HRS Cumulative Supplements contain the language of HRS \\u00a7 291E-61, the revisor of statutes evidently failed to include a notation that the statute did not become effective until January 1, 2002. Compare 2000 Haw. Sess. L. Act 189, \\u00a7 23 and 41 at 425-27 and 433; 2001 Haw. Sess. L. Act 157, \\u00a7 25 and 39 at 397-98, 404 with HRS 2000 Cumulative Supplement vol. 5 at 210-12; HRS 2001 Cumulative Supplement vol. 5 at 198-200.\\n. The holding in Domiugues was based in part on the concern that due process required that the defendant be pul on notice that, under HRS \\u00a7 291 E-61(b)(4), he or she was charged with a class C felony rather than the petty misdemeanors set forth in FIRS \\u00a7 291E\\u201461 (b)(1) to (3). See 106 Hawai'i at 487 & n. 8, 107 P.3d at 416 & n. 8 (noting that \\\"[i]l is fundamental that, as a matter of basic due process, '[a] defendant must be put on sufficient notice of the 'nature and cause of the accusation' with which he is charged' \\\" and observing that the inclusion of a class C felony alongside three petty misdemeanors generated the conundrum that a defendant would be insufficiently put on notice of the right to a jury trial absent the requirement that the elements of FIRS \\u00a7 291 E-61(b) be included in an indictment or complaint) (quoting State v. Lemalu, 72 Haw. 130, 134, 809 P.2d 442, 444 (1991) (quoting State v. Jendrusch, 58 Haw. 279, 281, 567 P.2d 1242, 1245 (1977))). In the amended version of HRS \\u00a7 291 E-61(b)(4), see supra note 10, due process would similarly require the prosecution to allege in the charging instrument and prove at trial that a passenger under the age of fifteen was in or on the defendant's vehicle at the time of the arrest. See Tafoya, 91 Hawai'i at 270, 273, 982 P.2d at 899, 902; Schroeder, 76 Hawai'i at 528, 880 P.2d at 203.\\n. In Kekuewa, the defendant, convicted of DUI under the same statute at issue in the present matter, HRS \\u00a7 291E-61 (Supp.2003), had several prior DUI convictions. 112 Hawai'i at 277, 145 P.3d at 820. On appeal, he contended that the oral accusation was insufficient because, while it stated the present charge was his second offense, it omitted to specify whether the prosecution was relying on a prior offense within the preceding five years, as required by the plain language of HRS \\u00a7 291E-61(b)(2), see supra note 10. Id. at 270-71, 145 P.3d at 813-14. The Intermediate Court of Appeals concluded that, in light of his multiple prior convictions, the defendant's due process right to notice of the elements of the charge against him was violated by the prosecution's failure specifically to allege a prior conviction that had occurred within the previous five years. Id. By contrast, Ruggiero evinces no prejudice from a complaint that on its face makes it clear that prior convictions will not be relied upon in seeking a conviction or sentencing terms.\\n. Indeed, we are hard pressed to imagine another instance where, in the charging instrument, silence as to a material element leaves no doubt as to the nature of the offense charged, rendering the element set forth in HRS \\u00a7 291E-61(b)(1) possibly sui generis.\\n. We emphasize, contrary to Justice Nakaya-ma's suggestion, concurring and dissenting opinion at 242, 160 P.3d at 718, that, because the attendant circumstance of no prior convictions within the five preceding years, as set forth in HRS \\u00a7 291E\\u201461 (b)(1), is elemental, it should be alleged in the charge and proved at trial. We also disagree with Justice Nakayama's assertion, see id. at 242, 160 P.3d at 718, that the prosecution's burden of proof on the issue at trial results in an absurdity; as a practical matter, any attempt by the defendant to establish, as a \\\"defense,\\\" that he or she did, in fact, have prior convictions would be self-defeating insofar as a violation of HRS \\u00a7 291E-61(a) with no priors is a lesser included offense of the same violation with priors and, therefore, any such assertion would be a de facto admission of guilt of the lesser included offense. See State v. Burdett, 70 Haw. 85, 88, 762 P.2d 164, 166 (1988) (\\\"[A] lesser . offense is necessarily included in a charge of the greater if the proof necessary to establish the greater offense will of necessity establish the lesser offense.\\\") (internal quotation marks omitted); State v. Feliciano, 62 Haw. 637, 639, 618 P.2d 306, 308 (1980) (citing Olais-Castro v. United States, 416 F.2d 1155, 1157 (9th Cir.1969)) (\\\"Simply put, an offense is included if it is impossible to commit the greater offense without also committing the lesser.\\\"); HRS \\u00a7 701-109(4)(c) (1993) (a lesser included offense \\\"differs from the [greater] offense . only in the respect that a less serious injury . to the same . public interest . suffices to establish its commission.\\\").\\n. Inasmuch as our disposition of the matter does not rely on Ruggiero's January 29, 2003 conviction vacated by this court, we need not reach Ruggiero's double jeopardy arguments pertaining to that conviction.\"}"

haw/12260198.json

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+"{\"id\": \"12260198\", \"name\": \"McRae v. State\", \"name_abbreviation\": \"McRae v. State\", \"decision_date\": \"2006-03-24\", \"docket_number\": \"26876\", \"first_page\": \"215\", \"last_page\": \"215\", \"citations\": \"110 Haw. 215\", \"volume\": \"110\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T19:44:13.795106+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"McRae v. State\", \"head_matter\": \"March 24, 2006\\n26876\\nMcRae v. State\", \"word_count\": \"8\", \"char_count\": \"45\", \"text\": \"Affirmed\"}"

haw/12260234.json

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+"{\"id\": \"12260234\", \"name\": \"The ESTATE OF George CABRAL, Claimant-Appellant, v. AIG HAWAII INSURANCE COMPANY and Reynaldo Graulty, Insurance Commissioner, Department of Commerce and Consumer Affairs, State of Hawai'i, Respondents-Appellees\", \"name_abbreviation\": \"Estate of Cabral v. AIG Hawaii Insurance Co.\", \"decision_date\": \"1998-02-11\", \"docket_number\": \"No. 20683\", \"first_page\": \"345\", \"last_page\": \"356\", \"citations\": \"88 Haw. 345\", \"volume\": \"88\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-11T00:28:10.539817+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before WATANABE, ACOBA and KIRIMITSU, JJ.\", \"parties\": \"The ESTATE OF George CABRAL, Claimant-Appellant, v. AIG HAWAII INSURANCE COMPANY and Reynaldo Graulty, Insurance Commissioner, Department of Commerce and Consumer Affairs, State of Hawai'i, Respondents-Appellees.\", \"head_matter\": \"966 P.2d 1071\\nThe ESTATE OF George CABRAL, Claimant-Appellant, v. AIG HAWAII INSURANCE COMPANY and Reynaldo Graulty, Insurance Commissioner, Department of Commerce and Consumer Affairs, State of Hawai'i, Respondents-Appellees.\\nNo. 20683\\nIntermediate Court of Appeals of Hawai'i.\\nFeb. 11, 1998.\\nCertiorari Granted March 23, 1998.\\nChristopher R. Evans, on the brief, Honolulu, for claimant-appellant.\\nKatharine M. Nohr, Reid, Richards & Mi-yagi, of counsel, on the brief, Honolulu, for respondent-appellee, AIG Hawaii Insurance Company.\\nDavid A. Webber, Deputy Attorney General, for respondent-appellee, State of Hawai'i (no brief filed).\\nBefore WATANABE, ACOBA and KIRIMITSU, JJ.\\n. Reynaldo Graulty (Graulty) succeeded Wayne C. Metcalf, III (Metcalf) as Insurance Commissioner, Department of Commerce and Consumer Affairs of the State of Hawai'i, during the pen-dency of this action. Pursuant to Hawai'i Rules of Appellate Procedure Rule 43(c)(1), Graulty has been substituted automatically for Metcalf in this case.\", \"word_count\": \"6069\", \"char_count\": \"38321\", \"text\": \"KIRIMITSU, Judge.\\nI. INTRODUCTION\\nAfter reviewing the legal arguments advanced on appeal, the dispositive issue in this case is whether Hawai'i Revised Statutes (HRS) \\u00a7 431:10C-304 and 431:100-103(10) (Spec. Pamph. 1987) confers upon an insured a survivors' loss benefit equivalent to the aggregate limits of no-fault benefits less any no-fault benefits paid or payable under the policy. We hold that it does.\\nII. BACKGROUND\\nOn May 7, 1992, George Cabral (Cabral) was crossing the street when he was struck by an uninsured motor vehicle. Cabral died shortly after the accident as a result of injuries sustained in the motor vehicle accident.\\nAt the time of the accident, Cabral and his wife, Nora H. Cabral, lived with their daughter and son-in-law, Deborah and Lester Luahiwa (collectively, the Luahiwas). The Luahiwas had purchased no-fault automobile insurance from Respondent-Appellee AIG Hawaii Insurance Company (AIG). The no-fault automobile insurance policy (the policy) extended coverage to Cabral as a family member who resided with the Luahiwas.\\nOriginally, the Luahiwas purchased the statutory minimum no-fault benefits of $15,-000. Pursuant to the \\\"No-Fault Benefits\\\" section of the Luahiwa's Basic No-Fault Endorsement (the Endorsement), the policy covered the following no-fault benefits: (1) medical expenses; (2) rehabilitation expenses; (3) work loss; (4) substitute service expenses; (5) funeral expenses; (6) survivors' loss; (7) attorney's fees and costs; and (8) other appropriate and reasonable expenses.\\nPursuant to the \\\"Limits of Liability\\\" section of the Endorsement, survivors' loss benefits were limited to the following:\\nRegardless of the number of persons insured, policies or self-insurance applicable, claims made or insured motor vehicles to which this coverage applies, the Company's Lability for all No-Fault benefits to or on behalf of any one eligible injured person who sustains accidental harm in any one motor vehicle accident shall be $15,000 in the aggregate. Subject to such aggregate limit:\\n(D) The maximum amount payable for survivors' loss is $15,000 reduced by the amount of any other No-Fault benefits paid or payable under this coverage.\\n(Emphasis added) (internal emphases omitted).\\nHowever, at some point prior to the accident, the Luahiwas purchased optional additional coverage that increased the total aggregate no-fault benefits limit from $15,000 to $50,000. This increase was reflected in the Additional No-Fault Coverage Endorsement that modified the Basic No-Fault Endorsement as follows:\\nADDITIONAL NO-FAULT COVERAGE ENDORSEMENT\\n(HAWAII)\\nIt is agreed that the Basic No-Fault Endorsement (Hawaii) is amended as follows:\\nSCHEDULE\\nA. All No-Fault Benefits Total Aggregate Limit $50,000\\nB. Work Loss Maximum Monthly Limit $ 1,200\\n1. With respect to any amounts payable under the Basic No-Fault Endorsement (Hawaii) because of accidental harm sustained by an eligible injured person the introductory paragraph of the Limits of Liability provision is amended by substituting the amount set forth opposite A in the Schedule for the amount of \\\"$15,000\\\";\\n2. With respect to any amounts payable under the Basic No-Fault Endorsement (Hawaii) because of accidental harm sustained by an eligible injured person who is a named insured or relative, paragraph (A)(i) of the Limits of Liability provision is amended by substituting the amount set forth opposite B in the Schedule for the amount of \\\"$900\\\";\\n3. Additional no-fault coverage does not apply to accidental harm sustained by any person while occupying or while a pedestrian through being struck by a motor vehicle, owned by such person and with respect to which additional no-fault coverage has not been provided during the policy period;\\n4. Exclusion (D) of the Basie No-Fault Endorsement (Hawaii) does not apply to Additional No-Fault Coverage;\\n5.This endorsement is subject to all the terms and provisions of the Basic No-Fault Endorsement (Hawaii) not expressly modified herein[.]\\n(Emphasis added) (internal emphases omitted).\\nAs a result of Cabral's death, Nora H. Cabral, as Special Administratrix of the Claimant-Appellant Estate of George Cabral (Claimant), sought to recover no-fault benefits under the terms of the policy. Based on its interpretation of the policy, AIG paid Claimant $3,844.22 in medical expenses, $1,500 in funeral expenses, and $15,000 in survivors' loss benefits.\\nClaimant disagreed with the amount of benefits paid by AIG and, therefore, requested an administrative hearing with the Insurance Commissioner (the Commissioner), pursuant to HRS \\u00a7 431:10C-212(a) (1993). Specifically, Claimant argued that, when the policy limits were amended to reflect an increase from $15,000 to $50,000, it also amended the amount of survivors' loss benefits payable under the policy. As such, instead of the policy reading, \\\"The maximum amount payable for survivors' loss is $15,000 reduced by the amount of any other No-Fault benefits paid or payable under this coverage^]\\\" it should be amended to read, \\\"The maximum amount payable for survivors' loss is $50,000 reduced by the amount of any other No-Fault benefits paid or payable under this coverage.\\\"\\nThe Hearings Officer disagreed with Claimant and determined that when the aggregate limits of the no-fault benefits were increased from $15,000 to $50,000, the increase did not change that part of the policy relating to survivors' loss benefits. On February 27, 1996, the Hearings Officer issued Findings of Fact, Conclusions of Law, and recommended Order, that provided in pertinent part:\\nIt is also worth noting that in addition to the \\\"loss of earnings\\\" issue as framed on the face of the denial, the Claimant sought to expand this issue by incorporating arguments relating to \\\"survivor's loss\\\" [sic] (death benefits). In examining this approach it became apparent, however, that: 1) the statutes and rules are relatively silent on the subject of \\\"survivor's loss\\\"; 2) the Claimant's theory of attempting to include such benefits within \\\"loss of earnings\\\" is not convincing; and 3) the amount of \\\"survivor's loss\\\" payable to any particular claimant as a separate category of no-fault benefits is a contractual matter determined by the terms of his or her insurance policy. In the present matter, although the aggregate coverage under the applicable policy had been increased from $15,000.00 to $50,000.00, this increase did not modify the pre-existing limit which had been specifically set at $15,000.00 for survivor's loss benefits (nor for that matter did it effect [sic] the preexisting limits for loss of earnings by other eligible injured persons, substitute services, or funeral expenses). While it is uncontested that insurance policies must conform to all applicable provisions of the Hawaii [Hawai'i] motor vehicle insurance law, the evidence in this matter does not reflect any conflict between the applicable law and the applicable policy provisions.\\nThe Hearings Officer recommends that based upon the above findings of fact and conclusions of law, the Insurance Commissioner find and conclude that the Claimant has not sustained his burden of proof to establish that [AIG's] denial of no-fault benefits was improper, and further recommends that each of the parties bear their own attorney's fees and costs incurred in pursuing this matter.\\n(Emphases added.)\\nThe Commissioner filed a Final Order on May 15, 1996 that adopted the Hearings Officer's Findings of Fact, Conclusions of Law, and recommended Order as the Commissioner's Final Order.\\nClaimant appealed the Commissioner's Final Order to the First Circuit Court. On April 28, 1997, the circuit court entered its order denying Claimant's appeal. Claimant timely filed her notice of appeal on May 6, 1997.\\nIII. STANDARD OF REVIEW\\nReview of a decision made by the circuit court upon its review of an agency's decision is a secondary appeal. The standard of review is one in which this court must determine whether the circuit court was right or wrong in its decision, applying the standards set forth in HRS \\u00a7 91-14(g) to the agency's decision. This court's review is further qualified by the principle that the agency's decision carries a presumption of validity and appellant has the heavy burden of making a convincing showing that the decision is invalid because it is unjust and unreasonable in its consequences.\\nBragg v. State Farm Mut. Auto. Ins. Co., 81 Hawai'i 302, 304, 916 P.2d 1203, 1205 (1996) (quoting University of Hawai'i Professional Assembly v. Tomasu, 79 Hawai'i 154, 157, 900 P.2d 161, 164 (1995)).\\nHRS \\u00a7 91-14(g) (1993) provides:\\nUpon review of the record the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are:\\n(1) In violation of constitutional or statutory provisions; or\\n(2) In excess of the statutory authority or jurisdiction of the agency; or\\n(3) Made upon unlawful procedure; or\\n(4) Affected by other error of law; or\\n(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or\\n(6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.\\nHRS \\u00a7 91-14(g).\\nUnder HRS \\u00a7 91-14(g), conclusions of law are reviewable under subsections (1), (2), and (4); questions regarding procedural defects are reviewable under subsection (3); findings of fact are reviewable under subsection (5); and an agency's exercise of discretion is reviewable under subsection (6).\\nBragg, 81 Hawai'i at 305, 916 P.2d at 1206 (citation omitted).\\nThe sole issue on appeal is a question of law that is freely reviewable by this court: Whether the Hawai'i motor vehicle insurance law, specifically HRS \\u00a7 431:100-304 and 431:100-103(10), confers upon an insured a survivors' loss benefit in an amount equal to the aggregate limits of no-fault benefits less any no-fault benefits paid or payable under the policy. Id.\\nIV. DISCUSSION\\nWe are faced with a dispute over the amount payable as a survivors' loss benefit. Claimant is arguing that, pursuant to the Hawai'i motor vehicle insurance law (HMVIL), she is entitled to survivors' loss benefits in an amount equal to the aggregate limits of the expanded limits of no-fault benefits less any no-fault benefits paid or payable under the policy. AIG argues that, pursuant to Hawai'i Administrative Rules (HAR) \\u00a7 16-23-11 (1990), Claimant is entitled to only $15,000 in survivors' loss benefits. Based on the following, we agree with Claimant.\\nA. Definition of Survivors' Loss Benefits\\nA survivors' loss benefit is defined in the \\\"No-Fault Benefits\\\" section of the Endorsement as follows:\\n(F) Survivors' Loss\\u2014No-Fault benefits payable as a result of the death of the eligible injured person for the benefit of dependent survivors. Such benefits may be paid immediately in a lump sum payment at the option of the beneficiary.\\n(Internal emphases omitted.) This language is consistent with the Ninth Circuit's description of survivors' loss benefits as \\\"a discrete type of no-fault benefits payable under [an insurance policy] to compensate the dependent survivors of the eligible insured person for 'appropriate and reasonable expenses necessarily incurred as a result of accidental harm,' separate and distinct from other losses compensable under the other categories of benefits.\\\" Yamaguchi v. State Farm Mut. Auto. Ins. Co., 706 F.2d 940, 954 (9th Cir.1983) (interpreting language identical to the insurance policy in the immediate ease).\\nB. The Creation of Survivors' Loss Benefits in Hawai'i\\nIn order to determine the amount of survivors' loss benefits due under the policy, we must first identify the origins of an insured's entitlement to survivors' loss benefits. The Hearings Officer determined that survivors' loss benefits were contractual in nature because the statutes and rules were silent on the subject of survivors' loss benefits. We disagree.\\nInstead, the proper starting point is the HMVIL, which is the body of law intended by the legislature to govern the business of motor vehicle insurance in Hawai'i. HRS \\u00a7 431:1-101 and 431:10C-102.\\nAt first glance, the HMVIL does not specifically create a survivors' loss benefit because it defines no-fault benefits as follows:\\n\\u00a7 431:10C-103 Definitions. As used in this article:\\n(10)(A) No-fault benefits, sometimes referred to as personal injury protection benefits, with respect to any accidental harm means:\\n(i) [Medical Expenses.] All appropriate and reasonable expenses necessarily incurred for medical, hospital, surgical, professional nursing, dental, optometric, ambulance, prosthetic services, its products and accommodations furnished, and x-ray. The foregoing expenses may include any nonmedical remedial care and treatment rendered in accordance with the teachings, faith, or belief of any group which depends for healing upon spiritual means through prayer;\\n(ii) [Rehabilitation Expenses.] All appropriate and reasonable expenses necessarily incurred for psychiatric, physical, and occupational therapy and rehabilitation;\\n(iii)[Work Loss.] Monthly earnings loss measured by an amount equal to the lesser of:\\n(I) $900 a month; or\\n(II) The monthly earnings for the period during which the accidental harm results in the inability to engage in available and appropriate gainful activity.\\n(iv)[Substitute Services Expenses.] All appropriate and reasonable expenses necessarily incurred as a result of such accidental harm, including, but not limited to:\\n(I) Expenses incurred in obtaining services in substitution of those that the injured or deceased person would have performed not for income but for the benefit of the person or the person's family up to $800 a month;\\n(II) [Funeral Expenses.] Funeral expenses not to exceed $1,500; and\\n(III) [Attorneys' Fees and Costs.] Attorney's fees and costs to the extent provided in section 431:10C-208(a);\\nProvided that the term, when applied to a no-fault policy issued at no cost under the provisions of section 431:100-422(2)(B), shall not include benefits under items (i), (ii) and (iii) for any person receiving public assistance benefits.\\n(B) No-fault benefits shall be subject to:\\n(i) An aggregate limit of $15,000 per person or such person's survivor where each applicable policy provides only the basic no-fault coverage; or\\n(ii) An aggregate limit of the expanded limits where the insured has contracted for it under an optional additional coverage.\\nHRS \\u00a7 431:100-103(10).\\nNevertheless, even though a survivors' loss benefit is not specifically listed as a no-fault benefit under HRS \\u00a7 431:10C-103(10)(A), we believe it is created out of the language set forth in HRS \\u00a7 431:100-304:\\n\\u00a7 431:100-304 Obligation to pay no-fault benefits. Every no-fault and self-insurer shall provide no-fault benefits for accidental harm as follows:\\n(1) Except as otherwise provided in section 431:10C-305(d):\\n(A) In the case of injury arising out of a motor vehicle accident, the insurer shall pay, without regard to fault, to the following persons who sustain accidental harm as a result of the operation, maintenance or use of the vehicle, an amount equal to the no-fault benefits payable to that person as a result of the injury:\\n(i) Any person, including the owner, operator, occupant, or user of the insured motor vehicle;\\n(ii) Any pedestrian (including a bicyclist); or\\n(iii) Any user or operator of a moped as defined in section 249-1; or\\n(B) In the case of death of any person listed in item (1)(A), arising out of a motor vehicle accident, the insurer shall pay, without regard to fault, to the legal representatives of such person who sustains accidental harm as a result of the operation, maintenance or use of the vehicle, for the benefit of the surviving spouse and any dependent, as defined in section 152 of the Internal Revenue Code of 1954, as amended, an amount equal to the no-fault benefits payable to the spouse and dependent as a result of the death of such person, subject to the provisions of section 4.81:100-108(10);\\nProvided that [subparagraphs] (A) and (B) shall not apply in the case of injury to or death of any operator of a motorcycle or motor scooter as defined in section 286-2 arising out of a motor vehicle accident.\\n(2) Payment of no-fault benefits shall be made as the benefits accrue, except that in the case of death, payment of the benefits may be made immediately in a lump sum payment, at the option of the beneficiary.\\nHRS \\u00a7 431:100-304(1), (2) (brackets in original) (emphases and footnotes added).\\nMore specifically, we believe a survivors' loss benefit is created out of that part of HRS \\u00a7 431:10C-304(1)(B) which requires that in the event of death, an insurer shall pay to the insured's survivor \\\"an amount equal to the no-fault benefits ., subject to the provisions of section 431:100-103(10).\\\" This reasoning is based upon sound principles of statutory construction.\\n[I]t is a cardinal rule of statutory construction that courts are bound, if rational and practicable, to give effect to all parts of a statute, and that no clause, sentence, or word shall be construed as superfluous, void, or insignificant if a construction can legitimately be found which will give force to and preserve all the words of the statute.\\nDines v. Pacific Ins. Co., Ltd., 78 Hawai'i 325, 331, 893 P.2d 176, 182, reconsideration denied, 78 Hawai'i 474, 896 P.2d 930 (1995) (citations omitted).\\n[I]t is also true that, even when strictly construing a statute, our primary duty in interpreting and applying statutes is to ascertain and give effect to the legislature's intention to the fullest degree. Although the intention of the legislature is to be obtained primarily from the language of the statute itself, we have rejected an approach to statutory construction which limits us to the words of a statute, for when aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no rule of law which forbids its use, however clear the words may appear on superficial examination. Thus, the plain language rule of statutory construction, does not preclude an examination of sources other than the language of the statute itself even when the language appears clear upon perfunctory review.\\nBragg, 81 Hawai'i at 306, 916 P.2d at 1207 (citation omitted).\\nAs for the particular issue sub judice, there is no legislative history or other outside sources that indicate the legislature's intent on the existence or amount of survivors' loss benefits. The only source of the legislature's intent is found in the plain language of the statute itself. Thus, we abide by the well-established rule that \\\"where the language of the law in question is plain and unambiguous, construction by [the] court is inappropriate and [the court's] duty is only to give effect to the law according to its plain and obvious meaning.\\\" Strouss v. Simmons, 66 Haw. 32, 50, 657 P.2d 1004, 1016 (1982) (citations, quotation marks, and brackets omitted).\\nAccordingly, we ask ourselves whether the language of HRS \\u00a7 431:10C-304(1)(B) is clear and unambiguous. We believe that it is.\\nPursuant to the relevant language of subsection (B): In the case of death of any person ., the insurer shall pay, without regard to fault, to the legal representatives of such person . an amount equal to the no-fault benefits payable to the spouse and dependent as a result of the death of such person, subject to the provisions of section 4.81:100-103(10).\\nHRS \\u00a7 431:10C-304(1)(B) (emphasis added). We interpret this language to mean that an insurer incurs an obligation to pay no-fault benefits upon death. Because a survivors' loss benefit is an insurer's obligation that is incurred \\\"as a result of the death of the eligible insured person,\\\" we believe the language of HRS \\u00a7 431:10C-304(1)(B) clearly illustrates the legislature's intent to create a statutory right to survivors' loss benefits. As such, we hold that HRS \\u00a7 431:10C-304(1)(B) creates a statutory right to survivors' loss benefits.\\nC. Amount of Survivors' Loss Benefits\\nGiven our holding that HRS \\u00a7 431:10C-304(1)(B) creates a statutory right to survivors' loss benefits, we must now determine the amount of survivors' loss benefits that is required under the HMVIL. Once again, we must engage the principles of statutory construction.\\nAs stated earlier, the relevant language of HRS \\u00a7 431:10C-304(1)(B) is as follows:\\nIn the ease of death of any person ., the insurer shall pay, without regard to fault, to the legal representatives of such person . an amount equal to the no-fault benefits payable to the spouse and dependent as a result of the death of such person, subject to the provisions of section 481:100-103(10).\\n(Emphasis added.)\\nThus, we must discern what the legislature intended the language \\\"an amount equal to the no-fault benefits payable to the spouse ., subject to the provisions of section 431:100-103(10),\\\" HRS \\u00a7 431:100-103(10), to mean. For that we look to section 103(10).\\nSection 103(10) is divided into two parts (A) and (B)). Part (A) defines the following no-fault benefits: (1) medical expenses; (2) rehabilitation expenses; (3) work loss; (4) substitute services expenses; (5) funeral expenses; and (6) attorney's fees and costs. Thus, pursuant to part (A), an insurer is obligated to pay to the survivor those no-fault benefits that are payable as medical, rehabilitation, work loss, substitute services, funeral, or attorney's fees and costs expenses.\\nPart (B) also defines no-fault benefits as the following:\\nNo-fault benefits shall be subject to:\\n(i) An aggregate limit of $15,000 per person or such person's survivor where each applicable policy provides only the basic no-fault coverage; or\\n(ii) An aggregate limit of the expanded limits where the insured has contracted for it under an optional additional coverage.\\nHRS \\u00a7 431:10C-103(10)(B) (emphases added).\\nThe express language of part (B)(i) provides for a maximum payment of $15,000 to the person's survivor where only the basic no-fault coverage was purchased. The express language of part (B)(ii) provides for the payment of the \\\"expanded limits where the insured has contracted for it under an optional additional coverage.\\\" According to the express language of HRS \\u00a7 431:10C-304(1)(B), survivors' loss benefits are equal to the amount of no-fault benefits set forth in HRS \\u00a7 431:100-103(10). Therefore, pursuant to HRS \\u00a7 431:10C-304(1)(B) and 431:10C-103(10)(B), we hold that upon the death of an insured, the insurer is obligated to provide the insured's survivor a survivor's loss benefit of up to either (1) $15,000 where the insured has purchased only the basic no-fault coverage, or (2) the expanded limits of no-fault benefits where the insured has contracted for it under an optional additional coverage.\\nTo be sure, the most a survivor can receive under the statute is either (1) $15,000 where the insured has purchased only the basic no-fault coverage, or (2) the expanded limits of no-fault benefits where the insured has contracted for it under an optional additional coverage. Thus, we further hold that to the extent that an insured is entitled to survivors' loss benefits, the statute requires that the survivors' loss benefits be reduced by any no-fault benefits paid or payable pursuant to HRS \\u00a7 431:10C-103(10)(A).\\nIn this ease, Claimant purchased, vis-a-vis the Luahiwas, optional additional coverage that expanded the no-fault benefits limit from $15,000 to $50,000. As such, Claimant is entitled to the aggregate limits of the expanded limits of no-fault benefits (i.e., $50,-000), less any no-fault benefits paid or payable (i.e., $3,844.22 in medical expenses and $1,500 in funeral expenses). Thus, Claimant is entitled to a total of $44,655.78 in survivors' loss benefits.\\nHAR \\u00a7 16-23-11\\nAIG argues that HAR \\u00a7 16-23-11 governs the amount of benefits payable under the HMVIL. The rule states in relevant part as follows:\\n\\u00a7 16-23-11 Required optional additional coverage. Each insurer shall offer to each policyholder or applicant for a no-fault policy the optional coverage as well as the basic no-fault coverage, with the applicable premiums therefor, as set forth in the exhibit entitled \\\"Required Optional Additional Coverage, \\\" dated September 1, 1990, located at the end of this chapter, which *is made a part of this section.\\nHAR \\u00a7 16-23-11 (emphasis added).\\nThe Exhibit entitled \\\"Required Optional Additional Coverage\\\" (Exhibit) states in relevant part as follows:\\nEXHIBIT\\nREQUIRED OPTIONAL ADDITIONAL COVERAGE\\nAIG argues that pursuant to Option 2 of the Exhibit, Claimant is entitled to only $15,-000 in survivors' loss benefits, $1,500 in funeral expenses and $3,844.22 in medical expenses. We disagree with the applicability of HAR \\u00a7 16-23-11.\\nSection 16-23-11 states that \\\"[e]ach insurer shall offer to each policy holder . the optional coverage as well as the basic no-fault coverage, with the applicable premiums therefore, as set forth in the exhibit entitled 'Required Optional Additional Coveragef]'\\\" HAR 16-23-11 (emphasis added). Thus, by the express terms of the rule, the Exhibit governs only the amount of premiums charged by an insurer. It does not govern the determination of the amount of benefits due an insured or an insured's survivor. Thus, to the extent that the Exhibit sets forth the amount of benefits payable under various no-fault benefit limits, it is only applicable as an exhibit of those factors considered by the Commissioner in setting the premiums for insurance policies. Accordingly, AIG's reliance on HAR \\u00a7 16-23-11 is misplaced.\\nD. Effect Upon the Policy\\n[Liability insurers have the same rights as individuals to limit their liability, and to impose whatever conditions they please on their obligation, provided they are not in contravention of statutory inhibitions or public policy.\\n. [Ijnsurance policies are governed by statutory requirements in force and effect at the time such policies are written. Such provisions are read into each policy issued thereunder and become a part of the contract with full binding effect upon each party. Consequently, when the terms of an insurance contract are in conflict with statutory language, the statute must take precedence over the terms of the contract.\\nDawes v. First Ins. Co. of Hawai'i, Ltd., 77 Hawai'i 117, 121-22, 883 P.2d 38, 42-43, reconsideration denied, 77 Hawai'i 489, 889 P.2d 66 (1994) (citations, brackets, and ellipsis omitted).\\nThus, to the extent that the Luahi-was' automobile insurance policy is in conflict with our interpretation of HRS \\u00a7 431:10C-304(1)(B) and 431:100-103(10), the statute takes precedence over the terms of the contract.\\nV. CONCLUSION\\nIn conclusion, we hold that HRS \\u00a7 431:10C-304(1)(B) creates a statutory right to survivors' loss benefits. We also hold that HRS \\u00a7 431:10C-304(1)(B) and 431:100-103(10), when read together, provide for survivors' loss benefits in an amount equal to either (1) the statutory minimum no-fault benefit where the insured has only purchased the statutory minimum no-fault benefit, or (2) the aggregate limits of the extended no-fault limits where the insured has purchased optional additional coverage, less any no-fault benefits payable as no-fault benefits under HRS \\u00a7 431:10C-103(10)(A).\\nBased on the foregoing reasons, the circuit court's affirmance of the Commissioner's Final Order is vacated, and the case is remanded with instructions that the Commissioner shall enter an order holding that Claimant is entitled to receive survivors' loss benefits in the amount of $50,000, less $3,844.22 in medical expenses, less $1,500 in funeral expenses, and credit for the $15,000 in survivors' loss benefits already paid.\\n.The controlling statutes in this case are the 1987 versions of sections 431:10C-304 and 431:10C-103(10) found in the Hawai'i Revised Statutes (HRS) 1987 Special Pamphlet. This is because, at the time of the relevant automobile accident on May 7, 1992, the 1987 versions of the statutes were in effect. The legislature amended parts of the Hawai'i motor vehicle insurance law in 1992, but such amendments did not become effective until after the date of the accident. See HRS \\u00a7 431:100-304 (Supp.1992) (effective date of amendment was January 1, 1993); 1992 Haw. Sess. L. Act 123, \\u00a7 2 at 207-08, 210 (effective date of amendment June 3, 1992).\\n. At the time of the accident, George Cabral (Cabral) was approximately 65 years old, retired, and unemployed. He was receiving $953.80 per month in social security payments as well as an unknown amount per month in pension or retirement benefits from \\\"Pan Am.\\\"\\n. The \\\"No-Fault Benefits\\\" section of the Basic No-Fault Endorsement (the Endorsement) states in its entirety:\\nNO-FAULT BENEFITS\\nNo-Fault benefits shall consist of and be defined as:\\n(A) Medical Expenses\\u2014All appropriate and reasonable expenses necessarily incurred for medical, hospital, surgical, professional nursing, dental, optometric, ambulance, prosthetic services, products, and accommodations furnished, x-rays and includes any non-medical remedial care and treatment rendered in accordance with the teachings, faiths or beliefs of any group which depends for healing upon spiritual means through prayer.\\n(B) Rehabilitation Expenses\\u2014All appropriate and reasonable expenses necessarily incurred for psychiatric, physical and occupational therapy and rehabilitation.\\n(C) Work Loss\\u2014Loss of monthly earnings resulting from the inability of the eligible injured person to engage in available and appropriate gainful activity or a decrease in earning capacity because of accidental harm.\\n(D) Substitute Service Expenses\\u2014All appropriate and reasonable expenses necessarily incurred in obtaining services in substitution of those that the eligible injured person would have performed not for income but for the benefit of himself or his family, had he not sustained accidental harm.\\n(E) Funeral Expenses\\u2014All appropriate and reasonable expenses necessarily incurred for professional funeral services, including burial and cremation expenses.\\n(F) Survivors' Loss\\u2014No-Fault benefits payable as a result of the death of the eligible injured person for the benefit of dependent survivors. Such benefits may be paid immediately in a lump sum payment at the option of the beneficiary.\\n(G) Attorney's Fees and Costs\\u2014A reasonable sum for attorney's fees based upon actual time expended which shall be treated separately from such claim and be paid directly by the Company to the attorney and costs of settlement or suit, necessary to effect payment of any or all No-Fault benefits found due under this coverage, unless a court determines that the claim was fraudulent, excessive or frivolous.\\n(H) Other Appropriate and Reasonable Expenses\\u2014necessarily [sic] incurred as a result of accidental harm.\\nA No-Fault policy issued to certified public assistance recipients at no cost under the Hawaii [Hawai'i] Joint Underwriting Plan shall not include benefits under subparagraphs (A), (B), (C) for any person receiving public assistance benefits.\\n(Internal emphases omitted.)\\n. The \\\"Limits of Liability\\\" section of the Endorsement states in its entirety as follows:\\nLIMITS OF LIABILITY\\nRegardless of the number of persons insured, policies or self-insurance applicable, claims made or insured motor vehicles to which this coverage applies, the Company's liability for all No-Fault benefits to or on behalf of any one eligible injured person who sustains accidental harm in any one motor vehicle accident shall be $15,000 in the aggregate. Subject to such aggregate limit:\\n(A) The maximum amount payable for work loss shall not exceed the lesser of\\n(i) $900 per month plus any optional additional insurance which may be applicable; or\\n(ii) In the event the period during which the loss of earnings is incurred or the initial or terminal portion thereof is shorter than a calendar month, the ratio of the number of working days in the period or portion therein to the number of regular days of work in the calendar month of which it is a part, multiplied by the monthly earnings applicable to the period during which the accidental harm results in the inability of the eligible injured person to engage in available and appropriate gainful activily.\\nMonthly earnings loss benefits shall he reduced by any income from substitute work performed by the eligible injured person or by income the injured person would have earned in available appropriate substitute work the injured person was capable of performing but unreasonably failed to undertake.\\n(B) The maximum amount payable for substitute service expenses shall not exceed $800 per month.\\n(C) The maximum amount payable for funeral expenses shall not exceed $1,500.\\n(D) The maximum amount payable for survivors' loss is $15,000 reduced by the amount of any other No-Fault benefits paid or payable under this coverage.\\n(Emphasis added) (internal emphases omitted).\\n. \\u00a7 431:10C-212 Administrative hearing on insurer's denial of claim, (a) If a claimant or provider of services objects to the denial of benefits by an insurer or self-insurer pursuant to section 431:10C-304(3)(B) and desires an administrative hearing thereupon, the claimant or provider of services shall file [such request] with the commissioner, within sixty days after the date of denial of the claim[.]\\nHRS \\u00a7 431:10C-212(a) (1993).\\n. Claimant-Appellant Estate of George Cabral (Claimant) also argued an entitlement to work loss benefits. The Hearings Officer found that Claimant was not entitled to work-loss benefits, and Claimant does not appeal that part of the decision.\\n. Specifically, the circuit court made the following relevant conclusion of law:\\n2. This increase of the aggregate no-fault benefits coverage under the policy did not modify the pre-existing limit of the survivors' loss benefits of $15,000.\\n. The Hawai'i motor vehicle insurance law is codified in chapter 431, article 10C of the HRS, HRS \\u00a7 431:100-101, and is intended to effectuate the system of motor vehicle insurance in Hawai'i. HRS \\u00a7 431:10C-101, 431:10C-102(b) (Spec.Pamph. 1987).\\n. Furthermore, the insurance policy states in the \\\"Basic No-Fault Coverage\\\" provision of the Endorsement:\\nThe Company will pay, in accordance with the Hawaii [Hawai'i] No-Fault Law, No-Fault benefits on account'of accidental harm sustained by an eligible injured person and caused by an accident arising out of the operation, maintenance, or use of a motor vehicle as a vehicle.\\n(Emphases omitted.)\\n. HRS \\u00a7 431:10C-305(d) (Spec.Pamph.1987) provides that the following persons are not eligible to receive payment of no-fault benefits:\\n(1) Occupants of a motor vehicle other than the insured motor vehicle;\\n(2) Operator or user of a motor vehicle engaging in criminal conduct which causes any loss; or\\n(3)Operator of a motorcycle or motor scooter as defined in section 286-2.\\nHRS \\u00a7 431:10C-305(d).\\n. Section 152 of the Internal Revenue Code (the Code) is that part of the Code that defines \\\"dependent.\\\"\\n. Our holding is consistent with the Hawaii. Supreme Court's holding in Hudson v. Uwekoolani, 65 Haw. 468, 653 P.2d 783 (1982). In Hudson, the court held that \\\"where a deceased leaves neither surviving spouse nor dependent, then such loss of earnings benefit should be paid to his estate.\\\" 65 Haw. at 473, 653 P.2d at 787. However, in its holding the court also implicitly acknowledged that the language of HRS \\u00a7 294-4(1)(B), which is identical for all intents and purposes to HRS \\u00a7 431:10C-304(1)(B), creates a death benefit payable to a \\\"survivor.\\\" Id.\\n. HRS \\u00a7 431:10C-304(B) states that the no-fault benefits are subject to the aggregate limit of either $15,000 or the aggregate limit of the expanded limits.\\n. Our holding does not disrupt the holdings of Mizoguchi v. State Farm Mut. Auto. Ins. Co., 66 Haw. 373, 663 P.2d 1071 (1983) and Hudson v. Uwekoolani, 65 Haw. 468, 653 P.2d 783 (1982), because the issue in the immediate case was not addressed by either the Mizoguchi or Hudson court.\\nIn Mizoguchi, the dispositive issue was whether a surviving spouse was entitled to payment of survivors' loss benefits and provable work loss benefits, up to increased aggregate limits of additional no-fault coverage. Mizoguchi, 66 Haw. at 378, 663 P.2d at 1074-75.\\nIn Hudson, the dispositive issue was whether the parents or the estate of an unemployed deceased minor was entitled to no-fault benefits, including future wage losses that the deceased minor would have earned. Hudson, 65 Haw. at 472, 653 P.2d at 786.\\nIn the immediate case, the dispositive question is whether survivors' loss benefits are statutorily created, and if so, in what amount.\\n.In this case, Claimant already received $15,-000 as survivors' loss benefits. Thus, Claimant is only entitled to an additional $29,655.78 as survivors' loss benefits.\\n. Furthermore, Hawai'i Administrative Rule \\u00a7 16-23-11 is entitled \\\"Required optional additional coverage.\\\" This rule would be relevant to its statutory counterpart found in HRS \\u00a7 431:100-302 (Spec.Pamph.1987) entitled \\\"Required optional additional insurance.\\\" To be sure, HRS 431:10C-302 does not help us in our determination of survivors' loss benefits.\"}"

