Opinion pdf

OPINION OF THE COURT BY NAKAMURA, J.

This case arises out of the investigation by the Kaua'i Police Department (KPD) of two murders and an attempted murder, each involving sexual assault and stabbing of women, that were committed in separate incidents in 2000 on Kaua'i. In 2002, Plaintiff-Appellant Waldorf Roy Wilson, II, (Wilson) sued the Kaua'i Police Chief, certain Kaua'i police officers, and the County of Kaua'i (County), claiming that they had engaged in misconduct while investigating him for these crimes. Wilson also sued the authors and publishers of articles appearing in the Honolulu Magazine and The Garden Island newspaper, claiming, among other things, that the articles had defamed him.

During the times relevant to this case, George Freitas (Freitas) was the Kaua'i Police Chief and William Ching {Ching), Roy Asher (Asher), Marvin Rivera (Rivera), and Samuel Sheldon (Sheldon) were members of the KPD. All were employees of the County. Joan Conrow (Conrow) was the author of an article published in the August 2001 edition of Honolulu Magazine entitled, "The Killing Year." Dennis Wilken (Wilken) was the author of an article appearing in the January 28, 2002, edition of The Garden Island newspaper under the headline, "Suspected killer has parole hearing today."

On September 11, 2002, Wilson filed a complaint in the Circuit Court of the Fifth Circuit (circuit court) against Defendants-Appellees Freitas; Ching; Asher; Rivera; Sheldon; the County; Conrow; Honolulu Publishing Co., Ltd., nka Pacific Basin Communications, LLC, dba Honolulu Magazine (HonoluluPublishing); Wilken; and Kauai Publishing Co., dba The Garden Island (Kauai Publishing). The complaint alleged numerous causes of action, including defamation; slander; slander per se; libel; libel per se; invasion of privacy; intentional, deliberate, knowing, and/or negligent infliction of emotional distress; punitive conduct; violations of Wilson's constitutional rights; failure to properly train, supervise, control, and/or discipline employees; trespass; and unlawful imprisonment. On March 2, 2006, the circuit court entered Judgment in favor of Defendants and against Wilson with respect to all claims asserted in the action. It is from this Judgment that Wilson appeals.

On appeal, Wilson asserts that the circuit court erred by: 1) granting Honolulu Publishing and Conrow's motion for summary judgment; 2) granting Kauai Publishing and Wilken's motion for summary judgment; and 3) dismissing Wilson's complaint against the County Defendants for failure to prosecute. For the reasons discussed below, we affirm. [footnotes omitted]

Opinion pdf

OPINION OF THE COURT BY LEONARD, J.

Defendant-Appellant Afa Tuialii (Tuialii) appeals from the Findings of Fact, Conclusions of Law, and Order Denying Defendant's Motion For Correction Of Illegal Sentence (Rule 35 Order), filed on June 4, 2008 in the Circuit Court of the First Circuit (Circuit Court).

Tuialii, a former payroll and accounts payable clerk, was charged with Theft in the First Degree, in violation of Haw. Rev. Stat. (HRS) § 708-830.5 (1) (a) (Supp. 2007), stemming from the transfer of over $76,000 from his employer's payroll account into his personal credit union account. Tuialii pled no contest to the charge and was sentenced to five years of probation and one year in jail (which was suspended except for time served). Tuialii was also ordered to pay restitution in the amount of $76,285.19 to his employer, Principle Hotels, LLC (Principle).

On appeal, Tuialii contends that the Circuit Court erred by denying his Motion for Correction of Illegal Sentence (Rule 35 Motion) because the Circuit Court failed to conduct a colloquy which advised him that restitution could be ordered as a consequence of his plea, thus rendering his no-contest plea unknowing and involuntary. Tuialii claims that the "illegal" restitution order must be vacated or Tuialii must be allowed to withdraw his plea. Tuialii further claims that restitution cannot be ordered because the victim received indemnification from its insurance company. We reject both arguments and affirm. [footnote omitted]

Opinion pdf

OPINION OF THE COURT BY LEONARD, J.
 
