THE APPELLATE RECORD September 2013

2013 HSBA Appellate Section Board: Chair: Ms. Rebecca A. Copeland Vice Chair: Mr. Mark J. Bennett Secretary: Ms. Bethany C.K. Ace Treasurer: Mr. Robert Nakatsuji HSBA CLE Liaison: Ms. Mitsuko T. Louie HAWSCT Liaison: Mr. Matthew Chapman ICA Liaison: Mr. Daniel J. Kunkel

Twitter Brief Contest

The HSBA Appellate Section is pleased to announce its first annual Twitter Brief contest! We are borrowing the idea from our sister section in Texas, whose twitter competition has garnered national attention over the last three years. To enter the contest, draft an appellate brief of no more than 140 characters (including spaces the limit for a "tweet" on Twitter). Email your brief between now and Monday, September 23, 2013, to the HSBA Appellate Section's Chair at rebecca@copelandlawllc.com. Winners will be announced at the Appellate Section's presentation at the HSBA Bar Convention, on Friday, September 27, 2013. The three top twitter briefs will win prizes! Have fun tweeting, we look forward to reading how much punch a simple tweet can pack!

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FEATURED ARTICLE:
Transitioning from Trial to Appeal: A Presentation by Judges Ginoza and Reifurth of the Intermediate Court of Appeals

By: Christopher T. Goodin (Litigation Department, Cades Schutte LLP) and Mitsuko T. Louie (DCCA, Staff Attorney, Securities Enforcement Branch)

At the August 19, 2013 meeting of the HSBA Appellate Section, Associate Judges Lisa M. Ginoza and Lawrence Mr. Reifurth of the State of Hawaii Intermediate Court of Appeals gave a presentation on the topic of Transitioning from Trial to Appeal. Below is a summary of the presentation.

I.

Preservation of Error

In preserving an error for appeal, start with the rules. Under Hawaii Rules of Appellate procedure (HRAP) Rule 28(b)(4), the appellant must show, among other things, where in the record the alleged error occurred and 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. For evidentiary errors, a quotation of the grounds urged for the objection and full substance of the evidence admitted or rejected must also be stated in the

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appellants opening brief. HRAP Rule 28(b)(4)(A). Additionally, in initially making the objection before the trial court, consider whether to make an offer of proof. Thus, an error must normally be brought to the trial courts attention to fully preserve the issue for appeal.1 In the absence of an objection below, the issue on appeal is whether the lower court committed a plain error. Plain error review is broader in criminal cases then it is in civil cases. In the context of civil cases, the Hawaii Supreme Court has explained: [T]he plain error rule is only invoked when justice so requires. We have taken three factors into account in deciding whether our discretionary power to notice plain error ought to be exercised in civil cases: (1) whether consideration of the issue not raised at trial requires additional facts; (2) whether its resolution will affect the integrity of the trial courts findings of fact; and (3) whether the issue is of great public import. Montalvo v. Lapez, 77 Hawaii 282, 290, 884 P.2d 345, 353 (1994) (quotations omitted). If the error was made during a hearing, be sure that the hearing transcript is included as part of the record on appeal.

II.

Post-trial Motions

Generally, post-trial motions are not required to appeal. One exception to this rule arises in the family law context. See Hawaii Revised Statutes (HRS) 57154. Even if a post-trial motion is not required to appeal, it may be advisable to file a post-trial motion A party may have a better chance of persuading the trial

One exception to this rule arises in the context of subject-matter jurisdiction. No objection to subject-matter jurisdiction need be made to raise the issue on appeal.
1

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court or agency to reconsider an issue than of showing error on appeal, where the standard of review may be restrictive. A post-trial motion may toll the time to appeal. Under HRAP Rule 4(a)(3): If any party files a timely motion for judgment as a matter of law, to amend findings or make additional findings, for a new trial, to reconsider, alter or amend the judgment or order, or for attorneys fees or costs, the time for filing the notice of appeal is extended until 30 days after entry of an order disposing of the motion; provided, that the failure to dispose of any motion by order entered upon the record within 90 days after the date the motion was filed shall constitute a denial of the motion. The Hawaii Supreme Court is presently considering two cases involving the application of Rule 4(a)(3)s deemed-denied clause. Assn of Condominium Homeowners of Tropics at Waikele v. Sakuma, SCWC-12-0000870 (Haw.); Title Guaranty Escrow Servs., Inc. v. Szymanski, SCWC-12-0000711 (Haw.). III. Appealable Final Judgments