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+"{\"id\": \"12260350\", \"name\": \"STATE of Hawai'i, Plaintiff-Appellee, v. Tuan Quoc NGUYEN, Defendant-Appellant\", \"name_abbreviation\": \"State v. Tuan Quoc Nguyen\", \"decision_date\": \"1996-05-07\", \"docket_number\": \"No. 17535\", \"first_page\": \"279\", \"last_page\": \"293\", \"citations\": \"81 Haw. 279\", \"volume\": \"81\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T22:09:55.038950+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.\", \"parties\": \"STATE of Hawai'i, Plaintiff-Appellee, v. Tuan Quoc NGUYEN, Defendant-Appellant.\", \"head_matter\": \"916 P.2d 689\\nSTATE of Hawai'i, Plaintiff-Appellee, v. Tuan Quoc NGUYEN, Defendant-Appellant.\\nNo. 17535.\\nSupreme Court of Hawai'i.\\nMay 7, 1996.\\nJames S. Tabe, Deputy Public Defender, on the briefs, Honolulu, for defendant-appellant.\\nMark R. Simonds, Deputy Prosecuting Atty., County of Maui, on the briefs, Wailu-ku, for plaintiff-appellee.\\nBefore MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.\", \"word_count\": \"8932\", \"char_count\": \"53260\", \"text\": \"NAKAYAMA, Justice.\\nDefendant-appellant Tuan Quoc Nguyen, a resident alien, appeals from the denial of his Hawai'i Rules of Penal Procedure (HRPP) Rule 32(d) motion to withdraw his 1985 \\\"no contest\\\" plea to Promoting a Dangerous Drug in the Third Degree. Based on our review of the record, we affirm.\\nI. BACKGROUND\\nOn November 18, 1975, Nguyen immigrated from Vietnam to the United States. Since his immigration, Nguyen has lived in the United States as a resident alien and has continued to retain his Vietnamese citizenship.\\nOn November 16, 1984, Police Officers David Shishido and Carl Washington observed Nguyen driving his automobile erratically on Honoapiilani Highway, Lahaina, Maui. Believing that Nguyen was driving under the influence of an intoxicant, Officer Shishido and Officer Washington had Ngu yen pull over to the side of the highway. When Officer Shishido and Officer Washington asked Nguyen to produce his license, automobile registration, and proof of insurance, they detected an odor of alcohol emanating from Nguyen's breath, and they noticed that Nguyen was trying to push a plastic packet containing a white substance under the floor-carpet with his foot. During the ensuing investigation, Officer Shishido and Officer Washington discovered that the white substance in the plastic packet was cocaine, and they also found marijuana inside of Nguyen's automobile. Nguyen was arrested for Driving Under the Influence of Drugs, Hawai'i Revised Statutes (HRS) \\u00a7 291-7 (1985), Promoting a Dangerous Drug in the Third Degree, HRS \\u00a7 712-1243 (1985), and Promoting a Detrimental Drug-in the Third Degree, HRS \\u00a7 712-1249 (1985). On April 15, 1985, a grand jury indicted Nguyen for Promoting a Dangerous Drug in the Third Degree and Promoting a Detrimental Drug in the Third Degree.\\nOn November 14, 1985, Nguyen entered a plea of \\\"no contest\\\" in the Circuit Court of the Second Circuit (circuit court) with respect to the cocaine-related charge of Promoting a Dangerous Drug in the Third Degree in exchange for the State of Hawaii's (prosecution) promise to dismiss the marijuana-related charge of Promoting a Detrimental Drug in the Third Degree. Nguyen signed a \\\"No Contest\\\" plea form indicating that he was pleading \\\"no contest\\\" to Promoting a Dangerous Drug in the Third Degree, and stating that he \\\"will stipulate to the factual basis for the one charge listed in this document.\\\" Nguyen's \\\"No Contest\\\" plea form stated, in pertinent part, the following:\\nI have received a written copy of the original charge in this case. My lawyer has explained the charges to me. I understand the original charge against me. I told my lawyer all the facts I know about the case. He discussed with me the government's evidence against me, and advised me of the facts which the government must prove in order to convict me and of the possible defenses which I might have.\\nI plead no contest because, after discussing all the evidence and receiving advice on the law from my lawyer, I believe that it is better to put myself at the mercy of the court.\\nI know that I still have the right to plead not guilty and have a trial by jury or by the court in which the government will be required to prove me guilty beyond a reasonable doubt. I know that in a trial, I can see, hear and question the witnesses who may testify against me, I can call my own witnesses to testify for me, and I do not have to take the stand and testify if I do not wish to do so. I know that I have a right to a speedy and public trial. I know that by pleading in this matter, I am giving up my right to a trial and may be found guilty and sentenced without a trial of any kind. I plead in this manner because (give brief factual statement of what defendant did):\\nN/A. Defendant will stipulate to the factual basis for the one charge listed in this document.\\nMy lawyer has told me about the possible maximum indeterminate sentence indicated above for my offense. He also explained to me the possibility of my indeterminate maximum term of imprisonment being extended and explained that I may have to serve a mandatory minimum term of imprisonment without possibility of parole.\\nI am pleading of my own free will. No one is putting any kind of pressure on me or threatening me or anyone close to me to force me to plead. I am not taking the rap or pleading to protect someone else from prosecution.\\nI have not been promised any kind of deal or favor or leniency by anyone for my plea, except that I have been told that the government has agreed as follows: (If None Write None [sic])\\nThe State will dismiss Promoting a Detrimental Drug in the Third Degree.\\nI know that the court is not a party to, so that it does not have to recognize, any deal or agreement between the prosecutor and my lawyer or me. I know that the court has not promised me leniency.\\nI am signing this paper after I have gone over all of it together with my lawyer, and I am signing it in the presence of my lawyer. I have no complaints about my lawyer and I am satisfied with what he/she has done for me.\\nNguyen's attorney also signed the \\\"No Contest\\\" plea form, which contained a \\\"Certificate of Counsel\\\" section that stated the following:\\nAs counsel for defendant and as an officer of the Court, I certify that I have read and explained fully the foregoing, that I believe that the defendant understands the document in its entirety, that the statements contained herein are in conformity with my understanding of the defendant's position, that I believe that the defendant's plea is made voluntarily and with intelligent understanding of the nature of the charge and possible consequences, and that the defendant signed the foregoing in my presence.\\nAlthough Nguyen made his \\\"no contest\\\" plea at the court hearing on November 14, 1985, with the assistance of a Vietnamese interpreter, Nguyen had some command of the English language. At Nguyen's hearing, the following dialogue took place between Judge E. John McConnell, Nguyen, Nguyen's attorney, Deputy Public Defender Tom Griswold, Nguyen's interpreter, An Nguyen, and Deputy Prosecuting Attorney Ruby Hamili:\\nMR. GRISWOLD: Tom Griswold appearing with Tuan Quoc Nguyen and we do have Mrs. Nguyen who is the interpreter who may need to be sworn.\\nTHE COURT: Yes, I'll ask that the interpreter be sworn.\\n(At which time the interpreter was sworn to interpret from Vietnamese into English and English into Vietnamese to the best of her ability.)\\nMR. GRISWOLD: Your, Honor, we have reached an agreement with the State which has necessitated a little bit of a pen job in the plea of no contest, but it was corrected before I went over it with the defendant.\\nEssentially he's pleading to one of the offenses, promoting a dangerous drug in the third, in exchange for a promoting a detrimental drug in the third degree as stated and there are no other agreements.\\nTHE COURT: I think we should have the interpreter's name for the record.\\nTHE INTERPRETER: A-n, my last, N-g-u-y-e-n.\\nTHE COURT: Thank you. I'm going to be asking the defendant a long series of questions so after I ask each question I will give you a chance to interpret and then to give his response.\\nTHE INTERPRETER: Okay.\\nTHE COURT: I would ask Mr. \\u2014 how do you pronounce your name? Nguyen? I'd ask you to state his name for the record.\\nTHE DEFENDANT: Tuan Quoc Nguyen.\\nTHE COURT: How old are you?\\nTHE DEFENDANT: I am 31.\\nTHE COURT: Apparently you can speak some English?\\nTHE DEFENDANT: Yes, sir.\\nTHE COURT: If you are able to answer the questions then you can answer in English, but if you don't understand the question then use the interpreter.\\nTHE DEFENDANT: Yes.\\nTHE COURT: How much education have you had?\\nTHE DEFENDANT: 12 [sic] grade.\\nTHE COURT: Are you under the influence of alcohol or any drugs at the present time?\\nTHE INTERPRETER: No, sir.\\nTHE COURT: Are you under treatment for any mental illness?\\nTHE INTERPRETER: No, sir.\\nTHE COURT: Is your mind clear?\\nTHE INTERPRETER: Yes, sir.\\nTHE COURT: Your lawyer, Mr. Gris-wold, says you will plead no contest to the charge of promoting a dangerous drug in the third degree; is that correct?\\nTHE INTERPRETER: Yes, sir.\\nTHE COURT: And he has given me this written no contest plea which appears to have your signature on the second page. Is this your signature?\\nTHE DEFENDANT: Yes.\\nTHE COURT: Did you read this form and did your lawyer go over it fully and explain it to you before you signed it?\\nTHE INTERPRETER: Yes.\\nTHE COURT: The charge against you is promoting a dangerous drug in the third degree. Actually there were two charges originally, promoting a dangerous drug in the third degree and promoting a detrimental drug in the third degree. Have these charges been explained to you by your lawyer?\\nTHE DEFENDANT: Yes, sir.\\nTHE COURT: Do you understand the charges?\\nTHE DEFENDANT: Yes.\\nTHE COURT: Do you have any questions about the charges?\\nTHE DEFENDANT: I have no question.\\nTHE COURT: You have no question about the charge itself?\\nTHE INTERPRETER: But I would like to have some explanation later.\\nTHE COURT: He wants to make an explanation?\\nTHE INTERPRETER: I don't have question [sic], but I would like to have explanation [sic] later.\\nTHE COURT: Does he want to make an explanation or does he want the Court to make some kind of explanation?\\nTHE INTERPRETER: He wants to make his explanation.\\nTHE COURT: All right, we'll get to that. Do you understand that the maximum penalty provided by law for this offense is five years in prison and a $5,000.00 fine?\\nTHE DEFENDANT: Yes, sir.\\nTHE COURT: Is there any possibility this defendant may be eligible for extended term, repeat offender, or other enhanced sentencing?\\nMS. HAMILI: No, your Honor. There's no possibility.\\nTHE COURT: Knowing the penalty, Mr. Nguyen, do you still wish to plead no contest?\\nTHE DEFENDANT: Yes, sir.\\nTHE COURT: Do you understand that you have the right to a speedy and public trial by jury, but by pleading no contest you're giving up your right to a trial?\\nTHE DEFENDANT: Yes, I understand.\\nTHE COURT: Do you understand that you have the right to a trial no matter how strong the evidence against you?\\nTHE INTERPRETER: I understand.\\nTHE COURT: He understands? You understand that if you demand a trial the State must prove you guilty beyond a reasonable doubt?\\nTHE DEFENDANT: I understand.\\nTHE COURT: Do you understand that if you demand a trial your lawyer could cross-examine the witnesses against you?\\nTHE DEFENDANT: Yes, I understand.\\nTHE COURT: Do you understand that if you demand a trial you have the right to testify or to remain silent?\\nTHE DEFENDANT: Yes.\\nTHE COURT: The answer was yes?\\nTHE DEFENDANT: Yes.\\nTHE COURT: Do you understand that if you demand a trial you have the right to call and present your own witnesses?\\nTHE DEFENDANT: Yes.\\nTHE COURT: Do you understand that by pleading no contest you are giving up these rights and that there will be no trial at all?\\nTHE DEFENDANT: Yes, sir.\\nTHE COURT: Yes?\\nTHE DEFENDANT: Yes.\\nTHE COURT: Do you understand that if I accept your no contest plea I will find you guilty and sentence you without a trial?\\nTHE DEFENDANT: Yes.\\nTHE COURT: Do you understand that after you are sentenced you will not be allowed to change your mind and have a trial if, for example, you do not like the kind of sentence you receive?\\nTHE DEFENDANT: Yes.\\nTHE COURT: Are you pleading no contest because someone is threatening you or forcing you to do so?\\nTHE DEFENDANT: No, sir.\\nTHE COURT: Are you pleading no contest of your own free will?\\nTHE DEFENDANT: Yes, sir.\\nTHE COURT: For the record the plea agreement in this case is that the State will dismiss the promoting detrimental drug in the third degree charge. Is there anything you wish to add to that?\\nMS. HAMILI: No, your Honor. With respect to that count it's count three in the indictment.\\nTHE COURT: Ml right. Mr. Griswold?\\nMR. GRISWOLD: Yes, sir, that is our understanding.\\nTHE COURT: Has this agreement been explained to you, Mr. Nguyen?\\nTHE DEFENDANT: Yes.\\nTHE COURT: Apart from the plea agreement has any promise of any kind been made to you in return for the no contest plea?\\nTHE DEFENDANT: Yes.\\nTHE COURT: Maybe you didn't understand the question. The question was, apart from the plea agreement, that is the dismissal of the third count, has anybody made any promises to you in return for the no contest plea?\\nTHE DEFENDANT: No promise.\\nTHE COURT: Have you completely understood this proceeding?\\nTHE DEFENDANT: Yes.\\nTHE COURT: Have you discussed the plea fully with Mr. Griswold, your attorney?\\nTHE DEFENDANT: Yes.\\nTHE COURT: Are you satisfied with Mr. Griswold's advice?\\nTHE DEFENDANT: Yes.\\nTHE COURT: The answer was what?\\nTHE DEFENDANT: I go along with his advises [sic].\\nTHE COURT: Is there a stipulation that there's a factual basis for the charge of promoting a dangerous drug in the third degree?\\nMS. HAMILI: Yes, your Honor. The State will so stipulate.\\nMR. GRISWOLD: Yes, sir, your Honor.\\nTHE COURT: Does the defendant wish to tell the Court or make any explanation about the charge?\\nMR. GRISWOLD: Your Honor, I would prefer that we do that at sentencing.\\nTHE COURT: Ml right, Mr. Nguyen, then what is your plea to the charge of promoting a dangerous drug in the third degree?\\nTHE DEFENDANT: Yes.\\nTHE COURT: What is your plea?\\nTHE DEFENDANT: No contest.\\nTHE COURT: Thank you. I will ask at this time that the defendant acknowledge questioning by the court by signing the second page of the written no contest plea.\\nMR. GRISWOLD: Your Honor, Mr. Nguyen has executed the no contest plea form.\\nTHE COURT: The Court finds that the defendant voluntarily enters his plea of no contest with an understanding of the nature of the charge against him and the consequences of the plea. His plea is accepted and I find the defendant guilty of promoting a dangerous drug in the third degree. Sentencing of the defendant is set for\\u2014\\nMR. GRISWOLD: Your Honor if we might, we spoke with the interpreter and we'd like to ask for a January setting.\\nTHE COURT: January 17th, 1986 at 8:30 a.m. [sic]\\nMR. GRISWOLD: Yes, sir. Thank you.\\nTHE COURT: The presentence investigation and report will be required.\\nMR. GRISWOLD: Thank you.\\nTHE COURT: Is there anything else?\\nMS. HAMILI: No, your Honor.\\nTHE COURT: Thank you.\\nAt Nguyen's subsequent sentencing hearing on January 17, 1986, Judge McConnell sentenced Nguyen to probation for a period of five years under the following terms: commitment to the Maui Community Correctional Center for a period of six months, with the issuance of mittimus suspended as long as Nguyen complied with all the terms and conditions of probation; a fine of two hundred and fifty dollars; and two hundred and fifty hours of community service. Final judgment for this conviction was entered on January 20,1986.\\nOver seven years later, the United States Immigration and Naturalization Service (INS) commenced involuntary deportation proceedings against Nguyen based upon his 1986 conviction for the cocaine-related charge of Promoting a Dangerous Drug in the Third Degree. On April 30, 1993, the INS issued an Order to Show Cause and Notice of Hearing to Nguyen, requiring Nguyen to appear before an immigration judge to show cause why he should not be deported from the United States.\\nIn response, on September 10, 1993, Nguyen filed a motion in the circuit court to withdraw his earlier \\\"no contest\\\" plea. Nguyen predicated his motion to withdraw his \\\"no contest\\\" plea on HRS Chapter 802E, enacted in 1988, which requires courts to warn defendants about, among other things, the possibility of deportation, before courts accept pleas of guilty or nolo contendere. Nguyen alleged that (1) when he had offered his \\\"no contest\\\" plea on November 14, 1985, Judge McConnell had failed to warn him that his \\\"no contest\\\" plea might result in deportation, (2) in light of the INS's subsequent deportation proceedings, Nguyen was the victim of manifest injustice, and (3) thus, he deserved to have his \\\"no contest\\\" plea withdrawn.\\nOn September 15, 1993, the prosecution and Nguyen's attorney appeared before Judge McConnell to present oral arguments addressing Nguyen's motion to withdraw the plea. Counsel for Nguyen introduced, among other things, three exhibits into evidence: (1) Nguyen's \\\"No Contest\\\" plea form; (2) an official court reporter's transcript from the hearing on November 14, 1985, in which Nguyen had offered his \\\"no contest\\\" plea; and (3) a copy of the \\\"Order to Show Cause and Notice of Hearing\\\" showing that the United States Department of Justice was considering the possibility of deporting Nguyen. After reviewing the exhibits and arguments from both sides, Judge McConnell concluded that Nguyen had failed to make a sufficient showing of manifest injustice and, furthermore, that in 1985 the court had not been required to warn Nguyen that a \\\"no contest\\\" plea might possibly lead to Nguyen's deportation because the Hawai'i legislature had not yet enacted HRS Chapter 802E:\\nTHE COURT: The Court, of course, in this circumstance is governed by Rule 32(d) of the Hawaii Rules of Penal Procedure which requires a showing of manifest injustice to withdraw the plea and there's been no showing of manifest injustice to withdraw the plea and there's been no showing with respect to the merits of these charges. It's merely based on this later legislative policy that defendants who are not citizens be afforded the benefit of a warning with respect to potential consequences of the plea.\\nIt's now eight years since the plea. I'm not going to apply that statute retroactively and I don't think there's a sufficient showing of manifest injustice. I'll deny the motion.\\nOn October 15, 1993, Judge McConnell issued the order denying Nguyen's motion to withdraw his \\\"no contest\\\" plea, ruling in pertinent part as follows:\\n[T]he Court being advised in the premises, hereby finds that the Defendant has failed to demonstrate manifest injustice that would warrant granting the withdrawal of his No Contest plea. The Court further finds that Chapter 802E of the Hawaii Revised Statutes is not interpreted to be applied retroactively;\\nIT IS HEREBY ORDERED that said Motion to Withdraw No Contest Pleas is denied.\\nNguyen's timely appeal followed.\\nII. DISCUSSION\\nNguyen asserts that he should have been allowed to withdraw his \\\"no contest\\\" plea as a result of the subsequent enactment of HRS Chapter 802E (1993). HRS Chapter 802E currently requires a trial judge to advise a defendant who is not a United States citizen that a conviction upon a plea of guilty or nolo contendere could lead to deportation. Nguyen contends that (A) the circuit court abused its discretion in 1993 by denying his motion to withdraw his \\\"no contest\\\" plea; and (B) the circuit court committed plain error in 1985 by accepting Nguyen's \\\"no contest\\\" plea. For the reasons set forth below, we affirm the circuit court's denial of Nguyen's motion to withdraw his plea.\\nA. Abuse of Discretion\\nHRPP Rule 32(d) provides:\\nWithdrawal of a Plea of Guilty. A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence shall set aside the judgment of conviction and permit the defendant to withdraw his plea.\\n\\\"This court has observed that a Iib\\u00e9ral approach is to be taken when a motion to withdraw a plea is made under HRPP 32(d) before sentence is imposed.\\\" State v. Adams, 76 Hawai'i 408, 411, 879 P.2d 513, 516 (1994). The court should grant such a motion before imposition of sentence if (1) the defendant has presented \\\"fair and just reasons\\\" for his or her request, and (2) the prosecution has not relied upon the plea to its substantial prejudice. State v. Merino, 81 Hawai'i 198, 223-224, 915 P.2d 672, 697-98 (1996); State v. Gomes, 79 Hawai'i 32, 36, 897 P.2d 959, 963 (1995); Adams, 76 Hawai'i at 411, 879 P.2d at 516. In contrast, when a defendant moves to withdraw a plea of nolo contendere under HRPP 32(d) after imposition of sentence, only a showing of manifest injustice will entitle the defendant to withdraw his or her plea. Adams, 76 Hawai'i at 411, 879 P.2d at 516. When a trial court denies a motion to withdraw a plea, the trial court's determination will not be disturbed on appeal unless abuse of discretion is clearly shown. State v. Smith, 61 Haw. 522, 523, 606 P.2d 86, 88 (1980); Adams, 76 Hawai'i at 411, 879 P.2d at 516. \\\"The burden of establishing abuse of discretion is on appellant and a strong showing is required to establish it.\\\" State v. Faulkner, 1 Haw.App. 651, 654, 624 P.2d 940, 943 (1981). An abuse of discretion occurs only if the trial court has clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant. Merino, 81 Hawai'i at 211, 915 P.2d at 685; Gomes, 79 Hawai'i at 36, 897 P.2d at 963; Adams, 76 Hawai'i at 411, 879 P.2d at 516; Faulkner, 1 Haw.App. at 654, 624 P.2d at 943.\\nOn November 14, 1985, when Nguyen entered his plea of \\\"no contest\\\" to his cocaine-related charge of Promoting a Dangerous Drug in the Third Degree, HRPP 11(c) and (d) required the circuit court to do the following:\\nRule 11. PLEAS.\\n(c) Advice to Defendant. The court shall not accept a plea of guilty or nolo contendere without first addressing the defendant personally in open court and determining that he understands the following:\\n(1) the nature of the charge to which the plea is offered; and\\n(2) the maximum penalty provided by law, and the maximum sentence of extended term of imprisonment, which may be imposed for the offense to which the plea is offered; and\\n(3) that he has the right to plead not guilty, or to persist in that plea if it has already been made; and\\n(4) that if he pleads guilty or nolo contendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial.\\n(d) Insuring that the Plea is Voluntary. The court shall not accept a plea of guilty or nolo contendere without first addressing the defendant personally in open court and determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from any plea agreement.\\nNguyen does not dispute that the circuit court fulfilled the express requirements of Rule 11 as it existed on November 14, 1985. However, Nguyen contends that when he subsequently moved to withdraw his \\\"no contest\\\" plea in 1993 and told the circuit court he had not known that his \\\"no contest\\\" plea might eventually result in deportation, the circuit court abused its discretion by finding that Nguyen failed to demonstrate manifest injustice and by refusing to apply HRS \\u00a7 802E-3 retrospectively.\\nCourts need not inform defendants prior to accepting their guilty or nolo conten-dere pleas about every conceivable collateral effect that a conviction might have. Cf. Reponte v. State, 57 Haw. 354, 364, 556 P.2d 577, 584 (1976) (rejecting an appellant's argument that his burglary conviction should be vacated because the court had not informed him that by pleading guilty he would no longer be allowed to hold ammunition or a gun). Accordingly, it is the general rule that, absent a rule or statute, a court has no duty to warn defendants pleading guilty or \\\"no contest\\\" about the possibility of deportation as a collateral consequence of conviction. Cf. id. at 364 n. 10, 556 P.2d at 584 n. 10 (citing Tafoya v. State, 500 P.2d 247 (Alaska 1972), cert. denied, 410 U.S. 945, 93 S.Ct. 1389, 35 L.Ed.2d 611 (1973)).\\nThe New York Court of Appeals recently addressed this issue when an alien defendant had pled guilty to manslaughter without any warning about the possibility of deportation:\\nManifestly, a criminal court is in no position to advise on all the ramifications of a guilty plea personal to a defendant. Accordingly, the courts have drawn a distinction between consequences of which the defendant must be advised, those which are \\\"direct\\\", and those of which the defendant need not be advised, \\\"collateral consequences.\\\" A direct consequence is one which has a definite, immediate and largely automatic effect on defendant's punishment. Illustrations of collateral consequences are. loss. of the right to vote or travel abroad, loss of civil service employment, loss of a driver's license, loss of the right to possess firearms or an undesirable discharge from the Armed Services. The failure to warn of such collateral consequences will not warrant vacating a plea because they are peculiar to the individual and generally result from the actions taken by agencies the court does not control.\\nDeportation is a collateral consequence of conviction because it is a result peculiar to the individual's personal circumstances and one not within the control of the court system. Therefore, our Appellate Division and the Federal courts have consistently held that the trial court need not, before accepting a plea of guilty, advise a defendant of the possibility of deportation.\\nPeople v. Ford, 86 N.Y.2d 397, 633 N.Y.S.2d 270, 273-74, 657 N.E.2d 265, 267-68 (N.Y.1995) (citations omitted); accord Fruchtman v. Kenton, 531 F.2d 946, 949 (9th Cir.1976) (holding that an alien defendant need not be advised of deportation as a consequence of a guilty plea, because deportation is a sanction controlled by a federal agency over which a trial judge has neither control nor responsibility), cert. denied, 429 U.S. 895, 97 S.Ct. 256, 50 L.Ed.2d 178 (1976). The same rationale applies to defendants who plead nolo contendere or \\\"no contest\\\" without any warning about the collateral consequence of possible deportation. State v. Figueroa, 639 A.2d 495, 499 (R.I.1994) (\\\"There is no duty to inform alien defendants [pleading nolo con-tendere] of the collateral consequence of possible or certain deportation.\\\").\\nNevertheless, Nguyen correctly asserts that a statute, HRS Chapter 802E, currently requires courts, prior to accepting a plea of nolo contendere, to advise defendants that, if they are not citizens of the United States, their convictions \\\"may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.\\\" HRS \\u00a7 802E-2 (1993). Effective September 2, 1988, an amendment to HRPP Rule 11(c)(5) also requires courts to determine that such defendants understand the collateral consequence of possible deportation. \\\"If the court fails to advise the defendant as required by section 802E-2 and the defendant shows that conviction of the offense to which the defendant pleaded . nolo conten-dere may have the consequence[ ] for the defendant of deportation, . the court shall vacate the judgment^]\\\" HRS \\u00a7 802E-3 (1993).\\nHowever, the Hawai'i legislature enacted HRS Chapter 802E through Act 382 on June 15, 1988, over two and a half years after Nguyen had already entered his \\\"no contest\\\" plea. 1988 Haw.Sess.L.Act 382, \\u00a7 1-3 at 749-50. To apply HRS Chapter 802E to Nguyen's \\\"no contest\\\" plea on November 14, 1985, would require retrospective operation.\\nIn similar situations, other jurisdictions have not allowed retrospective operation of statutes that required courts to advise alien defendants about the collateral consequence of possible deportation, primarily because of three reasons: (1) before the enactment of such statutes, it was the general rule that courts have had no duty to warn alien defendants about possible deportation; (2) some legislatures have intended such statutes to apply only prospectively; and (3) because courts have been under no duty to warn defendants about deportation prior to the enactment of such statutes, retrospective operation of these statutes would suddenly expose large numbers of past convictions to collateral attack.\\nFor example, the District of Columbia Court of Appeals refused to retrospectively apply District of Columbia (D.C.) Code \\u00a7 16-713, a law that required courts to admonish defendants about possible deportation whenever defendants pled guilty, even though the Council of the District of Columbia (Council) had enacted D.C.Code \\u00a7 16-713 one day before an appellant received his sentence. Alpizar v. United States, 595 A.2d 991 (D.C.1991). When the appellant had pled guilty to armed robbery on January 25, 1983, the court had not warned him that his guilty plea might result in deportation, but a little more than one month later, on March 10, 1983, the Council enacted D.C.Code \\u00a7 16-713, which \\\"require[d] the trial court to vacate any guilty plea upon request and without regard to any other circumstances surrounding the entry of the plea, if it was entered by a defendant who risked deportation but was not so informed by the court as required by the statute.\\\" Id. at 993. The following day, on March 11, 1983, the appellant received his sentence without any admonishment about possible deportation. Two years later, the appellant received notice from the Department of Justice that he was subject to deportation as a result of his convictions. In response, the defendant filed a motion to vacate his guilty plea pursuant to D.C.Code \\u00a7 16-713. Reviewing a lower court's denial of the motion, the Alpizar court noted that \\\"[cjonstruing the statute as applying to guilty pleas entered before the statute was enacted would have far reaching consequences for the criminal justice system and possibly for immigration proceedings based upon those convictions that would then be vacated.\\\" Id. at 993. Furthermore, the Alpizar court's \\\"review of the text of the statute as well as the legislative history re-vealfed] no . legislative intent\\\" to apply the statute retrospectively. Id. at 994.\\nTherefore, only a defendant who had the statutorily created right to receive the advisement can invoke the remedy provided for the deprivation of that right. Since there is no indication that the Council intended to confer the right retrospectively, appellant was never deprived of the right to receive that advisement. Accordingly, the statutorily created remedy is unavailable to him. Thus, \\u00a7 16-713(b) provides no basis, in and of itself, for permitting appellant to withdraw his plea of guilty.\\nId. at 994.\\nAlthough an Ohio appellate court vacated and remanded part of an appellant's sentence on other grounds in State v. Odubanjo, 80 Ohio App.3d 329, 609 N.E.2d 207, 209 (1992), abrogated on other grounds by State v. Jenkins, 1995 WL 248526 (Ohio Ct.App.1995), the Odubanjo court specifically rejected the \\\"appellant's contention that he was prejudiced in his guilty pleas because he was not advised of the possibility of his deportation pursuant to R.C. 2943.031,\\\" a statute providing \\\"that the court must ask a defendant if he is a citizen of the United States, and if he is not, then the court is required to\\\" advise the defendant that pleading guilty or \\\"no contest\\\" might subsequently result in, among other things, deportation. The date of the appellant's indictment for various offenses was June 5, 1989, and the date of the appellant's guilty pleas was July 21, 1989. Odubanjo, 609 N.E.2d at 208. Although the appellant did not receive his sentence until one year later on July 28, 1990, id., the effective date for R.C. 2943.031 \\\"was October 2, 1989, subsequent to the date of appellant's arrest and indictment and, therefore, [R.C. 2943.031] was not controlling.\\\" Id. at 209. The Odubanjo court concluded that \\\"we cannot hold the court accountable for the advisement required in R.C. 2943.031 because of the date of its effectiveness^]\\\" Id. at 210. Thus, \\\"[t]he court was not responsible under the dictates of R.C. 2943.031 for informing appellant of the deportation consequences of his guilty plea[.]\\\" Id.\\nWhen an appellant in Texas applied for a writ of habeas corpus and writ of audita querela on the ground that a court had not warned him that his guilty plea might subsequently result in deportation, a Texas appellate court reversed a lower court's decision to grant both writs, even though article 26.13(a)(4) of \\\"the Code of Criminal Procedure [currently] requires that before accepting a guilty plea, the court must admonish the defendant that a plea of guilty or nolo contendere may result in deportation or the denial of naturalization.\\\" State v. Vasquez, 889 S.W.2d 588, 589 (Tex.Ct.App.1994). The appellant had pled guilty to a felony in 1981, but the statutory admonishment pursuant to article 26.13(a)(4) \\\"was not required until 1985, four years after [the appellant] entered his guilty plea.\\\" Id. Unwilling to apply the article 26.13(a)(4) retrospectively, the Vasquez court held that the appellant had \\\"received all that was statutorily required\\\" at the time of his guilty plea, id., and thus, the trial court had committed reversible error by granting both writs. Id. at 590-92.\\nIn Hawaii, \\\"[n]o.law has any retrospective operation unless otherwise expressed or obviously intended.\\\" HRS \\u00a7 1-3 (1993). On the other hand, \\\"HRS \\u00a7 1-3 is only a rule of statutory construction and where the legislative intent may be ascertained, it is no longer determinative.\\\" State v. Von Geldern, 64 Haw. 210, 213, 638 P.2d 319, 322 (1981). \\\"Our task then is to ascertain whether there is an expression or obvious intendment that the amendment was to have 'any retrospective operation.'\\\" Graham Const. Supply, Inc. v. Schrader Const., 63 Haw. 540, 546, 632 P.2d 649, 653 (1981).\\nWhen enacting HRS Chapter 802E through Act 382, the Hawaii legislature specifically stated that Act 382 would not operate retrospectively:\\nThe provisions of this Act shall apply only to pleas accepted after the effective date of this Act. Nothing in this Act shall require the vacation of judgment and withdrawal of the plea or constitute grounds for finding a prior conviction invalid with respect to pleas accepted prior to the effective date of this Act. Nothing in this Act, however, shall be deemed to inhibit a court, in the sound exercise of its discretion, from vacating a judgment and permitting a defendant to withdraw a plea.\\n1988 Haw.Sess.LAct 382, \\u00a7 2 at 750. Thus, the circuit court's refusal to apply HRS Chapter 802E retrospectively to Nguyen's 1986 conviction was clearly consistent with the legislative intent of HRS Chapter 802E.\\nNguyen contends that, although the Hawaii legislature intended that HRS Chapter 802E was not to operate retrospectively, it was still manifestly unjust for the circuit court to accept Nguyen's \\\"no contest\\\" plea in 1985 without warning him about the possible consequence of deportation. However, as already stated, without a court rule or a statute, the circuit court had no duty to warn Nguyen that his \\\"no contest\\\" plea might have the collateral consequence of deportation. Cf. Reponte, 57 Haw. at 364 n. 10, 556 P.2d at 584 n. 10 (citing Tafoya v. State, 500 P.2d 247 (Alaska 1972), cert. denied, 410 U.S. 945, 93 S.Ct. 1389, 35 L.Ed.2d 611 (1973)).\\nBecause the Hawai'i legislature specifically intended that HRS Chapter 802E shall apply only to pleas accepted after June 15,1988, we are not persuaded to give retrospective operation to HRS Chapter 802E. Only defendants who had the statutorily created right to receive a deportation advisement at the time of their pleas can invoke, as a matter of absolute entitlement, the remedy for the deprivation of that right pursuant to HRS Chapter 802E. Under the circumstances of this case, however, the circuit court did not deprive Nguyen of any right when it accepted Nguyen's \\\"no contest\\\" plea in 1985 without advising him about the collateral consequence of possible deportation, and, thus, the subsequent enactment of HRS Chapter 802E more than two years later in 1988 provided no basis for requiring the circuit court to subsequently permit Nguyen to withdraw his \\\"no contest\\\" plea.\\nNguyen further asserts that the circuit court committed reversible error by failing to exercise its \\\"statutory discretion\\\" when it denied his motion to withdraw his \\\"no contest\\\" plea. In support of his contention, Nguyen notes that, although the Hawai'i legislature stated that HRS Chapter 802E would not apply retrospectively, the Hawai'i legislature also stated that \\\"[njothing in this Act, however, shall be deemed to inhibit a court, in the sound exercise of its discretion, from vacating a judgment and permitting a defendant to withdraw a plea.\\\" 1988 Haw. Sess.L.Act 382, \\u00a7 2 at 750.\\nWhile Nguyen is correct in his assertion that the circuit court had discretion to grant his motion to \\\"withdraw his \\\"no contest\\\" plea, Nguyen is not correct in his assertion that the circuit court failed to exercise its \\\"statutory discretion\\\" by denying Nguyen's motion. The record shows that, on September 15, 1993, after reviewing the exhibits and arguments from both sides, the circuit court denied Nguyen's motion not only because HRS Chapter 802E does not have retrospective operation, but also because the circuit court specifically found that Nguyen had failed to make a sufficient showing of manifest injustice. See supra at 285-286, 916 P.2d at 695-696. Indeed, in the circuit court's subsequent written order, issued on October 15, 1993, the circuit court reiterated that Nguyen failed to demonstrate \\\"manifest injustice\\\" sufficient to otherwise convince the circuit court to grant Nguyen's motion in the exercise of the circuit court's discretion. See supra at 286, 916 P.2d at 696. Contrary to what Nguyen suggests, the record shows that the circuit court did in fact exercise its \\\"statutory discretion\\\"; the circuit court simply exercised its discretion and reached a conclusion that Nguyen did not like.\\nNguyen also asserts that the circuit court abused its discretion when it denied his motion to withdraw his \\\"no contest\\\" plea because, Nguyen claims, the circuit court allegedly did not take into consideration that the United States government was in the process of deporting Nguyen. However, a review of the record shows that Nguyen's assertion is without merit, because, at the hearing for his motion to withdraw his \\\"no contest\\\" plea, Nguyen introduced into evidence a copy of the \\\"Order to Show Cause and Notice of Hearing\\\" showing that the United States Department of Justice was considering the possibility of deporting Nguyen. Additionally, during oral arguments for the motion, counsel for Nguyen specifically informed the circuit court about Nguyen's pending deportation proceeding. The circuit court was clearly aware that Nguyen was in danger of being deported as a result of his \\\"no contest\\\" plea, and thus, the circuit court was able to take this fact into consideration when the circuit court came out with its finding and final disposition.\\nWhile Nguyen's predicament might justifiably evoke sympathy, under Hawai'i law Nguyen was entitled to withdraw his plea of \\\"no contest\\\" after imposition of sentence only upon a showing of manifest injustice. State v. Cornelio, 68 Haw. 644, 646, 727 P.2d 1126, 1126-27 (1986). Manifest injustice occurs when a defendant makes a plea involuntarily or without knowledge of the direct consequences of the plea. Cf. Reponte, 57 Haw. at 362, 556 P.2d at 583 (a plea of guilty is not constitutionally acceptable unless made voluntarily and with a full understanding of the consequences); State v. James, 176 Wis.2d 230, 500 N.W.2d 345, 348 (Wis.Ct.App.1993) (a \\\"manifest injustice\\\" occurs when a defendant makes a plea involuntarily, or without knowledge of the charge, the consequences of the plea or that the sentence actually imposed could be imposed), review denied, 505 N.W.2d 138 (Wis.1993); Commonwealth v. Holbrook, 427 Pa.Super. 387, 629 A.2d 154, 158 (1993) (\\\"To establish manifest injustice, [the defendant] must show that his plea was involuntary or was given without knowledge of the charge.\\\"), appeal denied, 536 Pa. 620, 637 A.2d 280 (1993). There is no manifest injustice when a trial court has made an affirmative showing through an on-the-record colloquy between the court and the defendant which shows that the defendant had a full understanding of what his or her plea connoted and its direct consequences. Cornelio, 68 Haw. at 646-47, 727 P.2d at 1127. The on-the-record colloquy on November 14, 1985, between the circuit court and Nguyen shows that the circuit court determined that Nguyen made his plea voluntarily, and that Nguyen had a full understanding of what his \\\"no contest\\\" plea connoted and its direct consequences. See supra at 282-285, 916 P.2d at 692-695. Thus, the on-the-record colloquy supports the circuit court's finding that Nguyen failed to demonstrate manifest injustice that would warrant granting the withdrawal of his \\\"no contest\\\" plea.\\nMoreover, regardless of whether we completely agree with the circuit court's finding, we would not disturb the circuit court's denial of Nguyen's motion to withdraw his plea unless the record showed that the circuit court had abused its discretion by clearly exceeding the bounds of reason or disregarding rules or principles of law or practice to the substantial detriment of Nguyen. Merino, 81 Hawai'i at 211, 915 P.2d at 685; Gomes, 79 Hawai'i at 36, 897 P.2d at 963; Adams, 76 Hawai'i at 411, 879 P.2d at 516; Faulkner, 1 Haw.App. at 654, 624 P.2d at 943. In denying Nguyen's motion to withdraw his \\\"no contest\\\" plea, the circuit court acted within the bounds of reason and followed the relevant law. Considering the record and the relevant law, we hold the circuit court did not abuse its discretion by denying Nguyen's motion to withdraw his \\\"no contest\\\" plea.\\nB. Plain Error\\nFinally, Nguyen contends that the circuit court committed plain error by accepting his initial \\\"no contest\\\" plea in 1985 without warning him about the collateral consequence of possible deportation. Pursuant to HRPP Rule 52(b), \\\"[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.\\\" This court's power to deal with plain error is one to be exercised with caution because the plain error rule is a departure from the position usually presupposed by the adversary system that parties must look to counsel for protection and must bear the cost of counsel's mistakes. Raines v. State, 79 Hawai'i 219, 226, 900 P.2d 1286, 1293 (1995). Justice Harlan Fiske Stone delineated the primary components of the plain error rule:\\nIn exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.\\nUnited States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936) (citations omitted); accord, State v. Fox, 70 Haw. 46, 56, 760 P.2d 670, 675-76 (1988). Thus, the decision to take notice of plain error must turn on the facts of the particular case to correct errors that seriously affect the fairness, integrity, or public reputation of judicial proceedings. Fox, 70 Haw. at 56, 760 P.2d at 676.\\nIt is too late for Nguyen to raise the issue of plain error with respect to his \\\"no contest\\\" plea in 1985, the final judgment from which was entered on January 20, 1986. Hawai'i Rules of Appellate Procedure (HRAP) Rule 4(b) requires that \\\"[i]n a criminal case, . the notice of appeal by a defendant shall he filed in the circuit court or district court within SO days after the entry of the judgment or order appealed from.\\\" (Emphasis added). Nguyen's deadline for appealing his 1986 conviction has long since passed.\\n\\\"[W]e have permitted belated appeals under two sets of circumstances, namely, when (1) defense counsel has inexcusably or ineffectively failed to pursue a defendant's appeal, or (2) the lower court's decision was unannounced and no notice of the entry of judgment was ever provided.\\\" Grattafiori v. State, 79 Hawai'i 10, 13-14, 897 P.2d 937, 940-41 (1995). Nguyen has not asserted either that his counsel ineffectively failed to pursue an appeal within thirty days of his 1986 conviction or that the circuit court failed to announce and give notice of its judgment convicting Nguyen on January 20, 1986. Therefore, neither of the two exceptions for belated appeals applies to the instant case.\\nNevertheless, even if Nguyen's 1986 conviction were presently on appeal before us, we would detect no error that rises to a level sufficient to invoke the plain error rule. Our power to deal with plain error is a power to be exercised sparingly and with caution. Fox, 70 Haw. at 57, 760 P.2d at 676. As stated, when Nguyen entered his \\\"no contest\\\" plea on November 14, 1985, Hawai'i courts were under no duty to advise defendants that pleading \\\"no contest\\\" might have the collateral consequence of possible deportation. Cf. Reponte, 57 Haw. at 364 n. 10, 556 P.2d at 584 n. 10. In accepting Nguyen's \\\"no contest\\\" plea in 1985 without warning Nguyen about the collateral consequence of possible deportation, the circuit court's errors, if any, were not obvious, nor did they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings under the law at that time. Therefore, in addition to being untimely, Nguyen's assertion of plain error with respect to his 1986 conviction lacks merit.\\nIII. CONCLUSION\\nThe circuit court found that Nguyen failed to demonstrate manifest injustice that would warrant the withdrawal of Nguyen's \\\"no contest\\\" plea. After reviewing the record and relevant law, we hold that the circuit court did not clearly exceed the bounds of reason or disregard rules or principles of law or practice to the substantial detriment of Nguyen, and, thus, the circuit court did not abuse its discretion by denying Nguyen's motion to withdraw his \\\"no contest\\\" plea. Accordingly, we affirm.\\n. Nolo contendere, or \\\"no contest,\\\" is defined as a \\\"[t]ype of plea which may be entered with leave of court to a criminal complaint or indictment by which the defendant does not admit or deny the charges, though a fine or sentence may be imposed pursuant to it. The principle difference between a plea of guilty and a plea of nolo contendere is that the latter may not be used against the defendant in a civil action based upon the same acts. Such a plea shall be accepted by the court only after due consideration of the views of the parties and the interest of the public in the effective administration of justice.\\\" Black's Law Dictionary 1048 (6th ed. 1990) (citations omitted).\\n. The INS's Order to Show Cause and Notice of Hearing alleged in pertinent part as follows:\\nYou were, on January 17, 1986, convicted in the Circuit Court of the Second Circuit, State of Hawaii, for the offense of Promoting a Dangerous Drug in the Third Degree, in violation of Section 712-1243 of the Hawaii Revised Statutes, to wit, cocaine.\\nAND on the basis of the foregoing allegations, it is charged that you are subject to deportation pursuant to the following provision(s) of law:\\nSection 241(a)(2)(B)(i) of the Immigration and Nationality Act (Act), as amended, in that, at any time after entry, you have been convicted of a violation of (or conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act, 21 U.S.C. 802), other than a single offense involving possession for one's own use of 30 grams or less of marijuana.\\nWHEREFORE, YOU ARE ORDERED to appear for a hearing before an immigration Judge of the Executive Office for Immigration Review of the United States Department of Justice . and show cause why you should not be deported from the United States on the charge(s) set forth above.\\n. See also People v. Ford, 86 N.Y.2d 397, 633 N.Y.S.2d 270, 273-74, 657 N.E.2d 265, 267-68 (1995); State v. Figueroa, 639 A.2d 495, 499 (R.I.1994); Williams v. State, 641 N.E.2d 44, 47 (Ind.Ct.App.1994); State v. Vasquez, 889 S.W.2d 588, 589-90 (Tex.Ct.App.1994); State v. Dalman, 520 N.W.2d 860, 863 (N.D.1994); State v. McFadden, 884 P.2d 1303, 1305 (Utah Ct.App.1994), cert. denied, 892 P.2d 13 (Utah 1995); State v. Christie, 655 A.2d 836, 838, (Del.Super.Ct.1994), affirmed, 655 A.2d 306 (Del.1994); State v. Baeza, 174 Wis.2d 118, 496 N.W.2d 233, 236 (1993); State v. Banuelos, 124 Idaho 569, 861 P.2d 1234, 1237-38 (1993), cert. denied, 510 U.S. 1098, 114 S.Ct. 936, 127 L.Ed.2d 227 (1994); State v. Odubanjo, 80 Ohio App.3d 329, 609 N.E.2d 207, 210 (1992), abrogated on other grounds by State v. Jenkins, 1995 WL 248526 (Ohio Ct.App.1995); State v. Hasnan, 806 S.W.2d 54, 56 (Mo.Ct.App.1991), disagreed with on other grounds by State v. Reynolds, 819 S.W.2d 322 (Mo.1991); Alpizar v. United States, 595 A.2d 991, 994 (D.C.1991); State v. Vera, 159 Ariz. 237, 766 P.2d 110, 112 (1989); Carson v. State, 755 P.2d 242, 244 (Wyo.1988); Matter of Peters, 50 Wash.App. 702, 750 P.2d 643, 645 (1988); State v. Ginebra, 511 So.2d 960, 960-61 (Fla.1987), superseded by rule, In re Amendments to Florida Rules of Criminal Procedure, 536 So.2d 992 (Fla.1988); State v. Chung, 210 N.J.Super. 427, 510 A.2d 72, 75 (1986); Daley v. State, 61 Md.App. 486, 487 A.2d 320, 322 (1985).\\n. Cf. United States v. Del Rosario, 902 F.2d 55, 59 (D.C.Cir.1990), cert. denied, 498 U.S. 942, 111 S.Ct. 352, 112 L.Ed.2d 316 (1990); United States v. Montoya, 891 F.2d 1273, 1293 (7th Cir.1989); United States v. Yearwood, 863 F.2d 6, 8 (4th Cir.1988); United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir.1988); United States v. Gavilan, 761 F.2d 226, 228 (5th Cir.1985); Downs-Morgan, v. United States, 765 F.2d 1534, 1538 (11th Cir.1985); United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975).\\n. HRS \\u00a7 802E-2 (1993) states as follows:\\n802E-2 Court advisement concerning alien status required. Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant:\\nIf you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.\\nUpon request, the court shall allow the defendant additional time to consider the appropriateness of the plea in light of the advisement as described in this section.\\n.HRPP Rule 11(c)(5), as amended on September 2, 1988, currently requires the following:\\nRule 11. PLEAS.\\n(c) Advice to Defendant. The court shall not accept a plea of guilty or nolo contendere without first addressing the defendant personally in open court and determining that he understands the following:\\n(5) that if he is not a citizen of the United States, a conviction of the offense for which he has been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.\\n. HRS \\u00a7 802E-3 (1993) states as follows:\\n\\u00a7 802E-3 Failure to advise; vacation of judgment. If the court fails to advise the defendant as required by section 802E-2 and the defendant shows that conviction of the offense to which the defendant pleaded guilty or nolo contendere may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, on defendant's motion, the court shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo conten-dere, and enter a plea of guilty. Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement.\\n. In fact, at the time of the 1988 enactment of Act 382, the Hawai'i legislature was acutely aware that Hawai'i law did not require courts to inform alien defendants that their pleas of guilty or \\\"no contest\\\" might result in deportation. See Stand.Comm.Rep. No. 533-88, in 1988 House Journal, at 1040 (\\\"At present, Hawaii's laws do not require that aliens be informed that entering a plea of guilty or no contest may result in deportation or denial of naturalization.\\\"); see also Stand.Comm.Rep. No. 2546, in 1988 Senate Journal, at 1078 (\\\"Currently, the courts are not required to inform or warn aliens that entry of an acceptance of guilty plea or plea of nolo contendere may result in deportation, exclusion from the United States or denial of naturalization.\\\").\\n. Nguyen does not assert \\\"plain error\\\" with respect to the circuit court's order denying Nguyen's motion to withdraw his plea of \\\"no contest,\\\" issued October 15, 1993.\"}"

haw/12260647.json

@@ -0,0 +1 @@
+"{\"id\": \"12260647\", \"name\": \"State v. Hart\", \"name_abbreviation\": \"State v. Hart\", \"decision_date\": \"2004-08-30\", \"docket_number\": \"23977\", \"first_page\": \"251\", \"last_page\": \"251\", \"citations\": \"105 Haw. 251\", \"volume\": \"105\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-11T00:45:50.871158+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Hart\", \"head_matter\": \"23977\\nState v. Hart\", \"word_count\": \"8\", \"char_count\": \"51\", \"text\": \"Affirmed; Vacated and Remanded\"}"