Defendants-Appellants, Sunstone Realty Partners, XIV, LLC and Sunstone Realty Partners, IX, LLC (collectively, Sunstone) appeal from the Order Granting Plaintiff Kona Village Realty, Inc.'s Motion to Confirm Arbitration Award and Denying [Sunstone's] Motion to Vacate or Correct the Arbitration Award Filed October 8, 2007 (Confirmation Order) in the Circuit Court of the Third Circuit (Circuit Court).

Although argued on alternative grounds, there is only one issue on appeal in this case - whether the Circuit Court erred in affirming an arbitration award (Award) which included an award of $123,994.69 in attorneys' fees, nearly double the amount of the principal and interest components of the Award in favor of Plaintiffs-Appellees Kona Village Realty, Inc., Brenda Tschida, and Robert Tschida (collectively, Kona Village) and against Sunstone. For the reasons set forth herein, we answer this question in the negative. [footnote omitted]

Opinion pdf

OPINION OF THE COURT BY FUJISE,J.

Defendant-Appellant Blake Yasuo Nakamura (Nakamura) appeals from the October 5, 2007 Amended Judgment and Sentence entered by the District Court of the First Circuit, Honolulu Division (district court), convicting him of the offense of Excessive Speeding in violation of Hawaii Revised Statutes (HRS) § 291C-105 (2007). As his sole issue on appeal, Nakamura challenges the imposition of a six-month driver's license suspension as a term of his sentence and argues that it is illegal. We agree with Nakamura that the district court was without authority to impose a six-month driver's license suspension for a violation of HRS § 291C-105. [footnote omitted]

Opinion pdf

OPINION OF THE COURT BY LEONARD, J.

This is a statutory construction case concerning the campaign contribution limits set forth in Hawaii Revised Statutes (HRS) § 11-204(a)(1)(C) and (b) (Supp. 2005). Defendant-Appellant Barbara U. Wong (Wong), in her capacity as the Executive Director of the Campaign Spending Commission of the State of Hawai'i (Commission) , appeals from the Findings of Fact, Conclusions of Law, and Order filed on July 23, 2007, and the Final Declaratory Judgment filed on August 10, 2007 (Judgment), by the Circuit Court of the Second Circuit (Circuit Court), in favor of Plaintiff-Appellee Charmaine Tavares Campaign (Tavares) and Plaintiff/Intervenor-Appellee Quong Enterprises, L.L.C. (Quong) (collectively, Appellees), and against Wong. Wong argues that Quong's $2,000 campaign contribution to Tavares violated the $1,000 limit in HRS § 11-204(b), which applies to any contribution to a "noncandidate committee." Wong requests the reversal of the Judgment primarily on the ground that the Circuit Court erred in concluding that Quong's contribution was lawful under the $4,000 limit prescribed in HRS § 11-204(a)(1)(C) for any contribution to a candidate or a "candidate's committee." Based on the arguments presented, the record on appeal, and the well-established rules of statutory construction, we conclude that HRS § 11-204(b) did not apply to Quong's contribution to Tavares and that Quong's contribution was lawful under HRS § 11-204 (a) (1) (C). We affirm. [footnote omitted]

Opinion pdf

OPINION OF THE COURT BY LEONARD, J.

Minor-Appellant (TC) and his parents (Parents) appeal from the Decree Re: Law Violation Petitions filed on September 26, 2006 (Decree), and the Findings of Fact, Conclusions of Law and Order Denying Motion for Reconsideration filed December 19, 2006 (Reconsideration Order) in the Family Court of the Third Circuit (Family Court).