Generally, a final judgment is necessary to appeal. The appellant should ensure that the form of judgment disposes of all parties and all claims before the appeal is filed. If there are multiple claims, consider noting in the judgment in appropriate that all other claims are dismissed. It is helpful to read Jenkins v. Cades Schutte Fleming & Wright, 76 Hawaii 115, 869 P.2d 1334 (1994), in preparing the final judgment. There are exceptions to the final-judgment rule, including statutory exceptions for orders on motions to compel arbitration under HRS Chapter 658 and good faith settlement determinations under 663-15.5. In addition, interlocutory appeals may be taken under HRS 641-1(b), provided that the circuit court makes the necessary finding. It may also be appropriate to obtain a Hawaii Rules of Civil Procedure (HRCP) Rule 54(b) certification. Finally, interlocutory appeals may be taken based on the collateral order doctrine and the Forgay doctrine (which concerns orders for execution on property).

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IV.

Steps to Appeal

Generally, the appellant has 30 days to file a notice of appeal from the entry of judgment. If the appellant fails to file the appeal within the allowed time, the appellate court will likely not have appellate jurisdiction to hear the appeal. Along with the notice of appeal, the appellant must file a civil appeal docketing statement pursuant to HRAP Rule 3.1. If the appellant wants to raise a point that requires a hearing transcript, the appellant must file with the appellate clerk a request to prepare a transcript within 10 days after filing the notice of appeal. If the court reporter is behind schedule, consider giving the reporter a call for a status update. This information may be helpful in obtaining an extension to file the opening brief. Within 10 days after the record on appeal is filed, the appellant must file a statement of jurisdiction pursuant to HRAP Rule 12.1(a). Any appellee contesting jurisdiction may file a statement contesting jurisdiction within the same period. V. Chapter 91 Appeals

In order to appeal an administrative decision under HRS Chapter 91, the matter must have been a contested case required by law, i.e., required by rule, statute, administrative rule, or constitution. See Bush v. Hawaiian Homes Commn, 76 Hawaii 128, 870 P.2d 1272 (1994). VI. Factors to Consider Before Appeal

Before filing an appeal, consider whether you should apply to transfer the case from the Hawaii Intermediate Court Appeals to the Hawaii Supreme Court.
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HRS 602-58 allows for such transfers and provides three types of cases in which the transfer is mandatory and two in which the transfer is discretionary. With respect to the three mandatory categories, the Hawaii Supreme Court shall grant an application to transfer upon the grounds that the case involves: (1) A question of imperative or fundamental public importance; (2) An appeal from a decision of any court or agency when appeals are allowed by law: (A) Invalidating an amendment to the state constitution; or (B) Determining a state statute, county ordinance, or agency rule to be invalid on the grounds that it was invalidly enacted or is unconstitutional, on its face or as applied, under either the constitution of the State or the United States; or (3) A sentence of life imprisonment without the possibility of parole. HRS 602-58(a) (spacing altered). As for the two discretionary categories, the supreme court may grant an application to transfer upon the grounds that he case involves: (1) A question of first impression or a novel legal question; or (2) Issues upon which there is an inconsistency in the decisions of the intermediate appellate court or of the supreme court. Id. 602-58(b) (spacing altered).

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HSBA Bar Convention Friday, September 27, 2013 8:30 a.m. to 12:00 p.m.
Join us for the Bar Convention! The Appellate Section will present its Federal Appellate Practice Manual at this years HSBA Bar Convention to be held on Friday, September 27, 2013, at the Hilton Hawaiian Village. The manual provides information and advice on federal appellate practice for Hawaii practitioners, with a special emphasis on practice in the Ninth Circuit Court of Appeals and the United States Supreme Court. As a follow up to the Hawaii Appellate Practice Manual, released last year, we will also provide the much-anticipated Hawaii Appellate Motions Chapter! A supplement to the Hawaii manual, this chapter will provide useful rules, tips, and additional forms for those who do or may file motions with the Hawaii appellate courts. The Appellate Sections program will also include our popular Appellate Panel. This year's event will feature special guests from the Hawaii Supreme Court: Chief Justice Mark E. Recktenwald, Justice Simeon R. Acoba, Jr., Justice Sabrina S. McKenna, and Justice Richard W. Pollack. We also have some exciting extras planned including Appellate Motions Jeopardy and Twitter Briefs!! Attendees of the Appellate Section's program will earn 2.0 VCLE and 1.0 MCPE.