haw/12260723.json

@@ -0,0 +1 @@
+"{\"id\": \"12260723\", \"name\": \"Jerry RANCHES and Rizalina Ranches, Petitioners/Plaintiffs-Appellants v. CITY AND COUNTY OF HONOLULU, Respondent/Defendant-Appellee and John Does 1-10; Jane Does 1-10; Doe Corporations 1-10; Doe Partnerships 1-10; Doe Non-Profit Entities 1-10; and Doe Governmental Entities 1-10, Defendants\", \"name_abbreviation\": \"Ranches v. City & County of Honolulu\", \"decision_date\": \"2007-10-05\", \"docket_number\": \"No. 27846\", \"first_page\": \"462\", \"last_page\": \"475\", \"citations\": \"115 Haw. 462\", \"volume\": \"115\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T21:40:03.954139+00:00\", \"provenance\": \"CAP\", \"judges\": \"MOON, C.J., LEVINSON, NAEAYAMA, ACOBA, and DUFFY, JJ.\", \"parties\": \"Jerry RANCHES and Rizalina Ranches, Petitioners/Plaintiffs-Appellants v. CITY AND COUNTY OF HONOLULU, Respondent/Defendant-Appellee and John Does 1-10; Jane Does 1-10; Doe Corporations 1-10; Doe Partnerships 1-10; Doe Non-Profit Entities 1-10; and Doe Governmental Entities 1-10, Defendants.\", \"head_matter\": \"168 P.3d 592\\nJerry RANCHES and Rizalina Ranches, Petitioners/Plaintiffs-Appellants v. CITY AND COUNTY OF HONOLULU, Respondent/Defendant-Appellee and John Does 1-10; Jane Does 1-10; Doe Corporations 1-10; Doe Partnerships 1-10; Doe Non-Profit Entities 1-10; and Doe Governmental Entities 1-10, Defendants.\\nNo. 27846.\\nSupreme Court of Hawai'i.\\nOct. 5, 2007.\\nMark F. Gallagher (Ian L. Mattoch with him on the application), Law Offices of Ian Mattoch, Honolulu, for Petitioners/Plaintiffs-Appellants.\\nMarie Manuele Gavigan, Deputy Corporation Counsel (Carrie K.S. Okinaga, Corporation Counsel, with her on the response) for Respondent/DefendanL-Appellee.\\nMOON, C.J., LEVINSON, NAEAYAMA, ACOBA, and DUFFY, JJ.\", \"word_count\": \"7809\", \"char_count\": \"48864\", \"text\": \"Opinion of the Court by\\nACOBA, J.\\nPetitioners/Plaintiffs-Appellants Jerry Ranches (Jerry) and Rizalina Ranches [collectively, Petitioners] filed an application for writ of certiorari on May 16, 2007, requesting that this court review the judgment of the Intermediate Court of Appeals (the ICA) filed on April 16, 2007, issued pursuant to its Summary Disposition Order (SDO) filed on February 16, 2007, affirming the March 15, 2006 judgment of the first circuit court (the court) in favor of Respondent/DefendanL-Ap-pellee City and County of Honolulu (Respondent) in a slip and fall case.\\nRespondent filed a memorandum in opposition to the application for certiorari. In the opposition memorandum Respondent initially contend that Petitioners' petition should be denied because it \\\"does not contain any basis for review that is new or different than his [sic] request for review to the [ICA].\\\" However, Hawaii Rules of Appellate Procedure (HRAP) Rule 40.1 (2007) does not require a new basis for review in order for a petition to be accepted.\\nThe requirements in HRS \\u00a7 602-59(b) are \\\"directed only to the application for the writ. It is not descriptive of the scope of review determinative of the [s]upreme [c]ourt's decision to grant or deny certiorari. The [s]upreme [c]ourt's power in that regard is intended to simply be discretionary.\\\" State v. Chong, 86 Hawai'i 282, 283 n. 1, 949 P.2d 122, 123 n. 1 (1997) (emphasis and citations omitted). Accordingly, Petitioners are not required to provide a \\\"new or different\\\" basis for review in their petition.\\nI.\\nPetitioners present the following questions for this court's decision: \\\"(1) [whether] the definition of what constitutes a subsequent remedial measure under Hawai'i law [should be clarified]; and (2) whether actions taken by [Respondent] in preparation to refinish a floor prior to a slip and fall incident can be defined as subsequent remedial measures.\\\" (Emphasis in original.)\\nII.\\nThe following pertinent matters are from the petition and opening brief.\\n[Petitioners] filed their Complaint . on July 13, 2004, alleging that on May 26, 2003, [Jerry] slipped and fell immediately inside the entrance to the men's restroom at Ewa Beach Park due to conditions on the floor which posed an unreasonable risk of harm....\\nOn January 31, 2006, [Respondent] filed various motions . including [a] . Motion in Limine No. 1 Re: Exclusion of All Evidence of Subsequent Remedial Measures which addressed the resurfacing project and a groove cut in the concrete slab to drain water away from the door.\\nOn February 7, 2006[, Petitioners] filed [a] Memorandum in Opposition to [Respondent's] Motion in Limine No. 1....\\nA hearing was held . on February If, 2006[,] . [at which Petitioners] argued to the [court] with respect to Motion in Limine No. 1 that the resurfacing of the floor ivas an ongoing project which had begun before [Jerry's] fall. The [court] granted this motion determining that the post incident resurfacing was a subsequent remedial measure and therefore evidence of it would be prejudicial and it relied upon Rule j.07 and Rule U03, Hawaii Rules of Evidence [ (HRE) (1993) ].\\n(Emphases added.)\\nAt trial the following evidence was adduced and events transpired, according to Petitioners.\\n[Petitioners] were occasional users of Ew\\u00e1 Beach Park.... The restroom . has no roof and the walls were constructed of concrete block. [Jerry] walked past the shower and into the doorway which required him to take an immediate left turn and right turn. As soon as [Jerry] made the left turn his right foot slipped and he fell. [Jerry] noted that the floor under him was smooth and worn. It had previously been painted but the paint had worn off.... [H]e was sitting in a puddle after he fell. There were no drains in the floor and walls of the men's restroom.\\n. [0]n the day of the incident^ Edgar Cabato] . entered the men's restroom at approximately 12:00 p.m. Upon entering the men's restroom, Mr. Cabato saw a puddle of water. The floor \\\"had some green moss and mildew.\\\" Mr. Cabato authenticated a photograph of the shower pipes without the water \\\"on\\\" and that photograph was admitted as Exhibit P-65. Mr. Cabato testified that the floor felt slippery in the area where he found [Jerry] still on the floor after his fall.\\n. Stacey Kahue [ (Kahue) ] . had testified at [a] deposition as [Respondent's Hawai'i Rules of Civil Procedure] Rule 30(b)(6) witness regarding \\\"any and all modifications and/or repairs to the men's restroom and adjacent shower area at Ewa Beach Park from May 26, 1998 up to and including the current date.\\\" . [Petitioners] made an offer of proof that [Kahue] would testify regarding his work as the project manager for the Department of Design and Construction, City and County of Honolulu, and his prior work as the project manager for Arakaki Contracting which was involved in a floor resurfacing project of the men's restroom . which began prior to [Jerry's] fall on May 26, 2003. . In addition to testifying regarding . the resurfacing work which the floor was determined to require because of its worn, weathered and smooth condition, [Kahue] would testify regarding photo: graphs he took of the condition of the restrooms which were submitted to [Respondent] prior to the subject incident.\\n[Respondent] objected to [Kahue's] testimony as it would lead \\\"directly to the issue of the resurfacing of the mens' restroom floor in Ewa Beach.\\\" The [cjourt sustained [Respondent's] objection . and precluded [Kahue] from testifying regarding all aspects of the floor resurfacing project, even those actions taken before the subject fall. The [cjourt had deemed the post incident resurfacing to be a \\\"subsequent remedial measure\\\" in its ruling on [Respondent's] Motion in Limine No. 1 . and it extended that definition to include events which occurred prior to the subject incident.\\n(Emphases added.)\\nAs set forth by Respondent, \\\"[a] jury [trial had] commenc[ed] on February 27, 2006, and end[ed] on March 3, 2006, with the jury's verdict in favor of [Respondent]. [Petitioners] appealed from the judgment entered on the jury's verdict. On February 16, 2007, the [ICA] entered its [SDO] affirming the Judgment.\\\"\\nIII.\\nWith regard to the two questions posed in the petition, Petitioners are generally correct in that the \\\"[ICA] simply states that it affirms the March 15, 2006 judgment\\\" and \\\"[t]herefore it is impossible for Petitioners to specifically address any flaws in the ICA's reasoning.\\\" The ICA did say:\\nGenerally, we agree with the following statement made by [Respondent] in the answering brief:\\nThe only issues which should be considered by this [c]ourt are the following: 1) The exclusion of evidence of the resurfacing of the men's restroom floor at Ewa Beach Park and the testimony of [Kahue]; and, 2) the exclusion of evidence regarding the operation of the showerhead and the slope of the concrete shower pad.\\nSDO at 3 (emphasis added).\\nrv.\\nAs to their first question, Petitioners cite the following text of HRE Rule 407.\\nWhen, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving a dangerous defect in products liability cases, ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.\\n(Emphases added.) The Commentary to HRE Rule 407 states in pertinent part as follows:\\nThis rule is similar to [Federal Rules of Evidence (FRE) ] 407, the Advisory Committee's Note to which points out: \\\"The rule incorporates conventional doctrine which excludes evidence of subsequent remedial measures as proof of an admission of fault.... The . ground for exclusion rests on a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety. The courts have applied this principle to exclude evidence of subsequent repairs, installation of safety devices, changes in company rules, and discharge of employees, and the language of the present rule is broad enough to encompass all of them.\\\"\\nThis rule is limited strictly to exclusion of such evidence when offered as proof of negligence or culpable conduct. The second sentence of the rule lists some of the other purposes for which this evidence may be admitted. The rule varies from [FRE] 407 in the addition of \\\"dangerous defect in products liability cases\\\" as one permissible purpose for which remedial measures may be admitted.[ ]\\n(Emphasis added.) (Ellipses points in original.)\\nAs to the first question Respondent reiterates in its response to Petitioners' petition that \\\"the basis for [Respondent's] motion was not only HRE 407 (subsequent remedial measures), but also HRE 403 (exclusion of relevant evidence due to prejudice).\\\" Respondents argue that \\\"the [court] ruled that the evidence of the subsequent floor resurfacing was precluded by HRE 403[, thus t]here is no need in this case for [this c]ourt to define subsequent remedial measures, as that was not the basis for the [court's] ruling.\\\"\\nIn response, Petitioners said in their reply brief that Respondent's failure to respond to the HRE 407 issue, and subsequent redirection towards an HRE 403 analysis exemplifies Respondent's lack of understanding of the \\\"trial court's ruling and the interrelationship of Rules 407 and 403 regarding the resurfacing project.\\\" The question of whether further explication is needed regarding HRE Rule 407 is subsumed in Petitioners' second question.\\nV.\\nPreliminarily it should be noted that \\\"[t]he bar of [R]ule 407 is specific and unambiguous: Evidence of subsequent remedial measures 'is not admissible to prove negligence or culpable conduct.'\\\" Addison M. Bowman, Hawai'i Rules of Evidence Manual \\u00a7 407-1 (3d ed.2006). The term \\\"subsequent\\\" indicates that the measure in question must have been undertaken \\\"after [the] event,\\\" which is \\\"the occurrence that caused the death or injury cited in the current complaint.\\\" Id. (brackets in original). This rationale tracks interpretations of FRE Rule 407 as in Moulton v. Rival Co., 116 F.3d 22, 27 (1st Cir.1997) (admitting evidence of prior accidents was not an abuse of discretion); and Traylor v. Husqvarna Motor, 988 F.2d 729, 733 (7th Cir.1993) (stating that \\\"remedial measures were taken before rather than after the 'event,' which in an accident case the courts have invariably and we think correctly understood to mean the accident\\\" (citations omitted)).\\nHRE Rule 407, entitled \\\"[subsequent remedial measures\\\" (emphasis added), provides in relevant part that \\\"[w]hen, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event.\\\" The word \\\"remedial\\\" means \\\"intended for a remedy or for the removal or abatement of a disease or of an evil.\\\" Webster's Third New Int'l Dictionary 1920 (1993) (emphasis added). Thus, a \\\"measure\\\" is \\\"remedial\\\" if it is intended to address the occurrence of an event by making the event less likely to happen in the future. Therefore, measures that are taken after an event but that are predetermined before the event are not \\\"remedial\\\" under HRE Rule 407, because they are not intended to address the event See Schmeck v. City of Shawnee, 651 P.2d 585, 600 (Kan.1982) (holding that the city's ordering and installation of traffic signal control devices at an intersection where the plaintiff had been injured were not \\\"remedial\\\" because the city's actions \\\"had been predetermined . many, many months prior to [the] accident,\\\" and the city had \\\"merely completed something which had started long before the plaintiffs accident\\\" (first emphasis added and following emphases in original)); 23 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure \\u00a7 5283, at 104-05 & 105 n. 43 (1st ed.1980) (observing that when FRE Rule 407 is read to require a \\\"causal relationship\\\" between the accident and the measures, \\\"exclusion would not be required where the motivation for the remedial measure was not the prevention of a recurrence of the accident in issue,\\\" such as where \\\"the defendant undertook repairs as a result of an earlier accident\\\"). Because such measures are not \\\"remedial,\\\" it follows that evidence of such measures is not inadmissible under the plain language of HRE Rule 407.\\nVI.\\nIn their appeal, Petitioners contended that \\\"different standards of review must be applied to trial court decisions regarding the admissibility of evidence, depending on the requirements of the particular rule of evidence at issue.\\\" (Citing Kealoha v. County of Hawaii, 74 Haw. 308, 319, 844 P.2d 670, 676 (1993).).\\nWhen application of a particular evidentia-ry rule can yield only one correct result, the proper standard for appellate review is the right/wrong standard. However, the traditional abuse of discretion standard should be applied in the case of those rules of evidence that require a \\\"judgment call\\\" on the part of the trial court.\\nKealoha, 74 Haw. at 319-20, 844 P.2d at 676.\\nPetitioners correctly submit that \\\"decisions regarding the admissibility of evidence under [HRE Rule 407], such as the decision to exclude [Kahue's] testimony and other evidence of the resurfacing project, should be reviewed under the right/wrong standard as a measure taken is either a subsequent remedial measure^] or it is not.\\\" However, the standard of review for exclusion of evidence under HRE 403 is the abuse of discretion standard. State v. Rabe, 5 Haw.App. 251, 264, 687 P.2d 554, 563 (1984) (citation omitted). Evidentiary decisions based on this rule, \\\"which require a 'judgment call' on the part of the trial court, are reviewed for an abuse of discretion.\\\" Walsh v. Chan, 80 Hawai'i 212, 215, 908 P.2d 1198, 1201 (1995) (citation omitted). Under an abuse of discretion standard, as Petitioners set forth,\\n[t]he trial court abuses its discretion if it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence. Office of Hawaiian Affairs v. State, 110 Hawai'i 338, 351, 133 P.3d 767, 780 (2006) (citing Ranger Ins. Co. v. Hinshaw, 103 Hawai'i 26, 30, 79 P.3d 119, 123 (2003) (citation omitted)). Abuse of discretion occurs when \\\"the trial court has clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant.\\\" Id.\\nVII.\\nA.\\nAs to the second question, Petitioners acknowledge that they must \\\"prove both the existence of a condition which posed an unreasonable risk of harm and that [Respondent] knew, or should have known of the unreasonable risk, and that it failed to take reasonable steps to eliminate the risk or adequately to warn users against it.\\\" (Citing Corbett v. Ass'n of Apartment Owners of Wailua Bayview Apartments, 70 Haw. 415, 417, 772 P.2d 693, 695 (1989).). According to Petitioners, Respondent\\ndetermined that it was necessary to resurface the floor of the men's restroom at Ewa Beach Park. It hired Arakaki Construction to resurface the floor with a slip resistant, paint on substance. Arakaki Construction began to execute the contract and, as part of that work, [Kahue] inspected and photographed the bath house at Ewa Beach Park. All these actions took place prior to the fall in question. Shortly after the fall, and totally independent of knowledge of the fall, Arakaki Construction proceeded to resurface the floor of the subject men's restroom.\\n(Emphasis added.) They state that \\\"[Ka-hue's] precluded testimony was highly relevant on all of these issues.\\\"\\nPetitioners maintain that \\\"[n]one of these actions had anything to do with the happening of [Jerry's] fall. [Respondent] would not . have been discouraged or affected in any way, by the prospect of admissibility at a trial arising from an incident yet to occur or unknown at the time.\\\" Thus, Petitioners maintain, the excluded evidence \\\"was highly probative of the substantial risk of harm and notice which they were required to prove as elements of their claims.\\\"\\nB.\\nPetitioners urge this court to adopt the analysis set forth in several cases that support their position that \\\"Rule 407 limits its scope to evidence of measures which were taken 'subsequent' to the date of the incident which gave rise to the litigation.\\\" As set out by Petitioners, in Raymond v. Raymond Corp., 938 F.2d 1518, 1523 (1st Cir.1991),\\na side loader . identified as Model 75 was involved in the subject accident. [Id.] at 1523. Subsequent to the sale of Model 75, but prior to [plaintiff's injury, the defendant made design modifications in its subsequent Model 76, which \\\"were on the drawing board prior to the manufacture of Model 75.\\\" Id. The trial court did not admit evidence regarding these modifications, but the [first circuit concluded that \\\"[a]ny reliance upon 407 at all, however, was misplaeed[.]\\\" Id.\\nThey cite the following statement from Raymond.\\nUnder [FRE] 107, only measures which take place after the \\\"event\\\" are excluded. The term \\\"event\\\" refers to the accident that precipitated the suit. Roberts v. Harnischfeger Corp., 901 F.2d 42, 44 n. 1 (5th Cir.1989); Chase v. [Gen.] Motors Corp., 856 F.2d 17, 21 (4th Cir.1988).\\nId. (emphasis' added). This is an accurate assessment of the holding in Raymond and establishes a clear before and after \\\"event\\\" delineation. In accordance with this rationale, actions taken by Respondent prior to Jerry's fall would not be afforded protection under HRE 407, because the policy considerations behind the statute would not apply as set forth infra.\\nThe rationale for this interpretation, Petitioners urge, is in Cupp v. National Railroad Passenger Corporation, 138 S.W.3d 766, 776 (Mo.Ct.App.2004). In that case, the plaintiff argued that \\\"the evidence did no more than reiterate the existence of conditions that Amtrak was aware of prior to the accident and measures Amtrak had planned to take prior to the accident.\\\" Id. The court of appeals \\\"agree[d],\\\" stating as follows:\\nThe public policy rationale for excluding evidence of post-accident remedial measures does not apply if the measures in question were planned, provided for, or undertaken prior to the accident. The purpose of the exclusionary rule is to protect a defendant who has been first alerted to the possibility of danger after an accident and has been induced by the accident to make the repair to prevent further injury. A defendant who is aware of the problem and has proposed measures for remediation prior to the accident is not entitled to the same protection.\\nId. (citations omitted) (emphases added). Similarly, it does not appear Respondent can benefit from the protections of HRE 407 simply because it was in the middle of the resurfacing project when the accident took place.\\nAlso, Petitioners rely on Schmeck. As previously noted, in that case claims against the city and a power company arose out of a motorcycle accident which occurred on July 11, 1976, as the result of inadequate traffic signals. 651 P.2d at 588-89. Objection was made to admission of \\\"the date the new signalization equipment was ordered, July 13, 1976, and the date it was finally installed, March 24, 1977[.]\\\" Id. at 599. However, the trial court noted that \\\"the installation of traffic control devices . was conduct that had been predetermined . many, many months prior to this accident[.]\\\" Id. at 600 (emphases added). Evidence of the city's pre-accident plan to install traffic signals, the installation of which took place after the accident, was held to be admissible. Id. The Schmeck court reasoned that because the city's actions were determined prior to the accident, \\\"the [city] merely completed something which had been started long before the plaintiffs accident. Thus, this evidence could not be characterized as subsequent remedial conduct.\\\" Id. (emphases in original).\\nFinally, Petitioners cite Rollins, in which the district court allowed all evidence of repair prior to the accident to be admitted, but precluded admission of evidence of that same repair that occurred after the incident.\\n[A]ll evidence of discussions, drafts, proposals, deliberations or actual alterations or repairs regarding either the hardware or the procedures involved with the operation of the ship-to-shore power cable connection that occurred prior to the incident on August 11, 1986 will be admitted. This evidence is not governed by Rule 407 and is highly probative as to notice and knowledge of the potential dangers of the ship-to-shore hardware and procedures. Evidence of actual repairs, alterations or procedural changes made after August 11, 1986 are inadmissible.\\n761 F.Supp. at 940-41 (emphases in original). The Rollins court explained that evidence of prior measures directly connected to the accident are \\\"highly probative as to notice and knowledge of the potential dangers[.]\\\" Id. However, the Rollins court did not allow evidence which occurred after the accident to be admitted under FRE 407. Id. at 941. It said that \\\"[e]vidence of actual repairs, alterations or procedural changes made after August 11, 1986 are inadmissible.\\\" Id. (emphasis in original). Rollins noted, however, that subsequent matters may be admissible under exceptions to Rule 407. Id.\\nThe reasoning of the Schmeck court is persuasive. Actions contemplated and commenced prior to the \\\"event\\\" required by HRE Rule 407 cannot be considered \\\"remedial\\\" in the sense contemplated by that rule. Moreover, the exclusion from evidence of post event measures does not serve the policy underlying Rule 407 of removing any detrimental effect that such repairs would have on a defendant in subsequent litigation inasmuch as the repairs were contemplated before the accident.\\nIn that light, a rule excluding from evidence measures contemplated before the \\\"event\\\" but completed afterwards as set forth in Rollins, without more, is unconvincing. Rollins did not explicate the rationale underlying its view that there was \\\"more reason to encourage defendants to take remedial measures\\\", Rollins, 761 F.Supp. at 940 (emphasis added), after an \\\"event\\\" although the measures had already been initiated prior to the event. On that point, the reasoning set forth in Cupp is significantly more persuasive. HRE Rule 407 was designed to encourage defendants who are first notified of a dangerous conditions to make repairs, without fear of prejudicing their defense in ensuing litigation. It was not, however, designed to protect defendants who knew of a condition, had initiated steps to remedy it, but did not finish before an innocent party was injured. See, Cupp, 138 S.W.3d at 776 (\\\"The purpose of the exclusionary rule is to protect a defendant who has been first alerted to the possibility of danger after an accident.... A defendant who is aware of the problem . prior to the accident is not entitled to the same protection.\\\")\\nVIII.\\nIn sum and based on the foregoing, the measures taken by Respondent in this case that began prior to Jerry's accident and continued thereafter cannot be characterized as either subsequent or remedial and, therefore, cannot be precluded under HRE Rule 407, notwithstanding the fact that they were completed after Jerry's accident. To the extent the court excluded such evidence on HRE Rule 407 grounds, it reversibly erred, and insofar as the ICA premised its judgment on such a ruling, the ICA gravely erred.\\nIX.\\nAs previously noted, in its opposition memorandum Respondent argues pre-accident evidence was nevertheless excludable \\\"on the basis of HRE 403.\\\" HRE 403 provides that \\\"[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\\\"\\nAt trial, Respondent's memorandum in support of Motion in Limine No. 1 Re: Exclusion of all Subsequent Remedial Measures, stated that its HRE 403 arguments were made in the alternative.\\nAssuming arguendo that this [cjourt allows into evidence testimony or photos of the resurfacing of the floor or the cut made near the entrance of the men's restroom or the feasibility of precautionary measures despite the underlying policy and purpose of Rule 407 of the [HRE], any testimony or photos of the resurfacing or cut near the entrance of the men's restroom should still be excluded under Rule m of the [HRE].\\n(Emphasis added.) Respondent argued with respect to Motion in Limine No. 1, that\\n[t]he introduction of testimony with regard to the resurfacing of the floor of the men's restroom or the feasability[feasibility] of precautionary measures will only serve to inflame the passion of the jury and prejudice the City. Moreover, the introduction of this evidence will confuse the jury with regard to the issues in this case.\\n(Emphasis added.)\\nThe arguments made by Respondent during the motion in limine hearing similarly indicated that \\\"[a]ny reference to the resurfacing, because it took place after the incident, would be against public policy. Therefore, any mention of the resurfacing would be more prejudicial than it would be probative to the City.\\\" (Emphasis added.) The court apparently agreed, ruling that,\\n[u]nder Rule 407 and Rule 403, 407, subsequent remedial measures, it's obvious that the resurfacing and the cut in the pad was done after this incident. The court finds that allowing testimony and or evidence regarding the resurfacing and the cut from the pad, I think the prejudice outweighs the probative value, so therefore, the court will grant motion in limine number one.\\n(Emphases added.)\\nX.\\nThe court also ruled at trial on exclusion of Kahue's testimony. According to Respondent,\\nwhen the issue [of excluding evidence of subsequent remedial measures] was revisited during the trial, the [court] allowed the picture requested by [Petitioners], but sustained the objection as to the testimony of witness Kahue, finding that \\\"given the nature of his testimony and balancing it against the probative and prejudice to show the weight of the evidence, the [c]ourt finds that the prejudice outweighs any probative value of his testimony and, therefore, will not allow [Kahue's] testimony.\\\"\\nUpon objection to Kahue's testimony, Petitioners made the following offer of proof:\\nIt is our intention to call [Kahue], who is currently an employee with the City and County of Honolulu, as a witness to testify regarding the work that he did back in January of 2003 as a project manager for Arakaki Contracting, which was a contractor retained by the City and County of Honolulu to perform a resurfacing project at various beach parks, rest rooms, including the Ewa Beach Park. Our purpose in calling [Kahue] would be to authenticate some photographs, specifically with respect to photographs in Exhibit Number P-26, and to elicit testimony from [Ka-hue] . regarding the nature of the project that Arakaki Construction was involved in, specifically the resurfacing of the floor that was planned for this rest room, and his contacts with the City and County of Honolulu regarding the project. He had an inspector, Allison Ayabe, who was his contact with the Department of Design and Construction, with whom he was in contact to report on the progress of the project.\\n(Emphases added.) The court sustained the objection, stating:\\nThe [cjourt further finds, that given the nature of his testimony and balancing it against the probative and prejudice to show the weight of the evidence, the [cjourt finds that the prejudice outweighs any probative value of his testimony and, therefore, will not allow [Kahue's] testimony as to where he was working.\\nThe court was not specific in its ruling as to the reasons for sustaining the objection.\\nA.\\nRespondent argued in its answering brief that because witness Kahue could not specifically recall the condition of the men's restroom, his testimony was irrelevant and not highly probative as to the need to repair the floor. Second, Respondent argued that the offer of proof regarding Kahue's testimony did not prove that the resurfacing of the men's restroom would have \\\"eliminated the allegedly dangerous condition.\\\" Third, Respondents contended that Petitioners failed to establish an evidentiary link by not retaining an expert to support their position that the resurfacing would have prevented Jerry's accident. In conclusion, Respondent maintained that if the pre-accident events are admitted, \\\"[tjhe jury may . improperly eonclud[e] that [Respondent] found that the restroom floor was defective and that the resurfacing project was performed to remedy this defective condition.\\\" Respondent argues that thus \\\"the [court] did not abuse its discretion when it precluded evidence of the resurfacing of the men's restroom floor and the testimony of [Kahue].\\\"\\nB.\\nIn response, Petitioners submitted in their reply brief that Kahue's testimony regarding the resurfacing project \\\"would have been damaging to the City's case [but] would not constitute 'unfair prejudice' under [HRE] Rule 403.\\\" Petitioners quote from the Advisory Committee Notes to FRE Rule 403 which states that \\\"unfair prejudice\\\" in this rule \\\"means an undue tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one.\\\" (Emphasis added.)\\nPetitioners also rely on Kaeo v. Davis, 68 Haw. 447, 454, 719 P.2d 387, 392 (1986), which states that \\\"evidence with a capacity for unfair prejudice cannot be equated with testimony simply adverse to the opposing party; for evidence is only material if it is prejudicial in some relevant respect[,]\\\" and United States v. Figueroa, 618 F.2d 934, 943 (2d Cir.1980), for the proposition that \\\"[evidence is prejudicial only when it tends to have some adverse effect upon a [party] beyond tending to prove the fact or issue that justified its admission into evidence.\\\"\\nPetitioners asserted that \\\"the only danger of 'unfair prejudice' addressed by the [court] was the concern that if this evidence was admitted, the jury could base its decision upon evidence of a subsequent remedial measure which it considered to be an improper basis[,]\\\" (emphasis added), as it had expressed in its ruling on Respondent's motion in limine no. 1. Petitioners claim that \\\"[t]here is no indication in the record that the [court] was concerned with any other possible prejudicial effect of the testimony of [Ka-hue] regarding the resurfacing project.\\\"\\nAccordingly, Petitioners argue the court's analysis under HRE Rule 403 was \\\"fatally flawed,\\\" because \\\"[Kahue's] testimony regarding the resurfacing project which began before the subject incident was not evidence of a subsequent remedial measure under Rule 407.\\\" This is correct. With respect to HRE 403, neither Respondent nor the court identified the specific prejudice that would befall Respondent, except that evidence of the pre-accident resurfacing would prejudice Respondent. However, such evidence is not excludable on HRE Rule 403 grounds merely because the effect of admitting such evidence might engender an adverse view of the City's conduct, but must be unfairly prejudicial. See discussion infra.\\nSecond, as to the dangerous condition and (apparently expert) issue(s) Petitioners contend that it was \\\"[not] necessary for Kahue's testimony to 'establish that the resurfacing would have eliminated the allegedly danger ous condition,' \\\" in order to be admissible. Petitioners submit that there is no authority to support Respondent's position. Rather, Petitioners claim that \\\"[t]he evidence was admissible, at a minimum, to establish notice . that the defendant knew, or should have known, of the unreasonable risk of harm.\\\" (Citing Corbett, 70 Haw. at 417, 772 P.2d at 695.).\\nC.\\nRespondent cites Bogosian v. Mercedes-Benz of N. Am., Inc., 104 F.3d 472, 481 (1st Cir.1997), to support exclusion of evidence of the resurfacing project under HRE Rule 403. In that case, the plaintiff brought a strict liability claim against Mercedes-Benz after the automobile she parked and exited rolled back, injuring her. Id. at 474-75. The Bogo-sian court stated that \\\"[although [the first circuit] has recognized that [FRE] 407 applies to strict liability cases, . it does not apply where, as here, the modification took place before the accident that precipitated the suit.\\\" Id. at 481 (citing Raymond, 938 F.2d at 1523).\\nThe Bogosian court observed that \\\"[i]n cases such as this, the district court may, if necessary, exclude evidence of the remedial modification by resort to its considerable discretion under [FRE] 403, which permits exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice or misleading the jury.\\\" Id. (citations omitted). It was further noted that because\\n[a] strict liability claim centers on the condition of the product at the time it leaves the seller's hands[,\\\\ . the introduction of evidence of pre-accident design modifications not made effective until after the manufacture of the allegedly defective product may reasonably be found unfairly prejudicial to the defendant and misleading to the jury for determining the question whether the product was unreasonably dangerous at the time of manufacture and sale.\\nId. (citation omitted) (emphases added) (internal quotation marks and citations omitted).\\nThe Bogosian court concluded that because \\\"the jury had before it uncontroverted evidence that Mercedes-Benz could have implemented the modification during the relevant time frame[,] any evidence that Mercedes-Benz, in fact, later modified its vehicles risked the danger that 'jurors would too readily equate subsequent design modifications with admissions of a prior defective design.' \\\" Id. (citation omitted). Thus, Bogosian held that \\\"the district court did not abuse its considerable discretion\\\" in refusing to allow the plaintiff to question Mercedes-Benz's only witness regarding a modification that had taken place subsequent to the sale of the car but prior to the plaintiffs accident because the plaintiff \\\"was attempting to create a feasibility dispute where there was none.\\\" Id. at 481-82.\\nUnlike Bogosian, in this case, the evidence of the measures taken by Respondent that began prior to Jerry's accident were not \\\"uncontroverted.\\\" Instead, those measures were probative of proving the existence of a condition which arguably posed an unreasonable risk of harm and that Respondent knew, or should have known created an unreasonable risk, but failed to reasonably eliminate or to adequately warn users about. See Corbett, 70 Haw. at 417, 772 P.2d at 695. Moreover, unlike Bogosian, this is not a case where proposed modifications to the product or site were made after the product or site had passed into the control of the consumer or user. The product liability situation in Bogosian is simply not relevant to the slip and fall situation where the premises always remained in control of Respondent. Therefore, contrary to Respondent's contention, Bogosian does not support excluding the measures pursuant to HRE Rule 403.\\nOn the other hand, as noted before, the Rollins court admitted \\\"all evidence of discussions, drafts, proposals, deliberations or actual alterations or repairs\\\" that occurred prior to the incident inasmuch as that evidence was \\\"not governed by [FRE] Rule 407 and [was] highly probative as to notice and knowledge of the potential dangers!.]\\\" 761 F.Supp. at 940-41. However, in Rollins, that court also rejected the defendant's FRE 403 argument as to subsequent repairs allowed under any exceptions in FRE 407. It was stated that\\n[t]he fact that such evidence may \\\"hurt\\\" the defendants' case does not mean that its probative value is outweighed by its prejudicial effect. \\\"Unfair prejudice\\\" as used in [FRE] Rule 403 is not to be equated with testimony simply adverse to the opposing party. Virtually all evidence is prejudicial or it isn't material. The prejudice must be unfair.\\nId. at 941 (citation omitted) (emphasis added) (some internal quotation marks omitted). Similarly, in this case, admitting the measures taken by Respondent would not be unfair to Respondent, but would be \\\"highly probative as to notice and knowledge of the potential danger[.]\\\" Id. at 940-41.\\nTherefore, the court incorrectly excluded evidence of the resurfacing project on HRE 403 grounds, because the project commenced before the subject accident and the evidence was not subject to HRE 407 exclusion or the policy considerations thereunder. Such evidence was probative at least as to notice. Under these circumstances, admission of the evidence would not have been tmfairly prejudicial, as the court apparently believed. Cf. Cupp, 138 S.W.3d at 776 (defendant who has proposed measures prior to accident not entitled to bar against post accident remedial evidence); Rollins, 761 F.Supp. at 941 (rejecting FRE 403 argument as precluding subsequent measures into evidence under exceptions to FRE 407); Schmeck, 651 P.2d at 600 (evidence of defendant's pre-accident remedial plan and predetermined post accident conduct admissible in evidence).\\nXI.\\nRespondent also declared that under HRE Rule 401, evidence pertaining to the resurfacing of the men's bathroom is not relevant because it does not \\\"have a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\\\" However, based on the foregoing, Respondent's pre-accident plans to resurface the bathroom would have a tendency to make the existence of notice of a dangerous condition\\u2014an element of the negligent action\\u2014more probable than it would be without the evidence. See Cupp, 138 S.W.3d at 776 (defendant aware of problem not entitled to bar of pre-accident measures); Rollins, 761 F.Supp. at 940-41 (pre-accident measures highly probative as to notice and knowledge of danger). Accordingly, such pre-accident plans would appear to be relevant.\\nXII.\\nFor the foregoing reasons, the ICA's April 16, 2007 judgment and the court's March 15, 2006 judgment are vacated and the case is remanded to the court for disposition consistent with this opinion.\\n. Pursuant to Hawaii Revised Statutes (HRS) \\u00a7 602-59 (Supp.2006), a party may appeal the decision of the intermediate appellate court (the ICA) only by an application to this court for a writ of certiorari. See HRS \\u00a7 602-59(a). In determining whether to accept or reject the application for writ of certiorari, this court reviews the ICA decision for:\\n(1) Grave errors of law or of fact; or\\n(2) Obvious inconsistencies in the decision of the [ICA] with that of the supreme court, federal decisions, or its own decision,\\nand the magnitude of such errors or inconsistencies dictating the need for further appeal.\\nHRS \\u00a7 602-59(b). The grant or denial of a petition for certiorari is discretionary with this court. See HRS \\u00a7 602-5 9(a).\\n. The SDO was issued by Chief Judge James S. Burns and Associate Judges John S.W. Lim and Craig H. Nakamura.\\n. The Honorable Randal K.O. Lee presided.\\n.HRAP Rule 40.1 (d) states:\\n(d) Contents. The application for a writ of certiorari shall not exceed 12 pages and shall contain in the following order:\\n(1) A short and concise statement of the questions presented for decision, set forth in the most general terms possible. The statement of a question presented will be deemed to include every subsidiary question fairly comprised therein. Questions not presented according to this paragraph will be disregarded. The supreme court, at its option, may notice a plain error not presented.\\n(2) A statement of prior proceedings in the case.\\n(3) A short statement of the case containing the facts material to the consideration of the questions presented.\\n(4) A brief argument with supporting authorities. A copy of the challenged opinion, dispositional order, or ruling of the [ICA] shall be attached as an appendix.\\n. Thus under limited circumstances, subsequent measures were ruled admissible in order to prove the existence of defects in a product in two Hawai'i cases. In Am. Broad. Cos. v. Kenai Air of Hawaii, Inc., 67 Haw. 219, 229, 686 P.2d 1, 7 (1984), this court held that the lower court erred in rejecting Kenai's \\\"offer of proof related to measures allegedly taken to remedy the problem of unexpected power failures in the particular model of aircraft.\\\"\\nIn In re Hawaii Fed. Asbestos Cases, 665 F.Supp. 1454 (D.Haw.1986), the federal court followed the rationale set forth in Kenai, holding that the \\\"state of the art\\\" theory as a defense to strict liability for asbestos claims was inadmissible because \\\"the product's design is considered at the time of trial not at the time of manufacture. [HRE] 407 allows the jury to consider subsequent remedial measures as proof of a dangerous defect.\\\" Id. at 1457 (citing Kenai, 67 Haw. at 229, 686 P.2d at 7).\\n. In connection with this question, Respondent said in its answering brief that it does not take a position on the HRE Rule 407 argument. Instead, Respondent contended that the court also based its decision on HRE Rule 403 grounds. HRE Rule 403 states in part that \\\"evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice^]\\\" Respondent also declared that under HRE Rule 401, evidence pertaining to the resurfacing of the men's bathroom is not relevant because it does not \\\"have a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\\\"\\n. It may be noted that \\\"[HRE 407] is similar to [FRE] 407\\\" but \\\"varies from [FRE] 407 in the addition 'dangerous defect in products liability cases' as one permissible purpose for which remedial measures may be admitted.\\\" Commentary to HRE Rule 407. The variance between HRE 407 and FRE 407 does not affect the analysis herein, because the instant case does not involve products liability.\\n. Insofar as HRE Rule 407 is similar to its federal counterpart, interpretations of the federal rule by treatises and cases are instructive. See, e.g., State v. Vliet, 95 Hawai'i 94, 105, 19 P.3d 42, 53 (2001) (\\\"[B]ecause the HRE are patterned on the [FRE] ., construction of die federal counterparts of the HRE by the federal courts is instruc-live, but obviously not binding on our courts.\\\" (Citations omitted.)); Nakagawa v. Apana, 52 Haw. 379, 388-89, 477 P.2d 611, 617 (1970) (following a treatise on federal procedure in interpreting Hawai'i Rules of Civil Procedure Rule 59).\\n. In that regard Petitioners assert that \\\"under [HRE] Rule 407 an action taken prior to an event cannot be a subsequent remedial measure^ and] . a subsequent action, which is taken pursuant to a predetermined course of action is not a subsequent remedial measure.\\\"\\n. However, Raymond held that \\\"[t]he district court did not abuse its discretion in ruling that the Model 76 evidence was only marginally relevant and excluding the evidence under [FRE] Rule 403.\\\" 938 F.2d at 1523 (footnote omitted) (emphasis added). The first circuit explained that\\nthe question of strict liability in New Hampshire centers on the level of dangerousness of the product at the time of sale. For this reason, the introduction of evidence of pre-acci-dent design modifications not made effective until after the manufacture of the allegedly defective product may reasonably be found unfairly prejudicial to the defendant and misleading to the jury for determining the question whether the product was unreasonably dangerous at the time of manufacture and sale.\\nId. at 1524 (citation omitted) (emphases added). Contrastingly, in the instant case, the pre-acci-dent measures were not made after the resurfacing of the subject floor, but were made in contemplation of the resurfacing and, arguably, were more than \\\"marginally relevant.\\\"\\n. In Missouri, \\\"[t]he rule regarding the admissibility of post-accident remedial measures can best be stated by reference to [FRE Rule] 407[.]\\\" Pollard v. Ashby, 793 S.W.2d 394, 401 (Mo.Ct.App.1990).\\n. Kan. Stat. Ann. \\u00a7 60-451 (2006) which pertains to \\\"Subsequent remedial conduct\\\" states:\\nWhen after the occurrence of an event remedial or precautionary measures are taken, which, if taken previously would have tended to make the event less likely to occur, evidence of such subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event.\\n. Schmeck noted that even though the trial court \\\"really ha[d] a problem even finding the installation of traffic control devices was remedial conduct because it . had been predetermined . prior to this accident .,\\\" it nonetheless limited the use of such evidence. Schmeck, 651 P.2d at 600. The trial court instructed the jury that it \\\"could not use anything that happened after the date of the accident for the apportionment of liability or fault,\\\" although it could be used \\\"to show a condition that existed.\\\" Id. (emphasis added). The Schmeck court, without discussion, seemed to accept the trial court's rationale and further explained that the evidence was also admissible to show \\\"control!, which] was a major issue.\\\" Id. In contrast, control is not an issue in the present case. In addition, HRE Rule 407 provides that evidence of subsequent remedial measures may be introduced to prove \\\"a dangerous defect in products liability cases, ownership, control, or feasibility of precautionary measures, if controverted, or impeachment\\\" but not \\\"to show a condition that existed.\\\" Thus, while we agree with the Schmeck court that repairs to which a defendant has committed before an accident but which are not completed until after the accident are not \\\"subsequent remedial measures\\\", the evidence in this case is not admissible under any exception to the general exclusionary rule recognized in this jurisdiction.\\n. Rollins stated that\\n[t]his policy [under FRE Rule 407] is not served by admitting evidence of subsequent repairs, even if the decision to make such repairs was made prior to the incident being litigated. Once an accident occurs, there is even more reason to encourage defendants to take remedial measures. Defendants should not fear that if litigation ensues after a particular incident, any remedial measures taken will be admitted to prove their negligence.\\n761 F.Supp. at 940.\\n. The Rollins court said:\\nThis [c]ourt, however, makes a reservation in accord with Rule 407. Subsequent repairs, alterations, or procedural changes may be admissible if offered to prove ownership, control or feasibility of precautionary measure, if such is controverted. Moreover, defendants should be on notice that such evidence may also be admitted if necessary for impeachment purposes or if plaintiff seeks to admit the evidence for reasons other than to demonstrate the defendants' culpability. See Bailey [v. Kawasaki-Kisen K.K., 455 F.2d 392,] 396 [(5th Cir.1972) ] (\\\"In certain limited instances, however, the policy favoring the repair of dangerous conditions is overcome by the duty of courts to allow litigants to bring the facts of the situation to the attention of the jury where they are otherwise relevant and probative.\\\").\\n761 F.Supp. at 941.\\n. It may be noted that no authority is cited for the proposition that expert witness opinion is required as part of the proof in a slip and fall case.\\n. The question of whether notice should be attributed to Respondent would, as other facts, rest on the fact finder's determination of credibility and the weight to be given such evidence. See State v. Eastman, 81 Hawai'i 131, 139, 913 P.2d 57, 65 (1996) (stating that ordinarily it is within the province of the \\\"fact-finder to assess the credibility of witnesses and to resolve all questions of fact\\\" (citation omitted)).\\n. The commentary to HRE Rule 403 states that \\\"[t]his rule is identical with [FRE] 403.\\\"\"}"

haw/12260768.json

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+"{\"id\": \"12260768\", \"name\": \"Anderson v. Douglas\", \"name_abbreviation\": \"Anderson v. Douglas\", \"decision_date\": \"2005-06-08\", \"docket_number\": \"25144\", \"first_page\": \"226\", \"last_page\": \"226\", \"citations\": \"107 Haw. 226\", \"volume\": \"107\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T21:02:21.984407+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Anderson v. Douglas\", \"head_matter\": \"June 8, 2005\\n25144\\nAnderson v. Douglas\", \"word_count\": \"8\", \"char_count\": \"47\", \"text\": \"Vacated\"}"