After a hearing based on evidence that was stipulated into the record, TC was adjudicated to have committed acts, prior to reaching eighteen years of age, which would constitute violations of Hawai'i sexual assault laws prohibiting certain sexual conduct involving persons who are less than fourteen-years old. Based upon our review of the record and the briefs submitted by the parties, and having given due consideration to the issues raised, arguments advanced, the relevant rules, statutes, constitutional provisions, and case law, we hold that: (1) there was insufficient evidence to support the allegation that TC engaged in prohibited sexual conduct with his younger brother; (2) any person who is alleged, pursuant to Hawaii Revised Statutes (HRS) § 571-11(1), to have committed an act prior to achieving eighteen years of age which would constitute a violation of law (as described in HRS § 671-11(1)) shall be advised of his or her right to testify and, in every HRS § 571-11(1) adjudication in which the accused minor does not testify, a family court must engage in an age-appropriate colloquy with the accused minor to obtain an on-the-record waiver of that right; (3) parents of an accused minor have standing throughout juvenile proceedings conducted pursuant to HRS § 571-11(1); (4) minors under the age of fourteen are subject to adjudication for violations of HRS §§ 707-730 (1) (b) and 707-732 (1) (b), which prohibit certain sexual conduct involving minors under the age of fourteen; (5) TC's Due Process and Equal Protection Clause rights were not violated when a HRS Chapter 571 petition was filed against him but not against two other minors who also admittedly engaged in prohibited sexual conduct with TC who was also a minor under the age of fourteen at the time of the sexual activities; (6) there is no fundamental personal privacy right for minors under the age of fourteen to engage in sexual activities with other children under the age of fourteen; and (7) Parents' argument that the Family Court erred in denying their request to cross-examine the makers of certain written reports is waived. For these reasons, we reverse as to Count VI of the petition filed against TC and, because the Family Court did not determine whether TC knowingly and voluntarily waived his right to testify, which we cannot conclude was harmless error, we vacate and remand this matter for further proceedings as to the remaining counts. [footnote omitted]

Opinion pdf

OPINION OF THE COURT BY DUFFY, J.

Petitioner/Respondent-Appellant Robert Aona (Aona) filed a timely Application for Writ of Certiorari (Application) urging this court to review the December 30, 2008 judgment of the Intermediate Court of Appeals (ICA) based on its Memorandum Opinion in Williams v. Aona, No. 28691, 2008 WL 5182933 (App. Dec. 10, 2008). The ICA's Memorandum Opinion affirmed the district court of the first circuit's (district court) July 17, 2007 Order Granting Petition for Injunction Against Harassment (injunction order).

In his Application, Aona argues that the ICA gravely erred in affirming the injunction order because:

(1) "The ICA incorrectly held that the district court had jurisdiction over Williams's Petition [for a temporary restraining order and injunction against harassment]."

(2) "The ICA incorrectly affirmed the district court's injunction imposing a distance restriction on Aona while in the workplace."

(3) "The ICA incorrectly affirmed the district court's refusal to admit and consider evidence of William's prior criminal conviction."

(4) "The ICA incorrectly affirmed the district court's refusal to admit and consider evidence of the [Department of Environmental Services] workplace rules."

We accepted the Application for the limited purpose of correcting an error by the ICA when it affirmed the district court's jurisdiction on the basis of the doctrine of preemption. We agree with the ICA's Memorandum Opinion in all other respects. [footnote omitted]

Opinion pdf

OPINION OF THE COURT BY FOLEY, J.

Plaintiffs-Appellants Keep the North Shore Country (KNSC), a Hawai'i non-profit corporation, and Sierra Club, Hawai'i Chapter (Sierra Club), a foreign non-profit corporation, (collectively, Plaintiffs} appeal from the Amended Final Judgment filed on June 4, 2007 in the Circuit Court of the First Circuit (circuit court). The circuit court entered judgment in favor of Defendants-Appellees City and County of Honolulu (CCH); Henry Eng (Eng), Director of Department of Planning and Permitting (DPP), in his official capacity; and Kuilima Resort Company (Kuilima), a Hawai'i general partnership, (collectively, Defendants) and against Plaintiffs on all of Plaintiffs1 claims as set forth in their First Amended Complaint.