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The Spirit of Aloha HSBA 2013 Annual Dinner

This year several of our Board and Section Members enjoyed a night out on the town at the 2013 Hawaii State Bar Association's Dinner held on August 24, 2013 at the Hawaii Convention Center.

The event, sponsored by the Hawaii Bar Foundation, offered a salute to Hawaii's two long-term United States Senators the late Daniel K. Inouye, Esq. and Daniel K. Akaka. The Dinner raised funds to support the Courts in the Community Project and Legal Service Provider Projects.

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Mahalo to the HSBA for a wonderful night!

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This Month in Appellate History

The following United States Supreme Court Justices assumed office in September: James Wilson, William Cushing, John Blair, Jr., Smith Thompson, Levi Woodbury, Benjamin Robbins Curtis, George Sutherland, Harold Hitz Burton, Arthur Goldberg, William Rehnquist, Sandra Day O'Connor, Antonin Scalia, and John G. Roberts. On September 16, 2009, Craig H. Nakamura was sworn in as an Chief Judge of the Intermediate Court of Appeals.

JEFS E-Filing Tip of the Month When attaching a document in JEFS, the "notes" field is available for writing
note to the clerk of the court. For example, if the titles/document types for selection did not include the document type you needed, you can indicate this in the notes. Remember, text entered in the notes field is public record, and will appear on the eCourt kokua site.

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August Published Appellate Opinions

In August, the Hawaii Supreme Court issued three published opinions (not counting the one amended opinion) and the Intermediate Court of Appeals also issued three. Below is a brief synopsis of each: In In the Matter of the Application of Honolulu Construction and Draying Company, Ltd. v. State of Hawaii, Department of Land and Natural Resources et al., Scenic Hawaii, and Aloha Tower Development Corp., SCWC-30484 (August 9, 2013), the HAWSCT held the Land Court properly awarded attorneys fees and costs totaling over $135,000.00 to Scenic Hawaii against the State under the private attorney general doctrine. In Kanahele v. Maui County Council, SCWC-29649 (August 8, 2013), the HAWSCT held that although the Maui County Council violated Hawaiis Sunshine Law (HRS ch. 92) related to Council meetings of the Land Use Committee related to a residential development project, the violation did not warrant invalidation of the Councils actions. In State v. Taylor, SCWC-30161 (August 19, 2013), held that (1) appellate review of the impact of an unrequested mistake of fact jury instruction is for plain error, (2) "plain error exists if the defendant, at trial, had met his or her initial burden to adduce credible evidence of facts constituting the defense (unless those facts are supplied by the prosecutions witnesses)," and (3) "[i]f the omission of the unrequested mistake of fact jury instruction constitutes plain error, it shall be a basis for reversal of the defendants conviction only if an examination of the record as a whole reveals that the error was not harmless beyond a reasonable doubt." In State v. DeMello, CAAP-10-0000173 (August 27, 2013), the ICA held that (1) the evidence was sufficient to support the defendant's conviction for harassment, (2) the trial court erred in sentencing the defendant to both a thirty-day term of imprisonment and anger management classes, and (3) vacated, in part, the restitution award. On the issue of restitution, the ICA held that the evidence supported the victim's compensable losses, but concluded that the trial court erred in ordering lost wages because "restitution for lost wage is contrary" to legislative intent. The court also vacated the amount of the restitution award related to medical expenses awarded based on apportionment. In Simmons v. Aqua Hotels and Resorts, Inc., CAAP 12-0000836 (August 22, 2013), the ICA adopted Ninth Circuit precedent allowing Title VII lawsuits to move forward even though a party was not named in an EEOC charge under limited
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circumstances where "(1) the unnamed party was involved in the acts giving rise to the EEOC charge; (2) the EEOC or the unnamed party should have anticipate a Title VII suit against the unnamed party; (3) the named party is a principal or agent of the unnamed party or if they are substantially identical; (4) the EEOC could have inferred that the unnamed party violated Title VII; or (5) the unnamed party had notice of the EEOC conciliation efforts and participated in the EEOC proceedings." Based on these exceptions, the ICA held that the circuit court erred in dismissing Plaintiff's age discrimination case for lack of jurisdiction. In Ryan v. Palmer, CAAP-12-0000697 (August 20, 2013), the ICA held (1) that case law interpreting dismissals under Hawaii Rules of Civil Procedure 41(b)(2) applies to dismissals under Hawaii Circuit Court Rule 12(q), and (2) that the dismissal of Ryan's case with prejudice for the failure to file a pretrial statement after the case had been admitted to the Court Annexed Arbitration Program (CAAP) was improper because the he was not dilatory in any respect other than the failure to file a pretrial statement.