haw/12260997.json

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+"{\"id\": \"12260997\", \"name\": \"STATE of Hawai'i, Plaintiff-Appellee, v. Richard IWATATE, Defendant-Appellant; State of Hawai'i, Plaintiff-Appellee, v. Jason Lee Martin, Defendant-Appellant\", \"name_abbreviation\": \"State v. Iwatate\", \"decision_date\": \"2005-08-18\", \"docket_number\": \"Nos. 26383, 26523\", \"first_page\": \"361\", \"last_page\": \"370\", \"citations\": \"108 Haw. 361\", \"volume\": \"108\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T18:50:07.067612+00:00\", \"provenance\": \"CAP\", \"judges\": \"FOLEY, Acting C.J., NAKAMURA and FUJISE, JJ.\", \"parties\": \"STATE of Hawai'i, Plaintiff-Appellee, v. Richard IWATATE, Defendant-Appellant State of Hawai'i, Plaintiff-Appellee, v. Jason Lee Martin, Defendant-Appellant.\", \"head_matter\": \"120 P.3d 260\\nSTATE of Hawai'i, Plaintiff-Appellee, v. Richard IWATATE, Defendant-Appellant State of Hawai'i, Plaintiff-Appellee, v. Jason Lee Martin, Defendant-Appellant.\\nNos. 26383, 26523.\\nIntermediate Court of Appeals of Hawai'i.\\nAug. 18, 2005.\\nMark R. Zenger, Lihue, on the briefs, for Defendant-Appellant Richard Iwatate.\\nPeter M. Morimoto, Lihue, on the briefs, for Defendant-Appellant Jason Lee Martin.\\nAaron Kakinami, Deputy Prosecuting Attorney, County of Kaua'i, on the briefs, for Plaintiff-Appellee.\\nFOLEY, Acting C.J., NAKAMURA and FUJISE, JJ.\", \"word_count\": \"4824\", \"char_count\": \"29728\", \"text\": \"Opinion of the Court by\\nFOLEY, J.\\nIn this consolidated appeal, Defendant-Appellant Richard Iwatate (Iwatate) appeals from the Judgment filed on January 8, 2004, and Defendant-Appellant Jason Lee Martin (Martin) appeals from the Judgment filed on March 17, 2004. Both Judgments were filed in the Circuit Court of the Fifth Circuit (circuit court).\\nI.\\nOn April 5, 2002, pursuant to a search warrant for Iwatate, Iwatate was stopped by police as he was driving his father's pickup truck, in which Martin was a passenger. The search warrant authorized the police to search: \\\"The person of Richard Iwatate . and any personal belongings such as fanny-packs or any type of bags. Any personal, rental or borrowed vehicle that Richard Iwa-tate is operating or occupying, including any compartments of that vehicle.\\\"\\nIwatate was indicted on March 17, 2003 for Promoting a Dangerous Drug in the Second Degree, Unlawful Use of or Possession with Intent to Use Drug Paraphernalia, Place to Keep Loaded Firearm, Place to Keep Pistol or Revolver (2 counts), and Possession of a Switchblade Knife. In the same indictment, Martin was charged with Promoting a Dangerous Drug in the Second Degree, Unlawful Use of or Possession with Intent to Use Drug Paraphernalia (2 counts), and Promoting a Dangerous Drug in the Third Degree.\\nOn June 27, 2003, Iwatate filed a motion to suppress evidence, compel disclosure of confidential informant, and/or dismiss indictment with prejudice (Motion). Martin filed a join-der in the Motion on August 8, 2003.\\nIn the Motion, Iwatate contended that: (1) the search warrant was invalid on its face because it amounted to an unconstitutional general warrant that failed to describe with particularity the vehicle to be searched; (2) the affidavit in support of the search warrant contained false information, and, without the false information, the affidavit would have been insufficient to establish probable cause; (3) material falsehoods in the affidavit called into question the reliability and credibility of the confidential informant (CI); and (4) the State's refusal to disclose the identity of the CI infringed on Iwatate's constitutional rights. The circuit court denied the Motion and, on October 20, 2003, issued its \\\"Findings of Fact; Conclusions of Law; Order Denying Defendant Richard Iwatate's Motion to: (1) Suppress Evidence; (2) Compel Disclosure of Confidential Informant and/or Dismiss Indictment with Prejudice\\\" (Order Denying Motion), which stated in relevant part:\\nFINDINGS OF FACT\\n1. In a one-year period from late March 2001 to late March 2002, Kauai Police Department (\\\"KPD\\\") Officer Howell Kaleohano (\\\"Kaleohano\\\") participated in three controlled buys of controlled substances where the buyer was CI.\\n2. In each of the controlled buys, CI proved to be reliable and credible, and each buy resulted in CI procuring controlled substances as contemplated by Ka-leohano. One controlled buy resulted in the issuance of a search warrant\\u2014which in turn\\u2014resulted in an arrest and a pending court case.\\n3. Kaleohano received information from CI detailing: (i) that CI has been a personal friend of Iwatate for the past year; (ii) that CI knows Iwatate to be a Japanese male, 5'4\\\" to 5'5\\\" tall, weighing 150-160 pounds, in his late thirties, with black hair and brown eyes; (iii) that Iwa-tate is selling methamphetamine (\\\"ice\\\") at various locations on the Island of Kauai; (iv) that Iwatate has approached CI within the past year and offered to sell ice to CI; (v) that Iwatate has sold ice to CI in the past; (vi) that Iwatate's method of operation is to have potential ice buyers contact Iwatate telephonically to arrange a meeting place for an ice transaction, and then that Iwatate uses various different motor vehicles to complete the ice transactions at various locations on Kauai; and (vii) that Iwatate uses different vehicles to complete his ice transactions in an effort to thwart law enforcement efforts.\\n4. Kaleohano conducted a drivers' li-cence [sic] check on Iwatate, which revealed that Iwatate is listed as 5'6\\\" in height, weight 175 pounds, black hair and brown eyes, and 40 years of age. Kaleoha-no found this registered description to be a close match to the one provided by CI.\\n5. Based on Cl's information, Kaleoha-no's independent verification, and Kaleoha-no's previous encounters with CI, which showed CI to be reliable and credible, Kaleohano arranged a controlled buy wherein CI would attempt to purchase ice from Iwatate.\\n6. The controlled buy occurred between March 29, 2002 and April 4, 2002.\\n7. The controlled buy occurred with Iwatate delivering the ice to CI in a hand-to-hand transaction through a front passenger window while Iwatate was a front-seat passenger in a vehicle driven by a Caucasian male.\\n8. The controlled buy was continuously monitored and otherwise properly controlled and supervised by Kaleohano and other KPD officers.\\n9. The controlled buy occurred in a manner consistent with Cl's previous account of Iwatate's method of operation, and resulted in CI procuring an amount of ice from Iwatate.\\n10. On April 4, 2002, and based on the aforementioned information, Kaleohano (sometimes hereinafter referred to as \\\"Af-fiant\\\") prepared an affidavit (\\\"affidavit\\\") in support of a search warrant targeting Iwa- tate, and seeking to search for ice and related contraband.\\n11. A search warrant issued on April 4, 2002.\\n12. On April 5, 2002, the search warrant was executed pursuant to a traffic stop, as Iwatate was driving his father's silver Chevrolet pickup truck, in which Co-Defendant Martin was a passenger.\\n13. The ensuing search of the vehicle resulted in the seizure of, inter alia: (i) over 1/8 ounce of ice; (ii) over $2,000 cash; (ni) a digital scale; (iv) drug notes; (v) numerous zip-lock packets (many with ice residue); (vi) three torches and one mini-torch, three glass pipes with ice residue, a silver spoon, a cut straw with one end sealed, a scraper, and rolling papers; (vii) a loaded revolver; (viii) a semi-automatic pistol; (ix) a semi-automatic rifle; (x) numerous rounds of ammunition (including at least 113 hollow-point bullets); (xi) a switchblade knife; and (xii) a scanner connected to the truek[']s power supply.\\n14. On June 27, 2003, Iwatate (through his legal counsel) filed the instant Motion to: (1) Suppress Evidence; (2) Compel Disclosure of Confidential Informant and/or Dismiss Indictment with Prejudice, in which Co-Defendant Martin joins.\\n15. The Court held a hearing on the Motion on September 4, 2003.\\n16. At the hearing the Court received into evidence the search warrant and affidavit, and heard the testimony of Iwatate and Kaleohano, as well as the arguments of counsel.\\n17. Iwatate testified that while he did deal ice during the period in question, he never rented or borrowed vehicles, but rather drove exclusively his father's silver Chevrolet pickup truck to make ice transactions, and never delivered ice to anyone while riding as a passenger in anyone's vehicle.\\n18. Essentially, Iwatate's assertions form the basis for his Motion. If what Iwatate testified to is true, then the affidavit in support of the warrant contains many material false statements of fact\\u2014 without which\\u2014probable cause would be lacking, or at a minimum the Cl would need to be revealed to determine where the material false statements emanate from, and what the truth is regarding the investigation of Iwatate.\\n19. Kaleohano's testimony consisted largely of his recollection of what he saw during the controlled buy. He related that he saw Iwatate riding as a passenger in a vehicle that pulled near Cl, and that Cl walked next to the passenger side window as Iwatate sat inside the vehicle. Kaleoha-no also acknowledged that he did not call rental car companies on Kauai to check if Iwatate had rented vehicles from rental car companies.\\n20. Kaleohano's testimony was consistent with the supporting affidavit, and was credible. Iwatate's testimony was self-serving, frequently evasive and/or misleading, and not credible.\\nBased on the foregoing findings, the Court concludes as follows:\\nCONCLUSIONS OF LAW\\n1. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized or the communications sought to be intercepted. Hawai'i Constitution, Article I, \\u00a7 7.\\n2. Where a search warrant relies on an affidavit of a police officer, and the affidavit is based on information supplied by a confidential informant, the affidavit must set out some underlying circumstances from which the informant can conclude that contraband was where he/she claims, and must also set out some underlying circumstances from which the affiant can conclude that the informant's information is credible or his/her information reliable. State v. Davenport, 55 Haw. 90, 93-94[, 516 P.2d 65, 68] (1973) (citing Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964)).\\n3. The proponent of a motion to suppress has the burden of establishing, by a preponderance of the evidence, that the statements or items sought to be excluded were unlawfully secured and that his or her right to be free from unreasonable searches or seizures was violated under the fourth amendment to the United States Constitution and article I, section 7 of the Hawaii Constitution. State v. Kaleohano, 99 Hawai'i 370[, 375, 56 P.3d 138, 143] (Hawaii 2002).\\n4. In light of Iwatate's and Kaleohano's testimony, the exhibits presented, and the arguments of counsel, Iwatate: (i) failed to undermine the credibility of the Cl; (ii) failed to show the untruthfulness of Cl's reports to Kaleohano; (iii) failed to undermine the credibility of Kaleohano; and (iv) failed to show any material untruthfulness in the affidavit.\\n5. The supporting affidavit in this case provides: (i) a history of Affiant's prior contacts with the Cl, which show that the Cl provided previously reliable information to law enforcement; (ii) a history of the Cl's year-long personal friendship with Iwatate; (iii) Cl's account of when Iwatate approached the Cl within the past year and offered to sell ice to the Cl; (iv) Cl's detailed account of Iwatate's method of dealing ice using different vehicles; (v) Affiant's corroboration of the Cl's description of Iwatate through Affiant's verification of Iwatate's physical description; and (vi) Affiant's corroboration of the Cl's account of Iwatate's method of dealing of ice through the controlled buy where Iwatate dealt ice while a passenger in a vehicle.\\n6. Based on the foregoing, the supporting affidavit provided sufficient indicia of the reliability of Cl's information, and sufficient facts and underlying circumstances to generate probable cause to believe that Iwatate would be in possession of ice, and would be transporting it in any of a number of different vehicles in which he was either the operator or an occupant. [Davenport, 55 Haw. at 93-94, 516 P.2d at 68.]\\n7. In light of the facts contained in the supporting affidavit, the authorization in the search warrant to search any personal, rental, or borrowed vehicle that Iwatate is operating or occupying was not unconstitutionally overbroad, and was sufficiently particularized. People v. Sanchez, 116 Cal.App.3d 720,172 Cal.Rptr. 290 (1981).\\n8. Based on the testimony adduced at the hearing of the Motion, and after the Court's sedulous review of the affidavit in support of the search warrant, the Court concludes that the affidavit does not contain material misrepresentations of fact or false information, and is therefore sufficient to establish probable cause.\\n9. If information from an informer is relied upon to establish the legality of the means by which evidence was obtained and the judge is not satisfied that the information was received from an informer reasonably believed to be reliable or credible, the judge may require the identity of the informer to be disclosed. Hawaii Rules of Evidence, Rule 510 (c)(8).\\n10. The Court concludes that the Affi-ant received information from the Cl, who the Affiant reasonably believed to be both rehable and credible, as Affiant knew that the Cl was previously reliable, and as Affi-ant corroborated Cl's current information through an identity check of Iwatate and through a controlled buy. Id.\\n11. That [sic] Court concludes that Iwatate did not show that failing to disclose the identity of the Cl infringed on Iwatate's constitutional rights. Id.\\nOn October 30, 2003, Iwatate pled guilty to Promoting a Dangerous Drug in the Second Degree (Count 1), in violation of Hawaii Revised Statutes (HRS) \\u00a7 712-1242(l)(b) (1993 & Supp.2001). In his plea agreement, Iwa- tate specifically reserved his right to appeal from the Judgment to seek a review of the circuit court's Order Denying Motion. Iwa-tate was sentenced to ten years of imprisonment with a mandatory minimum term of imprisonment of four years.\\nOn October 30, 2003, Martin pled guilty to Promoting a Dangerous Drug in the Third Degree (Count 3) in violation of HRS \\u00a7 712-1243 (1993 & Supp.2001). Martin also specifically reserved the right to appeal from his Judgment to seek review of the Order Denying Motion. Martin was sentenced to five years of probation with special conditions.\\nThe State dismissed the remaining charges against Iwatate and Martin. Iwatate and Martin filed separate notices of appeal, and their appeals were consolidated on July 14, 2004.\\nOn appeal, Iwatate and Martin contend the circuit court erred when it denied the Motion because (1) the search warrant was a general warrant, and (2) even if the search warrant was not a general warrant, the refusal to disclose the identity of the Cl constituted an infringement of Iwatate's constitutional rights.\\nThe State counters that (1) the search warrant stated with sufficient particularity the vehicle to be searched and thus was not overly broad, and (2) the testimony at the suppression hearing was consistent with the contents of the search warrant affidavit and the facts contained therein were sufficient to justify Officer Kaleohano's reliance on the CL\\nII.\\nA. Motion to Suppress Evidence\\nAppellate review of factual determinations made by the trial court deciding pretrial motions in a criminal case is governed by the clearly erroneous standard. A finding of fact is clearly erroneous when (1) the record lacks substantial evidence to support the finding, or (2) despite substantial evidence in support of the finding, the appellate court is left with a definite and firm conviction that a mistake has been made. The circuit court's conclusions of law are reviewed under the righVwrong standard. Furthermore, . the proponent of a motion to suppress has the burden of establishing not only that the evidence sought to be excluded was unlawfully secured, but also, that his own Fourth Amendment rights were violated by the search and seizure sought to be challenged. The proponent of the motion to suppress must satisfy this burden of proof by a preponderance of the evidence.\\nState v. Balberdi, 90 Hawai'i 16, 20-21, 976 P.2d 773, 777-78 (App.1999) (quoting State v. Anderson, 84 Hawai'i 462, 467, 935 P.2d 1007, 1012 (1997)).\\nConsequently, we \\\"review the circuit court's ruling on a motion to suppress de novo to determine whether the ruling was right or wrong.\\\" State v. Eleneki, 106 Hawai'i 177, 179, 102 P.3d 1075, 1077 (2004).\\nB. Search & Seizure\\u2014Issuance of a Search Warrant\\nIn State v. Navas, 81 Hawai'i 113, 913 P.2d 39 (1996), the Hawaii Supreme Court held that\\n[u]nder the safeguards of the fourth amendment to the United States Constitution and article I, section 7 of the Hawaii Constitution, all arrests and searches must be based upon probable cause.\\nProbable cause exists when the facts and circumstances within one's knowledge and of which one has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe that an offense has been committed. Direct evidence, however, is not necessary for a probable cause determination by the [judge]. The issuance of a search warrant is prohibited except upon a finding of probable cause supported by oath or affirmation.\\nId. at 115-16, 913 P.2d at 41-42 (citations and footnotes omitted).\\n\\\"[I]n light of . article I, section 7 of the Hawaii Constitution, which provides Hawaii's citizens greater protection against unreasonable searches and seizure than the United States Constitution[,] . the determination of probable cause for the issuance of a search warrant warrants de novo review on appeal.\\\" Id. at 123, 913 P.2d at 49.\\nIII.\\nIwatate contends the circuit court erred in its Conclusion of Law No. 7:\\n7. In light of the facts contained in the supporting affidavit, the authorization in the search warrant to search any personal, rental, or borrowed vehicle that Iwatate is operating or occupying was not unconstitutionally overbroad, and was sufficiently particularized. People v. Sanchez, 116 Cal.App.3d 720, 172 Cal.Rptr. 290 (1981).\\nIwatate argues:\\nThe finding embodied in COL No. 7 is reversible error because the law requires that when a court issues a search warrant for any vehicle that a particular person might be in, the facts contained in the supporting affidavit must establish probable cause that the contraband that is the object of the search will be located in the vehicle that the target of the search warrant is driving at the time of the seizure. The law does not give the issuing magistrate the power to search any vehicle that the target of the search warrant is in at any time, at any place with whoever he might be with, as the search warrant does in this ease. Such warrants are general warrants prohibited by both the federal and Hawai'i constitutions. Moreover, the lower court's reliance on People v. Sanchez, 116 Cal.App.3d 720, 172 Cal.Rptr. 290 (1981), is misplaced. That case shows that the Search Warrant issued on April 4, 2002 is in fact a general warrant.\\nIn People v. Sanchez, 116 Cal.App.3d 720, 172 Cal.Rptr. 290 (1981), the California Court of Appeals affirmed the trial court's denial of defendant's motion to quash a search warrant that in part authorized a search of \\\"any vehicle under [a heroin dealer's] control or occupied by him at the time the warrant\\\" was served. Id. at 725, 172 Cal.Rptr. 290 (brackets in original omitted). The Court of Appeals concluded there was \\\"nothing improper about the authorization to search any vehicle under [the dealer's] control or occupied by him at the time the warrant was served.\\\" Id. at 728, 172 Cal.Rptr. 290. This conclusion was based on the affidavit submitted by a law enforcement officer that \\\"clearly provided probable cause for the issuing magistrate to believe that [the dealer] would be supplying [the intermediary] with heroin la ter that evening and that he would be transporting the contraband either in one of his own vehicles, or in one he had borrowed.\\\" Id. at 727-28, 172 Cal.Rptr. 290.\\nThe United States and Hawai'i Constitutions require search warrants to describe with particularity the place to be searched and the persons or things to be seized. U.S. Const, amend. IV; Hawai'i Const, art. I, \\u00a7 7. The Hawai'i Supreme Court has stated that this particularity requirement \\\"is to limit the police as to where they can search, for otherwise the constitutional protection against warrantless searches is meaningless.\\\" State v. Woolsey, 71 Haw. 638, 640, 802 P.2d 478, 479 (1990).\\nThe standard for determining whether a search warrant meets the requirement of particularity \\\"is one of practical accuracy rather than technical nicety,\\\" United States v. Goodman, 312 F.Supp. 556, 557 (N.D.Ind.1970) (quoting United States v. Gomez, 42 F.R.D. 347 (S.D.N.Y.1967)), and it is not necessary that the description of the place to be searched be as specific as in a recorded deed. Morales v. State, 44 Wis.2d 96, [105,] 170 N.W.2d 684, 689 (1969). \\\"It is enough if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended,\\\" Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757 (1925), and \\\"distinguish it from other places in the community.\\\" Ex parte Flores, 452 S.W.2d 443, 444 (Tex.Crim.App.1970).\\nA determination on whether a seareh warrant complies with constitutional particularity requirements must be made \\\"on a case-by-case basis, taking into account all of the surrounding facts and circumstances.\\\" State v. Kealoha, 62 Haw. 166, 170-71, 613 P.2d 645, 648 (1980). The cornerstone of such a determination is \\\"the language of the warrant itself.\\\" Id. at 171, 613 P.2d at 648.\\nState v. Matsunaga, 82 Hawai'i 162, 166 & 167, 920 P.2d 376, 380 & 381 (App.1996) (brackets in original omitted; bracketed material added).\\nWe agree with the circuit court that \\\"the authorization in the search warrant to search any personal, rental, or borrowed vehicle that Iwatate [was] operating or occupying was not unconstitutionally overbroad, and was sufficiently particularized.\\\" This authorization was based on probable cause that \\\"Iwatate would be in possession of ice, and would be transporting it in any number of different vehicles in which he was either the operator or an occupant.\\\" Conclusion of Law No. 6. Given the surrounding facts and circumstances, a more particularized description of the vehicle Iwatate would be using to transport ice would have been difficult. State v. Kealoha, 62 Haw. 166, 170-71, 613 P.2d 645, 648 (1980).\\nIV.\\nIwatate's second and final point on appeal that the circuit court erred because it refused to disclose the identity of the Cl is also without merit. Hawaii Rules of Evidence (HRE) Rule 510 provides in relevant part:\\nRule 510 Identity of informer, (a) Rule of privilege. The government or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.\\n(b) Who may claim. The privilege may be claimed by an appropriate representative of the government, regardless of whether the information was furnished to an officer of the government or of a state or subdivision thereof. The privilege may be claimed by an appropriate representative of a state or subdivision if the information was furnished to an officer thereof, except that in criminal cases the privilege shall not be allowed if the government objects.\\n(c) Exceptions.\\n(3) Legality of obtaining evidence. If information from an informer is relied upon to establish the legality of the means by which evidence was obtained and the judge is not satisfied that the information was received from an informer reasonably believed to be reliable or credible, the judge may require the identity of the informer to be disclosed. The judge shall, on request of the government, direct that the disclosure be made in camera. All counsel and parties concerned with the issue of legality shall be permitted to be present at every stage of proceedings under this paragraph except a disclosure in camera, at which no counsel or party shall be permitted to be present. If disclosure of the identity of the informer is made in camera, the record thereof shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the government.\\nThe 1980 Commentary to Rule 510 states in part:\\nThe intent of the rule is to balance the necessity for effective law enforcement machinery and the requirement of constitutional safeguards for the defendant. The rule restates existing law. In McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), the court held that no constitutional requirement dictated disclosure of the identity of an informant for the sole purpose of challenging a finding of probable cause for issuance of a search or arrest warrant. See also United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).\\nThe Hawaii Supreme Court has ruled similarly. In State v. Delaney, 58 Haw. 19, 24, 563 P.2d 990, 994 (1977), the court held: \\\"[Njeither the federal nor state constitutions dictate disclosure of an informer's identity where the sole purpose is to challenge the finding of probable cause. A trial court may, in its discretion, require disclosure if it believes that the officer's testimony [regarding the informer] is inaccurate or untruthful.\\\" Relying on McCray v. Illinois, supra, and the previous decision in State v. Texeira, 50 Haw. 138, 433 P.2d 593 (1967), the Delaney court also held that the trial court properly disallowed questions that might indirectly disclose the informer's identity.\\n(Italics added.)\\nIn this case, the State asserted the privilege pursuant to HRE Rule 510, and the relevant exception under HRE Rule 510(e)(3) was inapplicable. The circuit court judge was satisfied that information received by the officer from the Cl was \\\"reasonably believed to be reliable or credible.\\\" Because the circuit court judge did not believe that the police officer's testimony regarding the Cl was \\\"inaccurate or untruthful,\\\" the judge did not err in not requiring disclosure of the Cl's identity \\\"for the sole purpose of challenging the finding of probable cause\\\" for issuance of the search warrant.\\ny.\\nWe affirm the Judgment as to Defendant-Appellant Richard Iwatate filed on January 8, 2004 and the Judgment as to Defendants Appellant Jason Lee Martin filed on March 17, 2004 in the Circuit Court of the Fifth Circuit.\\n. The Honorable Clifford L. Nakea presided.\\n. Under State v. Tau'a, 98 Hawai'i 426, 49 P.3d 1227 (2002), it would appear that Jason Lee Martin (Martin), as a passenger in the vehicle driven by Richard Iwatate (Iwatate), lacked standing to join in Iwatate's motion. This issue was neither raised nor addressed below or on appeal. Because we conclude Iwatate's motion lacked merit, it is not necessary for us to sua sponte address Martin's standing.\\n. Hawaii Revised Statutes (HRS) \\u00a7 712-1242 (1993 & Supp.2001) provides in relevant part:\\n\\u00a7 712-1242 Promoting a dangerous drug in the second degree. (1) A person commits the offense of promoting a dangerous drug in the second degree if the person knowingly:\\n(b) Possesses one or more preparations, compounds, mixtures, or substances of an aggregate weight of:\\n(i) One-eighth ounce or more, containing methamphetamine, heroin, morphine, or cocaine or any of their respective salts, isomers, and salts of isomers; or\\n(ii) One-fourth ounce or more, containing any dangerous drug[.]\\n(2) Promoting a dangerous drug in the second degree is a class B felony.\\n(3) Notwithstanding any law to the contrary, if the commission of the offense of promoting a dangerous drug in the second degree under this section involved the possession or distribution of methamphetamine, or any of its salts, isomers, and salts of isomers, the person convicted shall be sentenced to an indeterminate term of imprisonment of ten years with a mandatory minimum term of imprisonment, the length of which shall be not less than six months and not greater than five years, at the discretion of the sentencing court. The person convicted shall not be eligible for parole during the mandatory period of imprisonment.\\n. HRS \\u00a7 712-1243 (1993 & Supp.2001) provides:\\n\\u00a7 712-1243 Promoting a dangerous drug in the third degree. (1) A person commits the offense of promoting a dangerous drug in the third degree if the person knowingly possesses any dangerous drug in any amount.\\n(2) Promoting a dangerous drug in the third degree is a class C felony.\\n(3) Notwithstanding any law to the contraiy, if the commission of the offense of promoting a dangerous drug in the third degree under this section involved the possession or distribution of methamphetamine, the person convicted shall be sentenced to an indeterminate term of imprisonment of five years with a mandatory minimum term of imprisonment, the length of which shall be not less than thirty days and not greater than two-and-a-half years, at the discretion of the sentencing court. The person convicted shall not be eligible for parole during the mandatory period of imprisonment.\\n. Iwatate timely appealed. Martin filed his notice of appeal on April 20, 2004, thirty-four days after entry of the Judgment in his case. The Hawai'i Supreme Court has made exceptions to the requirement of Hawai'i Rules of Appellate Procedure Rule 4(b)(1) that the notice of appeal be timely filed when, in a defendant's first appeal from a criminal conviction, the belated filing of the appeal is the result of defendant's counsel's failure to comply with procedural rules. State v. Knight, 80 Hawai'i 318, 323-24, 909 P.2d 1133, 1138-39 (1996); State v. Erwin, 57 Haw. 268, 554 P.2d 236 (1976). We conclude that Martin's appeal is not precluded by the untimely filing.\"}"

haw/12261456.json

@@ -0,0 +1 @@
+"{\"id\": \"12261456\", \"name\": \"State v. Tyler\", \"name_abbreviation\": \"State v. Tyler\", \"decision_date\": \"2007-07-31\", \"docket_number\": \"28137\", \"first_page\": \"405\", \"last_page\": \"405\", \"citations\": \"114 Haw. 405\", \"volume\": \"114\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-11T00:18:50.140822+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Tyler\", \"head_matter\": \"28137\\nState v. Tyler\", \"word_count\": \"5\", \"char_count\": \"30\", \"text\": \"Affirmed\"}"

haw/12261532.json

@@ -0,0 +1 @@
+"{\"id\": \"12261532\", \"name\": \"State v. Kahapea\", \"name_abbreviation\": \"State v. Kahapea\", \"decision_date\": \"2006-08-30\", \"docket_number\": \"27278\", \"first_page\": \"316\", \"last_page\": \"316\", \"citations\": \"111 Haw. 316\", \"volume\": \"111\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T23:45:26.983496+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Kahapea\", \"head_matter\": \"SUPREME COURT OF HAWAI'I\\nState v. Kahapea\\n27278\\n08/30/2006\", \"word_count\": \"18\", \"char_count\": \"96\", \"text\": \"Denied\\n111 Hawai'i 267, 141 P.3d 440\"}"

haw/12261579.json

@@ -0,0 +1 @@
+"{\"id\": \"12261579\", \"name\": \"Roger Scott MOYLE, Plaintiff-Appellant-Petitioner, v. Y & Y HYUP SHIN, CORP., and TTJJKK Inc., both d/b/a Do Re Mi Karaoke, Defendants-Appellees-Respondents\", \"name_abbreviation\": \"Moyle v. Y & Y Hyup Shin, Corp.\", \"decision_date\": \"2008-09-04\", \"docket_number\": \"No. 26582\", \"first_page\": \"385\", \"last_page\": \"417\", \"citations\": \"118 Haw. 385\", \"volume\": \"118\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T17:29:14.027621+00:00\", \"provenance\": \"CAP\", \"judges\": \"MOON, C.J., LEVINSON, AND DUFFY, JJ., NAKAYAMA, J., concurring and dissenting separately, and ACOBA, J., concurring separately.\", \"parties\": \"Roger Scott MOYLE, Plaintiff-Appellant-Petitioner, v. Y & Y HYUP SHIN, CORP., and TTJJKK Inc., both d/b/a Do Re Mi Karaoke, Defendants-Appellees-Respondents.\", \"head_matter\": \"191 P.3d 1062\\nRoger Scott MOYLE, Plaintiff-Appellant-Petitioner, v. Y & Y HYUP SHIN, CORP., and TTJJKK Inc., both d/b/a Do Re Mi Karaoke, Defendants-Appellees-Respondents.\\nNo. 26582.\\nSupreme Court of Hawai'i.\\nSept. 4, 2008.\\nAs Amended Sept. 11, 2008.\\nGary Victor Dubin, Honolulu (Long H. Vu on the briefs), for the plaintiff-appellant-petitioner Roger Scott Moyle, Personal Representative of the Estate of Richard Todd Moyle, Deceased.\\nRoy F. Hughes, Honolulu (Steven T. Brit-tain on the briefs), for the defendants-appel-lees-respondents Y & Y Hyup Shin, Corp. and TTJJKK Inc., both d/b/a Do Re Mi Karaoke.\\nMOON, C.J., LEVINSON, AND DUFFY, JJ., NAKAYAMA, J., concurring and dissenting separately, and ACOBA, J., concurring separately.\", \"word_count\": \"21160\", \"char_count\": \"130328\", \"text\": \"Opinion of the Court by\\nLEVINSON, J.\\nOn February 21, 2008, the plaintiff-appellant-petitioner Roger Scott Moyle, as personal representative of the estate of Richard Todd Moyle (Moyle), deceased, filed an application for a writ of certiorari, urging this court to review the published opinion of the Intermediate Court of Appeals (ICA) in Moyle v. Y & Y Hyup Shin Corp., 116 Hawai'i 388, 173 P.3d 535 (App.2007). Moyle argues that the ICA gravely erred in affirming the circuit court's March 5, 2004 final judgment, because the circuit court: (1) incorrectly instructed the jury as to the foreseeability of \\\"criminal acts\\\" in a premises liability negligence case; (2) erred in requiring Moyle to lay a foundation prior to admitting certain police reports into evidence; (3) incorrectly instructed the jury as to the duty to obtain police assistance and medical aid for an assaulted club patron in a premises liability negligence case; (4) incorrectly instructed the jury as to liability for selling alcohol to intoxicated customers in a premises liability negligence case \\\"with respect to providing security and aid\\\"; (5) incorrectly instructed the juiy as to the foreseeability of a \\\"dangerous condition\\\" in a premises liability case resulting from a \\\"mode of operation\\\"; (6) incorrectly included a non-party on the special verdict form; and (7) erred in \\\"denying a new trial after clear and convincing relevant and material evidence was found[ ] proving that [the defendants-appellees-re-spondents Y & Y Hyup Shin Corp., TTJJKK Inc., and unnamed Doe individuals and entities' (collectively, the Respondents') ] trial representatives had lied about who actually owned the club at the time [Moyle] was injured.\\\"\\nFor the reasons discussed herein, we hold that the ICA erred in concluding (1) that the jury instructions regarding the foreseeability of third-party criminal acts given by the circuit court were not defective and (2) that the circuit court correctly included a non-party on the special verdict form. We therefore vacate the ICA's November 23, 2007 judgment and the circuit court's March 5, 2004 judgment. This matter is remanded to the circuit court for further proceedings consistent with this opinion.\\nI. BACKGROUND\\nA. Factual Background\\nOn the evening of September 18, 1999, until approximately 4:00 a.m., Moyle patronized the Irish Rose, a club in Waikk, where he had \\\"a few drinks.\\\" The Irish Rose closed at 4:00 a.m., at which time Moyle moved on to the Do Re Mi Club (the club) by taxi, arriving at approximately 4:20 a.m. Moyle spent roughly two hours in the club, where he drank two to three beers. At the club he met another patron, Simi Tupuola (Tupuola). As Moyle was exiting the back door of the club at about 6:00 a.m., he was tripped by Tupuola at the threshold of the door and fell onto the sidewalk. Tupuola assaulted and robbed Moyle, seriously injuring him. The assault and robbery took place on the sidewalk outside the rear of the club. Moyle called the police on his cellular phone and reported the incident.\\nB. Procedural Background\\nOn September 19, 2001, Moyle filed a complaint in the circuit court against the Respondents. The complaint sought damages from the Respondents and alleged that his injuries were sustained as a \\\"direct and proximate result\\\" of the Respondents' \\\"negligence, actions and/or omissions.\\\"\\nNearly two years later, on July 9, 2003, the Respondents filed a motion for leave to file a third-party complaint against Tupuola, claiming that the facts demonstrated that Tupuola was responsible for Moyle's injuries. The circuit court denied the motion on August 1, 2003, stating:\\nThis case has been pending since September, 2001. So I think it's rather untimely with an upcoming trial four months away. And also I think there's at least a question about what's the main reason [for the filing of the motion]. But in addition, there's the question of whether there really is a claim for contribution against Mt. Tupuola in light of the manner in which the complaint was drafted.\\nJury trial began on February 11, 2004. Moyle testified on his own behalf, describing the events of the night of the incident. Moyle expressed a belief that the club was selling patrons alcohol on the night of the incident. He further testified that he consumed several alcoholic beverages prior to his arrival at the club and \\\"two or three beers\\\" at the club. Moyle next called Kyong Suk Son (Son) to testify, who stated that she sold the club to Karin Hyon Suk Yu (Yu) in 2000 and was not managing the club on the night of the incident. Finally, Moyle called Yu as a witness, who testified that she was one of the owners of the club at the time of the assault.\\nAt the conclusion of the trial, the following jury instructions were given over Moyle's objections:\\nNegligence is doing something which a reasonable person would not do or failing to do something which a reasonable person would do. It is the failure to use that care which a reasonable person would use to avoid injury to himself, herself, or other people or damage to property.\\nIn deciding whether a person was negligent, you must consider what was done or not done under the circumstances as shown by the evidence in this case.\\nIn determining whether a person was negligent, it may help to ask whether a reasonable person in the same situation would have foreseen or anticipated that injury or damage could result from that person's action or inaction. If such a result would be foreseeable by a reasonable person and if the conduct reasonably could be avoided, then not to avoid it would be negligence.\\nBusiness establishments that hold themselves open to the public, such as proprietors of bars and taverns and clubs where liquor is allowed or known to be on the premises, owe their customers a specific duty to exercise reasonable care to protect them from foreseeable injuiy at the hands of other patrons.\\nA landholder only has a duty to protect against criminal acts of third persons if such acts are reasonably foreseeable.\\nUnder ordinary circumstances, criminal acts are not reasonably to be expected, and are so unlikely in any particular instance that the burden of taking continual precautions against them almost always exceeds the apparent risks.\\nThere can be no liability for civil damages against a person at the scene of a crime for failure to obtain assistance from law enforcement or medical personnel. Therefore you may not find in favor of the plaintiff and against either or both defendants in this case even if you find that one or both defendants failed to obtain assistance. A person cannot be sued for failure to summon assistance under Hawai[']i law.\\nIntoxicated liquor consumers may not seek recovery from the establishment which sold them alcohol; they are solely responsible for their own voluntary intoxication.\\nIn the absence of harm to an innocent third party, merely serving liquor to an already intoxicated customer and allowing said customer to leave the premises does not constitute actionable negligence.\\nMoyle also objected to Tupuola's name being placed on the special verdict form for purposes of apportioning fault. Upon concluding its deliberations, the jury rendered a verdict in favor of the Respondents, which allocated responsibility for the incident thusly: (1) zero percent responsibility for Y & Y Hyup Shin Corp.; (2) zero percent responsibility for TTJJKK Inc.; (3) five percent responsibility for Moyle; and (4) ninety-five percent responsibility for Tupuola. The jury also found Moyle's damages to be $0.00. Judgment was entered on March 5, 2004.\\nOn May 15, 2004, Moyle filed a motion requesting that the circuit court set aside the judgement, grant a new trial, and impose sanctions on the Respondents. He claimed that the Respondents perjured themselves in their testimony on material issues in the case and that the circuit court committed reversible error in including Tupuola on the special verdict form. On April 20, 2004, the circuit court denied the motion. On May 19, 2004, Moyle filed a timely notice of appeal.\\nC. Appellate Proceedings\\nOn appeal before the ICA, Moyle argued that the circuit court erred in: (1) excluding police reports at trial that allegedly would have impeached witness testimony adduced by the Respondents; (2) giving incorrect jury instructions on (a) the foreseeability of criminal acts in a premises liability negligence case, (b) an establishment's duty to obtain law enforcement and/or medical assistance for an injured crime victim who is assaulted on its premises, and (c) the law with respect to the liability of an establishment selling alcohol to intoxicated consumers; (3) refusing to instruct the jury properly as to the liability of a business establishment for premises liability negligence where it adopts a marketing plan or general mode of operation that produces a dangerous condition; (4) including Tupuola's name on the special verdict form; and (5) denying Moyle's motion for, inter alia, a new trial.\\nOn November 8, 2007, the ICA issued a published opinion affirming the circuit court's judgment. See Moyle, 116 Hawai'i at 403, 173 P.3d at 550. The ICA held that (1) the circuit court did not err in excluding the police reports because Moyle \\\"fail[ed] to address all of the alternative bases given by the circuit court for [their] exclusion,\\\" id. at 396, 173 P.3d at 543; (2) although the circuit court's instruction on negligence failed to instruct the jury to evaluate foreseeability in light of the totality of the circumstances, Moyle invited the error, and there was no plain error in giving the instruction because the issue did not pertain to the integrity of the fact-finding process, id. at 397-400, 173 P.3d at 544-47; (3) the circuit court did not err in giving its jury instruction regarding a bystander's duty to assist, id. at 400-01, 173 P.3d at 547-48; (4) the circuit court did not err in declining to give Moyle's proposed jury instruction on a business's mode of operation, id. at 401, 173 P.3d at 548; (5) because Moyle \\\"could have pursued an action for his injuries against Tupuola,\\\" but elected not to, the circuit court did not abuse its discretion by including Tupuola's name in the special verdict form, id. at 402, 173 P.3d at 549; and (6) the circuit court did not abuse its discretion in denying Moyle's motion for a new trial, because Moyle \\\"failed to raise any arguments or offer any evidence that indicate fraud on the court ha[d] occurred[,]\\\" id. at 403, 173 P.3d at 550. On November 23, 2007, the ICA filed its judgment on appeal.\\nOn February 21, 2008, Moyle filed a timely application for a writ of certiorari. This court accepted the application on March 4, 2008 and heard oral argument on July 3, 2008.\\nII. STANDARDS OF REVIEW\\nA. Application For A Writ Of Certiorari\\nThe acceptance or rejection of an application for a writ of certiorari is discretionary. Hawaii Revised Statutes (HRS) \\u00a7 602-59(a) (Supp.2007). In deciding whether to grant the application, this court considers whether the ICA's decision reflects \\\"(1) [g]rave errors of law or of fact[ ] or (2) [o]bvious inconsistencies . with [decisions] of th[is] court, federal decisions, or [the ICA's] own deeision[s]\\\" and whether \\\"the magnitude of those errors or inconsistencies dictates] the need for further appeal.\\\" HRS \\u00a7 602-59(b).\\nB. Admissibility Of Evidence\\nAs a general rule, this court reviews evidentiary rulings for abuse of discretion. Kealoha v. County of Hawai'i 74 Haw. 308, 319, 844 P.2d 670, 676 (1993). However, when there can only be one correct answer to the admissibility question, or when reviewing questions of relevance under [Hawai'i Rules of Evidence (HRE)] Rules 401 and 402, this court applies the right/wrong standard of review. Id. at 319, 844 P.2d at 676; State v. White, 92 Hawai'i 192, 204-05, 990 P.2d 90, 102-03 (1999).\\nKamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawai'i 92, 104, 176 P.3d 91, 103 (2008).\\nC. Jury Instructions\\n\\\"'The standard of review for a trial court's issuance or refusal of a jury instruction is whether, when read and considered as a whole, the instructions given are prejudi-cially insufficient, erroneous, inconsistent, or misleading.' \\\" Stanford Carr Dev. Corp. v. Unity House, Inc., 111 Hawai'i 286, 297, 141 P.3d 459, 470 (2006) (quoting State v. Haili, 103 Hawai'i 89, 101, 79 P.3d 1263, 1275 (2003)).\\nIII. DISCUSSION\\nA. The ICA Erred In Holding That The Circuit Court's Jury Instmctions Were Not Defective.\\nMoyle contends that the circuit court instructed the jury improperly on the issues of negligence and foreseeability with inconsistent, confusing, and contradictory instructions. Moyle further argues that, when read together, the instructions not only failed to inform the jury that \\\"foreseeability\\\" should be determined by the \\\"totality of the circumstances\\\" test, but that they also misfocused the jury by instructing it on matters of alleged negligence that were not before it for decision. This court reviews the circuit court's issuance or refusal of a jury instruction on the basis of whether, when read and considered as a whole, the instructions given are \\\" 'prejudicially insufficient, erroneous, inconsistent, or misleading.' \\\" Stanford Carr, 111 Hawai'i at 297, 141 P.3d at 470 (quoting Haili, 103 Hawai'i at 101, 79 P.3d at 1275).\\n1. Instructions regarding foreseeability of third-party criminal acts\\nMoyle argues that the jury was not correctly instructed regarding the foreseeability of third-party criminal acts. The following instructions were given by the circuit court:\\nBusiness establishments that hold themselves open to the public, such as proprietors of bars and taverns and clubs where liquor is allowed or known to be on the premises, owe their customers a specific duty to exercise reasonable care to protect them from foreseeable injury at the hands of other patrons.\\nA landholder only has a duty to protect against criminal acts of third persons if such acts are reasonably foreseeable.\\nUnder ordinary circumstances, criminal acts are not reasonably to be expected, and are so unlikely in any particular instance that the burden of taking continual precautions against them almost always exceeds the apparent risks.\\nThe instruction in the first paragraph was originally proposed by Moyle as Plaintiffs Proposed Instruction No. 5. The proposed instruction was given by agreement as modified by the circuit court, which removed the second paragraph: \\\"Such a duty is said to arise from a 'special relationship' which such business establishments have with their public invitees, to protect them against unreasonable risk of physical harm, and to give them first aid after they know or have reason to know that they have been injured, and to care for them until they can be cared for by others.\\\" The instruction in the second paragraph was proposed by the circuit court as Court's Instruction A and was given by agreement. The instruction in the third paragraph, the Defendants' Requested Jury Instruction No. 3 [hereinafter, the \\\"criminal acts instruction\\\"], was given over Moyle's objection, which he elucidated thusly in the circuit court's chambers:\\n[The court]: [The criminal acts instruction] will be given as modified over objection by [Moyle]. The modification is at the beginning!;] we're inserting three words, \\\"under ordinary circumstances.\\\"\\n[Moyle]: The objection here is very clear under the Maguire[ v. Hilton Hotels Corp., 79 Hawai'i 110, 113-15, 899 P.2d 393, 396-98 (1995),] case. The way it [is] worded here begs the question. The issue here before the factfinder, the jury, is whether in the circumstances of this ease[,] according to Maguire[J it was reasonably foreseeable that this kind of criminal act might occur. This instruction starts off by assuming the negative of what is supposed to be decided by [the] trier of fact. It says \\\"under ordinary circumstances criminal acts are not reasonably to be expected.\\\" Well, it's the facts that will determine whether or not it's reasonably to be expected under the Maguire standard, and there is really no such thing as \\\"under ordinary circumstances\\\" now.\\nThe law with respect to a landowner's liability for the criminal acts of third parties is clear in Hawaii. This court has generally declined to impose a duty on landowners to protect against the criminal acts of a third party, inasmuch as, \\\"under ordinary circumstances, criminal acts are. not reasonably to be expected, and are so unlikely in any particular instance that the burden of taking continual precautions against them almost always exceeds the apparent risk.\\\" Doe v. Grosvenor Properties (Hawaii) Ltd., 73 Haw. 158, 162, 829 P.2d 512, 515 (1992). However, when there is a \\\"special relationship\\\" between a landowner and someone on its property, the landowner has a duty to protect the person from the criminal acts of third parties if those criminal acts are \\\"reasonably foreseeable.\\\" Id. at 163-65, 829 P.2d at 515-16; Maguire, 79 Hawai'i at 113-15, 899 P.2d at 396-98. One such \\\"special relationship\\\" between parties is that of the business visitor, one \\\"who \\\"is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.\\\" Grosvenor Properties, 73 Haw. at 164, 829 P.2d at 515-16 (citing Restatement (Second) of Torts \\u00a7 332 (1965)).\\nThe Respondents' retort to Moyle's contention that the above sequence of instructions, particularly the criminal acts instruction, were confusing and contradictory is to note that, inter alia, the criminal acts instruction \\\"is a correct statement of the law.\\\" And, in a vacuum, so it is. But, it is also ah inapplicable statement of the law in this case, where Moyle was unquestionably a business visitor as defined by this court, and neither party has suggested anything to the contrary. See id.; Maguire, 79 Hawai'i at 113, 899 P.2d at 396. The criminal acts instruction articulates the rationale of the general rule regarding landowner liability for third-party criminal acts as set forth in Grosvenor PropeHies, which applies when there is no special relationship between the parties. 73 Haw. at 163, 829 P.2d at 515. Grosvenor PropeHies further held that\\nstatus distinctions remain important in the decision to create exceptions to the general rule that it is unreasonable to impose a duty to anticipate and control the actions of third persons.... Exceptions to the general rule that there is no duty to protect may arise when justified by the existence of some special relationship between the parties.\\nId. at 163, 829 P.2d at 515 (citing, inter alia, Restatement (Second) of Torts, \\u00a7 315 (1965)). Because there is no question that a \\\"special relationship\\\" existed between Moyle and the Respondents, the criminal acts instruction is misplaced in the present case insofar as it states the inapplicable \\\"general rule\\\" of Grosvenor PropeHies, as opposed to the relevant exception for special relationships. Furthermore, although the two instructions preceding the criminal acts instruction correctly articulated the scope of a landowner's duty to protect a business visitor from third persons, they did not cure the inconsistent and misleading criminal acts instruction, because the jury was not apprised that the existence of a special relationship is not an \\\"ordinary circumstance.\\\" Id.; Stanford Carr, 111 Hawai'i at 297, 141 P.3d at 470 (quoting Haili, 103 Hawai'i at 101, 79 P.3d at 1275). Accordingly, the instructions regarding the foreseeability of third-party criminal acts were prejudicially erroneous. Stanford Carr, 111 Hawai'i at 297, 141 P.3d at 470 (quoting Haili, 103 Hawai'i at 101, 79 P.3d at 1275), and the ICA erred in approving the circuit court's instructions. We therefore vacate the circuit court's judgment and remand the matter to the circuit court for a new trial. See State v. Eberly, 107 Hawai'i 239, 245, 112 P.3d 725, 731 (2005) (vacating and remanding due to improper jury instructions).\\n2. Instructions regarding liability of an establishment serving alcohol to intoxicated patrons\\nMoyle further takes issue with the following instructions:\\nIntoxicated liquor consumers may not seek recovery from the establishment which sold them alcohol; they are solely responsible for their own voluntary intoxication.\\nIn the absence of harm to an innocent third party, merely serving liquor to an already intoxicated customer and allowing said customer to leave the premises does not constitute actionable negligence.\\nMoyle contends that he never raised the issue of an establishment's liability for selling alcohol and that these instructions obfuscated the question at hand, namely, whether \\\"the [Respondents were] negligent in not providing adequate security.\\\" Moyle did allege in his complaint and in his trial testimony that the Respondents were serving alcoholic beverages; however, Moyle never claimed that \\\"dram shop\\\" liability was the basis of his claim against the Respondents. In considering Moyle's contention that the instructions may have served to \\\"egregiously rnis-fo-cus[ ]\\\" the jury, this court looks to whether, when read and considered as a whole, the instructions were \\\"prejudicially insufficient, erroneous, inconsistent, or misleading.\\\" Stanford Carr, 111 Hawai'i at 297, 141 P.3d at 470 (quoting Haili, 103 Hawai'i at 101, 79 P.3d at 1275).\\nThe above instructions were modeled upon our decisions in Bertelmann v. Taas Assoc., 69 Haw. 95, 735 P.2d 930 (1987), and Winters v. Silver Fox Bar, 71 Haw. 524, 797 P.2d 51 (1990), which clarified the scope of Hawaii's common law \\\"dram shop action,\\\" as enunciated by Ono v. Applegate, 62 Haw. 131, 612 P.2d 533 (1980). This court \\\"emphatically rejected] the contention that intoxicated liquor consumers can seek recovery from the bar or tavern which sold them alcohol. Drunken persons who harm themselves are solely responsible for their voluntary intoxication and- cannot prevail under a common law or statutory basis.\\\" Winters, 71 Haw. at 527-28, 797 P.2d at 53 (quoting Bertelmann, 69 Haw. at 100, 735 P.2d at 933).\\nIn this case, it is clear that Moyle in no way asserted that the Respondents were liable to him on the basis of their selling alcohol. While these instructions do not comport with the theory of liability put forth by Moyle, Moyle does not cite, nor have we uncovered, any Hawaii cases holding that a trial court abuses its discretion by instructing the jury on bases of non-liability, as long as such instructions are not \\\"prejudicially insufficient, erroneous, inconsistent, or misleading,\\\" Stanford Carr, 111 Hawai'i at 297, 141 P.3d at 470 (quoting Haili, 103 Hawai'i at 101, 79 P.3d at 1275). These instructions perform the function of identifying for the jury a theory of liability upon which the Respondents could not be found liable. See Winters, 71 Haw. at 528, 797 P.2d at 53 (\\\"[Dram shop legislation was] created to protect the general public from drunk driving accidents, not to reward intoxicated liquor consumers for the consequences of their voluntary inebriation.\\\" (Citation omitted.)) In other words, the trial court's decision to give the above instructions over objection by Moyle was a prophylactic act, which clarified the contours of the Respondents' potential liability. Accordingly, these instructions were not \\\"prejudicially insufficient, erroneous, inconsistent, or misleading,\\\" Stanford Carr, 111 Hawai'i at 297, 141 P.3d at 470 (quoting Haili, 103 Hawai'i at 101, 79 P.3d at 1275), and the circuit court did not err in providing them to the jury.\\n3. Instruction regarding the duty to obtain assistance from law enforcement or medical personnel\\nMoyle next takes issue with the following jury instruction:\\nThere can be no liability for civil damages against a person at the scene of a crime for failure to obtain assistance from law enforcement or medical personnel. Therefore you may not find in favor of the plaintiff and against either or both defendants in this case even if you find that one or both defendants failed to obtain assistance. A person cannot be sued for failure to summon assistance under Hawai[']i law.\\nMoyle first argues that the circuit court's instruction misled the jury into focusing on an issue not at hand, namely the \\\"personal duty of the bartender or employee to render assistance,\\\" when the correct issue was that of \\\"the duty of the employer . to provide adequate security that could have rendered assistance to Moyle . pursuant to an innkeeper's and a public club's tort duty to protect its patrons from reasonably foreseeable danger.\\\" The ICA disagreed, stating that:\\nthe individuals who had been working at [the club] elected not to call the police or medical assistance upon becoming aware of the ongoing assault against [Moyle]. Premises liability, and liability of an individual bystander for failure to act, are two separate issues, and this instruction effectively and appropriately explained to the jury that civil liability cannot be based on the latter.\\nMoyle, 116 Hawai'i at 401, 173 P.3d at 548. The jury instruction was modeled after HRS \\u00a7 663-1.6 (1993), a \\\"Good Samaritan\\\" statute. Moyle claims that the issue is not the \\\"duty of an innocent bystander to come to the aid of a crime victim,\\\" but the duty of the Respondents, a \\\"business establishment in a 'special relationship' to Moyle,\\\" to come to Moyle's aid.\\nAs the ICA noted, Moyle fails to proffer any authority to support this contention, in violation of Hawaii Rules of Appellate Procedure (HRAP) Rule 28(b)(7). Moyle, 116 Hawai'i at 401, 173 P.3d at 548. Nevertheless, in light of this court's policy of hearing cases on the merits when possible, we exercise our discretion to consider the merits of Moyle's argument. See O'Connor v. Diocese of Honolulu, 77 Hawai'i 383, 386, 885 P.2d 361, 364 (1994).\\nFirst, Moyle's argument seems to claim that HRS \\u00a7 663-1.6 only applies to \\\"uninvolved bystander[s],\\\" or, in the alternative, that HRS \\u00a7 663-1.6 does not apply to \\\"business establishments in a 'special relationship' \\\" to a patron. A plain reading of the statute does nothing to suggest such inclusivity or exclusivity, and, in fact, demonstrates that it clearly applies to the actions of \\\"[a]ny person,\\\" see supra note 6, which includes the Respondents.\\nMoyle also repeatedly raised the issue of whether the Respondents came to his aid. Moyle's complaint stated that\\n[t]he incident was observed by management and other employees of [the club] immediately nearby, who nevertheless did nothing, failed to render any aid or assistance to him whatsoever or even to call the police, in violation of its duty to the general public and to its patrons, including Moyle.\\nMoyle's counsel elicited direct testimony from Moyle that an alleged Club employee, upon seeing Moyle lying on the ground following the assault, \\\"close[d] the door and pulled the curtains.\\\" In light of Moyle's having raised the issue of the Respondents' duty to render aid, it was not \\\"an issue not at hand,\\\" and it was not error for the circuit court to instruct the jury on the Respondents' liability stemming from a failure to render aid. In addition, the ICA correctly noted that \\\"[pjremises liability, and liability of an individual for failure to act, are two separate issues,\\\" and that the circuit court's instruction properly delineated that civil liability \\\"could not be based on the latter.\\\" Moyle, 116 Hawai'i at 401, 173 P.3d at 548.\\nB. The ICA Did Not Gravely Err In Determining That Moyle Had Failed To Demonstrate That The Circuit Court Erred In Excluding The Police Reports, Inasmuch As He Failed To Address Each Alternative Basis Of The Circuit Court's Decision.\\nMoyle claims that the ICA gravely erred in upholding the circuit court's exclusion of police reports proffered by Moyle, which he intended to use (1) to impeach Son's likely testimony that there had been no prior assaults at the club and (2) to show that Moyle's assault was foreseeable in light of the prior incidents at the club described in the reports. The circuit court excluded Moyle's use of the police reports on the following grounds: (1) the subpoena directed to the Honolulu Police Department's (HPD) custodian of records was served after the discovery cut-off date; (2) the subpoena was in violation of the circuit court's pretrial order stating that \\\"any and all exhibits need to be marked ahead of time\\\"; (3) the reports' probative value was substantially outweighed by the danger of unfair prejudice and considerations of undue delay pursuant to HRE Rule 403; and (4) Moyle failed to lay a proper foundation for the reports.\\nMoyle asserted in his opening brief that the circuit court erred in relying on \\\"the so-called Warshatv doctrine (first requiring proof of prior or substantially similar acts) [which] had been discarded by our appellate courts in favor of a broader foreseeability negligence test.\\\"\\nIn its published opinion, the ICA noted that:\\nNotwithstanding a party's right to appeal, generally there is a presumption that a judgment by a trial court is valid. Stafford v. Dickison, 46 Haw. 52, 62, 374 P.2d 665, 671 (1962). Moreover, [Moyle] bears the burden of demonstrating his \\\"allegations of error against the presumption of correctness and regularity that attend the decision of the lower court.\\\" Ala Moana Boat Owners' Ass'n v. State, 50 Haw. 156, 158, 434 P.2d 516, 518 (1967). Where an appealing party fails to raise and argue a point of error, the point may be deemed waived by the reviewing court. HRAP Rule 28(b)(7) (2000). Thus, where alternative bases given by the lower court for a contested decision are left unaddressed by an appealing party, the appealing party has failed to demonstrate the existence of an error.\\nMoyle, 116 Hawai'i at 395, 173 P.3d at 542.\\nThe ICA concluded that, apart from whether Moyle was required to lay a foundation for the police reports, he had not demonstrated the existence of error due to his failure to address the circuit court's three alternative bases for excluding the reports. Id. at 395, 173 P.3d at 542. (\\\"Although [Moyle] contests the first basis, he does not contest the second, third or fourth reasons given by the circuit court for finding the police reports inadmissable.\\\") However, Moyle arguably did address a second basis, the requirement that \\\"any and all exhibits need to be marked ahead of time and everything else,\\\" with his assertion that \\\"the issue concerning whether the production of the police records was done too close to trial to permit their use . was a totally different issue than using them to prove thereafter that a party was lying at trial.\\\"\\nNonetheless, even if the ICA failed to recognize Moyle's contravention of the circuit court's second basis for exclusion, Moyle still neglected to address the circuit court's third and fourth bases for exclusion in his opening brief or in his application for a writ of certiorari. First, Moyle never claimed that the circuit court abused its discretion in determining that the police reports' potential prejudice substantially outweighed their probitive value, pursuant to HRE Rule 403. See Ranches v. City and County of Honolulu, 115 Hawai'i 462, 468, 168 P.3d 592, 598 (2007) (\\\"[T]he standard of review for exclusion of evidence under HRE 403 is the abuse of discretion standard. Evi-dentiary decisions based on this rule, which require a 'judgment call' on the part of the trial court, are reviewed for an abuse of discretion.\\\" (citations and brackets omitted)). Moyle also failed to address the circuit court's ruling that service of the subpoena for the HPD's custodian of records posh dated the discovery cut-off date. Because Moyle failed to raise such \\\"allegations of error against the presumptions of correctness and regularity\\\" inherent in the circuit court's decisions, Ala Moana Boat Owners' Ass'n, 50 Haw. at 158, 434 P.2d at 518, the ICA did not err in upholding the circuit court's exclusion of the police reports.\\nC. The ICA Did Not Err In Affirming The Circuit Court's Refusal To Give Moyle's Proposed \\\"Mode Of Operation\\\" Jury Instruction.\\nMoyle argues that the ICA gravely erred in concluding that the circuit court eorrectly declined to give his proposed jury instruction No. 3, which articulated the \\\"mode of operation\\\" rule that this court adopted in Gump v. Wal-Mart Stores, Inc., 93 Hawai'i 417, 5 P.3d 407 (2000) (\\\"Gump II\\\"). Under the rule, an injured plaintiff need not prove that the defendant had actual notice of the specific instrumentality causing his or her injury,\\\" where the commercial establishment should have been aware of the potentially hazardous conditions that arose from its mode of operation. See id. 93 Hawai'i at 420-21, 5 P.3d at 410-11. Moyle asserts that the circuit court should have given his proposed mode of operation instruction, because both Son and Yu testified that they were aware of the need for security, but nevertheless continued to run the club without security as part of their intended mode of operation. Thus, Moyle implicitly argues that the potentially hazardous condition arising out of the club's operation was violent individuals who injure the club's patrons.\\nGump II clarified the scope of the mode of operation rule:\\n[T]he application of the rule is limited to circumstances such as those of this case. Wal-Mart chooses, as a marketing strategy, to lease store space to McDonald's in order to attract more customers and encourage them to remain in the store longer. Wal-Mart also chooses, for the most part, not to prevent patrons from carrying their McDonald's food into the Wal-Mart shopping area. This mode of operation gave rise to the hazard that caused Gump's injury.\\n93 Hawai'i at 421, 5 P.3d at 411 (emphases added). Hump II focused on Wal-Mart's \\\"marketing strategy,\\\" which inherently led to a foreseeable risk of danger. See id. In line with this reasoning, the \\\"mode of operation\\\" doctrine has been limited almost entirely to \\\"self-service\\\" and \\\"big box\\\" store slip and-fall cases, as the convenience offered to custom ers through their ability to serve themselves, a marketing strategy, is also fraught with the danger of spills causing hazardous floor conditions. See Gump v. Wal-Mart Stores, Inc., 93 Hawai'i 428, 442-43, 5 P.3d 418, 432-33 (App.1999) (\\\"Gump I\\\") ('\\\"While the self-service marketing method has economic advantages for the store owner or business proprietor and permits consumers the freedom to browse, examine, and select merchandise that they desire, certain problems are inherent in the method which are infrequently encountered under traditional merchandising methods that involve individual customer assistance.'\\\" (quoting Donald M. Zupanec, Annotation, Store or Business Premises Slip-and-Fall: Modern Status of Rules Requiring Showing of Notice of Proprietor of Transitory Condition Allegedly Causing Plaintiff's Fall, 85 A.L.R.3d 1000, 1004-05 n. 14 (1978))); id. at 444, 5 P.3d at 434 (explaining that the mode of operations rule applies \\\" \\\"when the operating methods of a proprietor are such that dangerous conditions are continuous' \\\" (quoting Pimentel v. Roundup Co., 100 Wash.2d 39, 666 P.2d 888, 892 (1983))).\\nBy contrast, in the present matter, the Respondents had not chosen, as a marketing-strategy or a mode of operation, to invite individuals with criminal tendencies onto their premises in order to generate business. In other words, they did not hold out then-lack of security as an enticement to potential patrons. Any ostensibly dangerous condition, particularly the possibility of violent individuals attacking patrons outside the club, was simply not traceable to the defendants. See Gump II, 93 Hawai'i at 421, 5 P.3d at 411 (observing that the mode of operation rule is \\\"consistent with the exception to the notice requirement where the dangerous condition is traceable to the defendant or its agents\\\"). Consequently, we hold that the ICA did not gravely err when it affirmed the circuit court's decision to refuse to give Moyle's proposed mode of operation jury instruction, because the rale did not apply to the facts of this ease.\\nD. The ICA Erred In Affirming The Circuit Court's Inclusion OfTupuola On The Special Verdict Form.\\nMoyle next claims that the inclusion of Tupuola on the special verdict form was contrary to Hawaii precedent and \\\"highly prejudicial\\\" to Moyle, inasmuch as it took the jury's focus away from the issues at hand, namely the Respondents' failure to provide security at the club and to render assistance. Moyle further asserts that, according to Gump I and Gump II, \\\"although placing nonparties on the special verdict form is a matter within the trial court's discretion, it is an abuse of discretion to do so where the defendant inordinately delays naming the nonparty as an additional party for tactical reasons and assumes the risk of non-inclusion.\\\"\\nGump I and Gump II looked to the Uniform Contribution Among Tortfeasors Act (UCATA), HRS \\u00a7 663-11 to 663-17 (1993 & Supp.2003), to determine whether the trial court erred in declining to include McDonald's restaurant, a nonparty joint tortfea-sor under HRS \\u00a7 663-11, on the special verdict form. See Gump I, 93 Hawai'i at 446, 5 P.3d at 436; Gump II, 93 Hawai'i at 422-23, 5 P.3d at 412-13. The Hawaii legislature adopted the UCATA for the purpose, inter alia, of \\\"abrogating] the common law rule that the release of one joint tortfeasor released all other tortfeasors.\\\" Saranillio v. Silva, 78 Hawai'i 1, 10, 889 P.2d 685, 694 (1995). HRS \\u00a7 663-12 provides in relevant part that the \\\"relative degrees of fault of the joint tortfeasors shall be considered in determining their pro rata shares, subject to [HRS \\u00a7 ] 663-17.\\\" HRS \\u00a7 663-17(c) dictates that, \\\"[a]s among joint tortfeasors who in a single action are adjudged to be such, the last paragraph of [HRS \\u00a7 ] 663-12 applies only if the issue of proportionate fault is litigated between them by pleading in that action.\\\"\\nGump II applied the aforementioned UCATA provisions in concluding that Wal-Mart, although a joint tortfeasor under HRS \\u00a7 663-11, had failed to cross-claim (i.e., \\\"plead\\\") against McDonald's and had therefore lost its right of contribution under HRS \\u00a7 663-12 and 663-17. 93 Hawai'i at 422, 5 P.3d at 412. This court further noted that, \\\"under appropriate circumstances that did not exist in the present case, non-parties may be included on a special verdict form.\\\" Id. Three such \\\"appropriate circumstances\\\" were noted by Gump II, involving non-parties that were, respectively, (1) dismissed because their participation would destroy jurisdiction, see Wheelock v. Sport Kites, Inc., 839 F.Supp. 730, 734 (D.Haw.1993), (2) not named becaus\\u00e9 of a bankruptcy stay that was effective throughout the course of the proceedings, see Kaiu v. Raymark Indus., Inc., 960 F.2d 806, 819 n. 7 (9th Cir.1992), or (3) released from the case through settlement, but included on the special verdict pursuant to terms of the release, see Nobriga v. Raybestos-Manhattan, Inc., 67 Haw. 157, 160, 683 P.2d 389, 391 (1984).\\nThe foregoing \\\"appropriate circumstances\\\" constituted exceptions to the explicit \\\"pleading\\\" requirement set forth in HRS \\u00a7 663-17, either because of the infeasibility of pleading the nonparty into the case (Wheelock/Kam), or because the nonparties had agreed to be included on the special verdict (Nobriga). In other words, inclusion was approved in these cases because \\\"it precluded prejudice to otherwise vigilant parties.\\\" Gump I, 93 Hawai'i 428, 447, 5 P.3d 418, 437 (emphasis added). Wal-Mart, which declined the readily available opportunity to plead in McDonald's through a cross-claim, found itself in none of the three \\\"appropriate circumstances.\\\" Accordingly, Gump II held that the trial court did not abuse its discretion in leaving McDonald's off the special verdict form. 93 Hawai'i at 423, 5 P.3d at 413.\\nGtvmp II's determination that \\\"[n]on-parties may ., in the trial court's sound discretion, . be included on a special verdict form,\\\" id., begs further elaboration. UCATA, and specifically HRS \\u00a7 663-17(c)'s unambiguous decree that \\\"the last paragraph of [HRS \\u00a7 ]663-12 applies only if the issue of proportionate fault is litigated between [joint tortfeasors] by pleading in that action,\\\" leads to a singular conclusion: although a trial court has \\\"discretion\\\" to include, or to decline to include, a non-party on a special verdict form, it does not, as a matter of law, have the authority to include a non-party who has not been brought into the case by pleading pursuant to HRS \\u00a7 663-12 and 663-17(c). In this regard, the ICA in Moyle was incorrect when it surmised that, \\\"Mon-sonant with the reasoning in Gump I, the converse of the ICA's holding should also be true: exclusion is not mandated simply because a party has failed to protect its rights.\\\" 116 Hawai'i at 402, 173 P.3d at 549. Indeed, as a matter of law, exclusion is mandated when a party fails to protect its rights.\\nThe Respondents did attempt to plead Tupuola into the case by filing a third-party complaint against him. As discussed above, however, the circuit court denied leave to file at a hearing on August 1, 2003, during which the court stated:\\nMy inclination is to deny the motion. This ease has been pending since September, 2001. So I think it's rather untimely with an upcoming trial week four months away. And also I think there's at least a question about what's the main reason. But in addition, there's the question of whether there really is a claim for contribution against Mr. Tupuola in light of the manner in which the complaint was drafted.\\n(Emphasis added.)\\nThe Respondents' eleventh hour attempt to claim contribution from Tupuola, after declining to do so for two years, was understandably viewed dimly by the circuit court and was well within the circuit court's discretion to deny. The case at hand is distinguishable from the \\\"appropriate circumstances\\\" noted in Gimp II. The Respondents were not denied the opportunity to plead in Tupuola, as were the defendants in Wheelock and Kaiu, but instead failed to do so when they had the opportunity, just as Wal-Mart failed in Gump II. Accordingly, we believe that the Respondents failed to litigate the issue of proportionate fault with Tupuola by pleading, and, therefore, under HRS \\u00a7 663-17(e), the Respondents were barred from having \\\"the relative degrees of fault of the joint tortfeasors . considered in determining their pro rata shares.\\\" HRS \\u00a7 663-17(c). Because Tupuola could not have been included on the special verdict form as a matter of law, the ICA erred in concluding to the contrary.\\nJustice Aeoba's concurring opinion takes issue with the foregoing analysis and asserts that \\\"HRS \\u00a7 663-12 and 663-17 apply to the issue of contribution, which is manifestly distinct from the issue of apportioning fault among all culpable parties.\\\" Concurring opinion at 410-11, 191 P.3d at 1087-88 (footnotes omitted). Justice Acoba's assertion misapprehends the purpose of the UCATA. Apart from superceding the old rule that mandated that the release of one joint tort-feasor released all others, see Saranillio, 78 Hawai'i at 10, 889 P.2d at 694, the UCATA was designed to telescope third-party practice claims for contribution into the main action, which increases judicial efficiency by obviating the need for separate actions determining the apportionment of fault and resultant contribution among joint tortfeasors. HRS \\u00a7 663-12, and by extension HRS \\u00a7 663-17, further the goal of settling the issues of apportionment and contribution in tandem. See Ozaki v. Ass'n of Apartment Owners of Discovery Bay, 87 Hawai'i 273, 284, 954 P.2d 652, 663 (App.1998) [hereinafter, \\\"Ozaki I \\\"] (reciting the Commissioner's Note to UCATA \\u00a7 4(2), which corresponds to HRS \\u00a7 663-12, stating that \\\"[UCATA \\u00a7 4(2)] would permit apportionment of pro rata shares of liability of the joint tortfeasors as among themselves.\\\" (citing 1939 UCATA, 9 U.L.A. 153, 159 (1951)) (brackets and emphasis added)); see also Carrozza v. Greenbaum, 591 Pa. 196, 916 A.2d 553, 566 n. 21 (2007) (\\\"[A]pportionment of liability among joint tortfeasors not only is permissible and familiar . but indeed it is ultimately necessary in the event of a contribution action brought by one joint tortfeasor against another upon satisfaction of the judgment by the party seeking contribution.\\\" (citation omitted)). Justice Aeoba's analysis of HRS \\u00a7 663-12 and 663-17's language in a vacuum, concurring opinion at 14-17, fails to take into account the paramount reason for the UCATA's existence. The UCATA was designed to facilitate this very telescoping mechanism for joint tortfeasors who are otherwise severally liable to obtain contribution from one another. If contribution is not possible, the UCATA is simply not implicated. If the UCATA is not implicated, there is no justification for putting joint tortfeasors on the special verdict form, apart from the exceptions noted in Gump II.\\nThe facts of the present case demonstrate the wisdom and efficacy of the UCATA's telescoping mechanism, inasmuch as any determination of the proper apportionment of fault with respect to Tupuola, a nonparty, via the special verdict would not collaterally es-top Tupuola from litigating the claim in a subsequent action for contribution brought by the Respondents against Tupuola. See Kaho'ohanohano v. Department of Human Services, State of Hawai'i, 117 Hawai'i 262, 178 P.3d 538 (2008) (setting forth four requirements for collateral estoppel, including, inter alia, that \\\" 'the party against whom [collateral estoppel] is asserted was a party or in privity with a party to the prior adjudi cation.' \\\" (brackets in original) (quoting Exotics Hawaii-Kona, Inc. v. E.I. DuPont De Nemours & Co., 104 Hawai'i 358, 365, 90 P.3d 250, 257 (2004))).\\nJustice Nakayama's concurring and dissenting opinion (dissenting opinion) also seems to discount the UCATA's telescoping mechanism. Justice Nakayama maintains that Montalvo v. Lapez, 77 Hawai'i 282, 884 P.2d 345 (1994), offers this court guidance regarding the propriety of the circuit court's inclusion of Tupuola on the special verdict form. Montalvo involved a plaintiff who was injured by the negligent operation of a City of Honolulu refuse truck driver. Id. at 284, 884 P.2d at 347. The plaintiff filed suit for negligence and ultimately received a jury verdict awarding damages. Id. One issue raised by the defense on appeal was whether the circuit court unfairly restricted the scope of the jury's deliberation by asking the jury to determine apportionment of fault via a single question on the special verdict form, instead of through separate interrogatories querying the specific amount of damages attributable to injuries prior to the incident, and the amount attributable to the incident itself. Id. at 292, 884 P.2d at 355. The Montalvo court held the following, upon which Justice Nakayama relies:\\nA trial court has \\\"complete discretion\\\" whether to utilize a special or general verdict and to decide on the form of the verdict as well as the interrogatories submitted to the jury \\\"provided that the questions asked are adequate to obtain a jury determination of all factual issues essential to judgment.\\\" Although there is \\\"complete discretion\\\" over the type of verdict form, the questions themselves may be so defective that they constitute reversible error.\\nId. (citations omitted). This statement of the law is correct as a general proposition, but is not absolute. As discussed supra, while a trial court possesses \\\"complete discretion\\\" over whether or not to employ a special verdict form, and over the \\\"form\\\" that the special verdict form will take, such discretion is limited by HRS \\u00a7 663-12 and 663-17 inasmuch as a trial court does not have discretion to include a nonparty on the special verdict form in the absence of \\\"appropriate circumstances.\\\" Gump II, 93 Hawai'i at 422, 5 P.3d at 412; HRS \\u00a7 663-12 and 663-17.\\nJustice Nakayama further states that, in the present case, Montalvo's framework is more on point than that of Gump II because \\\"the appellant in Montalvo asserted that the chosen contents of the special verdict form constituted an abuse of discretion by the trial court.\\\" Dissenting opinion at 404, 191 P.3d at 1081 (citing Montalvo, 71 Hawai'i at 292, 884 P.2d at 355). We disagree and find Montalvo to be inapposite. Although Mon-talvo did deal with a special verdict form, that appears to be the extent of the parallel between it and the present case. Montalvo involved neither the issue of apportionment of liability nor whether a nonparty, or in Gump II's ease, a former party, should be included on a special verdict form. Gtmvp II, on the other hand, addressed these issues head on. Accordingly, we disagree with Justice Nakayama's reliance on Montalvo instead of Gtimp II in the present ease.\\nJustice Nakayama also states that, in light of the parties' arguments, the questions on the special verdict form, and the jury's allocation of responsibility,\\none could infer that the jury concluded that the Respondents were not negligent for their lack of security at the . Club, and that Tupuola's act was unforeseeable. . One could also infer that the jury concluded that, from a legal causation standpoint, responsibility was more appropriately allocated between Tupuola and Moyle.\\nDissenting opinion at 405-06, 191 P.3d at 1082-83. A more likely inference is that the jury found that the Respondents were not negligent due to the erroneous criminal acts instruction, which practically directed the jury to find that Tupuola's acts were unforeseeable because the circumstances were \\\"ordinary,\\\" thereby, ostensibly, obviating any duty on the Respondents' part to provide security. See supra section III.A.1. Furthermore, and crucially, it was not within the jury's purview to determine that responsibility was \\\"more appropriately allocated\\\" between Tupuola and Moyle, in light of Moyle's decision not to sue Tupuola but, rather, to limit his claim for relief to the Respondents' allegedly negligent omission. An assessment of who the ideal defendant is falls outside a jury's dominion.\\nIn supporting his contention that a nonparty may be placed on the special verdict at the discretion of the circuit court, Justice Acoba cites Doe Parents No. 1 v. State of Hawai'i, 100 Hawai'i 34, 58 P.3d 545 (2002), and Ozaki v. Ass'n of Apartment Owners of Discovery Bay, 87 Hawai'i 265, 954 P.2d 644 (1998) [hereinafter, Ozaki II]. A brief review of each will demonstrate that they are inappo-site to the present case.\\nDoe Parents No. 1 involved a lawsuit brought by two elementary school students and their parents (collectively, \\\"the plaintiffs\\\") against the Department of Education (DOE) stemming from the students' alleged sexual assault at the hands of their teacher, Norton. Id. at 41, 52, 58 P.3d at 552, 563. Although Norton was originally named in the complaint as a eodefendant, and was subsequently named in a cross-claim by the DOE, he was ultimately dismissed from the case due to an apparent discharge of his debts following a voluntary bankruptcy petition. Id. at 56 n. 30, 58 P.3d at 567 n. 30. The circuit court ultimately determined that the DOE's degree of fault in causing the plaintiffs' injuries was forty-nine percent. Id. at 57, 58 P.3d at 568.\\nAs Justice Acoba notes, concurring opinion at 413, 191 P.3d at 1090 n. 10, Doe Parents No. 1 dealt largely with HRS \\u00a7 663-10.5 (2001), which altered the common law rule of joint and several liability among joint tort-feasors wdth respect to government entities. The analysis set forth in Doe Parents No. 1, and in particular this court's conclusion that the statute's retroactivity provision did not ultimately shield the DOE from liability, are neither here nor there with respect to the issues confronting us in the present matter. Instead of dealing with the general contours' of joint and several liability as provided by the UCATA, Doe Parents No. 1 focused on an exception to the UCATA for government entities. Justice Acoba emphasizes this court's statement, in dichim, that if the DOE had been found liable under the plaintiffs' theory of respondeat superior, it would have been necessaiy to apportion liability among both the DOE and Norton, who was dismissed from the case. Concurring opinion at 413, 191 P.3d at 1090. Justice Acoba is apparently undertaking to demonstrate an inconsistency with our present holding that, as a matter of law and pursuant to HRS \\u00a7 663-12 and 663-17, a nonparty not pleaded into the ease cannot be placed on the special verdict absent the appropriate circumstances set out in Gump II.\\nThere is, however, no such inconsistency. First, Norton, as required by HRS \\u00a7 663-17(c), had been pleaded into the case via the plaintiffs' complaint. Doe Parents No. 1, 100 Hawai'i at 41, 58 P.3d at 563. Furthermore, Norton's discharge of debt through bankruptcy proceedings is akin to the nonparty in Kaiu, who was not named as a party due to a bankruptcy stay. 960 F.2d at 819 n. 7. Accordingly, Doe Parents No. 1 is completely compatible with our analysis in the present matter.\\nJustice Acoba's reliance on Ozaki II, 87 Hawai'i 265, 954 P.2d 644, a case involving a woman who was murdered in her condominium by her estranged boyfriend, is equally confounding. Justice Acoba first notes that, \\\"[djespite [the estranged boyfriend's] absence from the proceedings, he was included on the special verdict form.\\\" Concurring opinion at 413, 191 P.3d at 1091. This is unremarkable, inasmuch as the estranged boyfriend, like Norton in Doe Parents No. 1, was a party to the case, having been named as a defendant in the complaint by the plaintiffs. Moreover, the crux of Ozaki II was whether HRS \\u00a7 668-31, which deals with comparative negligence, barred the plaintiffs' recovery from a defendant whose percent of fault was less than that of the victim. Given the immateriality of Tupuola's degree of responsibility for the plaintiffs injuries, HRS \\u00a7 663-31 is tangential to the issue posed on appeal in the present case.\\nWe must also address the following language of the concurrence:\\nNot only is the inclusion of the non-party joint (intentional) tortfeasors consistent with precedent, it also comports with underlying judicial policies. Allowing the finder of fact to consider the role of a nonparty joint tortfeasor serves the truth-finding function of the litigation process. In that connection, precluding the fact-finder from considering a non-party joint tortfeasor's actions could obscure the truth of which entities contributed to the plaintiffs injuries and to what degree.\\nConcurring opinion at 409, 191 P.3d at 1086. The relevance of the foregoing statement is a mystery to us, inasmuch as we have nowhere suggested that evidence of Tupuola's conduct could not be presented to the jury, and such evidence was clearly and correctly offered in the circuit court. Tupuola's conduct was obviously relevant to the plaintiffs claim that the Respondents breached a duty to provide security. Omitting Tupuola's name from the special verdict, as required by law, would not have impeded the jury from its fact-finding objective. Moreover, if the Respondents were concerned that, somehow, Tupuola's absence from the special verdict would obscure the truth as to where the blame properly lay for the plaintiffs injuries, they had ample opportunity to timely plead Tupuola into the matter.\\nThis misunderstanding also infects Justice Acoba's observation that the Ozaki II court \\\"did not intimate that [the estranged boyfriend's] role in causing the plaintiffs' injuries should not have been considered in determining the relative fault of the parties.\\\" Concurring opinion at 414-15, 191 P.3d at 1091-92. While a fact-finder, where relevant, can certainly take into account the \\\"role\\\" of a nonparty in determining the liability of parties to an action, it does not follow that the nonparty should be included on the special verdict.\\nE. The ICA Did Not Err When It Held That The Circuit Court Did Not Abuse Its Discretion In Denying Moyle's Motion For A New Trial.\\nFinally, Moyle argues that the ICA erred in affirming the circuit court's denial of his motion for a new trial \\\"after clear and convincing relevant and material evidence was found, proving that [the Respondents'] trial representatives had lied about who actually owned the club\\\" at the time of Moyle's injury.\\nHawai'i Rules of Civil Procedure (HRCP) Rule 60(b) states in relevant part:\\n(b) Mistakes; Inadvertence; Excusable Neglect; Neivly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: . (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party....\\nA circuit court's denial of a HRCP Rule 60(b) is reviewed for abuse of discretion. Beneficial Hawaii, Inc. v. Casey, 98 Hawai'i 159, \\u00cd64, 45 P.3d 359, 364 (2002). The trial court abuses its discretion if it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence. Id.\\nMoyle points to this court's holding that \\\"[fjraud, misrepresentation, and circumvention used to obtain a judgment are generally regarded as sufficient cause for the opening or vacating of the judgment.\\\" Kawamata Farms, Inc. v. United Agri Prods., 86 Hawai'i 214, 257, 948 P.2d 1055, 1098 (1997) (citation and quotation marks omitted); see also Matsuura v. E.I. du Pont de Nemours & Co., 102 Hawai'i 149, 158, 73 P.3d 687, 696 (2003) (\\\"[T]he relief available under HRCP rules 60(b) and 60(b)(3) reflect the preference for judgments on the merits over the finality of judgments, especially when such judgments are procured through fraud.\\\").\\nNevertheless, even assuming that the Respondents somehow misrepresented who owned the club at the time of the incident, the ICA correctly held that Moyle \\\"has not shown how ownership of the [club], by either Y & Y Hyup Shin, Corp. or TTJJKK, Inc., affected the outcome of this case.\\\" Moyle, 116 Hawai'i at 403, 173 P.3d at 550. The United States Court of Appeals for the Fourth Circuit, in analyzing Federal Rules of Civil Procedure (FRCP) Rule 60(b), construed fraud as that which \\\"'seriously' affects the integrity of the normal process of adjudication,\\\" In re Genesys Data Techs., Inc., 204 F.3d 124, 130 (4th Cir.2000) (citing 12 James Wm. Moore et al., Moore's Federal Practice \\u00a7 60.21[4][a] (3d ed.1999)), and cited as examples of such serious conduct \\\"bribing a judge, . tampering with a jury, or fraud by an officer of the court, including an attorney.\\\" Id. The misrepresentation Moyle claims the Respondents engaged in does not appear to rise to the level of fraud under HRCP Rule 60(b)(3). Accordingly, the ICA did not err in determining that the circuit court did not commit an abuse of discretion in denying Moyle's HRCP Rule 60(b) motion.\\nIV. CONCLUSION\\nFor the foregoing reasons, we vacate the circuit court's March 5, 2004 judgment and the ICA's November 23, 2007 judgment, and we remand this matter to the circuit court for further proceedings consistent with this opinion.\\n. Richard Todd Moyle died on August 31, 2004. Roger Scott Moyle was substituted as plaintiff-appellant by order of this court on December 21, 2004.\\n. Kyong Suk Son was the owner of TTJJKK, Inc., and owned the club from 1993 until approximately 1999. Karin Hyon Suk Yu was an owner of Y & Y Hyup Shin Corp., which purchased the club at some point between 1999 and September 2000.\\n. Moyle argues in the alternative that the foreseeability instructions were in error due to the circuit court's failing to instruct the jury on the \\\"totality of the circumstances\\\" test, as required by Doe v. Grosvenor Center Associates, 104 Hawai'i 500, 511, 92 P.3d 1010, 1021 (App.2004) (''[W]hen determining the foreseeability of a particular criminal act committed by a third party, we look to the totality of circumstances.\\\" (citing, inter alia, Grosvenor Properties, 73 Haw. 158, 829 P.2d 512)). We take note of the ICA's holdings (1) that this argument was waived by Moyle's having proposed and then withdrawn such an instruction and (2) that plain error was not apparent in the circuit court's failure to give such an instruction sua sponte. Moyle, 116 Hawai'i at 398-400, 173 P.3d at 545-47. We decline to address this issue, inasmuch as we have already determined that the circuit court's foreseeability instructions were prejudicially erroneous and that Moyle is entitled to a new trial. However, we note that, with the foreseeability of third-party criminal acts being of paramount importance in this case, upon remand it would be judicious for the circuit court to give a \\\"totality of the circumstances\\\" instruction even if Moyle, through error or stratagem, again requests the instruction's withdrawal.\\n. HRS \\u00a7 663-1.6 provides in relevant part:\\n(a) Any person at the scene of a crime who knows that a victim of the crime is suffering from serious physical harm shall obtain or attempt to obtain aid from law enforcement or medical personnel if the person can do so without danger or peril to any person. Any person who violates this subsection is guilty of a petty misdemeanor.\\n(b) Any person who provides reasonable assistance in compliance with subsection (a) shall not be liable in civil damages unless the person's acts constitute gross negligence or wanton acts or omissions, or unless the person receives or expects to receive remuneration.\\n(c)Any person who fails to provide reasonable assistance in compliance with subsection (a) shall not be liable for any civil damages.\\n. HRAP Rule 28(b)(7) provides in relevant part:\\n(b) Within 40 days after the filing of the record on appeal, the appellant shall file an opening brief, containing the following sections in the order here indicated:\\n(7) The argument, containing the contentions of the appellant on the points presented and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on.\\n. Cf, e.g., Chiara v. Fry's Food Stores of Ariz., Inc., 152 Ariz. 398, 733 P.2d 283 (1987); Rhodes v. El Rancho Markets, 4 Ariz.App. 183, 418 P.2d 613 (1966); Jasko v. F.W. Woolworth Co., 177 Colo. 418, 494 P.2d 839 (1972); Smith v. Safeway Stores, Inc., 636 P.2d 1310 (Colo.Ct.App.1981); Jackson v. K-Mart Corp., 251 Kan. 700, 840 P.2d 463 (1992); Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976); Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780, 863 N.E.2d 1276 (2007); Sheil v. T.G. & Y. Stores Company, 781 S.W.2d 778 (Mo.1989); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 221 A.2d 513 (1966); Lingerfelt v. Winn-Dixie Texas, Inc., 645 P.2d 485 (Okla.1982); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex.1983); Canfield v. Albertsons, Inc., 841 P.2d 1224 (Utah App.1992); Forcier v. Grand Union Stores, Inc., 128 Vt. 389, 264 A.2d 796 (1970); Carlyle v. Safeway Stores, Inc., 78 Wash.App. 272, 896 P.2d 750 (1995).\\n. HRS \\u00a7 663-11 defines \\\"joint tortfeasors\\\" as \\\"two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.\\\"\\n. In full, HRS \\u00a7 663-12 provides:\\nThe right of contribution exists among joint tortfeasors.\\nA joint tortfeasor is not entitled to a money judgment for contribution until the joint tort- feasor has by payment discharged the common liability or has paid more than the joint tortfea-sor's pro rata share thereof.\\nA joint tortfeasor who enters into a settlement with the injured person is not entitled to recover contribution from another joint tort-feasor whose liability to the injured person is not extinguished by the settlement.\\nWhen there is such a disproportion of fault among joint tortfeasors as to render inequitable an equal distribution among them of the common liability by contribution, the relative degrees of fault of the joint tortfeasors shall be considered in determining their pro rata shares, subject to section 663-17.\\n. For reasons unknown, the ICA identified the third-party complaint as a \\\"cross-claim.\\\" See Moyle, 116 Hawai'i at 402, 173 P.3d at 549.\\n. Justice Acoba's assertion that the issue of collateral estoppel is \\\"peripheral to the question at bar,\\\" Concurring opinion at 411-12, 191 P.3d at 1088-89 n. 8, misapprehends our stated purpose for raising it, namely, to demonstrate that the present case illustrates the fundamental policy goal furthered by the UCATA, i.e., increasing judicial efficiency by combining the apportionment and contribution actions.\\n. HRS \\u00a7 663-10.5 was amended in 2006 in respects not pertinent here.\\n. HRS \\u00a7 663-10.5 provides in relevant part that \\\"in any case where a government entity is determined to be a tortfeasor along with one or more other tortfeasors, the government entity shall be liable for no more than that percentage share of the damages attributable to the government entity.\\\"\\n. The March 15, 2004 motion filed with the circuit court was entitled \\\"[Hawai'i Rules of Civil Procedure (HRCP)] Rule 59(a), Rule 59(e), and Rule 60(b)(3) Motion to Set Aside Jury Verdict and Judgment Entered on March 5, 2004, and for a New Trial, and for Sanctions, Based Upon Defendants' Fraud Upon the Court and Erroneous Jury Instructions and Prejudicial Verdict Form.\\\" In reviewing the motion, the ICA determined that, \\\"[w]hile the title of the motion appears to implicate at least three grounds, [Moyle] only reasserts one on appeal, namely that Appel-lees and their representatives committed perjury and fraud on the court while giving testimony on a material factual issue: who owned the club at the time the incident occurred.\\\" Moyle, 116 Hawai'i at 402, 173 P.3d at 549. Moyle's application for a writ of certiorari also raises only the issue of the Respondents' perjury and fraud, and therefore I will only address that issue.\\n. FRCP Rule 60(b) and HRCP 60(b) are identical. When a Hawai'i rule of procedure is modeled after a federal rule, \\\"the interpretation of [the rule] by the federal courts [is] deemed to be highly persuasive in the reasoning of this court.\\\" Harada v. Burns, 50 Haw. 528, 532, 445 P.2d 376, 380 (1968).\"}"