On appeal, Plaintiffs contend the circuit court erred in granting Kuilima's Third Motion for Summary Judgment and denying Plaintiffs' Motion for Summary Judgment.

. . .

Therefore, the Amended Final Judgment filed on June 4, 2007 in the Circuit Court of the First Circuit is affirmed.

Dissenting opinion by Nakamura, J. pdf

Opinion pdf

OPINION OF THE COURT BY FOLEY, J.

Respondent-Appellant-Appellant Hawaii Medical Service Association (HMSA) appeals from the Judgment filed on November 13, 2007 in the Circuit Court of the First Circuit (circuit court). The circuit court affirmed the "Findings of Fact, Conclusions of Law, Discussion and Order" (Discussion and Order) filed on April 18, 2007 with the State of Hawai'i Department of Commerce and Consumer Affairs (DCCA) Insurance Division by the DCCA Insurance Commissioner (the Commissioner), pursuant to Hawaii Revised Statutes (HRS) § 432E-6 (2005 Repl.), and signed by the Commissioner. In the Discussion and Order, a three-member external review panel (the Panel), appointed by the Commissioner, reversed HMSA's February 23, 2007 final determination, in which HMSA denied coverage of an allogeneic stem-cell transplant (allo-transplant) for Petitioner-Appellee-Appellee Brent Adams (Adams) to treat his multiple myeloma.

On appeal, HMSA contends the circuit court erred by (1) applying the "palpably erroneous" standard of review to the entirety of the Discussion and Order; (2) affirming the Panel's interpretation of HRS § 432E-1.4 (2005 Repl.) as requiring HMSA to have specifically identified allo-transplant "for treatment of multiple myeloma" in Chapter 6, "Services Not Covered," of its Preferred Provider Plan for the Hawai'i Employer-Union Health Benefits Trust Fund (the Plan) in order to specifically exclude coverage for such service; (3) concluding that the Panel could consider a study that had been unavailable to HMSA during HMSA's internal review in determining that HMSA had acted unreasonably in denying coverage for an allo-transplant under HRS § 432E-6(a)(7); and (4) affirming the Discussion and Order's conclusion that HMSA breached its implied covenant of good faith and fair dealing when it denied coverage for a lifesaving treatment on the basis that there was no scientific study proving the treatment was beneficial and refused to reconsider such denial when presented with a scientific study, published after the denial.

We vacate the Judgment and remand to the circuit court with instructions to reverse the Discussion and Order and enter judgment on behalf of HMSA.

Opinion pdf

OPINION OF THE COURT BY WATANABE, J.

Defendant-Appellant Francis K. Kekona (Kekona) appeals from the judgment entered by the Circuit Court of the First Circuit (circuit court) on June 4, 2007, convicting and sentencing him for attempted murder in the second degree in violation of Hawaii Revised Statutes (HRS) §§ 705-500 (1993), 707-701.5 (1993), and 706-656 (1993 & Supp. 2008); carrying, using, or threatening to use a firearm in the commission of a separate felony in violation of HRS § 134-6(a) and (e) (Supp. 2005); ownership or possession prohibited of any firearm or ammunition by a person convicted of certain crimes in violation of HRS § 134-7(b) and (h) (Supp. 2005); and place to keep pistol or revolver in violation of HRS § 134-6(c) and (e) (Supp. 2005).

Kekona contends that: (1) the circuit court erred when it granted the motion in limine filed by Plaintiff-Appellee State of Hawai‘i (State or prosecution) to prohibit him from introducing evidence of alleged acts of prior physical abuse of Kekona's girlfriend, Tammy Antonio (Antonio), by Sargent Ah Loo (Ah Loo), with whom Antonio had three children (motion in limine); (2) the circuit court erred when it overruled his trial counsel's objection to the State's closing statement that Kekona's self-defense argument could be rejected if the jury believed that Kekona had shot at Ah Loo with the intent to scare Ah Loo; and (3) the State committed seven separate acts of misconduct that cumulatively deprived him of his right to a fair trial.