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Upcoming Events: 2013 HSBA Bar Convention

Please sign-up to join the HSBA Appellate Section at this years HSBA Bar Convention to be held on Friday, September 27, 2013, at the Hilton Hawaiian Village. The Appellate Sections time will be from 8:30 to Noon. Our line-up will consist of discussions on federal and state appellate practice including: state and federal motions practice, federal standards of review, bankruptcy appeals, federal criminal appeals, and oral argument. The section will also reprise the popular Appellate Panel with distinguished guests Chief Justice Mark E. Recktenwald, Justice Simeon R. Acoba, Jr., Justice Sabrina S. McKenna, and Justice Richard W. Pollack.

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Coming Soon:
FEDERAL APPELLATE PRACTICE MANUAL: The Appellate Section is pleased to announce that it will publish another appellate manual in conjunction with the Hawaii State Bar Association. This years manual will be entitiled Federal Appellate Practice Manual. The manual will provide valuable information and insight into practicing appeals in the federal arena, with special emphasis on the United States Supreme Court and United States Court of Appeals for the Ninth Circuit. Our contributors and/or editors include: Rebecca A. Copeland, G. Richard Morry (editor), Marissa Luning (editor), Mitsuko Louie (editor and contributor). Ninth Circuit Judge Richard Clifton, Christphoer Goodin, Doug Fredrick, John Duchemin, Monica Suematsu, Kimberly Asano, Cal Chipchase, Elijah Yip, Robert Thomas, Mark Murakami, Steven Gray, Johnathan Bolton, Lisa Munger, Lisa Bail, Trent Kakuda, Bethany C.K. Ace, and Brett Rowan.

HAWAII APPELLATE PRACTICE MANUAL SUPPLEMENT: Appellate Motions Practice a suplement to the 2012 Hawaii Appellate Practice Manual, will be available for the first time at the 2013 Bar Convention. The Supplement will offer insight and practice tips into state appellate motions practice, and include additional forms.

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Useful Appellate Links:

The Hawaii Judiciary: www.courts.state.hi.us United District Court for the District of Hawaii: www.hid.uscourts.gov United States Court of Appeals for the Ninth Circuit: www.ca9.uscourts.gov United States Supreme Court: www.supremecourt.gov Hawaii State Bar Association: www.hsba.org

Blogs by our Members:

www.hawaiilitigation.com (by our Member Louise Ing) www.hawaiioceanlaw.com (by our Member Mark M. Murakami) www.hawaiiopinions.blogspot.com (by our Member Ben Lowenthal) www.insurancelawhawaii.com (by our Member Tred R. Eyerly) www.inversecondemnation.com (by our Member Robert H. Thomas) www.hawaiiappellatelaw.com (by our Member Charley Foster) www.recordonappeal.com (by our Chair Rebecca A. Copeland)

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Appellate Section Website:

The Appellate Sections website includes useful appellate resources, including handouts from prior monthly meetings, copies of this newsletter, and power point presentations from the Appellate Sections program at the 2012 HSBA Bar Covention. www.hawaiiappellatesection.org

Hawaii Appellate Practice Manual:

The Hawaii Appellate Practice Manual includes information you need to know for filing appeals in Hawaii, including how to e-file documents on the Judiciarys EFiling System, how to supercede a judgment, and how to brief and argue cases. The manual also includes useful appellate forms. The Manual was co-sponsored by the Appellate Section and the Hawaii State Bar Association, and is available through the HSBA.

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The Appellate Record is presented as a courtesy to the Members of the Hawaii State Bar Associations Appellate Section by its Board. Mahalo and enjoy!

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

If you are interested in contributing to our newsletter in any way, please contact the Sections Chair Rebecca A. Copeland at rebecca@copelandlawllc.com

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