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+"{\"id\": \"12261861\", \"name\": \"Emerson M.F. JOU, M.D., Provider-Appellant, v. J.P. SCHMIDT, Insurance Commissioner, Department of Commerce and Consumer Affairs, State of Hawaii, Appellee-Appellee, and Island Insurance Company, Ltd., Respondent-Appellee\", \"name_abbreviation\": \"Jou v. Schmidt\", \"decision_date\": \"2008-04-29\", \"docket_number\": \"No. 27369\", \"first_page\": \"477\", \"last_page\": \"490\", \"citations\": \"117 Haw. 477\", \"volume\": \"117\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T22:07:53.140200+00:00\", \"provenance\": \"CAP\", \"judges\": \"FOLEY, Presiding Judge, FUJISE, and LEONARD, JJ.\", \"parties\": \"Emerson M.F. JOU, M.D., Provider-Appellant, v. J.P. SCHMIDT, Insurance Commissioner, Department of Commerce and Consumer Affairs, State of Hawaii, Appellee-Appellee, and Island Insurance Company, Ltd., Respondent-Appellee.\", \"head_matter\": \"184 P.3d 792\\nEmerson M.F. JOU, M.D., Provider-Appellant, v. J.P. SCHMIDT, Insurance Commissioner, Department of Commerce and Consumer Affairs, State of Hawaii, Appellee-Appellee, and Island Insurance Company, Ltd., Respondent-Appellee.\\nNo. 27369.\\nIntermediate Court of Appeals of Hawai'i.\\nApril 29, 2008.\\nAs Corrected April 30, 2008.\\nStephen M. Shaw, on the briefs, for Provider-Appellant.\\nMark J. Bennett, Attorney General of Hawaii, David A. Webber, Deborah Day Emerson, Deputy Attorneys General, on the briefs, for Appellee-Appellee.\\nMichael N. Tanoue, Patrick K. Kelly, Jeffrey S. Masatsugu (The Pacific Law Group), for Respondent-Appellee.\\nFOLEY, Presiding Judge, FUJISE, and LEONARD, JJ.\", \"word_count\": \"7271\", \"char_count\": \"44670\", \"text\": \"Opinion of the Court by\\nLEONARD, J.\\nIn this secondary appeal, Provider-Appellant Emerson M.F. Jou, M.D. (Jou) appeals from the Judgment filed in the Circuit Court of the First Circuit (Circuit Court) on May 23, 2005 (Judgment). The Circuit Court ruled in favor of Insurance Commissioner J.P. Schmidt (Commissioner Schmidt), Department of Commerce and Consumer Affairs of the State of Hawaii (DCCA), and Island Insurance Company, Ltd. (Island), affirming Commissioner Schmidt's Final Order Following Remand, which was filed on May 26, 2004. Jou filed a timely notice of appeal on June 21, 2005.\\nOn appeal, Jou argues, inter alia, that the Circuit Court erred in: (1) denying his request that the presiding judge be disqualified based on the composition of the Hawaii Judicial Selection Commission (JSC), which included an Island employee; (2) finding that the written notice of denial of benefits mandated by Hawaii Revised Statutes (HRS) \\u00a7 '431:10C-304(3)(B) is inapplicable to billing disputes, as opposed to treatment disputes; and (3) finding that the payment of interest mandated by HRS \\u00a7 431:100-304(4) is inapplicable when a payment is delayed in conjunction with a billing dispute. For the reasons discussed herein, we hold: (1) Jou failed to submit a disqualifying affidavit satisfying the statutory requirements of HRS \\u00a7 601-7 and, in light of the rules governing the conduct of the JSC, there is no appearance of impropriety requiring the disqualification of the presiding judge in this case; (2) notice of denial was required; and (3) interest was due to Jou in this case.\\nBACKGROUND\\nOn March 26, 1996, Evelyn Dereas (Der-eas) suffered injuries in an automobile accident. Jou treated Dereas and subsequently billed Island for treatment rendered between April 24, 1996, and January 29, 1998. Island paid some claims, denied certain claims, \\\"down-coded\\\" several of Jou's claims, and requested additional information from Jou regarding two of his billing statements. Island claimed that the information was necessary in order to determine the propriety of the amount and the coding of the charges in Jou's bills. At some point Jou responded to the information requests, although the record is unclear as to when, and there appeared to be a series of communications between Jou and Island on these and other bills. On April 20, 1998, for example, Jou sent to Island an \\\"Analysis of Unpaid Bills,\\\" wherein he itemized the procedures and supplies denied or reduced by Island, and claimed a total unpaid balance due, excluding taxes, of $1,371.76.\\nOn December 1, 1998, Jou requested an administrative hearing before the Insurance Division of the DCCA. Jou claimed, inter alia, that Island had improperly failed to issue a notice of denial of his bills and to pay him $697.05 in interest. Island paid in full Jou's bills in the amount of $1,371.76 on May 25,1999, without interest.\\nOn July 12, 2002, Jou moved in the agency proceeding for summary judgment against Island. He argued, inter alia, that: (1) Island failed to act on Jou's demands for payment within an applicable thirty-day deadline as mandated under HRS \\u00a7 431:100-304(3); (2) any denial of Jou's claims after the thirty-day deadline were void; and (3) Jou was entitled to the payment of interest in the amount of $697.05. Island filed a cross-motion for summary judgment against Jou on August 2, 2002, arguing: (1) Island was not required to issue a denial notice because the disputed claims did not involve a challenge to the reasonableness or appropriateness of the care rendered; (2) Jou was not entitled to interest on the balance withheld by Island while Island sought additional information from him; and, (3) Jou failed to comply with Island's requests for additional information. The motions were heard on August 20, 2002.\\nOn September 17, 2002, the Hearings Officer made the following Findings of Fact (FOFs):\\n1. On March 26, 1996, Evelyn Dereas (\\\"Dereas\\\") was involved in a motor vehicle accident.\\n2. As a result of injuries sustained in the motor vehicle accident, Respondent made payments of no-fault benefits to and on behalf of Dereas, including payments to Provider.\\n3. In response to various bills received from Provider for treatment rendered to Dereas, Respondent requested additional information and documentation from Provider to determine whether he had charged the correct amounts and had applied the appropriate CPT codes.\\n4. On or about May 25,1999, Respondent made a payment of no-fault benefits to Provider for services provided to Der-eas between April 24, 1996 and January 29,1998 . The payment totaled $1,371.76.\\nThe Hearings Officer also made Conclusions of Law (COLs), including:\\n[1.] There is no dispute here that the benefits in question were not denied as being inappropriate, unreasonable, or unnecessary; rather Respondent disputed the amount of the various charges and the procedure codes used. As such, the Hearings Officer concludes that Respondent was not required to issue a formal denial of no-fault benefits pursuant to the provisions of Hawaii Revised Statutes (\\\"HRS\\\") \\u00a7 431:10C-304(3)(B).\\n[2.] As to Respondent's Cross-Motion for Summary Judgment, Provider does not point to and the Hearings Officer cannot find any authority allowing for the payment of interest allegedly accruing to Provider while Respondent disputed Provider's application of the CPT codes . The Hearings Officer therefore concludes that Provider is not entitled to the claimed interest under the circumstances of this case.\\nBased on these findings and conclusions, the Hearings Officer recommended denial of Jou's motion for summary judgment and the granting of Island's motion for summary judgment. On November 29, 2002, Insurance Commissioner Wayne Metcalf (Commissioner Metcalf) issued an order remanding the case for further proceedings, concluding that the issue in dispute was whether Jou was entitled to interest under HRS \\u00a7 431:10C\\u2014304(4). Commissioner Met-calfs order further stated: \\\"[T]he real issue is whether the insurer had received reasonable proof of the fact and amount of benefits accrued, and demand for payment thereof, and if so, when did the insurer receive such reasonable proof[.]\\\"\\nOn December 12, 2002, Island filed a motion for reconsideration, arguing that HRS \\u00a7 431:10C-304(4) does not apply to billing-disputes, and to the extent that it does apply, Jou did not provide \\\"reasonable proof' of the fact and amount of benefits accrued.\\nOn March 24, 2004, Commissioner Schmidt granted Island's motion for reconsideration and ordered the case remanded for further proceedings and the issuance of a recommended order consistent with the Commissioner's Final Order issued in Jou (Puaoi) v. First Ins. Co.; MVI-2002-6-P (Puaoi ).\\nOn April 27, 2004, the Hearings Officer made a Recommended Order Upon Remand to adopt the September 17, 2002, Hearing Officer's Findings of Fact, Conclusions of Law, and Recommended Order Denying Provider's Motion for Summary Judgment and Granting Respondent's Cross-Motion for Summary Judgment, concluding that the recommended order was consistent with the Commissioner's Final Order in Puaoi.\\nOn May 26, 2004, Commissioner Schmidt entered a Final Order Following Remand, adopting the Hearing Officer's Findings of Fact, Conclusions of Law, and Recommended Order, denied Jou's motion for summary judgment, and granted Island's motion for summary judgment.\\nOn June 25, 2004, Jou appealed from the Commissioner's Final Order to the Circuit Court. Jou asserted that he was entitled to interest on Island's unpaid balance pursuant to HRS \\u00a7 431:10C-304(4), and that affirming Commissioner Schmidt's order would result in various constitutional violations. Prior to the hearing on the matter, Jou sought to disqualify the presiding Circuit Court judge, Sabrina S. McKenna, by filing a Declaration of Stephen M. Shaw, his counsel, pursuant to HRS \\u00a7 601-7.\\nAt a hearing on January 24, 2005, Judge McKenna orally denied Jou's request for disqualification. On February 17, 2005, the Circuit Court entered an Order Affirming Commissioner Schmidt's Final Order Following Remand (Order). The Court held that Jou \\\"has not met the burden of establishing that any finding of fact was clearly erroneous, and has not established the existence of any ground provided by HRS \\u00a7 91-14(g) as a basis for remand, reversal, or modification of the Commissioner's Final Order.\\\" Judgment was entered on May 23, 2005.\\nPOINTS ON APPEAL\\nOn appeal, Jou argues that the Circuit Court:\\n(1) erred in denying his request for disqualification of Judge McKenna;\\n(2) erred in finding that Island was not required to issue a notice of denial after it made reduced and partial payments on his claims;\\n(3) erred in finding that Jou was not entitled to interest on the balance -withheld by Island thirty days after he. submitted billing statements and demand for payment;\\n(4) erred in affirming the September 17, 2002, Hearings Officer's Findings of Fact, Conclusions of Law and Recommended Order;\\n(5) violated Jou's due process and equal protection rights by upholding Commissioner Schmidt's Final Order;\\n(6) made a \\\"regulatory taking\\\" of Jou's interest on the balances due to him in violation of the Fifth and Fourteenth Amendments to the United States Constitution;\\n(7) violated Jou's rights under the petition clause of the First Amendment to the United States Constitution by ruling in favor of the DCCA on Jou's interest claims;\\n(8) deprived Jou of a property right on the interest owed to him, in violation of the due process and equal protection clauses of the Hawai'i and United States Constitutions; and\\n(9) violated the Hawai'i Constitution by interfering with the promotion of public health.\\nRegarding Jou's points of error, we conclude that: (1) Judge McKenna did not abuse her discretion in refusing to disqualify herself; (2) Island was required to issue a denial notice pursuant to HRS \\u00a7 431:10C~804(3)(B); (3) Jou was entitled to interest on the balance withheld by Island; and (4) Jou's constitutional claims are without merit.\\nSTANDARDS OF REVIEW\\nThe Hawai'i Supreme Court \\\"has adopted the abuse of discretion standard for reviewing a judge's denial of a motion for recusal or disqualification.\\\" State v. Ortiz, 91 Hawai'i 181, 188, 981 P.2d 1127, 1134 (1999) (citations omitted).\\nReview of the Circuit Court's Order and Judgment is a secondary appeal. We must determine whether the Circuit Court was right or wrong in its decision, utilizing the same standards set forth in HRS \\u00a7 91-14(g) as applied by the Circuit Court on our review of the agency's decision. The courts may freely review an agency's conclusions of law. Questions of fact are reviewed under the \\\"clearly erroneous\\\" standard. See, e.g., Hawaii Teamsters & Allied Workers, Local 996 v. Dep't of Labor & Indus. Relations, 110 Hawai'i 259, 265, 132 P.3d 368, 374 (2006). A finding of fact or a mixed determination of law and fact is clearly erroneous when (1) the record lacks substantial evidence to support the finding or determination, or (2) despite substantial evidence to support the finding or determination, the appellate court is left with the definite and firm conviction that a mistake has been made. Substantial evidence is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion. Del Monte Fresh Produce (Hawaii), Inc. v. Int'l Longshore & Warehouse Union, Local 142, AFL-CIO, 112 Hawai'i 489, 499, 146 P.3d 1066, 1076 (2006).\\nQuestions of statutory interpretation are questions of law, which are reviewed de novo under the right/wrong standard. See, e.g., Lingle v. Hawai'i Gov't Employees Ass'n, AFSCME, Local 152, 107 Hawai'i 178, 183, 111 P.3d 587, 592 (2005).\\nWe review questions of constitutional law under the right/wrong standard. County of Kaua'i v. Baptiste, 115 Hawai'i 15, 25, 165 P.3d 916, 926 (2007).\\nDISCUSSION\\n(1) Request for Disqualification\\nJou argues that Judge McKenna's refusal to disqualify herself constituted a violation of HRS \\u00a7 601-7 and his right to equal protection and due process as guaranteed by the Fourteenth Amendment to the United States Constitution. In support of his request to disqualify Judge McKenna, Jou submitted the declaration of his counsel, Stephen M. Shaw, and an article from the Honolulu Star Bulletin. The declaration of Stephen Shaw stated:\\nI, Stephen M. Shaw, attorney for Plaintiff have personal knowledge of the following matters and that I, Declarant, am competent to testify thereto. This declaration is made because Island Insurance Company has one seat on the nine-member Judicial Selection Commission, and the insurance industry has attorneys whose firms represent industry members taldng up at least two more positions.\\nFurther, there is no indication that the rules or the constitution will be modified to prevent the insurance industry, including Island Insurance Company, from voting whether or not to retain the judge hearing this matter, or any other insurance case. A true and correct copy of a recent news media report on the commission is attached as Exhibit \\\"A\\\".\\nWhen Jou's motion was filed, HRS \\u00a7 601-7 (Supp.2005) provided:\\nDisqualification of judge; relationship, pecuniary interest, previous judgment, bias or prejudice.\\n(a) No person shall sit as a judge in any ease in which:\\n(1) The judge's relative by affinity or consanguinity within the third degree is counsel, or interested either as a plaintiff or defendant, or in the issue of which the judge has, either directly or through such relative, a more than de minimis pecuniary interest; or\\n(2) The judge has been of counsel or on an appeal from any decision or judgment rendered by the judge; provided that no interests held by mutual or common funds, the investment or divestment of which are not subject to the direction of the judge, shall be considered pecuniary interests for purposes of this section; and after full disclosure on the record, parties may waive disqualification due to any pecuniary interest.\\n(b) Whenever a party to any suit, action, or proceeding, civil or criminal, makes and files an affidavit that the judge before whom the action or proceeding is to be tried or heard has a personal bias or prejudice either against the party or in favor of any opposite party to the suit, the judge shall be disqualified from proceeding therein. Every such affidavit shall state the facts and the reasons for the belief that bias or prejudice exists and shall be filed before the trial or hearing of the action or proceeding, or good cause shall be shown for the failure to file it within such time. No party shall be entitled in any ease to file more than one affidavit; and no affidavit shall be filed unless accompanied by a certificate of counsel of record that the affidavit is made in good faith. Any judge may disqualify oneself by filing with the clerk of the court of which the judge is a judge a certificate that the judge deems oneself unable for any reason to preside with absolute impartiality in the pending suit or action.\\nThe statute requires a moving party to timely file an affidavit \\\"stat[ing] the facts and reasons for the belief that bias or prejudice exists.\\\" State v. Ross, 89 Hawai'i 371, 377, 974 P.2d 11, 17 (1999). Specifically, the facts set forth in the affidavit must be sufficient for a \\\"sane and reasonable mind\\\" to \\\"fairly infer bias or prejudice.\\\" Glover v. Fong, 39 Haw. 308, 314-15, 1952 WL 7353 (1952).\\nStatutory provisions requiring disqualification have been strictly construed. Courts have uniformly held that an affidavit filed by counsel does not satisfy the statutory requirement for the party seeking disqualification to attest to the disqualifying facts. See, e.g., Giebe v. Pence, 431 F.2d 942 (9th Cir.1970). In Giebe, the court analyzed 28 U.S.C. \\u00a7 144, a disqualification statute substantially similar to HRS \\u00a7 601-7, which begins with the words: \\\"Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit .\\\" Id. at 943. The court held that the explicit language of \\u00a7 144 requires a paHy to make and file the affidavit, and rejected plaintiffs contention that an affidavit made by a party's counsel of record constitutes substantial compliance with the statute. Id. Numerous other decisions are in accord. See also, e.g., U.S. ex rel. Wilson v. Coughlin, 472 F.2d 100, 104 (7th Cir.1973); Universal City Studios, Inc. v. Reimerdes, 104 F.Supp.2d 334, 348 (S.D.N.Y.2000); Paschall v. Mayone, 454 F.Supp. 1289, 1300 (S.D.N.Y.1978); Martelli v. City of Sonoma, 359 F.Supp. 397, 399 (N.D.Cal.1973).\\nMoreover, even assuming Jou had complied with the statutory requirements, Shaw's declaration failed to sufficiently state facts showing bias or prejudice on the part of Judge McKenna. Although the declaration here stated that Island had a seat on JSC, the declaration failed to include any specific facts regarding Judge McKenna's retention or petition for retention. Therefore, the sweeping inference that Judge McKenna is, ipso facto, biased or prejudiced by \\\"Island's seat\\\" on the JSC is speculative at best. Accordingly, we find that Jou failed to demonstrate bias or prejudice pursuant to HRS \\u00a7 601-7.\\nRegardless of whether actual bias is shown under HRS \\u00a7 601-7, the Hawaii Supreme Court has held that due process requires judicial disqualification where the circumstances \\\"fairly give rise to an appearance of impropriety and . reasonably cast suspicion on [the judge's] impartiality.\\\" State v. Brown, 70 Haw. 459, 467 n. 3, 776 P.2d 1182, 1188 n. 3 (1989); State v. Ross, 89 Hawai'i 371, 377, 974 P.2d 11, 17 (1999). In other words, \\\"the 'appearance of impropriety' may still require recusal even absent bias in fact.\\\" Ross, 89 Hawai'i at 380, 974 P.2d at 20.\\nThe Code of Judicial Conduct (1992) (CJC) offers additional rules for the conduct of judges. Canon 2 of the CJC provides: \\\"A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities.\\\" The commentary to CJC Canon 2(A) further states that, \\\"the test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.\\\" See also Ross, 89 Hawai'i at 380, 974 P.2d at 20 (\\\"The test for disqualification due to the 'appearance of impropriety1 is an objective one, based not on the beliefs of the petitioner or the judge, but on the assessment of a reasonable impartial onlooker apprised of all the facts.\\\").\\nAs to disqualification, Canon 3(E) of the CJC states in relevant part:\\nDISQUALIFICATION. (1) A judge shall' disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:\\n(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding;\\n(b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it;\\n(c) the judge, knows the he or she, individually or as a fiduciary, or the judge's spouse, parent or child wherever residing, or any other member of the judge's family residing in the judge's household, has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding.\\nAt a hearing on January 24, 2005, Jou argued the disqualification of Judge McKen-na was necessary due to \\\"an appearance of impropriety\\\" based on the composition of the JSC, from whom .Judge McKenna would seek retention. Jou pointed to three members of the JSC in particular:\\nLois Sazawa [sic], who's a vice president of one of the parties here, Island Insurance. The other significant insurance representative is the chair of the commission, which is Sidney Ayabe, whose firm does lots and lots of insurance defense work in town. And the third is Rosemary Fazio, whose firm represents HMSA, as well as is counsel to the Board of Directors of HMSA.\\nJou further stated:\\nIt makes no sense for the Judicial Selection Committee to be composed of\\u2014of Island Insurance's vice president while Island Insurance has cases like this one pending in this court, and while Your Hon- or is on a ten-year term, and because Your Honor will no likely seek retention, this is objectively speaking not actual bias, but casts a grave appearance of impropriety on our system.\\nAt the hearing, Judge McKenna confirmed it was her time to petition for retention, and acknowledged her awareness that Lois Suza-wa was a member of the JSC:\\nIn terms of Ms. Sazawa [sic] apparently being employed by Island, I'm not sure at what point I became aware of that. I'm not sure if it wasn't because of what-what's been submitted by you in this or another case. I think you raised this in another case.\\nI also do not believe that this situation creates an appearance of impropriety type of situation that you allude to here. And as a practical matter, it happens to be that it is my time for a retention\\u2014or petition for retention, but there are many other judges that are\\u2014you know, may be at\\u2014from time to time applying for retention and/or applying to other courts or whatever. And based on the reasons that you have stated, I see no reason for any judge in this jurisdiction to recuse himself or herself based on the issues that you have raised, and so therefore I would decline recusal in this case.\\n(Emphasis added.)\\nIn considering whether these facts could create an appearance of impropriety and could cause a reasonable observer apprised of all the facts to doubt Judge McKenna's impartiality, we also consider the rules applicable to the conduct of the JSC members. Rule 5 of the Rules of the Judicial Selection Commission (1995) (JSC Rules) provides, in relevant part:\\nSECTION ONE: ABUSE OF POSITION\\nA. No commissioner shall use or attempt to use his or her official position to secure privileges or exemptions for the commissioner or others.\\nSECTION THREE: 'CONFLICT OF INTEREST\\nA. Every commissioner shall avoid conflicts of interest, in the performance of commission duties. Every commissioner is required to exercise diligence in becoming aware of conflicts of interest, and disclosing any conflicts to the Judicial Selection Commission. If a commissioner knows of any personal, business, or legal relationship as a party or attorney which the commissioner had with the applicant or petitioner, the commissioner must report this fact to the commission. The commission shall then decide the extent to which the involved commissioner shall participate in the proceedings concerning said applicant or petitioner. In the event that a commissioner does not vote, the fact that a commissioner did not vote may be announced publicly. The commission may disclose its decision on this issue.\\nB. No commissioner shall participate in any retention proceeding regarding a judge or justice who has a petition for retention pending before the commission pursuant to Rule 13 if that commissioner has a substantive matter pending before that judge or justice.\\nIn light of Sections 3.A. and 3.B. of the JSC Rules, absent evidence to the contrary, a reasonable and impartial observer would presume: (1) that a commissioner whose employer has a substantive matter actively pending before a petitioning judge would necessarily disclose this matter to the JSC; and (2) a commissioner who has a substantive matter actively pending before a petitioning judge would necessarily remove himself or herself from participation in the retention proceeding for that judge. The burden is on the commissioner to inform himself or herself of conflicts and take the appropriate action, not on the judge to remove himself or herself from presiding over judicial proceedings based on the possibility that a commissioner might participate in a retention proceeding in violation of the JSC Rules. We note that Section 3.A. of the JSC Rules expressly permits the JSC to disclose that a particular commissioner did not vote on a petition, which disclosure would remove any concern or doubt by a party in Jou's position. Although the record in this case is silent on whether any commissioner removed herself or himself from Judge McKenna's retention petition, Jou failed to overcome the presumption that the JSC acted in accordance with its rules and otherwise failed to establish disqualifying facts in this ease. Thus, we conclude that Judge McKenna did not abuse her discretion when she declined to disqualify herself in this case.\\n(2) Notice of Denial\\nJou argues that the agency and the Circuit Court erred in finding Island was not required to issue a formal notice of denial of benefits pursuant to HRS \\u00a7 431:10C-304(3)(B) after it made both reduced and partial payments on Jou's claims. We agree.\\nAt the time relevant to Jou's claim for payment, HRS \\u00a7 431:10C-304 (1993) provided in part:\\nFor purposes of this section, the term \\\"no-fault insurer\\\" includes no-fault self-insurers. Every no-fault insurer shall provide no-fault benefits for accidental harm as follows:\\n(3)(A) Payment of no-fault benefits shall be made within thirty days after the insurer has received reasonable proof of the fact and amount of benefits accrued, and demand for payment thereof.\\n(B) Subject to section 431:10C-308.6, relating to peer review, if the insurer elects to deny a claim for benefits in whole or in part, the insurer shall within thirty days notify the claimant in writing of the denial and the reasons for the denial. The denial notice shall be prepared and mailed by the insurer in triplicate copies and be in a format approved by the commissioner. In the case of benefits for services specified in section 431:100-103(10)(A)(i) and (ii), the insurer shall also mail a copy of the denial to the provider.\\n(C) If the insurer cannot pay or deny the claim for benefits because additional information or loss documentation is needed, the insurer shall, within the thirty days, forward to the claimant an itemized list of all the required documents. In the ease of benefits for services specified in section 431:10C-103(10)(A)(i) and (ii), the insurer shall also forward the list to the service provider.\\nIn COL No. 1, the agency found that formal notice pursuant to HRS \\u00a7 431:10C-304(3)(B) was not required because Island had only challenged the amount charged and the procedure codes used, but had not denied the benefits as unnecessary or unreasonable. In essence, the agency found HRS \\u00a7 431:10C-304(3)(B) inapplicable to billing-disputes.\\nIn a factually similar case, the Hawaii Supreme Court held that the notice provision in HRS \\u00a7 431:10C-304(3)(B) applies to billing disputes. In Orthopedic Assoc. of Hawaii, Inc. v. Haw'n Ins. & Guar. Co., Ltd., 109 Hawai'i 185, 191, 124 P.3d 930, 936 (2005), after the providers submitted bills, the insurers altered the treatment codes, paid reduced amounts under the altered codes, and then offered to negotiate with the providers for the unpaid portions. On appeal, the providers argued that the insurers were required to issue formal written notices of denial for their partial payment of medical bills pursuant to HRS \\u00a7 431:10C-304(3)(B). Id. The insurers argued that the notice provision did not apply because they had \\\"accepted the treatment rendered as reasonable and appropriate and the sole dispute concerns the appropriate charges for the treatment.\\\" Id. at 195, 124 P.3d at 940. The insurers claimed that Hawaii Administrative Rules (HAR) \\u00a7 16-23-120, which provides a billing dispute resolution mechanism, controlled and that HRS \\u00a7 431:100-304 was therefore inapplicable. Id. at 197, 124 P.3d at 942.\\nThe supreme court disagreed and found that the plain language of HRS \\u00a7 431:100-304 did not limit an insurer's obligation to provide notice only when the insurer elects to deny a claim for treatment services. Id. at 195, 124 P.3d at 940. The Com\\u00ed therefore concluded that the notice requirement under HRS \\u00a7 431:10C-304(3)(B) is triggered when a claim for benefits was denied in whole or in part, and includes situations where there is a denial or partial denial of \\\"treatment service and/or the charges therefor.\\\" Id. at 196, 124 P.3d at 941 (emphasis added). The Court also held that HAR \\u00a7 16-23-120, an agency rule which was promulgated after HRS \\u00a7 431:100-304 was enacted, was void to the extent that it conflicted with HRS \\u00a7 431:10C-304(3)(B). Id. at 197, 124 P.3d at 942.\\nIn light of Orthopedic Assoc., we hold that HRS \\u00a7 431:10C-304(3)(B) applies to billing disputes and the statute's notice requirement is triggered by a partial denial of claims in the form of reduced or partial payments by an insurer. A provider should not need to chase a payment/denial decision or be left to guess whether further payment might be forthcoming. We therefore conclude that COL No. 1 was wrong and that Island was required under HRS \\u00a7 431:10C-304(3)(B) to provide denial notice even though it made reduced and partial payments on Jou's claims.\\n(3) Interest on Payments Due\\nNext, we address Jou's argument that he is entitled to interest on the balance withheld by Island thirty days after he submitted his billing statements and demand for payment, pursuant to HRS \\u00a7 431:100-304(4). When Jou rendered treatment and submitted his billing statements, HRS \\u00a7 431:10C-304(4X1993) provided:\\nAmounts of benefits which are unpaid thirty days after the insurer has received reasonable proof of the fact and the amount of benefits accrued, and demand for payment thereof, after the expiration of the thirty days, shall bear interest at the rate of one and one-half per cent per month.\\nIsland maintains it did not challenge the treatment provided by Jou as inappropriate or unreasonable; rather, the dispute concerns \\\"the amount of the charge or the correct fee or procedure code used.\\\" Island thus claims that HRS \\u00a7 431:10C-304(4) does not apply to the so-called \\\"billing disputes\\\" in this case. Instead, Island contends that HRS \\u00a7 431:100-304(6) clarifies that billing disputes are governed by HRS \\u00a7 43L10C-308.5. HRS \\u00a7 431:10C-304(6)(Supp.2004) provides:\\nDisputes between the provider and the insurer over the amount of a charge or the correct fee or procedure code to be used under the workers' compensation supplemental medical fee schedule shall be governed by section 431:10C-308.5[.]\\nHRS \\u00a7 431:10C-308.5(e)(Supp.2004) provides:\\nIn the event of a dispute between the provider and the insurer over the amount of a charge or the correct fee or procedure code to be used under the worker's compensation supplemental medical fee schedule, the insurer shall:\\n(1) Pay all undisputed charges within thirty days after the insurer has received reasonable proof of the fact and amount of benefits accrued and demand for payment thereof; and\\n(2) Negotiate in good faith with the provider on the disputed charges for a period up to sixty days after the insurer has received reasonable proof of the fact and amount of benefits accrued and demand for payment thereof.\\nIf the provider and the insurer are unable to resolve the dispute, the provider, insurer, or claimant may submit the dispute to the commissioner, arbitration, or court of competent jurisdiction. The parties shall include documentation of the efforts of the insurer and the provider to reach a negotiated resolution of the dispute.\\nThe Circuit Court agreed with Island and the agency, and found that the interest provision in HRS \\u00a7 431:10C-304(4) does not apply to this case and that HRS \\u00a7 431:10C-308.5 applies. Accordingly, the Court ruled that, \\\"[tjhere is no provision for interest payments under [HRS \\u00a7 431:100-308.5].\\\"\\nAlthough Orthopedic Assoc, discusses the notice provision under HRS \\u00a7 431:100-304, rather than the statute's interest provision, we nevertheless find that Orthopedic Assoc. offers important guidance on the resolution of this issue. In Orthopedic Assoc., the supreme court looked to the plain language of HRS \\u00a7 431:10C-304(3)(B) in finding the applicable notice provision was not limited to treatment disputes, as opposed to billing disputes. 109 Hawai'i at 195, 124 P.3d at 940. Similarly, nothing in HRS \\u00a7 431:100-304(4)(1993) limits interest payments to treatment disputes, as opposed to billing disputes.\\nWe also note that Act 138, which amended HRS \\u00a7 431:100-304 and 431:100-308.5 by adding section 6 to HRS \\u00a7 431:100-304 and section (e) to HRS \\u00a7 431:100-308.5, was not approved until May 30, 2000, after the treatments and bills underlying this case. 2000 Haw. Sess. L. Act 138, \\u00a7 4 at 271. Therefore, HRS \\u00a7 431:10C-308.5(e) does not apply here. . Indeed, under HRS \\u00a7 431:10C-308.5(e), for disputes relating to \\\"the amount of a charge or the correct fee and procedure code,\\\" an insurer is required to pay all undisputed charges within thirty days, but is allowed to negotiate in good faith for up to sixty days on all disputed charges. Although HRS \\u00a7 431:10C-308.5(e) contains no express interest provision, there is nothing in HRS \\u00a7 431:100-308.5 that relieves an insurer from paying interest on all payments made more than thirty days after \\\"reasonable proof' of the fact and amount of benefits accrued. HRS \\u00a7 431:10C~308.5(e) does not negate, during the pendency of billing disputes, the accrual of interest pursuant to HRS \\u00a7 431:100-304(4).\\nFor these reasons, we conclude that the agency's COL No. 2 is incorrect and that HRS \\u00a7 431:100-304(4) is applicable when a payment due is delayed in conjunction with a billing dispute.\\nAlternatively, Island argues that even if HRS \\u00a7 431:100-304(4) applies, Jou failed to provide \\\"reasonable proof of the fact and the amount of benefits accrued.\\\" In other words, Island maintains that because it never received \\\"reasonable proof' from Jou, the thirty-day deadline for payment or denial never began running and interest never began accruing. We disagree.\\nThe Hawai'i Supreme Court articulated the \\\"reasonable proof' required under HRS \\u00a7 431:100-304 to trigger either payment or denial of a claim as follows:\\nIn other words, an insurer shall pay no-fault benefits within thirty days of receipt of a provider's billing statement showing \\\"the fact,'' ie., the treatment services, and \\\"the amount of benefits,\\\" i.e., the charges or costs of treatment services.\\nOrthopedic Assoc., 109 Hawai'i at 195, 124 P.3d at 940 (emphasis added). Thus, in the first instance, Jou was required to submit nothing more than his billing statement showing the treatment services he performed, and the charges or costs of those services. Jou did so. Once Island received Jou's billing statements and demand for payment, Island was required to either pay or deny Jou's claims within thirty days. Island was not permitted to withhold payment for an indeterminate period of time, without interest, while it sought additional information from Jou. See TIG Ins. Co. v. Kauhane, 101 Hawai'i 311, 326-27, 67 P.3d 810, 825-26 (App.2003)(noting that \\\"given the legislative intent that no-fault insurance claims be promptly acted upon,\\\" claims must be either paid or denied within a specific time period). It appears that Island withheld payment on the bills at issue for somewhere between one and three years before paying them in full.\\nIn TIG Ins., we rejected the insurer's argument that its requests for additional information from providers tolled the thirty-day deadline in which it had to make payments or issue a denial. 101 Hawai'i at 326, 67 P.3d at 825. Instead, we held: \\\"Nowhere in HRS \\u00a7 431:100-304(3) is there any language authorizing an insurer to continue to request additional information or loss documentation from a claimant or a claimant's medical providers more than thirty days after the insurer has received a claim for no-fault benefits and a demand for payment.\\\" Id. at 326-27, 67 P.3d at 825-26.\\nMoreover, as discussed in TIG Ins. v. Kauhane, the history of HRS \\u00a7 431:100-304 evinces a clear legislative intent that insurers investigate and act on claims promptly. 101 Hawai'i at 323-25, 67 P.3d at 822-24. The payment of interest after thirty days was intended to \\\"substantially serve to strengthen the former law\\\" in this regard. Id. at 325, 67 P.3d at 824 (citations omitted). While the insurer has an opportunity to submit to the claimant one itemized list of additional information or loss documents, that opportunity does not override the legislative intent that an insurer must promptly act on the request for payment. If necessary information or documentation is not provided, the insurer is free to deny the claim. 101 Hawai'i at 327, 67 P.3d at 826. Failure to act promptly may result in the accrual of interest. Island did not act promptly on the payments that undis-putedly were due to Jou.\\nFor these reasons, we conclude that the Circuit Court erred in finding Jou was not entitled to interest on the balance withheld by Island. Based on the record before us, we further conclude that interest began to accrue on Jou's claims at the expiration of thirty days after the date Island received Jou's original billing statements until the date Island made full payment on May 25, 1999. See HRS \\u00a7 431:10C-304(4)(1993).\\n(4) Constitutional Arguments\\nUpon 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, we conclude that Jou's other contentions are without merit.\\nCONCLUSION\\nIn light of the foregoing, we vacate the Circuit Court's February 17, 2005 Order and May 23, 2005 Judgment and remand for further proceedings not inconsistent with this opinion.\\n. The Honorable Sabrina S. McKenna presided.\\n. Down-coding describes a practice whereby insurers unilaterally change submitted claims to lower-valued codes. Orthopedic Assoc. of Hawaii, Inc. v. Haw'n Ins. & Guar. Co., Ltd., 109 Hawai'i 185, 191, 124 P.3d 930, 936 (2005).\\nThe record presented here did not include the specific bills in question.\\nThere was very little in the record to determine when the requested information was provided to Respondent.\\nThere has been no showing that the requests for additional information were inappropriate or otherwise improper.\\n. In Puaoi, Commissioner Schmidt held that an insurer's payment of less than 100% of provider's demand is notice to provider that the insurer has made a determination to deny the unpaid portion of the claim. As discussed, infra, this position was rejected by the Hawai'i Supreme Court in Orthopedic Assoc. of Hawaii, Inc. v. Haw'n Ins. & Guar. Co., Ltd., 109 Hawai'i 185, 191, 124 P.3d 930, 936 (2005).\\n. The May 30, 2004 clipping from the Honolulu Star Bulletin was entitled \\\"Rejected judges remain in the dark. The judicial retention process in Hawaii favors confidentiality over accountability.\\\" The article discussed the judicial retention process and listed members of the JSC, including Island's Assistant Vice President, Lois Suzawa.\\n. As Judge McKenna's current term is from June 30, 2005, through June 29, 2015, her petition for retention was necessarily pending at the time Jou filed his motion to disqualify on January 21, 2005. See Hawaii Const. Art. VI, \\u00a7 3.\\n. On June 19, 1997, HRS \\u00a7 431:100-308.6, which provided for peer review of denied claims, was repealed by Act 251. 1997 Haw. Sess. L., Act 251 \\u00a7 50 at 551. The repeal went into effect on January 1, 1998. Act 251 at 553.\\n. HRS \\u00a7 431:100-103 (10)(A)(i)and(ii) (1993) provides:\\n(10)(A) No fault benefits, sometimes referred to as personal injuiy protection benefits, with respect to any accidental harm means:\\n(i) All appropriate and reasonable expenses necessarily incurred for medical, hospital, surgical, professional, nursing, dental, opto-metric, ambulance, prosthetic services, products and accommodations furnished, and x-ray. The foregoing expenses may include any nonmedical remedial care and treatment rendered in accordance with the teachings, faith, or belief of any group which depends for healing upon spiritual means through prayer;\\n(ii) All appropriate and reasonable expenses necessarily incurred for psychiatric, physical, and occupational therapy and rehabilitation!.]\\n. On the issue of interest, the agency concluded: \\\"the Hearings Officer cannot find any authority allowing for the payment of interest allegedly accruing to Provider-while Respondent disputed Provider's application of the CPT codes[.]\\\" Thus, similar to its analysis of the statute's notice provision, as discussed above, the agency essentially found Jou was not entitled to interest because HRS \\u00a7 431:100-304(4) was inapplicable to billing disputes.\\n. Additionally, the Court in Orthopedic Assoc. rejected the insurer's argument that HAR \\u00a7 16-23-120, an administrative rule providing a dispute resolution mechanism for disputed charges, fees and codes, removed all such disputes from the control of HRS \\u00a7 431:100-304(3). 109 Hawai'i at 197, 124 P.3d at 942.\\n. Jou provided treatment for Dereas between 1996 and 1998, and submitted bills to Island within one month of treatment during this time period.\\n. See HRS \\u00a7 1-3 (1993)(\\\"No law has any retrospective operation, unless otherwise expressed or \\u2022 obviously intended.\\\"); see also Richard v. Metcalf, 82 Hawai'i 249, 257, 921 P.2d 169, 177 (1996) (finding amendment to an insurance statute did not apply to treatment of injuries sustained by a patient- prior to the amendment's effective date).\\n. Island does not argue that it was, in fact, negotiating with Jou during the sixty day periods after receipt of Jou's invoices.\\n. Although Jou's original invoices were not in the record before the agency. Island does not deny receiving the invoices, which it ultimately paid in full, or allege that Jou failed to submit bills showing the treatment and charges. The record contains Island's two requests for additional information, neither of which indicate that Jou failed to show \\\" 'the fact,' i.e., the treatment services, and 'the amount of benefits,' i.e., the charges or costs of treatment services.\\\" See n. 14 below.\\n. To the extent that Island's failure to pay or deny Jou's claims was based on an alleged lack of sufficient information to support the declared treatment codes in the billing statements, Island was required to forward to Jou and claimant, within thirty days, \\\"an itemized list of all the required documents.\\\" HRS \\u00a7 431:10C-304(3)(C)(1993); TIG Ins. v. Kauhane, 101 Hawai'i at 327, 67 P.3d at 826. The record here shows that Island responded to only two out of six of Jou's initially disputed billing statements with requests for additional information. A letter dated September 3, 1996, read: \\\"Please submit all applicable office notes and/or documentation regarding the services rendered on the attached billing.\\\" Similarly, a letter from Island on May 27, 1997, stated: \\\"In order to analyze the attached billing we will need the following information from the provider. Please specifically identify the name of the person who performed these services. Also include the specialty of the provider.\\\" Even assuming these letters to Jou could be considered \\\"itemized lists\\\"- in response to two of Jou's billing statements, Island points to no finding or evidence that such letters were sent to Dereas, the claimant, as required by the statute. See HRS \\u00a7 431:10C-304(3)(C)(1993). On the contrary. Island cites to FOF No. 3 which stales (emphasis. added): \\\"In response to various bills . Respondent requested further information and documentation from Provider.\\\" Island's four remaining letters to Jou either denied or down-coded his claims and stated: \\\"Based on the available information, the services rendered appear to be best described by this code\\\"; \\\"No allowance was recommended for this service as it is considered to be outside the scope of the provider's specialty.\\\"\"}"