We vacate the judgment and remand this case for a new trial. [footnotes omitted]

Opinion pdf

OPINION OF THE COURT BY RECKENWALD, C.J.

On March 4, 2003, Honolulu police received a tip concerning Defendant-Appellant Shane Mark. The caller reported that Mark would be at the Baskin-Robbins ice cream parlor in the Kapolei Shopping Center at about noon. Mark was wanted on a warrant in connection with a February 1, 2003 incident in which he allegedly shot Denny Paikai in the leg, and fired shots at John Piko.

A team of plainclothes Honolulu police officers, including Officer Glenn Gaspar, went to the Baskin-Robbins to arrest Mark. Officer Gaspar and Officer Calvin Sung approached Mark and attempted to place him under arrest. A struggle ensued and Mark, who was armed, fired three shots. Officer Gaspar was fatally wounded. Other officers assisted Officer Sung in subduing Mark, and placed him under arrest.

Two indictments were returned against Mark. In Criminal No. 03-1-04 95 (Mark I), Mark was charged with the attempted murder in the second degree of Piko (Count I) and Paikai (Count II), in violation of Hawaii Revised Statutes (HRS) §§ 705-500 (1993), 707-701.5 (1993), and 706-656 (1993 & Supp. 1996); carrying, using, or threatening to use a firearm in the commission of a separate felony in connection with the attempted murder of Piko (Count III) and Paikai (Count IV), in violation of HRS § 134-6(a) and (e) (Supp. 1999); and ownership or possession prohibited of any firearm or ammunition by a person convicted of certain crimes, in violation of HRS § 134-7(b) and (h) (2004) (Count V).

In Criminal No. 03-1-0496 (Mark II). Mark was charged with the murder in the first degree of Officer Gaspar, in violation of HRS §§ 707-701(1) (b) (1993 & Supp. 2001) and 706-656 (Count I); the attempted murder in the first degree of Officer Sung, in violation of HRS §§ 705-500 and 707-701(1) (a) (Count II); carrying, using, or threatening to use a firearm in the commission of a separate felony, in connection with the murder of Officer Gaspar, in violation of HRS § 134-6(a) and (e) (Count III); possession prohibited of any firearm by a person convicted of certain crimes, in violation of HRS § 134-7(b) and (h) (Count IV); promoting a dangerous drug in the third degree, in violation of HRS § 712-1243 (1993 & Supp. 2002) (Count V); and unlawful use of drug paraphernalia, in violation of HRS § 329-43.5(a) (1993) (Count VI).

The Circuit Court of the First Circuit (circuit court) consolidated the cases at Mark's request, and they were tried to a jury in December 2003.2 On December 22, 2003, the jury returned a verdict on some of the counts. The jury found Mark guilty of murder in the second degree of Officer Gaspar, rather than the charged offense of murder in the first degree (Mark II, Count I). The jury also found him guilty on Count III in Mark II. and Counts II and IV in Mark I.

The jury was unable to reach a unanimous verdict as to the charges relating to Piko and Officer Sung. The circuit court declared a mistrial and delayed sentencing until after a retrial. A second trial was held in July 2004. The jury found Mark guilty of the attempted assault in the first degree of Officer Sung, rather than the charged offense of attempted murder in the first degree (Mark II, Count II), but was unable to reach a verdict as to the charges relating to Piko (Mark I. Counts I and III). The circuit court then dismissed those charges.

At sentencing, the State of Hawai'i (State) moved for extended terms of imprisonment. The circuit court denied the motion with regard to the counts of conviction in Mark I. but granted it with regard to the counts of conviction in Mark II, finding that Mark was a persistent and multiple offender and that extended terms of imprisonment were necessary for the protection of the public. Accordingly, the circuit court sentenced Mark to an extended term of imprisonment of life without the possibility of parole for Count I in Mark II, rather than the term of life with the possibility of parole that would otherwise apply to a second degree murder conviction. See HRS § 706-661 (Supp. 2003). The court also imposed extended terms of imprisonment on the other counts of conviction in Mark II.

Mark now appeals from the judgments entered on August 2, 2004 in both cases. On appeal, Mark advances a number of grounds for reversing or vacating his convictions. He argues that the circuit court erred by (1) granting in part the Honolulu Police Department's (HPD) motion to quash a subpoena for certain Internal Affairs Division records; (2) admitting a slow motion version of a videotape taken during the incident at the Baskin-Robbins and refusing Mark's proposed jury instructions on the videotape; (3) incorrectly instructing the jury on the justification of defense of others in the first and second trials; (4) referring the jury back to the court's instructions in response to a communication during deliberations in the first trial; (5) denying his motion for mistrial and his counsel's motion to withdraw during the second trial after it was discovered that the Office of the Public Defender (OPD) had represented Piko; and (6) denying his motion for a mistrial after it was discovered during the second trial that Piko believed that he had made a deal with the State in exchange for his testimony in the first trial, and after a juror received an anonymous voice mail which suggested that the juror should "watch [her] back." Mark further argues that he was denied a fair trial and impartial jury in the first trial based on factors including prejudicial publicity and the prosecutor's questioning of witnesses during trial, and that there was insufficient evidence to convict him of the attempted assault in the first degree of Officer Sung in the second trial.

For the reasons set forth below, we conclude that Mark's contentions are without merit, and accordingly, we affirm all of his convictions. [footnotes omitted]

Opinion pdf

OPINION OF THE COURT BY NAKAMURA, J.

Defendant-Appellant Mariko Davis Bereday (Bereday) appeals from two December 18, 2006, Judgments entered by the District Court of the First Circuit (district court). Bereday was orally charged with two counts of negligent failure to control a dangerous dog, in violation of the Revised Ordinances Of Honolulu (ROH) § 7-7.2 {1990 & Supp. No. 7, 8-05 & Supp. No. 12, 2-08). The charges were based on allegations that Bereday negligently failed to prevent her dog, a Rottweiler named "Bobo," from attacking and biting a two-year-old boy and a five-year-old girl in separate incidents on May 8, 2005, and May 13, 2005, at a beach in Kahala.

After a bench trial, Bereday was found guilty as charged on both counts. With respect to the May 8th offense (Case No. 1P105-07481), the district court sentenced Bereday to six months of probation, with the condition that she perform 100 hours of community service, and ordered her to pay a $2,000 fine. The district court further ordered the humane destruction of Bobo. With respect to the May 13th offense (Case No. 1P105-07480), the district court sentenced Bereday to six months of probation, with the conditions that she serve five days in jail and perform 200 hours of community service, and ordered her to pay a $2,000 fine. The district court stayed Bereday's sentence pending appeal.

On appeal, Bereday argues that: 1) the City and County of Honolulu (the City) lacked enforcement jurisdiction over her offenses; 2) there was insufficient evidence to support her convictions; 3) ROH § 7-7.2(a), the ordinance under which she was convicted, is unconstitutionally vague and ambiguous; 4) the district court erred in denying her motion to sever the charges; and 5) the district court's imposition of a jail sentence and ordering the destruction of Bobo were unduly harsh and constituted an abuse of discretion.

For the reasons set forth in greater detail below, we Conclude that Bereday's first four arguments are without merit, and we therefore affirm her convictions. With respect to Bereday's sentencing claims, we conclude that for Bereday's May 13th offense, the district court was authorized to impose either a term of probation or imprisonment, but not both. The district court therefore erred in ordering Bereday to serve five days in jail as a condition of her six-month term of probation. We vacate Bereday's sentence on the May 13th offense and remand the case for resentencing on that offense. During the pendency of this appeal, we received notice that Bobo had died of natural causes. Thus, Bereday's claim that the district court erred in ordering the humane destruction of Bobo is moot. We affirm Bereday's sentence on the May 8th offense. [footnotes omitted]

Opinion pdf

OPINION OF THE COURT BY WATANABE, J.