haw/12261905.json

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+"{\"id\": \"12261905\", \"name\": \"State v. Kimmerle\", \"name_abbreviation\": \"State v. Kimmerle\", \"decision_date\": \"2006-05-15\", \"docket_number\": \"27206\", \"first_page\": \"406\", \"last_page\": \"406\", \"citations\": \"110 Haw. 406\", \"volume\": \"110\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T19:44:13.795106+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Kimmerle\", \"head_matter\": \"May 15, 2006\\n27206\\nState v. Kimmerle\", \"word_count\": \"10\", \"char_count\": \"58\", \"text\": \"Vacated and Remanded\"}"

haw/12262265.json

@@ -0,0 +1 @@
+"{\"id\": \"12262265\", \"name\": \"Arakawa v. Outrigger Enterprises, Inc.\", \"name_abbreviation\": \"Arakawa v. Outrigger Enterprises, Inc.\", \"decision_date\": \"1999-02-22\", \"docket_number\": \"21698\", \"first_page\": \"476\", \"last_page\": \"476\", \"citations\": \"90 Haw. 476\", \"volume\": \"90\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-11T00:16:52.639357+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Arakawa v. Outrigger Enterprises, Inc.\", \"head_matter\": \"February 22, 1999\\n21698\\nArakawa v. Outrigger Enterprises, Inc.\", \"word_count\": \"10\", \"char_count\": \"72\", \"text\": \"Affirmed\"}"

haw/12262301.json

@@ -0,0 +1 @@
+"{\"id\": \"12262301\", \"name\": \"Kelly v. Metal-Weld Specialties, Inc.\", \"name_abbreviation\": \"Kelly v. Metal-Weld Specialties, Inc.\", \"decision_date\": \"2008-09-30\", \"docket_number\": \"27127, 27208\", \"first_page\": \"424\", \"last_page\": \"424\", \"citations\": \"118 Haw. 424\", \"volume\": \"118\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T17:29:14.027621+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Kelly v. Metal-Weld Specialties, Inc.\", \"head_matter\": \"27127, 27208\\nKelly v. Metal-Weld Specialties, Inc.\", \"word_count\": \"8\", \"char_count\": \"60\", \"text\": \"Affirmed\"}"

haw/12262495.json

@@ -0,0 +1 @@
+"{\"id\": \"12262495\", \"name\": \"State v. Penn\", \"name_abbreviation\": \"State v. Penn\", \"decision_date\": \"2004-10-21\", \"docket_number\": \"25204\", \"first_page\": \"461\", \"last_page\": \"461\", \"citations\": \"105 Haw. 461\", \"volume\": \"105\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-11T00:45:50.871158+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Penn\", \"head_matter\": \"25204\\nState v. Penn\", \"word_count\": \"5\", \"char_count\": \"29\", \"text\": \"Affirmed\"}"

haw/12262616.json

@@ -0,0 +1 @@
+"{\"id\": \"12262616\", \"name\": \"Tavakoli v. Hawaii Medical Service Ass'n\", \"name_abbreviation\": \"Tavakoli v. Hawaii Medical Service Ass'n\", \"decision_date\": \"2005-07-25\", \"docket_number\": \"25828\", \"first_page\": \"528\", \"last_page\": \"528\", \"citations\": \"107 Haw. 528\", \"volume\": \"107\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T21:02:21.984407+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Tavakoli v. Hawaii Medical Service Ass'n\", \"head_matter\": \"Tavakoli v. Hawaii Medical Service Ass'n\\n25828\\n07/25/2005\", \"word_count\": \"10\", \"char_count\": \"67\", \"text\": \"Affirmed\"}"

haw/12262739.json

@@ -0,0 +1 @@
+"{\"id\": \"12262739\", \"name\": \"Lester v. Rapp\", \"name_abbreviation\": \"Lester v. Rapp\", \"decision_date\": \"1996-10-25\", \"docket_number\": \"16387\", \"first_page\": \"439\", \"last_page\": \"439\", \"citations\": \"83 Haw. 439\", \"volume\": \"83\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T17:57:15.666673+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Lester v. Rapp\", \"head_matter\": \"Lester v. Rapp\\n16387\\n10/25/96\", \"word_count\": \"6\", \"char_count\": \"40\", \"text\": \"Dismissed\"}"

haw/12262772.json

@@ -0,0 +1 @@
+"{\"id\": \"12262772\", \"name\": \"Labayog v. Labayog; Labayog, In re Estate of\", \"name_abbreviation\": \"Labayog v. Labayog\", \"decision_date\": \"1996-12-10\", \"docket_number\": \"16096, 16310\", \"first_page\": \"545\", \"last_page\": \"545\", \"citations\": \"83 Haw. 545\", \"volume\": \"83\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T17:57:15.666673+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Labayog v. Labayog; Labayog, In re Estate of\", \"head_matter\": \"Labayog v. Labayog; Labayog, In re Estate of\\n16096, 16310\\n12/10/96\", \"word_count\": \"19\", \"char_count\": \"106\", \"text\": \"Dismissed\\n83 Hawai'i 412, 927 P.2d 420\"}"

haw/12263393.json

@@ -0,0 +1 @@
+"{\"id\": \"12263393\", \"name\": \"Joya Lanakila Trust v. Hawai'i Omori Corp.\", \"name_abbreviation\": \"Joya Lanakila Trust v. Hawai'i Omori Corp.\", \"decision_date\": \"1997-05-15\", \"docket_number\": \"19166\", \"first_page\": \"83\", \"last_page\": \"83\", \"citations\": \"85 Haw. 83\", \"volume\": \"85\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T19:23:58.665332+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Joya Lanakila Trust v. Hawai'i Omori Corp.\", \"head_matter\": \"May 15, 1997\\n19166\\nJoya Lanakila Trust v. Hawai'i Omori Corp.\", \"word_count\": \"13\", \"char_count\": \"71\", \"text\": \"Affirmed\"}"

haw/12263407.json

@@ -0,0 +1 @@
+"{\"id\": \"12263407\", \"name\": \"Carol A. HENLEY, Appellant-Appellant, v. HAWAI'I HOUSING AUTHORITY, Appellee-Appellee\", \"name_abbreviation\": \"Henley v. Hawai'i Housing Authority\", \"decision_date\": \"1999-12-08\", \"docket_number\": \"No. 22070\", \"first_page\": \"319\", \"last_page\": \"321\", \"citations\": \"92 Haw. 319\", \"volume\": \"92\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T17:42:46.717609+00:00\", \"provenance\": \"CAP\", \"judges\": \"BURNS, C.J., ACOBA and LIM, JJ.\", \"parties\": \"Carol A. HENLEY, Appellant-Appellant, v. HAWAI'I HOUSING AUTHORITY, Appellee-Appellee.\", \"head_matter\": \"990 P.2d 1201\\nCarol A. HENLEY, Appellant-Appellant, v. HAWAI'I HOUSING AUTHORITY, Appellee-Appellee.\\nNo. 22070.\\nIntermediate Court of Appeals of Hawai'i.\\nDec. 8, 1999.\\nToni G. Bissen, on the briefs, for appellant-appellant.\\nSonia Faust, Honolulu, John C. Wong and Carolee M. Aoki, Honolulu, on the briefs, for appellee-appellee.\\nBURNS, C.J., ACOBA and LIM, JJ.\", \"word_count\": \"1296\", \"char_count\": \"8288\", \"text\": \"Opinion of the Court by\\nLIM, J.\\nCarol A. Henley (Henley) appeals the October 20,1998 Judgment of the Circuit Court of the First Circuit (circuit court) affirming the January 28, 1998 Findings of Fact, Conclusions of Law, Decision and Order of the Board of Commissioners (commission) of the Hawaii Housing Authority (HHA), which had affirmed, in turn, the July 24,1997 Findings of Fact, Conclusions of Law, Decision and Order of the Oahu Hearing Board A (board). The board had found Henley in violation of her Rental Agreement with HHA and ordered her and her children evicted from their federally-assisted public housing unit.\\nIn this secondary appeal, we conclude that the circuit court was wrong in its decision, because Henley has made a convincing showing that the agency's decision was invalid, being unjust and unreasonable in its consequences, Sussel v. Civil Service Commission, 74 Haw. 599, 608-10, 851 P.2d 311, 316-17 (1993), because it was made upon unlawful procedure. Hawaii Revised Statutes (HRS) \\u00a7 91-14(g)(3). Consequently, we reverse.\\nI. Background.\\nHenley and her four children moved into the Puuwai Momi housing project in August 1991.\\nBeginning in November 1991 and continuing into December 1996, HHA project staff reported a plethora of neighborly peccadilloes perpetrated by Henley and her constant \\\"guests\\\"\\u2014two purportedly erstwhile boyfriends and fathers of her children.\\nThe reported incidents included many instances of loud, obscene and besotted arguments, fights and other disorderly and destructive conduct among the three.\\nSeveral incidents are notable in the sad litany of loutishness reported by the HHA project staff.\\nOne in November 1991 involved the two males in their usual state of clangorous inebriation, throwing rocks and engaging in an ignoble display of public micturition on the project premises.\\nIn October 1994, one of the males drove his car onto the project premises, over a curb and into a common area in an attempt to run the other over, damaging a wall near Henley's housing unit in the process.\\nIn July 1996, the same driver, again drunk, drove into a parked car on the premises with such force that it was driven onto the sidewalk.\\nNeedless to say, over the years the other tenants made constant complaints to project staff about Henley and her \\\"guests.\\\" The police were literally barraged with calls about the three and responded often to the Henley unit, sometimes several times a week.\\nAfter most of the incidents, project staff investigated and counseled Henley about controlling her behavior and that of her \\\"guests.\\\" On two occasions before September 1996, proposed-termination-of-lease letters were sent to Henley, one on December 7, 1992 and another on May 13, 1996. After she received the May 13, 1996 letter, Henley went to the project office to discuss the incident and the letter.\\nFinally, on September 23, 1996, another proposed-termination-of-lease letter was sent to Henley informing her of the HHA's intent to commence formal eviction proceedings against her for failure to conform her conduct and that of her \\\"guests\\\" to the requirements of her Rental Agreement.\\nThe board's decision and order evicting Henley and her children started the chain of commission and circuit court appeal and af-firmance which led to this appeal.\\nII. Discussion.\\nHenley argues, and the HHA concedes, that the September 23,1996 proposed-termination-of-lease letter contained in the record did not satisfy notice provisions of federal statutes and rules, 42 United States Code (USC) \\u00a7 1437d(k); 24 Code of Federal Regulations (CFR) \\u00a7 966.4(e)(8), 966.4(0(3)\\u00ae, 966.4(Z)(4)(ii) and 966.4(m), or notice provisions of its own administrative rules, Hawaii Administrative Rules (HAR) \\u00a7 17-601-05, 17-502-10 and 17-502-11, governing evictions of federally-assisted public housing tenants, provisions which are embodied in the Rental Agreement and which must be strictly complied with in order to effect an eviction. 42 USC \\u00a7 1437(c) and 1437(d); Waimanalo Vil. Residents' Corp. v. Young, 87 Hawai'i 353, 362-65, 956 P.2d 1285, 1294-97 (App.1998).\\nThe HHA argues that the December 7, 1992 proposed-termination-of-lease letter and the May 13, 1996 proposed-termination-of-lease letter, together with the September 23, 1996 letter, comprised adequate compliance with the governing provisions.\\nBut neither the December 7, 1992 letter nor the May 13, 1996 letter is in the record on appeal, State v. Onishi, 53 Haw. 593, 597, 499 P.2d 657, 660 (1972) (matters not in the record will not be considered by the appeals court), or in the record before the circuit court, HRS \\u00a7 201G-57(f) (circuit court review of HHA's decision \\\"shall be confined to the record\\\"), or in the record before the commission, HAR \\u00a7 17-501-14(d) (commission review of board's decision \\\"shall be based solely on the record\\\"), or in the record before the board.\\nAlso, general descriptions of the previous letters in record documents and testimony are not, upon review, specific or complete enough to show strict compliance. The documents and testimony describing the two previous letters refer only to the grounds for eviction and to Henley's informal grievance discussions with the housing project staff. They do not in any way address the other required notices, such as notice of the right to reply; notice of the right to examine directly relevant documents, records and regulations; and notice of the right to a grievance hearing. 24 CPR \\u00a7 966.4(0(3)\\u00ae; HAR \\u00a7 17-501-05.\\nThe HHA's remaining argument in support of the circuit court's Judgment is that the notice of the eviction hearing and its attachments together contained the notifications required for the proposed-termination-of-lease letter, and thus procedural requirements were satisfied post hoc.\\nThe circuit court accepted this argument and relied upon it as dispositive on the issue of compliance with procedural requirements for eviction.\\nA notice of eviction hearing may not, however, substitute for the required proposed-termination-of-lease letter. Each has its own lawful time and place, and the content and purpose of the one cannot satisfy that of the other. See Staten v. Housing Authority of City of Pittsburgh, 469 P.Supp. 1013, 1015-16 (W.D.Pa.1979) (in order to comply with federal requirements, public housing authority must establish a two notice system, one for grievance procedures, and one for eviction); City of South San Francisco Housing Authority v. Guillory, 41 Cal.App.4th Supp. 13, 49 Cal.Rptr.2d 367, 371 (Super.Ct.1995) (\\\"The standard for eviction in a public housing project which receives federal funding is a matter of federal, not state, law.\\\").\\nThe purpose of the proposed-termination-of-lease letter is to afford the tenant recourse to less formal procedures to contest eviction, such as a one-on-one grievance discussion with the housing project office, HAR \\u00a7 17-502-10, and an informal grievance hearing. HAR \\u00a7 17-502-11 et seq.\\nInasmuch as these informal pre-eviction proceedings promote settlement of agency-tenant disputes, Samuels v. District of Columbia, 770 F.2d 184,189 (D.C.Cir.1985) (administrative hearings \\\"avoid costly and divisive public housing litigation by channeling tenant-management disputes into a decentralized, informal, and relatively non-adversarial administrative process\\\"), and promote tenant assertion of rights, Housing Authority of City of Jersey City v. Jackson, 749 F.Supp. 622, 624 (D.N.J.1990), it would defeat their salutary effects to hold that notice to the tenant regarding their availability can await the institution of formal eviction proceedings.\\nIII. Conclusion.\\nSince the HHA did not comply with eviction procedures required by law, we reverse the October 20, 1998 Judgment of the circuit court and direct the circuit court to vacate the January 28, 1998 and July 24,1997 Findings of Fact, Conclusions of Law, Decision and Order of the commission and the board, respectively.\"}"

haw/12263528.json

@@ -0,0 +1 @@
+"{\"id\": \"12263528\", \"name\": \"Linda GUMP, Respondent-Plaintiff-Appellee, v. WAL-MART STORES, INC., a Delaware corporation, Petitioner-Defendant-Appellant, and KBRL, Inc., a Hawaii corporation, John Does 1-10, Jane Does 1-10, Doe Corporations, Partnerships, Governmental Units or Other Entities 1-20, Defendants\", \"name_abbreviation\": \"Gump v. Wal-Mart Stores, Inc.\", \"decision_date\": \"2000-07-27\", \"docket_number\": \"No. 21670\", \"first_page\": \"417\", \"last_page\": \"424\", \"citations\": \"93 Haw. 417\", \"volume\": \"93\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T17:31:31.288749+00:00\", \"provenance\": \"CAP\", \"judges\": \"MOON, C.J., LEVINSON, NAKAYAMA, RAMIL, JJ., and Circuit Judge WONG , Assigned by Reason of Vacancy.\", \"parties\": \"Linda GUMP, Respondent-Plaintiff-Appellee, v. WAL-MART STORES, INC., a Delaware corporation, Petitioner-Defendant-Appellant, and KBRL, Inc., a Hawaii corporation, John Does 1-10, Jane Does 1-10, Doe Corporations, Partnerships, Governmental Units or Other Entities 1-20, Defendants.\", \"head_matter\": \"5 P.3d 407\\nLinda GUMP, Respondent-Plaintiff-Appellee, v. WAL-MART STORES, INC., a Delaware corporation, Petitioner-Defendant-Appellant, and KBRL, Inc., a Hawaii corporation, John Does 1-10, Jane Does 1-10, Doe Corporations, Partnerships, Governmental Units or Other Entities 1-20, Defendants.\\nNo. 21670.\\nSupreme Court of Hawai'i.\\nJuly 27, 2000.\\nJohn R. Lacy, Margaret Jenkins Leong, Normand Lezy, and Mavis M. Masaki, of Goodsill Anderson Quinn & Stifel, on the briefs, Honolulu, for petitioner-appellant.\\nRobert D.S. Kim, on the briefs, for respondent-appellee.\\nFrancis Nakamoto and Steven L. Goto of Ayabe, Chong, Nishimoto Sia & Nakamura, on the briefs, Honolulu, for Amicus Curiae Hawaii Restaurant Association.\\nGeorge W. Brandt and Bradford F.K. Bliss of Lyons, Brandt, Cook & Hiramatsu, on the briefs, Honolulu, for Amicus Curiae Hawaii Insurers Council.\\nJay M. Fidell and Scott I. Batterman of Bendet, Fidell, Sakai & Lee, on the briefs, Honolulu, for Amicus Curiae Building Owners and Managers Association and Institute of Real Estate Management.\\nMOON, C.J., LEVINSON, NAKAYAMA, RAMIL, JJ., and Circuit Judge WONG , Assigned by Reason of Vacancy.\\nActing Associate Justice Wong, was assigned by reason of the vacancy created by the resignation of Justice Klein, effective February 4, 2000. On May 19, 2000, Simeon R. Acoba, Jr. was sworn-in as associate justice of the Hawai'i Supreme Court. However, Acting Associate Justice Wong remains on the above-captioned case, unless otherwise excused or disqualified.\", \"word_count\": \"4086\", \"char_count\": \"25099\", \"text\": \"Opinion of the Court by\\nNAKAYAMA, J.\\nPetitioner-appellant Wal-Mart Stores, Inc. (Wal-Mart) has applied to this court for a writ of certiorari to review the opinion of the Intermediate Court of Appeals (ICA) in Gump v. Wal-Mart Stores, Inc., 93 Hawai'i 428, 5 P.3d 418 (App.1999) [hereinafter, the \\\"ICA's opinion\\\"], affirming the trial court's judgment in favor of the plaintiff and various orders of the trial court. Wal-Mart argues that the ICA erred in affirming the judgment and orders because: 1) the ICA should not have adopted the \\\"mode of. operation\\\" rule; 2) the ICA misapplied the rule by omitting certain requirements; 3) Gump did not prove that Wal-Mart failed to exercise reasonable care; 4) the settlement paid by Defendant KBRL, Inc. [hereinafter \\\"McDonald's\\\"] to Gump should have been set off against the amount of the jury's verdict; and 5) the trial court should have included McDonald's on the special verdict form. We hold that the ICA did not err in adopting the mode of operation rule. However, its application is limited to the circumstances of this case, wherein a commercial establishment, because of its mode of operation, has knowingly allowed the consumption of ready-to-eat food within its general shopping area. We further hold, as a matter of law, that the Me- Donald's settlement should have been set off against the amount of the jury's verdict against Wal-Mart. Therefore, we reverse the ICA's opinion insofar as it affirmed the amount of damages entered against Wal-Mart and affirm the opinion, as modified by our analysis, in all other respects.\\nI. BACKGROUND\\nA. Factual and procedural background\\nThis case arose out of an incident in which Gump slipped on a french fry outside the McDonald's restaurant but inside the premises of Wal-Mart and sustained injuries. The restaurant is located inside the Kailua-Kona Wal-Mart. The factual and procedural background is described in the ICA's opinion. We repeat only the facts relevant to the issues discussed herein.\\nOn October 2, 1997, Wal-Mart filed a motion for summary judgment arguing, inter alia, that it was entitled to summary judgment on the negligence claim because it did not have notice of the fallen french fry. The trial court denied the motion.\\nPrior to trial, Gump reached a settlement with McDonald's, pursuant to which Gump released McDonald's in exchange for $5,000. Upon Gump's motion in liminie regarding the dismissal of McDonald's, the trial court ruled that the issue of McDonald's liability would not be raised before the jury and that McDonald's would not be included on the special verdict form. In its opposition to the motion, Wal-Mart also argued that, if the jury awarded damages to Gump, Wal-Mart was entitled to a set off in the amount of Gump's settlement with McDonald's. The trial court stated that it would not apply a set off because Wal-Mart had not filed a cross-claim against McDonald's.\\nThe evidence adduced at trial established that McDonald's maintained a sign inside the restaurant that read, \\\"Patrons, please do not leave these premises with food.\\\" However, Wal-Mart employees generally did not approach customers who took McDonald's food into the store unless they saw the customers \\\"do something that would be hazardous.... \\\" According to Bryan Wall, who was the store manager at the time of the incident, Wal-Mart had one or two employees patrolling the store at any given time and looking for spills or other hazards. Wall also testified that all employees were trained to constantly look for potential hazards and that the store called periodic \\\"zone defenses\\\" during the day. When a zone defense was called, employees stopped what they were doing to pick up debris on the floor and clean up any spills. However, Wall was unable to specify how often the zone defenses occurred or whether or when one had been implemented prior to Gump's fall.\\nThe jury awarded Gump $20,000 in general damages and $6,500 in special damages and apportioned liability 95% to Wal-Mart and 5% to Gump. On April 23, 1998, the trial court entered final judgment in favor of Gump, ordering Wal-Mart to pay $25,175 in damages. Wal-Mart subsequently moved for a judgment notwithstanding the verdict (JNOV), arguing that there was no evidence that it had notice of the fallen french fry or that it had breached any of its maintenance procedures. In the alternative, Wal-Mart requested a new trial in which McDonald's could be included on the special verdict form. The trial court denied the motion. Wal-Mart timely appealed.\\nB. The ICA's opinion\\nOn appeal, Wal-Mart argued that the trial court erred in: 1) denying Wal-Mart's motion for summary judgment as to the negligence claim; 2) dismissing McDonald's, excluding evidence regarding McDonald's liability, omitting McDonald's from the special verdict form, and refusing to set off the McDonald's settlement against the amount of the jury's verdict; 3) allowing Gump to introduce evidence of prior accidents; 4) sanctioning Wal-Mart under Rule 26 of the Hawaii Arbitration Rules; 5) sanctioning Wal-Mart for settlement conference violations; and 6) denying Wal-Mart's motion for JNOV or a new trial. The ICA affirmed the trial court on all points. In its application for certiorari, Wal-Mart does not contest issues 3, 4, and 5.\\nIn affirming the trial court's denial of Wal-Mart's motion for summary judgment as to the negligence claim, the ICA adopted the mode of operation rule and held that the rule relieved Gump of her burden to prove that Wal-Mart had notice of the french fry. The ICA also held that the trial court properly dismissed McDonald's from the case and excluded evidence of McDonald's liability because Wal-Mart had not asserted a cross-claim for contribution against McDonald's. In addition, the ICA held that the trial court did not abuse its discretion in refusing to include McDonald's, a non-party, on the special verdict form. The ICA also affirmed the trial court's denial of Wal-Mart's motion for JNOV or, in the alternative, a new trial.\\nWal-Mart filed a timely application for certiorari on December 17,1999. Wal-Mart argues that the ICA erred in affirming the judgment against Wal-Mart where there was no proof of actual or constructive notice and no proof that Wal-Mart failed to exercise reasonable care. Wal-Mart also argues that the ICA erred in affirming the award of damages where Wal-Mart was denied the opportunity to establish McDonald's liability and/or the trial court refused to set off the McDonald's settlement against the amount of the jury's verdict against it.\\nII. STANDARD OF REVIEW\\nThe adoption of the mode of operation rule and establishment of the requirements of the rule are questions of law. Questions of law are reviewed de novo under the right/wrong standard. Roes v. FHP, Inc., 91 Hawai'i 470, 473, 985 P.2d 661, 664 (1999). The trial court's findings of fact are reviewed under the clearly erroneous standard and its conclusions of law are reviewed under the right/wrong standard. Brown v. Thompson, 91 Hawai'i 1, 8, 979 P.2d 586, 593 (1999).\\n[Hawai'i Rules of Civil Procedure (HRCP)] Rule 41(a)(2) provides in pertinent part that \\\"[e]xcept [by stipulation], an action shall not be dismissed at the plaintiffs instance save upon order of the court and upon such terms and conditions as the court deems proper.\\\" HRCP Rule 41(a)(2) (emphasis added). A court's imposition of such terms and conditions would be reviewable for an abuse of discretion. Sapp v. Wong, 3 Haw.App. 509, 512, 654 P.2d 883, 885 (1982).\\nMoniz v. Freitas, 79 Hawai'i 495, 500, 904 P.2d 509, 514 (1995) (some alterations in original). Whether Wal-Mart was entitled to set off the McDonald's settlement under the Uniform Contribution Among Tortfeasors Act (UCATA), HRS \\u00a7 663-11 to 663-17 (1993 & Supp.1999), is a question of statutory interpretation. Questions of statutory interpretation are questions of law reviewed de novo. Robert's Hawaii Sch. Bus, Inc. v. Laupahoehoe Transp. Co., Inc., 91 Hawai'i 224, 239, 982 P.2d 853, 868 (1999).\\nIII. DISCUSSION\\nA. The ICA did not err in adopting the mode of operation rule and in applying it to the present case.\\nIn affirming the trial court's denial of Wal-Mart's motion for summary judgment, the ICA adopted the mode of operation rule, which it summarized as follows:\\nwhere a plaintiff is able to demonstrate that the business proprietor adopted a marketing method or mode of operation in which a dangerous condition is reasonably foreseeable and the proprietor fails to take reasonable action to discover and remove the dangerous condition, the injured party may recover without showing actual notice or constructive knowledge of the specific instrumentality of the accident.\\nICA's opinion at 441-442, 5 P.3d at 431-432 (citing Jackson v. K-Mart, 251 Kan. 700, 840 P.2d 463, 468 (1992)). Where the dangerous condition arises through means other than those reasonably anticipated from the mode of operation, the traditional burden of proving notice remains with the plaintiff. Id. (citing Jackson, 840 P.2d at 470). Because the commercial establishment should be aware of the potentially hazardous conditions that arise from its mode of operation, an injured plaintiff need not prove that the defendant had actual notice of the specific instrumentality causing his or her injury. Notice is imputed from the establishment's mode of operation.\\nWe agree with the ICA that the mode of operation rule is a logical extension of the traditional rule of premises liability that we announced in Corbett v. AOAO of Wailua Bayview Apartments, 70 Haw. 415, 772 P.2d 693 (1989). In Corbett, we stated that,\\nif a condition exists upon the land which poses an unreasonable risk of harm to persons using the land, then the possessor of the land, if the possessor knows, or should have known of the unreasonable risk, owes a duty to the persons using the land to take reasonable steps to eliminate the unreasonable risk, or adequately to warn the users against it.\\nId. at 417, 772 P.2d at 695. As the ICA noted, having knowingly allowed patrons to carry McDonald's food items throughout the store, realizing that some items will foresee-ably be dropped, Wal-Mart had constructive notice that fallen McDonald's food could create a potential safety hazard. Therefore, an injured plaintiff should not be required to prove that Wal-Mart had actual notice of the specific instrumentality that caused his or her injury. The mode of operation rule is also consistent with the exception to the notice requirement where the dangerous condition is traceable to the defendant or its agents. ICA's opinion at 443, 5 P.3d at 433 (citing Jackson, 840 P.2d at 466-67).\\nAlthough we agree with the adoption of the mode of operation rule, we clarify the ICA's opinion by holding that the application of the rule is limited to circumstances such as those of this case. Wal-Mart chooses, as a marketing strategy, to lease store space to McDonald's in order to attract more customers and encourage them to remain in the store longer. Wal-Mart also chooses, for the most part, not to prevent patrons from carrying their McDonald's food into the Wal-Mart shopping area. This mode of operation gave rise to the hazard that caused Gump's injury. Under the mode of operation rule, Gump was not required to prove that Wal-Mart had actual notice of the specific instrumentality that caused her injury. The ICA correctly affirmed the trial court's denial of Wal-Mart's motion for summary judgment on the negligence claim.\\nWal-Mart also argues that, even if the mode of operation rule is the law in Hawai'i, the ICA erred in affirming Wal-Mart's liability under the rule because it was not supported by the evidence adduced at trial. We disagree. Fallen food is a continuous and foreseeable risk inherent in Wal-Mart's mode of operation. Further, Wal-Mart failed to take reasonable precautions to prevent the risks inherent therein. The evidence adduced at trial established that Wal-Mart had not enforced McDonald's practice of requiring that patrons not remove McDonald's food items from the restaurant. In addition, although Wall described the \\\"zone defense\\\" method employed by Wal-Mart, he could not state how often zone defenses were called or whether one had been called before Gump's fall. The ICA did not err in affirming the final judgment and the order denying the motion for JNOV or a new trial.\\nB. The ICA did not err in affirming the dismissal of McDonald's, the exclusion of evidence regarding McDonald's liability, and the omission of McDonald's from the special verdict form, but erred in affirming the amount of the damages assessed against Wal-Mart.\\nThe ICA held that the trial court did not err in dismissing McDonald's from the ease and in excluding evidence regarding McDonald's liability. The ICA also held that the trial court did not abuse its discretion in refusing to include McDonald's on the special verdict form. The ICA further held that Wal-Mart was not entitled to contribution from McDonald's, but it did not address whether Wal-Mart was entitled to a set off in the amount of McDonald's settlement with Gump. In its application for certiorari, Wal-Mart argues that McDonald's proportionate liability should have been litigated and that Wal-Mart was entitled to a set off.\\n1. Litigation of McDonald's liability\\nWal-Mart argues that the ICA erred in holding that a cross-claim for contribution is a condition precedent to the apportionment of fault between a settling joint tortfeasor and a remaining joint tortfeasor. This is a misstatement of the ICA's holding. The ICA noted that if Wal-Mart had filed a cross-claim against McDonald's, the trial court could not have dismissed McDonald's from the case and the proportionate liability of the two defendants could have been determined at trial. ICA's opinion at 445, 5 P.3d at 435. However, the ICA agreed with Wal-Mart that non-parties may be included on a special verdict form. Id. at 446, 5 P.3d at 436 (citing Kaiu v. Raymark Industries, Inc., 960 F.2d 806 (9th Cir.1992); Wheelock v. Sport Kites, Inc., 839 F.Supp. 730 (D.Haw.1993)). The ICA's holding that the failure to file a cross-claim supported the trial court's exercise of discretion in omitting McDonald's from the special verdict form did not amount to a requirement that a cross-claim be filed.\\nThe UCATA defines \\\"joint tortfeasors\\\" as \\\"two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.\\\" HRS \\u00a7 663-11 (1993). Joint tortfeasors \\\"are jointly and severally liable for the injury they caused to an injured party . and the injured party is entitled to collect his or her entire damages from either tortfeasor.\\\" Karasawa v. TIG Ins. Co., 88 Hawai'i 77, 81, 961 P.2d 1171, 1175 (App.1998). HRS \\u00a7 663-12 provides that:\\nThe right of contribution exists among joint tortfeasors.\\nA joint tortfeasor is not entitled to a money judgment for contribution until the joint tortfeasor has by payment discharged the common liability or has paid more than the joint tortfeasor's pro rata share thereof.\\nWhen there is such a disproportion of fault among joint tortfeasors as to render inequitable an equal distribution among them of the common liability by contribution, the relative degrees of fault of the joint tortfeasors shall be considered in determining their pro rata shares, subject to section 663-17.\\nHRS \\u00a7 663-17(c) (1993) provides: \\\"As among joint tortfeasors who in a single action are adjudged to be such, the last paragraph of section 663-12 applies only if the issue of proportionate fault is litigated between them by pleading in that action.\\\"\\nIn the present case, Gump fell and sustained injuries after she slipped on a McDonald's french fry that was on the floor of the Wal-Mart store. Thus, Wal-Mart, the party in control of the premises where the incident occurred, and McDonald's, the party that made and sold the french fry, are joint tortfeasors under HRS \\u00a7 663-11. Wal-Mart did not file a cross-claim against McDonald's. The ICA correctly held that, based on HRS \\u00a7 663-12 and 663-17(c), because Wal-Mart did not file a cross-claim against McDonald's, Wal-Mart did not have a right of contribution from McDonald's, and the trial court properly acted within its discretion in dismissing McDonald's from the case.\\nThe ICA also correctly held that, under appropriate circumstances that did not exist in the present case, non-parties may be included on a special verdict form. Non-parties may be considered joint tortfeasors under the UCATA and, in the trial court's sound discretion, may be included on a special verdict form. \\\"A party is liable within the meaning of section 663-11 if the injured person could have recovered damages in a direct action against that party, had the injured person chosen to pursue such an action.\\\" Velazquez v. National Presto Indus., 884 F.2d 492, 495 (9th Cir.1989) (citing Petersen v. City & County of Honolulu, 51 Haw. 484, 485-86, 462 P.2d 1007, 1008 (1969), as amended, (1970); Tamashiro v. De Gama, 51 Haw. 74, 75, 450 P.2d 998, 1000 n. 3 (1969) (discussing predecessor to section 663-11)).\\nHowever, the circumstances of the present case are distinguishable from those of Kaiu and Wheelock, cited by Wal-Mart, in which non-parties were included on the special verdict forms. In Kaiu, the included non-party was not made a party to the action because of a bankruptcy stay that was effective throughout the course of proceedings. 960 F.2d at 819 n. 7. In Wheelock, the federal district court dismissed a defendant, Sport Kites, Inc., in order to preserve diversity jurisdiction but concluded that Sport Kites could still be included on the special verdict form. 839 F.Supp. at 734. There is further authoritative support for the inclusion of non-parties on special verdict forms. In Nobriga v. Raybestos-Manhattan, Inc., 67 Haw. 157, 683 P.2d 389 (1984), the plaintiffs settled with twenty-two of the twenty-four defendants, but all twenty-four were included on the special verdict form. However, this was apparently done pursuant to the terms of the release. Id. at 160, 683 P.2d at 391.\\nWe agree with the ICA that the trial court did not abuse its discretion in omitting McDonald's from the special verdict form. Wal-Mart chose not to file a cross-claim against McDonald's. While there are tactical reasons to choose not to file a cross-claim, one of the risks that accompanies such a decision is the risk that McDonald's would settle, which could prevent Wal-Mart from establishing the pro rata share of fault between the two. Based upon the circumstances of Gump's settlement with McDonald's, which were distinguishable from those of the cases cited supra, the trial court acted within its discretion in omitting McDonald's from the special verdict form and preventing Wal-Mart from litigating McDonald's fault because Wal-Mart had not filed a cross-claim.\\n2. Set off of the McDonald's settlement\\nIn its application for certiorari, Wal-Mart argues that it was entitled to set off the amount of Gump's settlement with McDonald's against the amount of the jury's verdict against it under the well established principle that a plaintiff is only entitled to one recovery. See American Broadcasting Co. v. Kenai Air of Hawaii, Inc., 67 Haw. 219, 231, 686 P.2d 1, 8 (1984); Mitchell v. Branch, 45 Haw. 128, 141, 363 P.2d 969, 978 (1961). Wal-Mart also contends that because McDonald's was a joint tortfeasor, under HRS \\u00a7 663-14 (1993), McDonald's release should have decreased Gump's claim against Wal-Mart. We agree.\\nThe right of contribution is separate and distinct fi'om the right to set off. Compare HRS \\u00a7 663-14 (Release; effect on injured person's claim) with HRS \\u00a7 663-15 (1993) (Release; effect on right of contribution). Further, we have previously stated:\\nIn a joint tortfeasor action the most desirable procedure is for all alleged tort-feasors to be joined in one action. As we have said: \\\"This would ensure that a plaintiff will recover his full damages, neither more nor less....\\\" Loui v. Oakley, 50 Haw. 260, 265, 438 P.2d 393 (1968). In Rodrigues v. State, 52 Haw. 156, 472 P.2d 509 (1970), we noted that \\\"[t]he general rule in measuring damages is 'to give a sum of money to the person wronged which as nearly as possible, will restore him to the position he would be in if the wrong had not been committed.'\\\" 52 Haw. at 167, 472 P.2d 509. Thus, in following that principle, the Intermediate Court of Appeals in Beerman v. Toro Manufacturing Corp., 1 Haw.App. 111, 615 P.2d 749 (1980), adopted the position that a party was entitled to only one satisfaction of a judgment. We think that there should be only one recovery for compensatory damages except where statutes otherwise provide.\\nNobriga, 67 Haw. at 162-63, 683 P.2d at 393 (emphasis added).\\nIn the present case, Gump is entitled to only one recovery for compensatory damages, unless the applicable statute provides otherwise. Under HRS \\u00a7 663-14, the release of one joint tortfeasor \\\"reduces the claim against the other tortfeasors in the amount of the consideration paid.\\\" Therefore, Gump's release of McDonald's in exchange for $5,000 reduced her claim against Wal-Mart by that amount by operation of law. If the jury determined that her damages were $26,500 and that she was responsible for $1,325.00, Wal-Mart should not have been obligated to pay more than $20,175. This limitation of Gump's recovery is independent of whether Wal-Mart filed a cross-claim for contribution against McDonald's. Therefore, the ICA erred in affirming the trial court's April 23, 1998 judgment that stated that Wal-Mart was liable to Gump in the amount of $25,175.00.\\nIV. CONCLUSION\\nBased on the foregoing, we reverse the ICA's opinion insofar as it affirmed the amount of damages entered against Wal-Mart. We remand the case to the trial court for entry of judgment consistent with this opinion. We affirm the ICA's opinion, as modified by our analysis, in all other respects.\\n. The Hawaii Restaurant Association and the Hawaii Insurers Council (HIC) filed briefs of amicus curiae on January 18 and 19, 2000, respectively. The Building Owners and Managers Association (BOMA) and the Institute of Real Estate Management filed a joint amicus brief on March 28, 2000. All argue that the ICA erred in adopting the mode of operation rule. HIC and BOMA also argue that cross-claims should not be required in order to litigate the liability of settling parties.\\n. HRS \\u00a7 663-14 provides:\\nA release by the injured person of joint tortfea-sors or one joint tortfeasor, whether before or after judgment, shall not discharge the other tortfeasors unless the releases or release so provide; but reduces the claim against the other tortfeasors in the amount of the consideration paid for the releases or release, or in any amount or proportion by which the releases or release provide that the total claim shall be reduced, if greater than the consideration paid.\\n. HRS \\u00a7 663-15 provides:\\nA release by the injured person of one joint tortfeasor does not relieve the joint tortfeasor from liability to make contribution to another joint tortfeasor unless the release is given before the right of the other tortfeasors to secure a money judgment for contribution has accrued, and provides for a reduction, to the extent of the pro rata share of the released tortfeasors, of the injured person's damages recoverable against all the other tortfeasors.\\n. We note that the ICA's opinion mistakenly states that the judgment was dated September 19, 1997.\"}"