Defendant-Appellant Rollie Dumasig Espinosa (Espinosa) appeals from the judgment filed in the District Court of the First Circuit, Honolulu Division (district court) on March 5, 2008, convicting him of street solicitation of prostitution in violation of Hawaii Revised Statutes (HRS) § 712-1207 (Supp. 2008) and sentencing him to serve thirty days in jail.

. . .

HRS § 712-1207 was enacted in 1998, after the Tookes decision and Act 204's amendment to HRS § 712-1200(1). We conclude that by including the phrase "in return for a fee" in HRS § 712-1207(2), the legislature intended to exclude a patron of a prostitute, such as Espinosa, from criminal liability under that statute. Therefore, we reverse the judgment filed in the district court on March 5, 2008.

Concurring Opinion by Reckenwald, C.J. pdf

Opinion pdf

OPINION OF THE COURT BY NAKAYAMA, J.

Defendant-Appellant-Petitioner Michael Woodfall ("Woodfall") petitions this court to review the Intermediate Court of Appeals' ("ICA's") November 18, 2008 judgment affirming the October 10, 2007 judgment of the first circuit court ("circuit court"), convicting Woodfall of the offenses of identity theft in the second degree, in violation of Hawai'i Revised Statutes ("HRS") § 708-839.7 (Supp. 2006), forgery in the second degree in violation of HRS § 708-852 (Supp. 2006), and attempted theft in the second degree, in violation of HRS § 708-500 (1993) and HRS § 708-831(1)(b) (Supp. 2006).  We accepted Woodfall's application for a writ of certiorari, and oral argument was held on March 19, 2008.

Woodfall asserts that the ICA gravely erred by affirming the circuit court's judgment of conviction, inasmuch as the HRS § 708-839.7 phrase "transmission of any personal information of another" prohibits the "transmission of any personal information" of an actual person, and he transmitted information associated with a fictitious person.

Because HRS § 708-839.7 is susceptible to two interpretations, we construe the statute under the rule of lenity and in favor of Woodfall.  Accordingly, we vacate the lower court's judgment and order and remand the case to the circuit court for re-sentencing. [footnotes omitted]

Opinion pdf

OPINION OF THE COURT BY ACOBA, J.

In County of Hawai'i v. C&J Coupe Family Ltd. Partnership, 119 Hawai'i 352, 198 P.3d 615 (2008), issued on December 24, 2008, this court held that Defendant-Appelant C&J Coupe Family Limited Partnership (Appellant) "is entitled to seek statutory damages [from Plaintiff-Appellee County of Hawai'i (the County")] pursuant to [Hawai'i Revised Statutes (HRS) § 101-27 (1993) because it prevailed in [Civil No. 00-1-181K (Condemnation 1)]," and "the property in question was not finally taken in Condemnation 1." Id. at 361, 364, 198 P.3d at 624, 627.  On January 20, 2009, Appellant filed its Request for Statutory Damages (the Request) and memorandum in support.  The County filed its Memorandum in Opposition to Appellant's Request for Statutory Damages on January 30, 2009 (Opposition). Third-Party Defendant-Appellee 1250 Oceanside Partners (Oceanside) joined the County's Opposition and also filed a separate memorandum in opposition to the Request on January 30, 2009.  On February 19, 2009, pursuant to this court's February 9, 2009 order, Appellant filed its Response to Objections re: Request for Statutory Damages (the Response). The County filed a reply to the Response on March 2, 2009 (Reply), in which Oceanside joined on March 2, 2009 (Joinder). On March 5, 2009, Appellant filed an Errata to Responses to Objections re: Request for Statutory Damages (Errata), purportedly to correct certain errors in the Request and the Response.  For the reasons stated herein, Appellant is awarded $25,370.55 in fees and $1,206.35 in costs. [footnote omitted]