haw/12263563.json

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+"{\"id\": \"12263563\", \"name\": \"Perkin v. Administrative Director of Courts\", \"name_abbreviation\": \"Perkin v. Administrative Director of Courts\", \"decision_date\": \"1997-04-04\", \"docket_number\": \"18465\", \"first_page\": \"114\", \"last_page\": \"114\", \"citations\": \"85 Haw. 114\", \"volume\": \"85\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T19:23:58.665332+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Perkin v. Administrative Director of Courts\", \"head_matter\": \"Perkin v. Administrative Director of Courts\\n18465\\n4/4/97\", \"word_count\": \"9\", \"char_count\": \"66\", \"text\": \"Reversed\"}"

haw/12263684.json

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+"{\"id\": \"12263684\", \"name\": \"STATE of Hawai'i, Petitioner-Appellant, v. Barry SCOTT, Respondent-Appellee\", \"name_abbreviation\": \"State v. Scott\", \"decision_date\": \"1998-01-08\", \"docket_number\": \"No. 18170\", \"first_page\": \"80\", \"last_page\": \"85\", \"citations\": \"87 Haw. 80\", \"volume\": \"87\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T22:48:04.965136+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.\", \"parties\": \"STATE of Hawai'i, Petitioner-Appellant, v. Barry SCOTT, Respondent-Appellee\", \"head_matter\": \"951 P.2d 1243\\nSTATE of Hawai'i, Petitioner-Appellant, v. Barry SCOTT, Respondent-Appellee\\nNo. 18170.\\nSupreme Court of Hawai'i.\\nJan. 8, 1998.\\nJames M. Anderson, Deputy Attorney General, on the brief, for petitioner-appellant.\\nBefore MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.\", \"word_count\": \"3403\", \"char_count\": \"20460\", \"text\": \"KLEIN, Justice.\\nWe granted Petitioner-Appellant State of Hawaii's (the prosecution) petition for a writ of certiorari to review the decision of the Intermediate Court of Appeals (ICA) in State v. Scott, No. 18170, slip. op. (App. Apr. 30, 1997). In Scott, the prosecution appealed the circuit court's June 9, 1994 Findings of Fact, Conclusions of Law and Order Granting Defendant Barry Scott's Motion to Quash Search Warrant and Suppress Evidence (the June 9,1994 Order). The ICA affirmed the June 9, 1994 Order, holding, inter alia, that an anticipatory search warrant (ASW) is constitutionally permissible if the warrant:\\n(1) is issued by an authorized judge based on probable cause supported by oath or affirmation; (2) is based on a clear showing, supported by oath or affirmation, of-law enforcement's need to have the ASW issued before the occurrence of the event that will generate the probable cause; (3) particularly describes the place to be searched and the things to be seized; (4) authorizes a search only upon the occurrence of the event generating the probable cause; (5) authorizes a search only within the probable life of the probable cause; and (6) is executed before the probable cause in fact expires.\\nId., slip. op. at 1-2, 13-14. Applying this newly formulated test to the facts of the Scott case, the ICA concluded that \\\"the ASW partially failed to satisfy requirement (1) and completely failed to satisfy requirements (4) and (5).\\\" Id. slip. op. at 2.\\nWithout addressing the constitutionality of an ASW, for the reasons set forth below, we hold that they are impermissible under Hawaii Revised Statutes (HRS) \\u00a7 803-31 (1993) and Hawai'i Rules of Penal Proce-' dure (HRPP) Rule 41(a). Accordingly, we affirm the circuit court's June 9, 1994 Order, albeit for different reasons. We also, pursuant to Rule 2(a) of the Rules of the Intermediate Court of Appeals, direct that an order depublishing the ICA's opinion be filed concurrently with this opinion.\\nI. RELEVANT FACTS\\nOn December 8, 1992, Honolulu Police Department Officer Linda D'Aquila, while working on a narcotics detail at the Honolulu International Airport, intercepted a Federal Express package addressed to Scott. Following an alert on the package by a narcotie-detecting dog, Officer D'Aquila obtained a warrant to search the package. A field test conducted by the police disclosed that the package contained 17.9 grams of crystal methamphetamine. Based on her belief that probable cause of criminal activity would exist after delivery of the parcel, Officer D'Aquila sought a warrant to search Scott's residence. In the facts and circumstances attached to and incorporated in her affidavit in support of the search warrant, Officer D'Aquila averred:\\nThat a controlled delivery of said parcel is planned to take place on 12-09-92 at 545B Keolu Drive. I will pose as a Federal Express delivery-person and will personally deliver said parcel to the above address.\\nThat after said parcel is accepted at the address, the search warrant will be served after a reasonable amount of time has elapsed.\\nThe district court approved the application for a warrant to search Scott's home between 7:00 a.m. and 10:00 p.m. for the parcel, cocaine and other illegal drugs, drug paraphernalia, records of drug transactions, articles of personal property establishing identity, and currency that might be commingled with narcotics. The warrant was valid for ten days from the date of its issuance.\\nOn December 9, 1992, at approximately 11:20 a.m., Officer D'Aquila posed as a Federal Express delivery-person and delivered the parcel to Scott's residence. About ten minutes after handing the parcel to Scott, Officer D'Aquila returned pretending to need a receipt for. the parcel. When Scott opened the door, Officer D'Aquila greeted him with a search warrant and proceeded, with the assistance of several officers, to search Scott's home. The officers found the opened pack age on the bed and a handwritten note on a white envelope that read: \\\"Please leave Fed Express for B. Scott at door. Thanks.\\\" They also found a dirty, yellow baggy in the bedroom closet.\\nOn August 10, 1993, the prosecution charged Scott with second degree promotion of a dangerous drug, in violation of HRS \\u00a7 712-1241(l)(b) (1993). On February 16, 1994, Scott filed a motion to quash search warrant and suppress all items \\\"seized either on December 8,1992 at the airport, or during the same December 9, 1992 search of the residence.\\\" Scott argued that Officer D'Aquila's affidavit did not give the court sufficient probable cause to issue the warrant. The circuit court agreed, and issued its June 9, 1994 Order quashing the search warrant and suppressing evidence. The State timely filed its appeal, challenging the following findings of fact and conclusions of law:\\nFINDINGS OF FACT\\n5. None of the facts contained in the affidavit provided any grounds to believe that any of the requested items, other than the parcel, were present in Mr. Scott's home.\\n6. Therefore, no factual basis or probable cause supported the issuance of a search warrant and authorization to seize such items.\\n7. The police themselves knowingly introduced contraband into the residence. Sustaining this warrant would risk the use of search warrants as a subterfuge for searches exceeding any factual basis in the affidavits supporting the warrants.\\nCONCLUSIONS OF LAW\\n9. At the time Officer D'Aquila applied for a search warrant, police knew only that the parcel was addressed to Mr. Scott at his home residence. Police lacked any facts concerning Mr. Scott's involvement in criminal activity or any facts indicating the presence of any other contraband on the premises.\\n10. The affidavit indicates that the warrant would be executed within \\\"a reasonable amount of time.\\\" The resulting warrant permitted the search to be conducted between 7:00 a.m. and 10:00 p.m., within ten days from the date of its issuance.\\n11. Although the judicial authorization to search Mr. Scott's residence anticipated the parcel being on the premises, nothing in the affidavit supports the conclusion that, once delivered, the parcel would still be located on the premises at the time the warrant eventually would be executed.\\n12. Insufficient facts supported probable cause to issue the search warrant in this case.\\nII. THE ICA'S DECISION\\nAfter balancing' an individual's constitutional right against \\\"unreasonable government intrusions\\\" and the government's duty to \\\"ensure that the health, safety, and welfare of Hawaii's citizens are protected against the infiltration into our society of contraband drugs,\\\" Scott, slip. op. at 10-11, the ICA concluded that ASWs were constitutionally permissible so long as the Warrant:\\n(1) is issued by an authorized judge based on probable cause supported by oath or affirmation; (2) is based on a clear showing, supported by oath or affirmation, of law enforcement's need to have the ASW issued before the occurrence of the event that will generate the probable cause; (3) particularly describes the place to be searched and the things to be seized; (4) authorizes a search only upon the occurrence of the event generating the probable cause; (5) authorizes a search only within the probable life of the probable cause; and (6) is executed before the probable cause in fact expires.\\nId., slip. op. at 13-14.\\nIn response to Scott's argument that Ha-wai'i law requires a showing of present probable cause, the ICA held that:\\n[A]s a general proposition the facts put forward to justify issuance of an anticipatory warrant are more likely to establish that probable cause will exist at the time of the search than the typical warrant based solely upon the known prior location of the items to be seized at the place to be searched. As pointed out in People v. Glen:\\nAt best, present possession is only probative of the likelihood of future possession. In cases [involving anticipatory warrants] the certainty of future possession is greater or is often greater than that based on information of past and presumably current possession.\\nId. slip. op. at 12-13 (quoting 2 W. La Fave, supra note 1, at 366 (quoting People v. Glen, 30 N.Y.2d 252, 331 N.Y.S.2d 656, 660, 282 N.E.2d 614, 617, amended sub nom People v. Baker, 30 N.Y.2d 754, 333 N.Y.S.2d 179, 284 N.E.2d 161, cert. denied, 409 U.S. 849, 93 S.Ct. 58, 34 L.Ed.2d 91 (1972)). According to the ICA \\\"as long as the evidence creates substantial probability that the seizable property will be on the premises when searched,\\\" Glen, 331 N.Y.S.2d at 660, 282 N.E.2d at 617, and the \\\"evidence . is on a sure course to its destination, as in the mail,\\\" United States v. Hale, 784 F.2d 1465, 1468 (9th Cir.), cert. denied, 479 U.S. 829, 107 S.Ct. 110, 93 L.Ed.2d 59 (1986) (citation omitted), present probable cause is not required to issue an ASW. Scott, slip. op. at 13.\\nHowever, the ICA invalidated the warrant in Scott because \\\"the ASW partially failed to satisfy requirement (1) and completely failed to satisfy requirements (4) and (5).\\\" Scott, slip. op. at 2.\\nIn the ICA's opinion, that portion of the warrant authorizing the police officers to search for items other than the parcel containing the contraband drugs violated requirement (1) of the test. Id., slip. op. at 17. The ICA reasoned that Officer D'Aquila's supporting affidavit \\\"presented no facts to support a reasonable inference that: (a) any of the items listed in the Warrant, other than the parcel, would be located at Scott's home; (b) Scott used or sold any drugs/contraband; or (c) Scott was involved in any type of criminal behavior.\\\" Id.\\nThe ICA also believed that the warrant failed to satisfy requirement (4) because, \\\"[n]otwithstanding Officer D'Aquila's aver-ments in the affidavit that the search would not be conducted until after delivery of the Federal Express parcel, the Warrant failed to condition its execution upon actual delivery of the parcel.\\\" Id. at 18. In other words, the warrant was invalid because the conditions precedent to its execution were not stated on the face of the warrant.\\nFinally, the ICA held that the warrant did not satisfy requirement (5), which requires that the warrant authorize a search only within the probable life of the probable cause. Id. at 21. The ICA was troubled by the ten-day life of the warrant. It felt that \\\"[ajbsent additional facts tending to show otherwise, a one-shot type of crime, such as a single instance of possession or sale of some form of contraband, will support a finding of probable cause only for a few days at best.\\\" Id. at 20 (citing 2 W. La Fave, supra note 1, \\u00a7 3.7(a), at 342) (footnote omitted). Therefore, \\\"[i]f the object of the search ordered by the ASW is limited to contraband which is expected to be delivered to a specific location, the warrant must limit the time it allows for execution of the warrant, depending on the situation, to a period less than the maximum ten days permitted under HRPP Rule 41.\\\" Id. at 21. In the instant case, \\\"[sjinee the probable life of the probable cause was less than ten days, the ten-day Warrant was not supported by probable cause when it was issued.\\\" Id.\\nOn May 20, 1997, the prosecution applied for a writ of certiorari seeking review of the ICA's opinion, which we granted on May 30, 1997.\\nIII. DISCUSSION\\nIn response to Scott's argument, which he raised at the motion to suppress evidence, that an ASW is impermissible under our current statutory provisions, the ICA cited professor La Fave's treatise for the proposition that the lack of present probable cause does not cause an ASW to be per se unconstitutional. Scott, slip. op. at 12-13. Whether we agree with that proposition or not, the issue presented on appeal was whether an ASW is permissible under our statute and rules of penal procedure. Accordingly, the validity of such a warrant must still be scrutinized in light of HRS \\u00a7 803-31 and HRPP Rule 41(a), which the ICA failed to do in this case.\\n\\\"It is a cardinal rule of statutory interpretation that, where the terms of a statute are plain, unambiguous and explicit, we are not at liberty to look beyond that language for a different meaning. Instead, our sole duty is to give effect to the statute's plain and obvious meaning.\\\" Ross v. Stouffer Hotel Co., 76 Hawai'i 454, 461, 879 P.2d 1037, 1044-45 (1994) (citations omitted). Moreover, \\\"[i]n interpreting a statute, we give the operative words their common meaning, unless there is something in .the statute requiring a different interpretation.\\\" Id.\\nGiven these guiding principles, we hold that the plain and unambiguous language of HRS \\u00a7 803-31 does not permit the issuance of an ASW. The plain language of the statute defines a search warrant as an order or writing commanding an officer to search for articles supposed to be in the possession of the person whose premises are to be searched. See supra note '2. Here, the parcel containing the contraband drugs was (1) in the possession of the police officers at the time the search warrant was issued and (2) not with the person whose premises are to be searched. The expectation that the parcel would be at the premises at'the time of the future search is insufficient under the plain wording of the statute.\\nIn addition to the plain and unambiguous language of HRS \\u00a7 803-31, we also look to HRPP Rule 41. Under HRPP Rule 41(a) a search warrant \\\"may be issued by any district or circuit judge within the circuit wherein the property sought is located.\\\" (Emphasis added). The question, therefore, is whether the use of present-tense language in the rule (\\\"is located\\\") required that there be probable cause to believe that the parcel containing the methamphetamine -was at Scott's residence at the time the warrant was issued and not at some future time.\\nIn answering this question, we look to the history of and amendment to Fed.R.Crim.P. 41(a)(1) for guidance. The federal rule prior to the 1990 amendment, which we used in drafting and promulgating our HRPP in 1977, provided that:\\nA search warrant authorized by this rule may be issued by a federal magistrate or a judge of a state court of record within the district wherein the property or person sought is located, upon request of a federal law enforcement officer or an attorney for the government.\\n(Emphasis added). Because there were questions whether the \\\"is located\\\" language required probable cause to believe that the' property or person was located at the place to be searched at the time of the issuance of the search warrant, the words \\\"is located\\\" was deleted from the federal rule. According to the 1990 advisory committee's note to Fed.R.Crim.P. 41(a), the amended rule\\npermits anticipatory search warrants by omitting the words \\\"is located,\\\" which in the past required that in all instances the object of the search had to be located within the district at the time the warrant was issued. Now a search for property or a person within the district, or expected to be within the district, is valid if it otherwise complies with the rule.\\n(Emphasis added). Therefore, Fed. R.Crim.P. Rule 41(a)(1) was amended specifically to allow for ASWs by deleting present-tense language, such as that currently appearing in HRPP Rule 41(a). We agree with the advisory committee that the use of the present tense language \\\"is located\\\" required probable cause to believe that the person or property is on the premises at the time a judge issues a warrant Accordingly, we hold that the ASW failed to comply with the warrant requirements of HRPP 41(a).\\nBased on the foregoing, we hold that, regardless of whether ASWs otherwise pass constitutional muster, they are impermissible under HRS \\u00a7 803-31 and fail to comply with the warrant requirements under HRPP 41(a).\\nWe realize the importance and utility of an ASW in drug investigations, especially when \\\"dealing with the furtive and transitory activities of persons who traffic in narcotics.\\\" 2 W. La Fave, supra note 1, at 365. However, it is incumbent upon the legislature to amend HRS \\u00a7 803-31 to provide a legal basis for law enforcement officials to utilize ASWs.\\nIV. CONCLUSION\\nFor the above reasons, we hold that ASWs are impermissible under HRS \\u00a7 803-31 and fail to comply with the warrant requirements of HRPP 41(a). Accordingly, we affirm the circuit court's June 9, 1996 Order, but for reasons different from the ICA's. We further direct that an order depublishing the ICA opinion, pursuant to Rule 2(a) of the Rules of the Intermediate Court of Appeals, be filed concurrently with this opinion.\\n. \\\"An anticipatory search warrant is a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place.\\\" 2 W. La Fave, Search & Seizure, \\u00a7 3.7(c), at 362 (3d ed.1996). By definition, it is \\\"issued before the necessary events have occurred which will allow a constitutional search of the premises; if those events do not transpire, the warrant is void.\\\" United States v. Garcia, 882 F.2d 699, 702 (2d Cir.), cert. denied, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989).\\n. Because we find the language of the statute and rule governing search warrants preclusive, we do not reach the constitutionality of an ASW. We note, however, that most jurisdictions that have considered ASWs have concluded that they are not per se unconstitutional. See J. Adams, \\\"Anticipatory Search Warrants: Constitutionality, Requirements and Scope,\\\" 79 Ky. L.J. 681, 687 (1991); Kostelec v. State, 112 Md.App. 656, 685 A.2d 1222, 1227 (1996), cert. granted, 345 Md. 237, 691 A.2d 1313 (1997).\\n. HRS \\u00a7 803-31 provides:\\nSearch warrant; defined. A search warrant is an order in writing made by a judge or other magistrate, directed to an officer of justice, commanding the officer to search for certain articles supposed to be in the possession of one who is charged with having obtained them illegally, or who keeps them illegally, or with the intent of using them as the means of committing a certain offense.\\n(Emphasis added).\\n.HRPP Rule 41(a) provides:\\nAuthority to Issue Warrant. A search warrant authorized by this rule may be issued by any district or circuit judge within the circuit wherein the property sought is located. .\\n(Emphasis added).\\n. HRS \\u00a7 712-1242(l)(b)(i) provides:\\nPromoting a dangerous drug in the second degree. (1) A person commits the offense of promoting a dangerous drug in the second degree if the person knowingly:\\n(b) Possesses one or more preparations, compounds, mixtures, or substances of an aggregate weight of:\\n(i) One-eighth ounce or more, containing methamphetamine, heroin, morphine, or cocaine or any of their respective salts, isomers, and salts of isomers; .\\n. The fourth amendment to the United States Constitution provides:\\nThe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.\\nArticle I, section 7, of the Hawai'i Constitution provides:\\nThe right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches, seizures and invasions of privacy shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized or the communications to be intercepted.\\n. Fed.R.Crim.P. 41(a)(1) (1990) provides, in pertinent part: .\\n[A] search warrant authorized by this rule may be issued (1) by a federal magistrate, or a state court of record within the federal district, for a search of property or for a person within the district....\\n. We note that other jurisdictions have recently held that their statutes required present probable cause to issue a search warrant. See Ex Parte Oswalt, 686 So.2d 368 (Ala.1996); People v. Poirez, 904 P.2d 880 (Colo.1995); People v. Ross, 267 Ill.App.3d 711, 205 Ill.Dec. 49, 642 N.E.2d 914 (1994); State v. Gillespie, 530 N.W.2d 446 (Iowa 1995).\"}"

haw/12263830.json

@@ -0,0 +1 @@
+"{\"id\": \"12263830\", \"name\": \"State v. Williams\", \"name_abbreviation\": \"State v. Williams\", \"decision_date\": \"2002-06-12\", \"docket_number\": \"23382\", \"first_page\": \"295\", \"last_page\": \"295\", \"citations\": \"98 Haw. 295\", \"volume\": \"98\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T19:32:05.263995+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Williams\", \"head_matter\": \"June 12, 2002\\n23382\\nState v. Williams\", \"word_count\": \"8\", \"char_count\": \"47\", \"text\": \"Affirmed\"}"

haw/12264296.json

@@ -0,0 +1 @@
+"{\"id\": \"12264296\", \"name\": \"State v. Hee\", \"name_abbreviation\": \"State v. Hee\", \"decision_date\": \"1992-03-24\", \"docket_number\": \"15434\", \"first_page\": \"420\", \"last_page\": \"420\", \"citations\": \"78 Haw. 420\", \"volume\": \"78\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T17:21:21.557799+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Hee\", \"head_matter\": \"894 P.2d 117\\nINTERMEDIATE COURT OF APPEALS OF HAWAI'I\\nState v. Hee\\n15434\\n3/24/92\", \"word_count\": \"16\", \"char_count\": \"90\", \"text\": \"Affirmed\"}"

haw/12264502.json

@@ -0,0 +1 @@
+"{\"id\": \"12264502\", \"name\": \"McCain v. Walsh\", \"name_abbreviation\": \"McCain v. Walsh\", \"decision_date\": \"1991-11-29\", \"docket_number\": \"14749\", \"first_page\": \"420\", \"last_page\": \"420\", \"citations\": \"78 Haw. 420\", \"volume\": \"78\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T17:21:21.557799+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"McCain v. Walsh\", \"head_matter\": \"McCain v. Walsh\\n14749\\n11/29/91\", \"word_count\": \"6\", \"char_count\": \"38\", \"text\": \"Denied\"}"

haw/12264781.json

@@ -0,0 +1 @@
+"{\"id\": \"12264781\", \"name\": \"Poe v. Hawai'i Labor Relations Bd.\", \"name_abbreviation\": \"Poe v. Hawai'i Labor Relations Bd.\", \"decision_date\": \"2002-08-01\", \"docket_number\": \"24313\", \"first_page\": \"506\", \"last_page\": \"506\", \"citations\": \"98 Haw. 506\", \"volume\": \"98\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T19:32:05.263995+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Poe v. Hawai'i Labor Relations Bd.\", \"head_matter\": \"Poe v. Hawai'i Labor Relations Bd.\\n24313\\n08/01/2002\", \"word_count\": \"17\", \"char_count\": \"87\", \"text\": \"Denied\\n98 Hawai'i 416, 49 P.3d 382\"}"

haw/12264935.json

@@ -0,0 +1 @@
+"{\"id\": \"12264935\", \"name\": \"Montgomery v. Rice\", \"name_abbreviation\": \"Montgomery v. Rice\", \"decision_date\": \"2000-07-27\", \"docket_number\": \"22026\", \"first_page\": \"523\", \"last_page\": \"523\", \"citations\": \"94 Haw. 523\", \"volume\": \"94\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-11T01:49:57.492130+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Montgomery v. Rice\", \"head_matter\": \"July 27, 2000\\n22026\\nMontgomery v. Rice\", \"word_count\": \"8\", \"char_count\": \"48\", \"text\": \"Affirmed\"}"

haw/12265204.json

@@ -0,0 +1 @@
+"{\"id\": \"12265204\", \"name\": \"Kauai Ins. Agency v. Duarte\", \"name_abbreviation\": \"Kauai Ins. Agency v. Duarte\", \"decision_date\": \"1998-02-05\", \"docket_number\": \"19872\", \"first_page\": \"264\", \"last_page\": \"264\", \"citations\": \"87 Haw. 264\", \"volume\": \"87\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T22:48:04.965136+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Kauai Ins. Agency v. Duarte\", \"head_matter\": \"Kauai Ins. Agency v. Duarte\\n19872\\n2/5/98\", \"word_count\": \"10\", \"char_count\": \"62\", \"text\": \"Vacated and Remanded\"}"

haw/12265360.json

@@ -0,0 +1 @@
+"{\"id\": \"12265360\", \"name\": \"State v. Villa\", \"name_abbreviation\": \"State v. Villa\", \"decision_date\": \"2002-07-02\", \"docket_number\": \"23949\", \"first_page\": \"513\", \"last_page\": \"513\", \"citations\": \"98 Haw. 513\", \"volume\": \"98\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T19:32:05.263995+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Villa\", \"head_matter\": \"July 2, 2002\\n23949\\nState v. Villa\", \"word_count\": \"8\", \"char_count\": \"43\", \"text\": \"Affirmed\"}"

haw/12265758.json

@@ -0,0 +1 @@
+"{\"id\": \"12265758\", \"name\": \"Makaneole v. Pacific Ins. Co., Ltd.\", \"name_abbreviation\": \"Makaneole v. Pacific Ins. Co.\", \"decision_date\": \"1995-01-04\", \"docket_number\": \"15234\", \"first_page\": \"489\", \"last_page\": \"489\", \"citations\": \"77 Haw. 489\", \"volume\": \"77\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T22:48:05.393416+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Makaneole v. Pacific Ins. Co., Ltd.\", \"head_matter\": \"Makaneole v. Pacific Ins. Co., Ltd.\\n15234\\n1/4/95\", \"word_count\": \"16\", \"char_count\": \"85\", \"text\": \"Denied\\n77 Hawai'i 417, 886 P.2d 754\"}"

haw/12265888.json

@@ -0,0 +1 @@
+"{\"id\": \"12265888\", \"name\": \"State v. Gill\", \"name_abbreviation\": \"State v. Gill\", \"decision_date\": \"1997-07-16\", \"docket_number\": \"19136\", \"first_page\": \"230\", \"last_page\": \"230\", \"citations\": \"85 Haw. 230\", \"volume\": \"85\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T19:23:58.665332+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Gill\", \"head_matter\": \"19136\\nState v. Gill\", \"word_count\": \"5\", \"char_count\": \"29\", \"text\": \"Affirmed\"}"

haw/12266553.json

@@ -0,0 +1 @@
+"{\"id\": \"12266553\", \"name\": \"Del Rosario v. Del Rosario\", \"name_abbreviation\": \"Del Rosario v. Del Rosario\", \"decision_date\": \"1999-06-30\", \"docket_number\": \"21792\", \"first_page\": \"687\", \"last_page\": \"687\", \"citations\": \"92 Haw. 687\", \"volume\": \"92\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T17:42:46.717609+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Del Rosario v. Del Rosario\", \"head_matter\": \"Del Rosario v. Del Rosario\\n21792\\n06/30/1999\", \"word_count\": \"8\", \"char_count\": \"53\", \"text\": \"Affirmed\"}"

haw/12266800.json

@@ -0,0 +1 @@
+"{\"id\": \"12266800\", \"name\": \"Jou v. Stanton\", \"name_abbreviation\": \"Jou v. Stanton\", \"decision_date\": \"2002-09-10\", \"docket_number\": \"24401\", \"first_page\": \"310\", \"last_page\": \"310\", \"citations\": \"99 Haw. 310\", \"volume\": \"99\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T23:56:45.268346+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Jou v. Stanton\", \"head_matter\": \"Jou v. Stanton\\n24401\\n09/10/2002\", \"word_count\": \"6\", \"char_count\": \"41\", \"text\": \"Affirmed\"}"

haw/12266964.json

@@ -0,0 +1 @@
+"{\"id\": \"12266964\", \"name\": \"State v. Nihei\", \"name_abbreviation\": \"State v. Nihei\", \"decision_date\": \"1999-12-17\", \"docket_number\": \"22004\", \"first_page\": \"688\", \"last_page\": \"688\", \"citations\": \"92 Haw. 688\", \"volume\": \"92\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T17:42:46.717609+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Nihei\", \"head_matter\": \"State v. Nihei\\n22004\\n12/17/1999\", \"word_count\": \"6\", \"char_count\": \"41\", \"text\": \"Reversed\"}"

haw/12310791.json

@@ -0,0 +1 @@
+"{\"id\": \"12310791\", \"name\": \"State v. Kane\", \"name_abbreviation\": \"State v. Kane\", \"decision_date\": \"2009-03-25\", \"docket_number\": \"28678\", \"first_page\": \"254\", \"last_page\": \"254\", \"citations\": \"120 Haw. 254\", \"volume\": \"120\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-11T01:41:13.717265+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Kane\", \"head_matter\": \"State v. Kane\\n28678\\n03/25/2009\", \"word_count\": \"6\", \"char_count\": \"40\", \"text\": \"Affirmed\"}"

haw/12311214.json

@@ -0,0 +1 @@
+"{\"id\": \"12311214\", \"name\": \"In re MARN FAMILY LITIGATION\", \"name_abbreviation\": \"In re Marn Family Litigation\", \"decision_date\": \"2014-02-12\", \"docket_number\": \"No. SCWC-10-0000181\", \"first_page\": \"165\", \"last_page\": \"170\", \"citations\": \"132 Haw. 165\", \"volume\": \"132\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-11T02:15:59.860762+00:00\", \"provenance\": \"CAP\", \"judges\": \"RECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, and POLLACK, JJ.\", \"parties\": \"In re MARN FAMILY LITIGATION.\", \"head_matter\": \"319 P.3d 1173\\nIn re MARN FAMILY LITIGATION.\\nNo. SCWC-10-0000181.\\nSupreme Court of Hawai'i.\\nFeb. 12, 2014.\\nJoseph W. Huster, for petitioner.\\nLouise K.Y. Ing and Tina L. Colman, Honolulu, for respondent, Thomas E. Hayes.\\nSteven Guttman, Honolulu, and Dawn Egusa, for respondent, James K.M. Dunn, as Successor Trustee of the Annabelle Y. Dunn Trust, Dated June 18,1991.\\nMichael L. Freed and Mark B. Desmarais, Honolulu, for respondent, James Y. Marn, Jr.\\nRECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, and POLLACK, JJ.\", \"word_count\": \"3025\", \"char_count\": \"18522\", \"text\": \"Opinion of the Court by\\nNAKAYAMA, J.\\nThis ease is the most recent iteration of the Marn Family Litigation , which concerns the ownership and control of the Marn family business. Petitioner/Appellant Alexander Y. Marn (Alexander) has frequently appeared pro se throughout the course of the litigation and he filed the appeal on review before this court pro se before the Intermediate Court of Appeals (ICA). In a summary disposition order (SDO), the ICA dismissed Alexander's appeal for failure to comply with the Hawai'i Rules of Appellate Procedure (HRAP) in his briefing to that court. It is uneontested that Alexander's opening brief to the ICA failed to comply with the HRAP, burdened Respondents/Appellees James Y. Marn (James), James K.M. Dunn (Dunn), and Thomas E. Hayes (the Receiver), and made the ICA's review of Alexander's points of error extremely difficult. However, we hold that the ICA's failure to provide Alexander with notice before dismissing his appeal was a violation of HRAP Rule 30.\\nI. Background\\nOn October 25, 2010, the circuit court entered a partial final judgment as to Alexander's claims in Marn v. Marn, Civil No. 98-4706-10 and as to the claims that were asserted against Alexander in Marn v. Ala Wai Investment, Inc., Civil No. 98-5371-12. As part of the circuit court's 2010 judgment, the Receiver was ordered to sell the MeCully Shopping Center and, upon closing of the sale, complete a final accounting including allocations of costs against the four limited partners of MeCully Associates.\\nAlexander appealed to the ICA. His 46 page opening brief, filed pro se, alleged 17 \\\"areas 'observed' to be highly questionable.\\\" The opening brief included no table of authorities, instead referencing the table of authorities in the opening brief Alexander filed in another appeal before the ICA. The brief noted that there were four other appeals currently pending in the Marn Family Litigation and incorporated by reference all records and briefing from each of these eases. Alexander also referred the court to prior appeals for the relevant standard of review. The argument section of Alexander's brief included eleven sections, cited no authority, and rarely cited to the record.\\nIn their answering briefs, Respondents argued that Alexander's opening brief prejudi-cially violated the HRAP. The Respondents' briefs noted that Alexander improperly incorporated all documents filed in four other appeals, foisting a substantial burden on the Respondents to identify the relevant issues on appeal. They also noted that Alexander failed to present arguments in support of his points of error or to include citations to the record. The Receiver and James argued that Alexander's brief should be stricken and the appeal dismissed and Dunn argued that any point of error not specifically addressed should be dismissed. However, none of the parties filed a motion to dismiss Alexander's appeal.\\nOn March 28, 2013, the ICA issued an SDO sua sponte dismissing Alexander's appeal. The ICA stated that, as the Respondents argued, Alexander's opening brief contained \\\"pervasive and substantial\\\" violations of HRAP Rules 28(a) (regarding format, service, and page limitations) , (b)(1) (regarding the index and table of authorities), (b)(3) (regarding the concise statement of the ease), (b)(4) (regarding the points of error), (b)(5) (regarding the standard of review), (b)(7) (regarding the argument), and (b)(10) (regarding the appendices) .\\nThe ICA explained that Alexander's noncompliance with the HRAP made Alexander's arguments difficult to identify and forced the court to \\\"sift through the very voluminous record that has more than a hundred volumes.\\\" Citing Sprague v. Cal. Pac. Bankers & Ins. Ltd., 102 Hawai'i 189, 74 P.3d 12 (2003), the ICA stated that it was \\\"within the court's discretion to disregard non-complying aspects of the brief, dismiss [Alexander's] appeal, or strike the brief.\\\" The court reasoned that while it \\\" 'adhered to the policy of affording litigants the opportunity to have their cases heard on the merits,' \\\" \\\"the number and nature\\\" of Alexander's violations warranted the dismissal of his appeal. Finally, the ICA noted that while it generally showed leniency to technical flaws in pro se parties' briefs, this leniency \\\"is not necessarily warranted where the party is an experienced litigant, as is [Alexander].\\\"\\nAfter obtaining counsel, Alexander filed a document entitled motion for reconsidera tion. The ICA denied Alexander's purported motion and Alexander filed an application for writ of certiorari.\\nII. The ICA erred in failing to provide Alexander with notice prior to dismissing his appeal.\\nWe have repeatedly stated that arguments not presented in compliance with HRAP Rule 28(b)(4) may be disregarded. See e.g., Omerod v. Heirs of Kaheananui, 116 Hawai'i 239, 263, 172 P.3d 983, 1007 (2007) (stating that due to the briefs noncompliance with HRAP Rule 28(b)\\u2014which would require the court to sift through the more than 6,000 page record to determine the specific errors\\u2014the points of error regarding the lower court's decision would be disregarded). Additionally, it is within the appellate court's discretion to affirm the judgment of the circuit court or to dismiss an appeal for failure to comply with the court rules. See, e.g., Bettencourt v. Bettencourt, 80 Hawai'i 225, 228, 909 P.2d 553, 556 (1995) (\\\"[Ajppellant's brief in almost no respect conforms to the requirements of Hawai'i Rules of Appellate Procedure (HRAP) Rule 28(b), which we have held is, alone, sufficient basis to affirm the judgment of the circuit court.\\\"). However, while it is relatively common for appellate courts to disregard certain portions of an appellant's argument that are not properly presented, it is very rare for an appellate court to dismiss an entire appeal based on non-compliance with briefing requirements. See, e.g., Kaho'ohanohano v. Dep't of Human Servs., 117 Hawai'i 262, 297 n. 37, 178 P.3d 538, 573 n. 37 (2008) (\\\"This court will 'disregard [a] particular contention' if the appellant 'makes no discernible argument in support of that position[.]'\\\" (alterations in original) (emphasis added) (quoting Norton v. Admin. Dir. of the Court, 80 Hawai'i 197, 200, 908 P.2d 545, 548 (1995))); Sprague v. Cal. Pac. Bankers & Ins. Ltd., 102 Hawai'i 189, 195, 74 P.3d 12, 18 (2003) (\\\"The ICA's decision to disregard this point on appeal did not amount to grave error, inasmuch as the Petitioners' points of error section failed to comply with HRAP Rule 28(b)(4).\\\" (emphasis added)).\\nThe dismissal of an appeal for failure to comply with the HRAP is governed by HRAP Rule 30, \\\"Briefs Not Timely Filed or Not in Conformity with Rule.\\\" This rule provides for the dismissal of an appeal when the appellant's brief is untimely filed or when the brief fails to comply with other HRAP rules. HRAP Rule 30 states:\\nWhen the brief for appellant is not filed within the time required, the appellate clerk shall forthwith give notice to the parties that the matter will be called to the attention of the appellate court on a day certain for such action as the appellate court deems proper and that the appeal may be dismissed. When the brief of an appellant is otherwise not in conformity with these rules, the appeal may be dismissed or the brief stricken and monetary or other sanctions may be levied by the appellate court. When the brief of an appellee is not filed within the time required, or is not in conformity with these rules, the brief may be stricken and monetary or other sanctions may be levied by the appellate court. In addition, the appellate court may accept as true the statement of facts in the appellant's opening brief. Any party who may be adversely affected by application of this rule may submit a memorandum, affidavits, or declarations setting forth the reasons for non-conformance with these rules.\\n(Emphasis added).\\nThe interpretation of statutes and court rules is governed by well-established principles:\\n\\\"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 indistinetiveness or uncertainty of an expression used in a statute, an ambiguity exists. And fifth, in construing an ambiguous statute, the meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning.\\\"\\nHaw. Gov't Emps. Ass'n v. Lingle, 124 Hawai'i 197, 202, 239 P.3d 1, 6 (2010) (quoting Awakuni v. Awana, 115 Hawai'i 126, 133, 165 P.3d 1027, 1034 (2007)).\\nHere, HRAP Rule 30 clearly provides that where an appellant's brief is not timely filed, the appellate clerk \\\"shall\\\" provide the appellant with notice before dismissing the appeal. HRAP Rule 30 is silent as to whether the court must provide an appellant with notice if the appeal is to be dismissed for non-compliance with other rules. However, HRAP Rule 30 concludes by stating that \\\"[a]ny party who may be adversely affected by application of this rule may submit a memorandum . setting forth the reasons for non-conformance with these rules.\\\" HRAP Rule 30. It is unclear how a party would be aware of the need to submit such a memorandum if the court did not provide the party with notice that its brief was not in compliance with a provision of the HRAP and that the court was dismissing the party's appeal.\\nIn construing the ambiguity in HRAP Rule 30, we must examine the rule as a whole and attempt to give effect to the intention of the drafters of the rule. The drafters clearly intended to grant the appellate court the authority to dismiss appeals, strike briefs, or order monetary or other sanctions against appellants filing briefs not in compliance with the HRAP. The drafters also intended to provide appellants with a meaningful opportunity to respond to any allegations of non-compliance. For an appellant to have the opportunity to respond to allegations of non-compliance, the appellant must receive notice of any alleged non-compliance before the dismissal of its appeal. Therefore, we interpret HRAP Rule 30 as requiring that the appellate court give notice to the parties of any non-compliance with HRAP before dismissing an appeal, striking a brief, or ordering monetary or other sanctions.\\nHere, although Respondents requested that the ICA dismiss Alexander's appeal, they did not file a motion to dismiss and the ICA issued no notice of proposed dismissal. Therefore, Alexander was provided no opportunity to submit a memorandum \\\"setting forth the reasons for non-conformance\\\" with HRAP. HRAP Rule 30. The ICA erred by violating Rule 30 when it dismissed Alexander's appeal without notice.\\nIII. Conclusion\\nWe hold that the ICA's dismissal of Alexander's appeal without notice or a meaningful opportunity to respond was a violation of HRAP Rule 30. We vacate the ICA's May 8, 2013 amended judgment on appeal and remand to the ICA for further proceedings in accord with this opinion.\\n. The Mara Family Litigation has been ongoing for nearly 15 years and has cost millions of dollars in legal expenses. It has generated fourteen lawsuits, thirteen appeals, four bankruptcies, and five adversary proceedings. While many Mara family assets were sold to fund the litigation, the McCully Shopping Center remains the most highly prized and coveted item in the Marn family portfolio.\\n.In his application for writ of certiorari, Alexander argued that the ICA erred in refusing to evaluate his opening brief under the more lenient pro se litigant standard, and instead evaluated his brief as that of an \\\"experienced litigant.\\\" Because we dismiss the ICA's SDO and remand to the ICA for further proceedings, it is unnecessary to address this point of error. However, we note that while the ICA commented that Alexander was an \\\"experienced litigant,\\\" this was not the basis for its dismissal. The ICA stated that Alexander's briefing did not meet even the most lenient pro se litigant standards. It explained that not only did Alexander's opening brief fail to comply with HRAP Rule 28, but it also prevented the Respondents from effectively responding to Alexander's arguments and burdened the court with constructing the arguments and conducting the research to support these arguments.\\n. The ICA granted Alexander leave to exceed HRAP Rule 28(a)'s opening brief page limit of 35 pages and permitted him to file an opening brief not to exceed 50 pages.\\n. HRAP Rule 28(a) provides:\\nFormat, service, and page limitation. All briefs shall conform with Rule 32 and, if service is by any means other than a notice of electronic filing, be accompanied by proof of service of 2 copies on each party to the appeal. Except after leave granted, an opening or answering brief shall not exceed 35 pages, and a reply brief shall not exceed 10 pages, exclusive of indexes, appendices, and statements of related cases. If a brief raises ineffective assistance of counsel as a point of error, the appellant shall serve a copy of the brief on the attorney alleged to have been ineffective.\\n. HRAP Rule 28(b) provides, in pertinent part:\\n(b) Opening brief. Within 40 days after the filing of the record on appeal, the appellant shall file an opening brief, containing the following sections in the order here indicated:\\n(1) A subject index of the matter in the brief with page references and a table of authorities listing the cases, alphabetically arranged, text books, articles, statutes, treatises, regulations, and rules cited, with references to the pages in the brief where they are cited. Citation to Hawai'i cases since statehood shall include both the state and regional reporters. Citation to foreign cases may be to only the regional reporters. Where cases are generally available only from electronic databases, citation may be made thereto, provided that the citation contains enough information to identify the database, the court, and the date of the opinion.\\n(3) A concise statement of the case, setting forth the nature of the case, the course and disposition of proceedings in the court or agency appealed from, and the facts material to consideration of the questions and points presented, with record references supporting each statement of fact or mention of court or agency proceedings. In presenting those material facts, all supporting and contradictory evidence shall be presented in summary fashion, with appropriate record references. Record references shall include page citations and the volume number, if applicable. References to transcripts shall include the date of the transcript, the specific page or pages referred to, and the volume number, if applicable. Lengthy quotations from the record may be reproduced in the appendix. There shall be appended to the brief a copy of the judgment, decree, findings of fact and conclusions of law, order, opinion or decision relevant to any point on appeal, unless otherwise ordered by the court.\\n(4) A concise statement of the points of error set forth in separately numbered paragraphs. Each point shall state: (I) the alleged error committed by the court or agency; (ii) where in the record the alleged error occurred; and\\ndlo where in the record the alleged error was objected to or the manner in which the alleged error was brought to the attention of the court or agency. Where applicable, each point shall also include the following:\\n(A) when the point involves the admission or rejection of evidence, a quotation of the grounds urged for the objection and the full substance of the evidence admitted or rejected;\\n(B) when the point involves a jury instruction, a quotation of the instruction, given, refused, or modified, together with the objection urged at the trial;\\n(C) when the point involves a finding or conclusion of the court or agency, either a quotation of the finding or conclusion urged as error or reference to appended findings and conclusions;\\n(D) when the point involves a ruling upon the report of a master, a quotation of the objection to the report.\\nPoints not presented in accordance with this section will be disregarded, except that the appellate court, at its option, may notice a plain error not presented. Lengthy parts of the transcripts that are material to the points presented may be included in the appendix instead of being quoted in the point.\\n(5)A brief, separate section, entitled \\\"Standard of Review,\\\" setting forth the standard or standards to be applied in reviewing the respective judgments, decrees, orders or decisions of the court or agency alleged to be erroneous and identifying the point of error to which it applies.\\n(7) The argument, containing the contentions of the appellant on the points presented and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on. The argument may be preceded by a concise summary. Points not argued may be deemed waived.\\n(10) An appendix. Anything that is not part of the record shall not be appended to the brief, except as provided in this rule.\\n. On April 8, 2013, Mam filed an electronic document labeled \\\"Motion for Reconsideration.\\\" Inexplicably, this document was only the signature page of what we can only imagine was a motion for reconsideration. Marn also filed a declaration at the same time stating that Mam did not dispute that he failed to comply with the HRAP, but requesting that the ICA set aside its order dismissing the appeal.\\n. Nothing herein should be interpreted as precluding an appellate court from disregarding an individual argument that is not presented in compliance with HRAP Rule 28.\"}"

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+"{\"id\": \"12311370\", \"name\": \"STATE of Hawai'i, Respondent/Plaintiff-Appellee, v. Enrico CALARA, Petitioner/Defendant-Appellant\", \"name_abbreviation\": \"State v. Calara\", \"decision_date\": \"2014-02-14\", \"docket_number\": \"No. SCWC-29550\", \"first_page\": \"391\", \"last_page\": \"407\", \"citations\": \"132 Haw. 391\", \"volume\": \"132\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-11T02:15:59.860762+00:00\", \"provenance\": \"CAP\", \"judges\": \"ACOBA, McKENNA, and POLLACK, JJ.; with RECKTENWALD, C.J., Concurring & Dissenting, with whom NAKAYAMA, J., joins.\", \"parties\": \"STATE of Hawai'i, Respondent/Plaintiff-Appellee, v. Enrico CALARA, Petitioner/Defendant-Appellant.\", \"head_matter\": \"322 P.3d 931\\nSTATE of Hawai'i, Respondent/Plaintiff-Appellee, v. Enrico CALARA, Petitioner/Defendant-Appellant.\\nNo. SCWC-29550.\\nSupreme Court of Hawai'i.\\nFeb. 14, 2014.\\nJason Z. Say, for petitioner.\\nStephen K. Tsushima, for respondent.\", \"word_count\": \"10560\", \"char_count\": \"62828\", \"text\": \"Amended Opinion of the Court by\\nMcKENNA, J.\\nI. Introduction\\nIn this appeal, Petitioner/Defendant-Appellant Enrico Calara challenges multiple evi-dentiary determinations by the Circuit Court of the First Circuit (\\\"circuit court\\\"). Calara was convicted of sexual assault in the fourth degree, in violation of Hawai'i Revised Statutes (\\\"HRS\\\") \\u00a7 707-733(l)(a) (1993), for allegedly fondling the breast of the Complaining Witness (\\\"CW\\\"), his adult niece, while she slept. On certiorari, Calara presents five questions:\\n1. Whether the ICA gravely erred in holding that Calara's right to present a complete defense was not violated when the circuit court precluded him from introducing evidence of the complainant's drug pipe and by cross-examining the complain[an]t about her drug use for the purposes of attacking her perception and recollection.\\n2. Whether the ICA gravely erred in deciding the issue of whether the circuit court erred in admitting the police detective's testimony that probable cause was established to arrest Calara for sexual assault in the fourth degree under the plain error standard of review and in failing to hold that the testimony was irrelevant and improper.\\n3. Whether the ICA gravely erred in concluding that the admission of CW's statement to [her aunt,] Theresa Nishite as an \\\"excited utterance\\\" was harmless beyond a reasonable doubt.\\n4. Whether the ICA gravely erred in concluding that the evidence of Calara's prior statements uttered in January 200[7] and February 200[7] to establish his intent were relevant.\\n5. Whether the ICA gravely erred in holding that the circuit court's failure to provide a limiting instruction at the time of CWs testimony regarding Calara's alleged prior statements and as part of the final charge to the jury was not plain error.\\nWe conclude that the second question presented requires vacating Calara's conviction and remanding his case for a new trial. We hold that the circuit court abused its discretion by admitting the testimony of a police detective, a long-time veteran of the Sex Crimes Detail, that probable cause existed for arresting Calara. Such testimony was inadmissible under State v. Batangan, 71 Haw. 552, 799 P.2d 48 (1990), State v. Morris, 72 Haw. 527, 825 P.2d 1051 (1992), State v. Ryan, 112 Hawai'i 136, 144 P.3d 584 (App. 2006), and State v. Baron, 80 Hawai'i 107, 905 P.2d 613 (1995), because the testifier was imbued with an aura of expertise due to his experience, and because the testimony implied that the CWs version of the events was truthful and believable, thus invading the province of the jury. This opinion briefly addresses the remaining questions presented to aid the circuit court on retrial.\\nWith regard to the first question presented, we hold that the circuit court should have conducted a Hawai'i Rules of Evidence (\\\"HRE\\\") Rule 104 hearing to determine whether there was admissible evidence concerning the CWs alleged drug use and its effect upon her perception. With regard to the fourth question presented, we hold that the circuit court should have excluded Ca-lara's earlier statements that he wanted to \\\"take\\\" the CW because the statements were, at their core, character evidence used to show action in conformity therewith, and were not admissible under an HRE Rule 404(b) exception. As such, it is not necessary to reach the fifth question presented, whether a limiting instruction should have accompanied the admission of the statements. Lastly, because we remand this case for a new trial, we need not, and do not, reach the third question presented: whether the ICA gravely erred in holding that the circuit court's error in admitting the CWs statements to her aunt as an excited utterance was harmless beyond a reasonable doubt.\\nII. Background\\nOn June 23, 2008, Calara was charged by Complaint with \\\"knowingly subjecting the CW] to sexual contact by compulsion or [causing the CW] to have sexual contact with [him] by compulsion, thereby committing the offense of Sexual Assault in the Fourth Degree, in violation of Section 707-733(l)(a) of the Hawaii Revised Statutes.\\\"\\nThe charges stemmed from an incident in the early morning hours of March 13, 2007 in which the CW, Calara's adult niece temporarily staying with the Calara family, accused Calara of entering her bedroom at night and fondling her breast without her consent. Ca-lara, on the other hand, denied that he sexually assaulted the CW, testifying that he was in his bedroom all night when the incident allegedly occurred.\\nA. Pre-Trial Motions in Limine 1. Drug Pipe\\nRelevant to the first question presented, in a Notice of Intent to Use Evidence, Calara signaled his intent to introduce at trial the following \\\"evidence of other crimes, wrongs, or acts involving\\\" the CW:\\nd. When packing up the Complainant's personal belongings on or about March 14, 2007, Mrs. Calara discovered a pipe in the room the Complainant had been using. Mrs. Calara called HPD to do a test on the pipe. The pipe had a bulb[o]us end and smelled \\\"funny.\\\" Previously, this room had only been used by [Calara's] nine-year old daughter.\\nThe State filed its Motion in Limine to exclude evidence of the CW's prior bad acts. The circuit court heard the pre-trial motions on December 2, 2008 and precluded the admission of the pipe into evidence, concluding the following:\\nI think the evidence is so remote, so tangential and so unreliable as to whether or not this is [the CW's] pipe and whether she smoked it on March\\u2014the early morning hours of March 13th, that the court should not allow this.\\nIt's more prejudicial than probative and it is really very\\u2014shall I use the word\\u2014 flimsy evidence that right now, based on what you've presented, that this was her pipe and that she used it on or about the date of the alleged offense so that it has relevance to the allegations in this case.\\nDefense counsel then requested a HRE Rule 104 hearing to call Mrs. Calara to testify that she found the pipe within the CWs belongings, to call the CW to testify as to whether she used the drug pipe on March 13, 2007, and, if so, whether drug use affected her perception of the incident, arguing as follows:\\nAt the 104 hearing I'd be prepared to present my client's wife as a witness to testify exactly where she found [the pipe], in what belongings, because the only person using that room for four months was the complainant. No one used the room after she left until they packed up her things. And it was found in her things.... It's clear [the pipe] belonged to her. At\\u2014 I think a 104 hearing is at least necessary to clarify that she was not under the influence\\u2014or did not use that item on the date of this incident and affecting her perception.\\nThe circuit court denied the request as follows:\\nThe court's ruling is that the 104 hearing is not going to be able to establish who used the pipe, when it was used, and therefore it has no relevance to the case. And the fact that it involves marijuana, or at least\\u2014I don't know what it involves, what kind of drug. We don't know. Only that it smelled funny\\u2014is more prejudicial than probative. I don't know what smelled funny means.... And a 104 hearing is not going to cure [the problem of what substance was in the pipe] because the HPD did not do a test on the pipe.\\n2. Police Testimony Regarding Probable Cause\\nRelevant to the second question presented, Calara's Motion in Limine also sought to exclude \\\"references by HPD officers, to the effect that 'all elements' were met for an arrest/crime as irrelevant under HRE 403 and because such legally conclusive language invades the province of the jury.\\\"\\nThe circuit court granted Calara's motion in limine and further ruled as follows:\\nWith regard to legally conclusive language as to HPD saying all elements of the crime were met, the court is going to grant the request. However, the court is going to allow the prosecution to ask the question whether or not in the police officer's mind probable cause was met for an arrest to be made.\\nAnd the reason for the court's ruling is to avoid any confusion in the jury's mind as to whether or not the standard of conviction is somehow less than proof beyond a reasonable doubt, which includes proving all the elements of the offense and not the standard for the arrest of any individual.\\n3. January and February 2007 Statements\\nRelevant to the fourth question presented, in a Notice of Intent to Use Evidence, the State signaled its intent to introduce at trial the following two statements \\\"pursuant to Hawaii Rules of Evidence Rule 404(b), as evidence of [Calara's] intent, motive, modus operandi and lack of mistake or accident . [but] not . to prove the character of the defendant or to show [Calara] acted in conformity with these other acts\\\":\\n5. In January 2007 in Hawai'i, [Calara] made sexual advances towards [the CW]. [Calara] said that he just wanted to grab and take [the CW].\\n6. In February 2007 in Hawa\\u00f1, [Calara] again told [the CW] that [Calara] wanted to take her.\\nCalara filed a Motion in Limine to exclude the January and February 2007 statements as \\\"unfairly prejudicial under HRE 404 and irrelevant under HRE 403....\\\"\\nThe circuit court denied Calara's motion in limine to exclude the statements, stating the following:\\nThat the two events in question in January and February 2007, two prior events in question, [are] fairly close in time to the date of the alleged offense on March 13, 2007.\\nAnd in the court's view what it goes to show is the state of mind of the defendant at the time. It is apparent from these statements that [the CW] became the object of [Calara's] desire, and when you\\u2014 sexual desire, inappropriate as it was. The fact that she rebuffed him, again, I would agree goes to the issue of lack of consent.\\nAnd the intent I think is also demonstrated by the proffer that was made, and the court does agree that the prejudice\\u2014 prejudice to the defense and to the defendant is low. It doesn't mean that he assaulted her prior to the events of March 13, 2007, only what his state of mind was, what his intent [was].\\nI don't think it's a question so much of modus operandi as much as it is lack of consent, state of mind, and the fact that it shows that he had some sexual interest perhaps in the complaining witness.\\nB. Trial\\n1. Testimony of the CW\\nTrial commenced on December 3, 2008. The State called the CW to testify first. She testified that she returned to Hawai'i from the mainland in December 2006 with her two- and-a-half-year-old daughter and six-month-old son and stayed with Calara, his wife Debra, and their three children. She stayed for three months in a bedroom formerly occupied by the Calaras' youngest child, a nine-year-old girl.\\nThe CW testified that in January 2007, Calara \\\"expressed an interest to develop a physical relationship\\\" when he told her \\\"he wanted to . grab and take [her].\\\" The CW understood this statement to mean \\\"he wanted to have sex.\\\" The CW testified she was not interested because \\\"he was married to my aunt and [the CW was] not attracted to him.\\\" She testified that she told Calara \\\"that wasn't possible.\\\" The CW testified that again in February 2007, Calara told her \\\"[h]e wanted to take [her],\\\" which she understood to mean \\\"he wanted sex,\\\" and she again told him she was not interested and \\\"blew him off and ignored him.\\\" The CW testified that she did not know whether Ca-lara was \\\"serious\\\" when he made both the January and February 2007 statements. She also stated that she liked talking with her aunt Debra on a daily basis, and if Calara was not serious, she did not want to \\\"make a big deal out of it\\\" or hurt Debra's feelings.\\nThe CW testified that during the early morning hours of March 13, 2007, she was asleep in a bedroom that she shared with her two children. She awoke when she \\\"felt something cold on [her] breast.\\\" She determined it was Calara's hand, which was \\\"massaging\\\" and \\\"manipulating\\\" her bare breast. The CW testified that she screamed and Calara \\\"jumped back and . kept saying I'm sorry\\\" and that he did not \\\"know what [he] was thinking\\\" three to four times. After about five to ten minutes of standing in the room and apologizing, Calara left the room. The CW testified she stayed up all night, in shock, and got out of bed later that morning at 6:00 a.m. to prepare for an 8:00 a.m. meeting with a First to Work counselor. The CW stated that she felt \\\"very upset and betrayed and violated.\\\"\\nCalara and Debra drove the CW to her First to Work appointment. The CW did not recall confronting either of them with what had happened earlier that morning. The First to Work counselor was the first person to whom the CW disclosed what had happened. The CW then called her other aunt, Theresa, to pick her up from the First to Work appointment. She then disclosed the incident to Theresa. The CW also disclosed to Debra what had happened and was upset that Debra did not believe her. After this conversation, the CW gave a statement to Honolulu Police Department (\\\"HPD\\\") Officer Enrico Domingo, and met with HPD Detective Fred Denault, with whom she identified Calara from a photographic line-up. The CW and her children then moved to Theresa's house.\\n2.Testimony of Theresa Nishite\\nThe State then called Theresa Nishite (Debra's sister and the CW's aunt). Theresa testified that she picked the CW up from her First to Work appointment at around 11:00 a.m. or 12:00 p.m., and that the CW was \\\"crying the whole time,\\\" \\\"obviously very distraught,\\\" and \\\"very upset.\\\" When asked by the State what the CW told Theresa, defense counsel objected on the ground of hearsay, and the State countered that the statement to be elicited was an excited utterance. The court sustained the objection as \\\"needing more foundation.\\\" Theresa then testified that the CW's face was \\\"all red and she had tears coming down her face\\\" and was \\\"gasping\\\" and \\\"having hard time talking\\\" because she had been crying and \\\"was in some kind of trouble.\\\" The circuit court decided to admit the statement as an excited utterance, reasoning as follows:\\n[I]t seems to me that (unintelligible) of the startling event or incident and that this was the first opportunity that [the CW] had to tell somebody about it. She did not discuss it with anybody else from the time that the incident allegedly occurred of 2:30 in the morning.\\nShe testified that she\\u2014previously testified that she woke with the intention of taking the bus but that she accepted the offer to drive her to the DHS office from the Calaras, and it was at that particular point that she saw her Aunt Theresa that she began to engage in this emotional outburst.\\nAnd the court does believe that the sufficient foundation has been laid and that she made these utterances while still under the stress of the excitement caused by the event or condition.\\nThe \\\"excited utterance\\\" eventually elicited from Theresa was the following:\\n(Unintelligible) said that she went to sleep and that [Calara] had come into her bedroom and had touched her under her shirt and her kids were in the room and (unintelligible) while she was talking she was crying so she kind of (unintelligible) to kind of continue on but to the gist of it she just had mentioned that [Calara] had touched her while she was (unintelligible)\\u2014when she was sleeping.\\n3. Testimony of Officer Enrico Domingo\\nThe State then called HPD Officer Enrico Domingo, who testified that the CW made a walk-in complaint, made a statement, and identified Calara as the person who touched her.\\n4. Testimony of Detective Fred Denault\\nThe State then called Detective Fred De-nault, who testified that he interviewed the CW and showed her a photographic line-up, from which she picked out Calara as the person who touched her. Then the following exchange occurred with regard to \\\"probable cause\\\" for arresting Calara:\\nQ [The State]: So after you conducted the lineup, did you have probable cause to enri\\u2014arrest Enrico Calara for misdemean- or sexual assault?\\nA [Denault]: Yes.\\nQ: And why is that?\\nA: Well, based on the\\u2014\\n[Defense counsel]: Objection, Your Hon- or. Um, lack of foundation and irrelevant.\\nThe court: I'll overrule the objection. You may proceed.\\nQ [The State]: So after you conducted the photo lineup, did you have probable cause to arrest Enrico Calara for misdemeanor sexual assault?\\nA: Yes.\\nQ: And why?\\nA: Based on the complaint written by the complaining witness which included the offenses of sex assault in the fourth degree which involve sexual contact to another person without consent, and I affirmed her statement with her that day while conducting the photographic lineup, and she positively identified the suspect as Enrico Ca-lara via photograph, and that then his identity was then confirmed regarding the possible suspect involved in this case there was probable cause established.\\nQ: Thank you.\\nAnd when you say you affirmed her statement, was that the written statement that she had given Officer Domingo?\\nA: Yes. I brought the report with me and then I had her review the statement to confirm that what's\\u2014what she had written in that was the events that she was alleging.\\nThe State then rested.\\n5. Testimony of Debra Calara\\nThe defense called as its first witness Debra Calara, Calara's wife, who testified that she and her teenage son were both working during the early morning hours of March 13, 2007 and were not home.\\n6. Testimony of Kristy Calara\\nThe defense called as its second witness Calara's eighteen-year-old daughter, Kristy Calara. She testified that the night of the alleged incident, she had gone to her room around 9:00 p.m. and was still there and awake during the early morning hours of March 13, 2007. Her bedroom was diagonally across from the CWs bedroom. She testified that she, Calara, the Calaras' nine-year-old daughter, and the CW and her children were home, but Debra and the Calaras' teenage son were at work. She testified that she did not hear Calara's or the CWs doors open or the CW scream at around 2:30 or 2:45 in the morning.\\n7.Testimony of Calara\\nThe defense called Calara to testify last. Calara denied looking the CW up and down and stating to her that he wanted to \\\"take her\\\" in January and February 2007. He also testified that he had been in his bedroom from 9:00 p.m. on March 12, 2007 to 6:00 a.m. the following morning. He testified that he stayed in his bedroom all night and denied touching the CWs breast.\\nThe jury returned a guilty verdict. Calara timely appealed.\\nC. Appeal\\nOn appeal, Calara raised the following points of error, which are similar to the questions presented on certiorari:\\n1. The circuit court erred by precluding the defense from introducing evidence of [the CWs] pipe used to ingest drugs and from cross-examining her as to her drug use to attack her perception and recollection.\\n2. The circuit court erred in admitting Detective Denault's testimony that probable cause was established to arrest Enrico Calara for sexual assault in the fourth degree.\\n3. The circuit court erred in admitting [the CWs] statement to Theresa Nishite as an \\\"excited utterance.\\\"\\n4. The circuit court erred in admitting evidence of Enrico Calara's prior statements uttered in January 200[7] and February 200[7] to establish his intent.\\n5. The circuit court plainly erred in failing to provide a limiting instruction at the time of [the CWs] testimony regarding Enrico Calara's alleged prior statements and as part of the final charge to the jury.\\nThe ICA concluded that Calara's appeal was \\\"-without merit\\\" and affirmed his'judgment of conviction and probation sentence. State v. Calara, No. 29550, 2013 WL 562914 (App. Feb. 14, 2013)(SDO) at 2, 7. As to Calara's first point of error, the ICA concluded that the circuit court properly ruled that \\\"the evidence is so remote, so tangential and so unreliable\\\" as to whether the pipe belonged to the CW and as to whether she smoked it around the time of the incident that it was properly excluded and was more prejudicial than probative. Calara, SDO at 3. Citing State v. Sabog, 108 Hawai'i 102, 109-11, 117 P.3d 834, 841-43 (App.2005), the ICA further held, \\\"[T]he circuit court did not foreclose Calara from cross-examining CW regarding possible drug use on the day of the event.\\\" Id. Under Sabog, reasoned the ICA, \\\"Calara was entitled to cross-examine CW as to whether any drug use affected her perception and recollection of the incident.\\\" Id.\\nAs to Calara's second point of error, the ICA stated, \\\"Calara did not object to this testimony at trial,\\\" and \\\"Calara has not demonstrated that his substantial rights were affected by Denault's testimony.\\\" Calara, SDO at 3-4. The ICA then distinguished three eases cited by Calara, Batangan, 71 Haw. 552, 799 P.2d 48; Morris, 72 Haw. 527, 825 P.2d 1051; and Ryan, 112 Hawai'i 136, 144 P.3d 584, from the instant case on the basis that \\\"all involved witnesses offering opinions on victim-complainants' credibility.\\\" Calara, SDO at 4 (footnote omitted). The ICA further noted, \\\"Denault's testimony, on the other hand, explained the events that led to Calara's arrest.\\\" Id.\\nAs to Calara's third point of error, the ICA agreed with Calara that the circuit court should not have admitted Theresa's testimony about what the CW told her of the incident as an excited utterance, because the CW's statements \\\"were too remote from the alleged sexual assault[,]\\\" \\\"neither spontaneous nor impulsive[,]\\\" and \\\"the result of reflection.\\\" Calara, SDO at 5. Nevertheless, the ICA held that the circuit court's error \\\"was harmless beyond a reasonable doubt because it was cumulative of CW's and De-nault's testimony at trial.\\\" Id. (citation omitted).\\nAs to Calara's fourth point of error, the ICA held that Calara's January and February 2007 statements were admissible as \\\"relevant to understanding [Calara's] state of mind, as well as CWs lack of consent,\\\" and that their probative value was not substantially outweighed by danger of unfair prejudice, confusion, or misleading the jury. Calara, SDO at 6.\\nAs to Calara's fifth point of error, the ICA cited HRE Rule 105 to support its conclusion that Calara should have requested a limiting instruction. Calara, SDO at 7. The ICA also held that \\\"Calara did not demonstrate the circuit court's failure to sua sponte provide a limiting instruction regarding CWs testimony impair[ed] his substantial rights.\\\" Id. (citation omitted).\\nIII. Discussion\\nA. Police Testimony Regarding Probable Cause\\nAs it forms the basis for our remand, Calara's second question presented is addressed first. Calara's second question presented is\\n2. Whether the ICA gravely erred in deciding the issue of whether the circuit court erred in admitting the police detective's testimony that probable cause was established to arrest Calara for sexual assault in the fourth degree under the plain error standard of review and in failing to hold that the testimony was irrelevant and improper.\\nAs a preliminary matter, defense counsel did object to Denault's probable cause testimony, as the following transcript excerpt demonstrates:\\nQ [The State]: So after you conducted the lineup, did you have probable cause to enri\\u2014arrest Enrico Calara for misdemean- or sexual assault?\\nA[Denault]: Yes.\\nQ: And why is that?\\nA: Well, based on the\\u2014\\n[Defense counsel]: Objection, Your Honor. Um, lack of foundation and irrelevant.\\nThe court: I'll overrule the objection. You may proceed.\\nQ [The State]: So after you conducted the photo lineup, did you have probable cause to arrest Enrico Calara for misdemeanor sexual assault?\\nA: Yes.\\nThe ICA should not have reviewed the admissibility of Denault's probable cause testimony under the plain error standard.\\nFurther, the ICA did not adequately distinguish Batangan, Morris, and Ryan from the instant case. The ICA stated only that those eases \\\"all involved witnesses offering opinions on victim-complainants' credibility.\\\" Calara, SDO at 4. That distinction is not entirely true. In those eases, the expert witnesses (or those witnesses with an aura of expertise) did not directly \\\"offer[ ] opinions\\\" about a victim-complainant's credibility, yet their testimony had that effect. Those eases are discussed in greater detail, next.\\nIn Batangan, 71 Haw. at 555, 799 P.2d at 50, an expert witness (a clinical psychologist with a subspecialty in the treatment of sexually abused children) testified that he interviewed the complainant (a very young child) and explained \\\"how he evaluates whether a child is telling the truth about being sexually assaulted.\\\" The expert then \\\"implicitly testified that Complainant was believable and that she has been abused by Defendant.\\\" Id. (emphasis added). Even though the expert witness \\\"did not explicitly say that Complainant was 'truthful' or 'believable,' \\\" we held, \\\"there is no doubt in our minds that the jury was left with a clear indication of his conclusion that Complainant was truthful and believable.\\\" 71 Haw. at 563, 799 P.2d at 54.\\nIn Morris, 72 Haw. at 529, 825 P.2d at 1052, an expert witness, who \\\"had no physical evidence [of chronic sexual abuse] whatsoever,\\\" opined that the child complainant was chronically sexually abused. This court held his opinion \\\"had to have been based on the child's statements to others. This is one of those cases like Batangan where, although the expert witness does not say that the child is truthful, or that he believes the child, the clear implication of his testimony is just that, and the admission of that testimony in this case was reversible error.\\\" Id. (emphasis added).\\nIn Ryan, this court extended Batangan's expert witness holding to situations in which non-experts (here, responding police officers) implicitly concluded a complaining witness was credible. 112 Hawai'i at 141, 144 P.3d at 589 (\\\"The Hawai'i Supreme Court's reasons for condemning the expert's testimony in Ba-tangan applies to the officers' testimony in Ryan's case.\\\") This was because \\\"[t]he emphasis on the officers' training and experience in domestic violence eases served to give the officers an aura of being experts in evaluating the truthfulness of statements made by an alleged victim in domestic violence cases.\\\" Id. Also, in Ryan (like in Batangan and Morris), the responding officers gave no direct opinion supporting the complainant's credibility, yet this court held that their testimony had that effect. The deputy prosecutor \\\"did not directly ask [the responding officers] for their opinion on whether the CW had told them the truth.\\\" Id. Rather, the \\\"questions posed to the officers were couched in terms of whether they had any reason or evidence that would cause them not to believe the CWs allegations against [the defendant].\\\" Id. This court held, \\\"[G]iven the DPA's repeated questioning on this subject and the context in which the questions were asked, the only purpose served by the questioning was to inject into the trial the officers' opinion that the CWs allegations were true.... Viewed in context, the effect of the officers' testimony was the same as a direct expression of their opinion that the CW had told them the truth.\\\" Id. (emphasis added).\\nSimilarly, in Baron, 80 Hawai'i at 116, 905 P.2d at 622, we concluded that the screening prosecutor's testimony that she decided to bring charges against the defendant meant the screening prosecutor \\\"impliedly found the complainant's allegations to be truthful.\\\" We noted that, in a case concerning the credibility of the complainant, \\\"the testimony of the [screening prosecutor] unfairly influenced the jury.\\\" Id.\\nIn short, Hawai'i appellate courts have held that such implicit conclusions about a complaining witness's testimony should be precluded. See Batangan, 71 Haw. at 558, 799 P.2d at 52 (\\\"[C]onelusory opinions that abuse did occur and that the child victim's report of abuse is truthful and believable is of no assistance to the jury, and therefore, should not be admitted. Such testimony is precluded by HRE Rule 702.\\\")(emphasis added); Ryan, 112 Hawai'i at 141, 144 P.3d at 589 (\\\"Accordingly, under the circumstances of this case, we hold that the family court abused its discretion in permitting [the responding officers'] testimony.\\\"); Baron, 80 Hawai'i at 116, 905 P.2d at 622 (\\\"[W]e hold that the trial court abused its discretion by not precluding the testimony of [the screening prosecutor].\\\").\\nPreclusion is necessary because this type of testimony invades the province of the jury by usurping its power to make credibility determinations. See Batangan, 71 Haw. at 559, 799 P.2d at 52 (\\\"The expert's use of words such as 'truthful' and 'believable' is not talismanic. But where the effect of the expert's opinion is 'the same as directly opining on the truthfulness of the complaining witness,' such testimony invades the province of the jury.\\\") (citation omitted; emphasis added); Ryan, 112 Hawai'i at 141, 144 P.3d at 589 (\\\"We conclude that the officers' testimony, which was tantamount to an expression of their opinion that the CW had been truthful in accusing [the defendant], impermissibly invaded the province of the jury.\\\") (citation omitted; emphasis added).\\nAdmission of this type of testimony provides grounds for vacating a conviction. See Morris, 72 Haw. at 529, 825 P.2d at 1052 (\\\"[T]he admission of [implicit expert testimony that the complainant was truthful or believable] in this case was reversible error. . Accordingly, we vacate the judgment below and remand the case for a new trial.\\\")(emphases added); Baron, 80 Hawai'i at 116, 905 P.2d at 622 (\\\"The prejudice to Appellant is patently clear and warrants a reversal in this case. We therefore vacate the guilty verdicts and remand the case to the circuit court for a new trial.\\\") (emphases added).\\nIn the instant appeal, like in Batangan, Morris, Ryan, and Baron, Denault did not directly testify that he found the CW credible, but his testimony had that effect. He testified to the following:\\nQ [BY THE STATE]: So after you conducted the photo lineup, did you have probable cause to arrest Enrico Calara for misdemeanor sexual assault?\\nA [BY DENAULT]: Yes.\\nQ: And why?\\nA: Based on the complaint written by the complaining witness which included the offenses of sex assault in the fourth degree which involve sexual contact to another person without consent, and I affirmed her statement with her that day while conducting the photographic lineup, and she positively identified the suspect as Enrico Ca-lara via photograph, and that then his identity was then confirmed regarding the possible suspect involved in this case there was probable cause established.\\nQ: Thank you.\\nAnd when you say you affirmed her statement, was that the written statement that she had given Officer Domingo?\\nA: Yes. I brought the report with me and then I had her review the statement to confirm that what's\\u2014what she had written in that was the events that she was alleging.\\nDenault, a 26-year veteran of HPD assigned to the Sex Crimes Detail, was imbued with \\\"an aura of expertise\\\" like the responding officers in Ryan. Thus, when he testified that his decision to arrest Calara was based on his assessment that the CWs allegations provided him with probable cause, such testimony \\\"was tantamount to an expression of [his] opinion that the CW had been truthful in accusing\\\" Calara. Ryan, 112 Hawai'i at 141, 144 P.3d at 589.\\nFurther, the circuit court's contemplated cure for admitting such testimony does not appear on the record and would not change this result. At the hearing on the motions in limine, the circuit court explained that it would allow the testimony under the following circumstances:\\nWith regard to legally conclusive language as to HPD saying all elements of the crime were met, the court is going to grant the [defense's] request [to exclude legally conclusive language]. However, the court is going to allow the prosecution to ask the question whether or not in the police officer's mind probable cause was met for an arrest to be made.\\nAnd the reason for the court's niling is to avoid any confusion in the jury's mind as to whether or not the standard of conviction is somehow less than proof beyond a reasonable doubt, which includes proving all the elements of the offense and not the standard for the arrest of any individual.\\nThe jury was not provided with any instruction regarding the difference between probable cause and proof beyond a reasonable doubt. Therefore, as Calara argued, in addition to Denault's testimony invading the province of the jury by bolstering the GW's credibility, there was also a possibility that the jury overly weighted the probable cause testimony in its reasonable doubt determination, and this may have contributed to Ca-lara's conviction.\\nThe ICA also concluded that Denault's testimony merely \\\"explained the events that led to Calara's arrest.\\\" Calara, SDO at 4. However, this court previously rejected a similar argument in Ryan. In that ease, the State argued that the responding officers' opinions \\\"were directed more toward the completeness of the police investigation.\\\" 112 Hawai'i at 141, 144 P.3d at 589. We disagreed, because \\\"[t]he defense did not attack the actions of [the responding officers] or the thoroughness of the HPD's investigation.\\\" Id. Similarly, in this ease, Calara never attacked the probable cause determination. We concluded in Ryan, \\\"The context in which the officers were questioned convinces us that the officers' testimony was directed at whether they believed the CW was truthful in her allegations and not at the thoroughness of their investigation.\\\" Id. So, too, was De-nault's testimony that the CWs statement provided him with probable cause to arrest Calara: his statement implied he believed the GW's allegations.\\nIn short, Denault's probable cause testimony should have been precluded under Batangan, Morris, Ryan, and Baron. The admission of the probable cause testimony was an abuse of discretion. Therefore, we vacate the ICA's judgment on appeal, vacate the circuit court's judgment of conviction and probation sentence, and remand Calara's ease to the circuit court for retrial.\\nWe address the remaining issues raised by Calara to the extent necessary to resolve this appeal and to assist the circuit court on retrial.\\nB. Preclusion of Evidence of Drug Pipe\\nOn certiorari, Calara's first question presented is\\n1. Whether the ICA gravely erred in holding that Calara's right to present a complete defense was not violated when the circuit court precluded him from introducing evidence of the complainant's drug pipe and by cross-examining the complain[an]t about her drug use for the purposes of attacking her perception and recollection.\\nIn his Notice of Intent to Use Evidence, Calara signaled his intent to introduce at trial as \\\"evidence of other crimes, wrongs, or acts involving\\\" the CW a pipe found in the room occupied by the CW by Mrs. Calara. His counsel requested a HRE Rule 104 hearing as follows:\\nAt the 104 hearing I'd be prepared to present my client's wife as a witness to testify exactly where she found [the pipe], in what belongings, because the only person using that room for four months was the complainant. No one used the room after she left until they packed up her things. And it was found in her things.... It's clear [the pipe] belonged to her. At\\u2014 I think a 104 hearing is at least necessary to clarify that she was not under the influence\\u2014or did not use that item on the date of this incident and affecting her perception.\\nThe circuit court denied the request as follows:\\nThe court's ruling is that the 104 hearing is not going to be able to establish who used the pipe, when it was used, and therefore it has no relevance to the case. And the fact that it involves marijuana, or at least\\u2014I don't know what it involves, what kind of drug. We don't know. Only that it smelled funny\\u2014is more prejudicial than probative. I don't know what smelled funny means.... And a 104 hearing is not going to cure [the problem of what substance was in the pipe] because the HPD did not do a test on the pipe.\\nThe circuit court erred in deciding that a HRE Rule 104 hearing was not necessary. HRE Rule 104 provides, in relevant part:\\nPreliminary questions.\\n(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subsection (b). In making its determination the court is not bound by the rules of evidence except those with respect to privileges.\\n(b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition....\\nThe circuit court focused solely on the pipe evidence in denying the HRE Rule 104 hearing, finding the evidence inadmissible as irrelevant because the pipe had not been tested. The effect of the denial of the HRE Rule 104 hearing was broader, however, in that it precluded any evidence of drug use as potentially relevant to the CW's perception of the alleged event. As such, the circuit court's decision was inconsistent with Sabog, 108 Hawai'i at 111, 117 P.3d at 843, which held a defendant is entitled to cross-examine a witness concerning the witness's \\\"drug use and addiction at or near the time of the incident to the extent that it affected [the witness's] perception or recollection of the alleged event....\\\" A HRE Rule 104 hearing would have allowed the circuit court to determine whether there was any evidence relevant to the issue of the CW's purported drug use as affecting her perception.\\nC. Excited Utterance\\nOn certiorari, Calara's third question presented is\\n3. Whether the ICA gravely erred in concluding that the admission of CW's statement to Theresa Nishite as an \\\"excited utterance\\\" was harmless beyond a reasonable doubt.\\nWe agree with the ICA that the CW's statement to Theresa Nishite was not an excited utterance and should not have been admitted into evidence. Calara, SDO at 5. As we are remanding this case for retrial based on the circuit court's admission of Denault's probable cause testimony, we need not, and do not, reach the issue of whether the ICA gravely erred in holding that the admission of the statement as an excited utterance was harmless beyond a reasonable doubt.\\nD. J.anuary and February 2007 Statements\\nOn certiorari, Calara's fourth question presented is\\n4. Whether the ICA gravely erred in concluding that the evidence of Calara's prior statements uttered in January 200[7] and February 200[7] to establish his intent were relevant.\\nThe two prior statements Calara uttered in January and February 2007 were that he wanted to \\\"take\\\" the CW, statements which the CW believed indicated Calara's sexual interest in her. Via motion in limine, Calara sought to have the statements excluded as \\\"unfairly prejudicial under HRE 404 and irrelevant under HRE 403....\\\" The circuit court denied the motion in limine as follows:\\nThat the two events in question in January and February 2007, two prior events in question, [are] fairly close in time to the date of the alleged offense on March 13, 2007.\\nAnd in the court's view what it goes to show is the state of mind of the defendant at the time. It is apparent from these statements that [the CW] became the object of [Calara's] desire, and when you\\u2014 sexual desire, inappropriate as it was. The fact that she rebuffed him, again, I would agree goes to the issue of lack of consent.\\nAnd the intent I think is also demonstrated by the proffer that was made, and the court does agree that the prejudice\\u2014 prejudice to the defense and to the defendant is low. It doesn't mean that he assaulted her prior to the events of March 13, 2007, only what his state of mind was, what his intent [was].\\nI don't think it's a question so much of modus operandi as much as it is lack of consent, state of mind, and the fact that it shows that he had some sexual interest perhaps in the complaining witness.\\nIn short, the circuit court admitted the statements under HRE Rule 404(b) for the pur pose of showing Calara's state of mind or intent, and the CWs lack of consent. None of these purposes supported the admission of the statements under HRE Rule 404(b), however. Instead, the statements, at their core, tended to prove the character of Calara in order to show action in conformity therewith, and should have been excluded.\\nHRE Rule 404(b) states, in relevant part\\nOther crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible where such evidence is probative of another fact that is of consequence to the determination of the action, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident....\\n\\\"[W]hen evidence of other crimes, wrongs, and acts is offered by the prosecution, the problem for the trial court is one 'of classifying and then balancing[, if necessary] . the prejudicial impact of the evidence [with] its probative worth.\\\" State v. Castro, 69 Haw. 633, 644, 756 P.2d 1033, 1041 (1988) (first set of brackets in original; second set of brackets added). \\\"If its purpose is only 'to show some propensity to commit the crime at trial, there is no room for ad hoc balancing. The evidence is then unequivocally inadmissible[.]'\\\" Id. See also Addison M. Bowman, Hawai'i Rules of Evidence Manual (2012-2013) at 4-49 (\\\"[I]f a fact of consequence other than character cannot be identified, then the evidence has no legitimate probative value.\\\")\\nIn this case, the statements were not probative of any other fact that was of consequence to Calara's case. Specifically, they were not probative of Calara's state of mind or intent, or the CWs lack of consent. Reviewing the record, it is clear that Calara's defense was he did not do the act; he testified that he remained in his bedroom all night and did not enter the CWs bedroom, where she alleged the sexual assault took place. The CWs consent was never at issue. Therefore, the circuit court abused its discretion in admitting the January and February 2007 statements to show the CWs lack of consent.\\nThe district court also abused its discretion in admitting the January and February 2007 statements to show Calara's state of mind or intent. Intent is \\\"the state of mind with which an act is done.... \\\" State v. Torres, 85 Hawai'i 417, 422, 945 P.2d 849, 854 (App.1997) (citation omitted). \\\"Because mens rea is an element of the prosecution's ease-in-chief, in most criminal eases, the intent inferences of rule 404(b) require analytical rigor.\\\" Bowman, Hawai'i Rules of Evidence Manual (2012-2013) at 4-53. \\\"Without the necessity that arises when a mental defense is interposed to a criminal charge, admission of 'other crimes' to prove intent is strongly suspect because intent, although elemental, is subsumed within the charged acts and typically stands or falls with the proof of them.\\\" Id.\\nIn this case, Calara did not put his intent in issue in the way a defendant arguing that a touching was due to mistake, accident, or some other innocent explanation would. Again, Calara's defense was that he was not in the CWs room, so the touching simply did not occur. Thus, Calara's case can be distinguished from two factually similar cases in which the defendant's prior sexually inappropriate comments were properly admitted under HRE Rule 404(b) to show intent: Torres, 85 Hawai'i 417, 945 P.2d 849, and State v. Mars, 116 Hawai'i 125, 170 P.3d 861 (App. 2007).\\nIn Torres, 85 Hawai'i at 418-19, 945 P.2d at 850-51, the defendant was convicted of sexual assault in the first degree for having inserted his finger into his nine-year-old niece's vagina while he was bathing her. On appeal, the defendant claimed that the circuit court abused its discretion in admitting evidence regarding four prior bad acts, one of which was evidence that the defendant told the complainant \\\"to find a place to make love[.]\\\" 85 Hawai'i at 422, 945 P.2d at 854 (brackets in original). The ICA concluded that the statement was relevant and probative to show the defendant's motive and intent to later sexually assault the complainant in the bathtub. Id. The defendant had testified at trial that \\\"he 'had no bad intentions' when he agreed to bathe Complainant and wash her vagina. He also vehemently denied ever digitally penetrating her vagina.\\\" Id. The complainant, on the other hand, testified that when she and the defendant were alone at home, the defendant told her to put her leg up in the bath, inserted his finger in her vagina, at which point, the Complainant said, \\\"Ouch,\\\" and the defendant told her not to tell anybody. 85 Hawai'i at 419-20, 945 P.2d at 851-52. The ICA stated, \\\"In this ease, it was undisputed that Defendant washed Complainant's vagina. However, there was a dispute regarding who prompted the bath and what occurred during the bath. Consequently, evidence of why Defendant bathed Complainant\\u2014ie., Defendant's motive, purpose, and intent for washing Complainant's vagina\\u2014were undoubtedly relevant to prove a fact of consequence, that Defendant 'knowingly subjected [Complainant] to sexual penetration[.]' \\\" 85 Hawai'i at 422, 945 P.2d at 854 (emphasis in original).\\nIn Mars, 116 Hawai'i at 128, 170 P.3d at 864, a defendant was convicted of three counts of sexual assault in the first degree for having had oral and anal sex with a fifteen-year-old boy while both were in a bathroom. On appeal, the defendant argued that the circuit court abused its discretion in admitting the following prior statements the defendant made to the fifteen-year-old boy: (1) that the boy should \\\"pull up [his] pants and not show [his] undeiwear because there were 'perverts' in the area\\\"; (2) that \\\"he should be careful about his underwear because the intermediate school students 'liked them' (3) that the boy was \\\"largely hung and a lot of people would like that\\\"; and (4) that the boy \\\"had too much hair down there.\\\" 116 Hawai'i at 129, 170 P.3d at 865.\\nAt trial, the fifteen-year-old boy testified that the defendant entered the bathroom while the boy was in the Jacuzzi, indicated that he wanted to have sex with the boy (as the two had done before), and the boy complied. 116 Hawai'i at 130, 170 P.3d at 866. The defendant, on the other hand, testified that he had the runs and needed to use the nearest bathroom (the one that, unbeknownst to the defendant, was occupied by the boy at the time). 116 Hawai'i at 131, 170 P.3d at 867. The defendant testified that he entered the unlocked bathroom, sat on the toilet, then saw the boy's head peek out of the Jacuzzi. Id. The defendant denied sexually assaulting the fifteen-year-old boy. Id. The ICA concluded that the reasoning in Torres was directly applicable to the defendant's case. 116 Hawai'i at 141, 170 P.3d at 877. It held the defendant's comments were relevant to show the defendant's motive, purpose, and intent when he joined the fifteen-year-old boy in the bathroom when the assaults took place, and were thus admissible under HRE Rule 404(b). Id.\\nThis case is distinguishable from Toms and Mars. In Toms and Mars, both defendants denied sexually assaulting the complaining witnesses, and both defendants offered explanations for why they were in the bathroom with the complaining witnesses. In doing so, they put at issue their motive and intent for being in the location where the sexual assaults took place. Therefore, prior inappropriate sexual statements made by both defendants to the minor complaining witnesses were admissible under HRE Rule 404(b) as \\\"probative of another fact that is of consequence to the determination of the action,\\\" ie., countering the defendants' innocent explanations as to why they were alone with their bathing and vulnerable minor complaining witnesses, and tending to show that they knowingly touched the complaining witnesses.\\nNo similar circumstances exist in this ease, where Calara did not concede that he was in the CWs bedroom for some innocent reason when the alleged touching occurred, such that evidence of the prior statements would be probative of a fact of consequence, ie., the state of mind or intent tending to explain his presence in her bedroom and tending to explain the touching. Therefore, the circuit court abused its discretion in admitting the January and February 2007 statements under HRE Rule 404(b) as bearing on Calara's state of mind or intent.\\nE. The Absence of a Limiting Instruction\\nOn certiorari, Calara's fifth question presented is\\n5. Whether the ICA gravely erred in holding that the circuit court's failure to provide a limiting instruction at the time of CWs testimony regarding Calara's alleged prior statements and as part of the final charge to the jury was not plain error.\\nOur holding that the January and February 2007 statements should not have been admitted under HRE Rule 404(b) obviates the need to reach the issue of whether the circuit court should have issued a limiting instruction to the jury as to the purposes for which those statements were to be used.\\nIV. Conclusion\\nWe hold (1) that the circuit court abused its discretion by admitting the testimony of the police detective that probable cause existed for arresting Calara because such testimony was inadmissible under Batangan, 71 Haw. 552, 799 P.2d 48; Morris, 72 Haw. 527, 825 P.2d 1051; Ryan, 112 Hawai'i 136, 144 P.3d 584; and Baron, 80 Hawai'i 107, 905 P.2d 613; (2) that the circuit court should have conducted a HRE Rule 104 hearing to determine whether there was admissible evidence concerning the CWs alleged drug use and its effect upon her perception; (3) that the circuit court should have excluded Ca-lara's earlier statements that he wanted to \\\"take\\\" the complaining witness because the statements were, at their core, character evidence used to show action in conformity therewith, and were not admissible under an HRE Rule 404(b) exception; as such, (4) it is not necessary to reach the issue of whether a limiting instruction should have accompanied the admission of the statements; and (5) because we remand this ease for a new trial, we need not, and do not, reach the issue of whether the ICA gravely erred in holding that the circuit court's error in admitting the CWs statements to her aunt as an excited utterance were harmless beyond a reasonable doubt. We vacate the ICA's Judgment on Appeal, vacate the circuit court's judgment of conviction and probation sentence, and remand this ease to the circuit court for retrial.\\nACOBA, McKENNA, and POLLACK, JJ.; with RECKTENWALD, C.J., Concurring & Dissenting, with whom NAKAYAMA, J., joins.\\n. The Honorable Reynaldo D. Graulty presided.\\n. HRS \\u00a7 707\\u2014733(l)(a) provides, \\\"A person commits the offense of sexual assault in the fourth degree if: . [t]he person knowingly subjects another person to sexual contact by compulsion or causes another person to have sexual contact with the actor by compulsion!.]\\\" HRS \\u00a7 707-700 (1993) defines \\\"compulsion\\\" as \\\"absence of consent, or a threat, express or implied, that places a person in fear of public humiliation, property damage, or financial loss.\\\"\\n. Even if it could be said that defense counsel's objection did not properly preserve the error (i.e., because the basis for the objection differed from the point of error raised on appeal), under a plain error standard of review, Denault's probable cause testimony nevertheless affected Ca-lara's substantial rights. Ryan, 112 Hawai'i at 141, 144 P.3d at 589 (\\\"We also conclude that the error in permitting the officers to testily about the CW's credibility in accusing [the defendant] affected [the defendant's] substantial rights.\\\") The Ryan line of cases is discussed in greater detail further in this section.\"}"

haw/12312508.json

@@ -0,0 +1 @@
+"{\"id\": \"12312508\", \"name\": \"State v. Branco\", \"name_abbreviation\": \"State v. Branco\", \"decision_date\": \"2010-08-17\", \"docket_number\": \"30127\", \"first_page\": \"196\", \"last_page\": \"196\", \"citations\": \"124 Haw. 196\", \"volume\": \"124\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T21:51:45.605883+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Branco\", \"head_matter\": \"August 17, 2010\\n30127\\nState v. Branco\", \"word_count\": \"8\", \"char_count\": \"47\", \"text\": \"Reversed\"}"

haw/12312810.json

@@ -0,0 +1 @@
+"{\"id\": \"12312810\", \"name\": \"State v. McKellar\", \"name_abbreviation\": \"State v. McKellar\", \"decision_date\": \"2010-05-13\", \"docket_number\": \"29891\", \"first_page\": \"133\", \"last_page\": \"133\", \"citations\": \"123 Haw. 133\", \"volume\": \"123\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T18:29:00.039202+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. McKellar\", \"head_matter\": \"29891\\nState v. McKellar\", \"word_count\": \"5\", \"char_count\": \"33\", \"text\": \"Reversed\"}"

haw/12312974.json

@@ -0,0 +1 @@
+"{\"id\": \"12312974\", \"name\": \"State v. Phomphithack\", \"name_abbreviation\": \"State v. Phomphithack\", \"decision_date\": \"2013-06-21\", \"docket_number\": \"CAAP-11-0000347\", \"first_page\": \"449\", \"last_page\": \"449\", \"citations\": \"129 Haw. 449\", \"volume\": \"129\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-11T01:06:08.434811+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Phomphithack\", \"head_matter\": \"CAAP-11-0000347\\nState v. Phomphithack\", \"word_count\": \"5\", \"char_count\": \"46\", \"text\": \"Vacated\"}"